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

                                                                            FILED
                                                                           August 5, 2013

                                       No. 11-70024                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

ALFRED BOURGEOIS,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:07-CV-223


Before KING, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
       Alfred Bourgeois, a federal prisoner sentenced to death for the murder of
his young daughter on the grounds of a military base, requests a certificate of
appealability (COA) authorizing him to appeal the district court’s denial of his
motion to vacate his conviction and sentence under 28 U.S.C. § 2255. For the
reasons that follow, we conclude that Bourgeois has not made a substantial
showing of the denial of a constitutional right and we therefore DENY his
application for a COA.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                      No. 11-70024

                   I. FACTS AND PROCEDURAL HISTORY
       Bourgeois, a truck driver, was indicted on July 25, 2002, and charged with
murdering his two-and-one-half-year-old daughter on the grounds of the Corpus
Christi Naval Air Station (CCNAS), where he was making a delivery. In October
2002, the district court appointed John Gilmore to represent Bourgeois.1
Gilmore had experience in capital cases, both as a prosecutor and as defense
counsel. In February 2003, the district court authorized the defense to hire an
expert pathologist and to hire Doug Tenore as an investigator. Later, the court
authorized the defense to hire additional experts, including a DNA expert, a
polygraph expert, a mitigation expert, two mitigation investigators, a
neurologist, a neuropsychologist, a jury-selection expert, a psychologist
specializing in family violence and parent-child relationships, bite mark experts,
and a “battered baby” expert.




       1
        The Federal Public Defender’s Office represented Bourgeois initially but was allowed
to withdraw because of a conflict of interest.

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       A superseding indictment in July 2003 alleged all four of the statutory
intent elements2 and three statutory aggravating factors for the death penalty.3
Immediately thereafter, the district court appointed Douglas Tinker as co-
counsel and ordered that his appointment was retroactive to his first appearance
in the case, as a volunteer, on April 10, 2003. Tinker had represented over a
dozen clients facing a death sentence.4




       2
           The statutory intent elements are that Bourgeois
               (A) intentionally killed the victim;
               (B) intentionally inflicted serious bodily injury that resulted in the death
       of the victim;
              (C) intentionally participated in an act, contemplating that the life of a
       person would be taken or intending that lethal force would be used in
       connection with a person, other than one of the participants in the offense, and
       the victim died as a direct result of the act; or
              (D) intentionally and specifically engaged in an act of violence, knowing
       that the act created a grave risk of death to a person, other than one of the
       participants in the offense, such that participation in the act constituted a
       reckless disregard for human life and the victim died as a direct result of the
       act[.]
18 U.S.C. § 3591(a)(2).
       3
         The statutory aggravating factors are (1) that Bourgeois “committed the offense in
an especially heinous, cruel, or depraved manner in that it involved torture or serious physical
abuse to the victim”; (2) that he “committed the offense after substantial planning and
premeditation to cause the death of a person”; and (3) that “[t]he victim was particularly
vulnerable due to . . . youth or infirmity.” 18 U.S.C. § 3592(c)(6), (c)(9), (c)(11).
       4
           The district court stated in its § 2255 opinion that in 1995, the Criminal Justice
Section of the Texas Bar named Tinker Outstanding Criminal Defense Lawyer of the Year,
that Tinker was well known in the legal community as a “defense attorney’s defense attorney,”
and that his experience with cases involving genetic material had earned him the reputation
as a DNA expert. The district court explained that it appointed Gilmore and Tinker because
they had extensive experience, sterling character, and were among the most zealous,
competent attorneys in the local bar. The court stated that its familiarity with their efforts,
in this case and others, reinforced the strong presumption that their attention to certain issues
to the exclusion of others reflected trial tactics rather than neglect.

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        Jury selection began on February 9, 2004. The guilt-innocence phase of
trial began on March 2 and ended on March 16. The government presented the
following evidence at the guilt-innocence phase.
        The victim, JG,5 was born on October 5, 1999, and lived in Texas with her
mother, Katrina Harrison.6 In April 2002, a paternity test established that
Bourgeois was JG’s biological father. At that time, Bourgeois was married to
Robin Bourgeois (Robin). He and Robin had a seven-year-old daughter, AB1994,
and a one-year-old daughter, AB2001. After a court ordered Bourgeois to pay
child support for JG,7 Bourgeois and Harrison agreed that he could take custody
of JG for the summer. Medical and photographic evidence established that JG
was a healthy, happy child when she left her home with Bourgeois on May 16,
2002.
        The family stayed at the Bourgeois residence in LaPlace, Louisiana, from
May 16 until May 28, when they left for Alabama, where Bourgeois had an
orientation for his new truck-driving position. When they left Alabama, the
family stayed in the 18-wheeler truck, night and day, until June 27, 2002, when
they arrived at the CCNAS. Bourgeois forced JG to spend almost every moment
of the last six weeks of her life on a potty chair, both at their residence8 and




        5
         The victim was referred to as “JG1999” throughout the district court proceedings.
We will refer to her in this opinion as “JG.”
        6
         Harrison was murdered on December 19, 2002, hours after government agents had
spoken to her on the telephone. The man responsible for her murder was caught, confessed,
and killed himself in prison.
        7
         Bourgeois took his teenaged niece to Texas for the custody and support hearing, and
planned to tell the judge that she was his daughter and that she had kidney problems, so that
the judge would order less child support for JG.
        8
         In a search of Bourgeois’s home after he was arrested, the FBI found a dent in the
bedroom wall, where JG’s potty had been located. Swabs taken from reddish brown stains on
the bedroom wall and in the bathroom were later determined to contain JG’s blood.

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while the family traveled throughout the country in his 18-wheeler.9
Throughout the time that JG was in his custody, Bourgeois relentlessly tortured
JG by biting her all over her body, burning her, whipping her with belts,
extension cords, and his hands, beating her with a baseball bat, shoes, and other
objects, duct-taping her mouth,10 and forcing her to drink his urine from a jug
that he kept in his truck. The government presented graphic photographic and
testimonial evidence of this abuse,11 including from Bourgeois’s wife and
daughter, AB1994,12 who witnessed much of it.                    Witnesses testified that




       9
          Robin testified that when JG would fall asleep and fall off the potty chair, Bourgeois
would make her get back on the potty. She said that Bourgeois referred to JG as a “bitch” and
“a little mother f***er.”
       10
          Robin testified that JG had trouble breathing when Bourgeois taped her mouth and
that the skin around JG’s mouth became irritated from the tape and the alcohol that was used
to remove the adhesive when the tape was removed.
       11
           In the first photograph of JG with her father, taken the first time he met her, her
eyes are filled with tears. Photographs taken while the family was traveling depict JG
wearing sunglasses and socks. Robin testified that JG wore sunglasses because her eyes were
bruised and wore socks to cover the injuries to her feet, which were too swollen to wear shoes.
During the entire time the family was traveling, however, Bourgeois sent postcards to JG’s
biological mother, pretending that JG was having a wonderful time.
       12
           AB1994, who was nine years old at the time of trial, testified that JG’s hands and
feet were pretty when she came to them, but got ugly from her dad biting them, and that JG
wore socks because “she was bitten all up, and her feet looked real bad.” A nurse who
examined JG at the hospital on June 27, 2002, testified that they could not insert a needle or
IV through JG’s hands because they were so swollen and “very hard, like rockish.” FBI Special
Agent Megan Beckett testified that JG’s hands and feet were unlike anything she had ever felt
on a human being – cold and hard and swollen. AB1994 testified that her father bit JG “all
over,” including on the top of her head and on her back, and that JG bled when he bit her.
AB1994 told the jury that she saw her father whip JG with a belt and an extension cord, saw
him tape her mouth, and witnessed him making JG drink his urine. She said that JG had
black eyes from being hit by her father. AB1994 testified that her father told her it was her
(AB1994’s) fault that he was hurting JG. AB1994 also testified that she witnessed her father
beating her mother and her grandmother. However, he never bit or hit AB1994 or AB2001.

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Bourgeois had wished for JG’s death because he did not want to have to pay
child support for her and that he had made plans for disposing of her body.13
       The government presented medical evidence that JG had over 300 injuries,
including at least ten different head injuries.             The medical examiner, Dr.
Elizabeth Rouse, found that the ultimate cause of death was “an impact to the
head resulting in a devastating brain injury.” AB1994 testified that after JG
spilled the contents of her potty chair in the cab of the truck on the CCNAS,
Bourgeois spanked JG and then held her by the shoulders and slammed her
head into the window of his truck. Dr. Rouse testified that the injuries she
observed in the autopsy were consistent with having been caused by the events
that AB1994 described.
       After Bourgeois struck JG’s head, he and AB1994 got out of the truck.
Robin testified that she was asleep when they arrived at the CCNAS warehouse
and that when she awoke, she found JG lifeless. According to Robin, Bourgeois
took JG from the truck and laid her on the pavement beside it. Robin and
AB1994 both testified that he told them to tell anyone who asked that JG had
fallen out of the truck. Although they complied initially, the story did not hold
up for long because the doctors who treated JG immediately realized that her
severe injuries could not have been caused by a fall from the truck.




       13
           Robin testified that she told Bourgeois many times that he was going to end up
killing JG. When she asked Bourgeois what he was going to say if he killed her, Bourgeois
said that he was going to throw her out of the truck into the woods and then go to a truck stop
and report that she had been kidnaped. AB1994 testified that her father would put JG on the
steering wheel when he was driving and tell her that she made him want to kill her. She
testified further that she heard her dad say that when JG died, he would take her to the
swamp and leave her there.

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       Numerous witnesses testified to Bourgeois’s callous indifference to JG’s
critical injuries.14    They said that he seemed to be more concerned with
arranging to pick up and deliver his next load.
       A doctor testified that he observed evidence of sexual trauma in the
photographs of JG taken during the autopsy. There was also evidence that
semen was found on rectal swabs collected after JG died.
       After Bourgeois was arrested and incarcerated, he made incriminating
statements to relatives, friends, and other inmates. Three inmates who had
been incarcerated with Bourgeois prior to trial testified that Bourgeois told them
that he killed his daughter and was going to make it look like an accident and
that he described JG as a “bad child” who “used to shake her butt all the time.”15
       Bourgeois was the only witness for the defense at the guilt-innocence
phase. He testified that he never harmed JG, never touched her inappropriately
in a sexual way, and did not cause her death. On cross-examination, he told the
jury the same story he had told investigators: that JG fell from the truck. When
the prosecutor asked him about JG’s numerous injuries, he had implausible
explanations for how she sustained each one. He accused the witnesses who had
testified against him of lying and said that he was upset and “highly hurt” by the
loss of his baby.
       In closing arguments, defense counsel blamed Robin for the murder and
abuse of JG. Counsel also argued that if the jury believed Robin, AB1994, and
the inmates, there was no evidence of premeditation. After deliberating for less
than two hours, the jury found Bourgeois guilty of premeditated murder.


       14
           FBI Special Agent Michael David Harris, who interviewed Bourgeois on June 27,
testified that Bourgeois stated that the doctors had told him that they had done just about
everything they could do for JG and that he did not want “it” to suffer. Agent Courtney Scharn
also testified that Bourgeois referred to JG as “it.”
       15
         One of the inmates testified that Bourgeois described how JG fell about ten feet at
a dinosaur park and laughed as he said, “That f***ing baby’s head got as big as a watermelon.”

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      The punishment phase began on March 22 and ended on March 24, 2004.
The jury had to find that Bourgeois intentionally killed JG. The government
alleged as statutory aggravating factors that (1) Bourgeois committed the offense
in an especially heinous, cruel, or depraved manner that involved torture and
serious physical abuse; (2) he committed the offense after substantial planning
and premeditation; and (3) JG was particularly vulnerable because of her youth.
The government alleged the following non-statutory aggravating factors: (1)
Bourgeois is likely to commit criminal acts of violence in the future, which would
be a continuing and serious threat to the lives and safety of others; and (2) he
caused injury, harm, and loss to JG’s family.
      The defense alleged the following statutory mitigating factors by a
preponderance of the evidence: (1) Bourgeois had an impaired capacity to
understand the wrongfulness of his conduct; (2) he was under unusual and
substantial duress; (3) he did not have a significant prior history of other
criminal conduct; (4) he committed the offense under severe mental or emotional
disturbance; and (5) other relevant information. As non-statutory mitigating
factors, the defense alleged that (1) Bourgeois had been abused as a child; (2)
other persons who may be culpable in the offense may not be punished; (3) he
was under stress from family and economic factors; and (4) at the time of the
offense he was driving across the country with three children and one other
adult in the cab of an 18-wheeler truck.
      At the punishment phase, the government presented testimony from
Bourgeois’s ex-wives, girlfriends, acquaintances, children, and jailhouse
informants about his abusive and violent history.          The government also
presented evidence that Bourgeois had attempted to hire an inmate, whom he
believed to be a hit man, to kill family members who were going to testify




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                                       No. 11-70024

against him.16 Government expert psychiatrist Dr. Carlos Estrada testified that
Bourgeois had a narcissistic personality disorder and that he was likely to be
violent in the future.       Defense counsel’s cross-examination of Dr. Estrada
brought out some mitigating evidence about Bourgeois’s abusive childhood and
the stress that he was under at the time of the murder.
       Bourgeois’s sister and cousin testified for the defense that Bourgeois’s
mother singled him out for abuse and sent him to live with an elderly neighbor,
Mary Clayton. Ms. Clayton’s grandson also testified about Bourgeois’s mother’s
abuse. Bourgeois testified, expressing sympathy to JG’s family and sorrow for
the loss of JG, but continued to blame Robin.
       After five and one-half hours of deliberation, the jury found that the
government had proven all of the statutory and non-statutory aggravating
factors and that Bourgeois had shown two mitigating factors: six jurors found
that he was under stress and all found that he was driving across the country
in a truck with three children and one other adult in the cab of an 18-wheeler
truck. The jury unanimously found that the aggravating factors outweighed the
mitigating factors and recommended a death sentence.
       Trial defense counsel, Gilmore and Tinker, represented Bourgeois on
direct appeal.      This Court affirmed the conviction and sentence, and the
Supreme Court denied certiorari. United States v. Bourgeois, 423 F.3d 501 (5th
Cir. 2005), cert. denied, 547 U.S. 1132 (2006).
       In May 2007, Bourgeois filed a motion for relief pursuant to 28 U.S.C. §
2255, raising fourteen grounds for relief. Bourgeois filed a motion for an
evidentiary hearing and the district court held oral argument on the motion in
April 2010, to designate the issues to be resolved at a hearing. Although the
district court initially limited the evidentiary hearing to four days and excluded

       16
         Although the district court did not allow the jury to hear it, the prosecutor, the FBI
case agent, and the trial judge (all female) were among those Bourgeois wanted to have killed.

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some issues from the hearing because they could be adequately decided on the
record, it later expanded both the time and the manner in which Bourgeois could
present evidence. The court conducted a week-long evidentiary hearing in
September 2010, heard additional testimony at other times, and allowed the
parties to present videotaped depositions of other witnesses as well as affidavits.
Trial counsel Tinker was terminally ill during the § 2255 proceedings, and the
district court allowed the parties to question him through interrogatories.
Although he answered the government’s interrogatories, his condition worsened
before he was able to answer the interrogatories propounded by Bourgeois’s
counsel. He died on November 10, 2008.
        In May 2011, in a careful and comprehensive opinion, the district court
denied § 2255 relief and also denied Bourgeois’s request for a COA. Bourgeois
v. United States, No. C-07-CV-223 (S.D. Tex. May 19, 2011) (hereinafter Dist. Ct.
Op.).    The district court denied Bourgeois’s motion to alter or amend the
judgment on June 17, 2011. Bourgeois filed a timely notice of appeal and now
requests a COA from this court for three claims:17




        17
           Bourgeois did not request a COA for the remaining claims he raised in his § 2255
petition. Those claims are: (1) Bourgeois is mentally retarded, making him ineligible for
execution; (2) trial counsel ineffectively failed to present evidence of mental retardation at the
punishment phase; (3) Bourgeois’s conviction violates due process because the fatal injury
occurred outside the territorial jurisdiction of the United States; (4) trial counsel ineffectively
failed to challenge the admissibility of testimony concerning bite marks; (5) trial counsel
ineffectively failed to challenge the admissibility of testimony about digitally enhanced autopsy
photographs; (6) the government violated Brady v. Maryland, 373 U.S. 83 (1963), by failing
to disclose that four inmates were promised some benefit for testifying against Bourgeois; (7)
trial counsel labored under a conflict of interest because of representation of clients associated
with this case; (8) the prosecutor engaged in misconduct by making improper argumentative
statements at both phases of trial; (9) trial counsel ineffectively failed to rebut evidence of
Bourgeois’s indifferent demeanor at trial; (10) a witness improperly relied on Bourgeois’s
interactions with counsel as a basis to formulate an adverse opinion about him; (11) appellate
counsel ineffectively failed to advance several claims; (12) the cumulative effect of the claimed
errors resulted in a constitutional violation; and (13) the method by which the government
would carry out Bourgeois’s execution violates the Constitution.

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      (1) the district court erred in dismissing, without an evidentiary hearing,
his claim that trial counsel were ineffective for failing to challenge jurisdiction;
      (2) trial counsel were ineffective at both phases of trial for failing to
present available expert testimony to rebut the government’s assertion that JG
was sexually assaulted; and
      (3) trial counsel provided ineffective assistance during the punishment
phase by failing to pursue and present mitigating evidence of his life history of
abuse, neglect and abandonment, personality disorder, cognitive deficits, and the
combined impact of his mental-health problems.
      “This court may not consider an appeal from the denial of a 28 U.S.C. §
2255 motion for relief unless either the district court or this court issues a COA.”
United States v. Hall, 455 F.3d 508, 513 (5th Cir. 2006) (citing 28 U.S.C. §
2253(c)(1)(B)). To obtain a COA, Bourgeois must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating 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.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). “[A] claim can be debatable even though
every jurist of reason might agree, after the COA has been granted and the case
has received full consideration, that petitioner will not prevail.” Id. at 338. In
making the decision whether to grant a COA, this Court’s examination is limited
to a “threshold inquiry,” which consists of “an overview of the claims in the
habeas petition and a general assessment of their merits.” Id. at 327, 336. This
Court cannot deny a COA because it believes that Bourgeois ultimately will not
prevail on the merits of his claims. Id. at 337. On the other hand, “issuance of
a COA must not be pro forma or a matter of course.” Id. “While the nature of
a capital case is not of itself sufficient to warrant the issuance of a COA, in a

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death penalty case any doubts as to whether a COA should issue must be
resolved in the petitioner’s favor.” Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir.
2005) (alterations omitted) (internal quotation marks omitted).
      Having reviewed the briefs, the district court’s thorough and well-reasoned
opinion, and the entire voluminous record before this court pursuant to the
framework established by the Supreme Court in Miller-El, we conclude that
Bourgeois is not entitled to a COA. The district court did not abuse its discretion
by declining to conduct a full evidentiary hearing on Bourgeois’s claim that his
trial counsel were ineffective in failing to challenge federal jurisdiction. Further,
no reasonable jurist would debate the district court’s resolution of Bourgeois’s
ineffective assistance claims, and the issues he seeks to raise on appeal are not
adequate to deserve encouragement to proceed further. We therefore DENY
Bourgeois’s request for a COA for the reasons that follow.
                        II. DISCUSSION OF CLAIMS
      A. Denial of Evidentiary Hearing on Ineffective Assistance
            in Failing To Challenge Federal Jurisdiction
      Bourgeois argues that the district court should have conducted an
evidentiary hearing on his claim that trial counsel rendered ineffective
assistance by failing to challenge federal jurisdiction with available medical
evidence that JG manifested physical, neuropsychological, and behavioral
indications of significant brain injury prior to entering the CCNAS, and expert
testimony interpreting that evidence, to counter the government’s assertion that
her fatal injuries were inflicted on federal property. Bourgeois contends that
effective counsel would have investigated and presented evidence that the fatal
blows to JG’s head were delivered prior to her arrival at the CCNAS, based on
medical evidence that she suffered head injuries seven to ten days prior to her
death and lay witness testimony about her impaired behavior and injured
appearance prior to her arrival at the CCNAS. Bourgeois asserts that if he had


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been granted an evidentiary hearing, he also would have presented evidence
that (1) trial counsel Tinker told habeas counsel, in a meeting on February 1,
2008, that he never investigated or challenged jurisdiction because he
misunderstood the law and thought federal jurisdiction was established if the
decedent was found unconscious on federal land; and (2) notes taken by one of
the prosecutors prior to trial show that the prosecutor thought the existence of
federal jurisdiction was in question.
       The government had the burden of proving, as an essential element of the
crime, that the murder occurred “[w]ithin the special maritime and territorial
jurisdiction of the United States.” 18 U.S.C. § 1111(b). The “special maritime
and territorial jurisdiction of the United States” includes lands reserved or
acquired for the use of military facilities. Id. § 7. It is undisputed that the
CCNAS is a place within the special maritime and territorial jurisdiction of the
United States. Jurisdiction is determined by “the place where the injury was
inflicted[] . . . without regard to the place where the death occur[red].” Id.
§ 3236.     Thus, to establish the jurisdictional element of the crime, the
government had to prove that Bourgeois caused JG’s fatal injuries on the
CCNAS.       The jury was instructed that it must find jurisdiction beyond a
reasonable doubt.18
       A district court must grant an evidentiary hearing in a § 2255 proceeding
“[u]nless the motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Bourgeois asserts that
the government’s evidence at trial proved, at most, that the fatal injuries might
have occurred at the CCNAS. He argues that an evidentiary hearing was



       18
          Although our precedent requires that jurisdiction be proven by a preponderance of
the evidence, United States v. Bell, 993 F.2d 427, 429 (5th Cir. 1993), the jury was instructed,
without objection from the government, that it had to find jurisdiction beyond a reasonable
doubt. The government does not challenge the applicability of that standard of proof.

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                                  No. 11-70024

required because he proffered evidence in the § 2255 proceedings that JG’s fatal
injuries did not occur at the CCNAS, thus creating a factual dispute.
                                        1.
      In her trial testimony, Bourgeois’s daughter, AB1994, described the events
that led up to JG’s death as follows: On the day that JG went to the hospital,
June 27, 2002, JG was sitting on the potty. Her dad got lost and the truck
stopped. After the truck started back up, JG was still on the potty, wiggling
around. The potty tipped over. Her dad got mad and stopped the truck. He told
AB1994 to give JG to him and she did. He took JG’s pants off and he started
spanking her. Then he took her by the shoulders and he started hitting the back
of her head on the window, about four times. AB1994 said that she saw JG
making a “real, real sad face.” Her father put JG’s pants back on and told
AB1994 to take her. AB1994 said that JG “was awake, and then she just, like,
fell asleep.” Her dad got out of the truck to make sure it was at the right place,
and then she got out of the truck to help him back the truck up to the loading
dock at the warehouse. AB1994 said that when she got back in the truck, she
saw Robin administering CPR to JG. She testified that her dad then put JG on
the ground beside the truck and that JG looked “dead, sleeping.” Then her dad
made up a story that JG fell from the truck, so that he and her mom would not
have to go to jail.
      Robin testified at trial as follows: the Bourgeois family left their home in
LaPlace on the afternoon of June 26 and arrived at Ingleside Naval Station at
about 4:00 or 5:00 a.m. on the morning of June 27. They parked across the street
until they could unload around 7:00 a.m. When she went to sleep, while they
were waiting to unload at Ingleside, JG was on her potty in the back of the truck.
When she awoke, the truck was at the CCNAS. JG was sitting straight up in the
passenger’s seat, limp and unresponsive, and her heart was beating very fast.
Robin tried to administer CPR, then blew the horn on the truck until Bourgeois

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                                  No. 11-70024

came. She asked him what he had done to JG and told him that JG was dying.
When she told him he needed to get JG to the emergency room, Bourgeois
responded that he would take her after his truck was unloaded.
      Employees on Ingleside Naval Station testified that they spoke with
Bourgeois when he stopped there to make a delivery on the morning of June 27.
None of them saw any indication that JG had suffered any fatal injuries during
their interactions with Bourgeois. The evidence showed that Bourgeois left
Ingleside and arrived at the CCNAS in about the time it would take to drive
there directly, without stopping. Two individuals who worked at the CCNAS
testified about their interactions with Bourgeois that morning when he stopped
to ask for directions and for assistance when his truck broke down on the
CCNAS, prior to his arrival at the warehouse where he was to make a delivery.
Neither of them observed anything that would indicate to them that JG was
injured. The CCNAS warehouse supervisor testified that when Bourgeois
arrived at the warehouse, he went inside the trailer to inspect the load and while
he was inside the trailer, there was a shaking movement that he assumed was
from the cab of the truck. Another CCNAS warehouse employee testified that
when he drove into the trailer on the forklift, the trailer moved a little bit.
      Michael Boyd of the Corpus Christi Fire Department, who responded to
the CCNAS in the ambulance, testified that JG was not breathing when they got
to the scene. William Guy Smith, operations manager for the Navy Exchange
at the CCNAS, testified that he took Bourgeois to the hospital. While he was
there, the doctors told the family that when JG arrived at the hospital, she did
not have a heartbeat and that it took them 10-12 minutes to get her heart
beating.
      According to Bourgeois’s own testimony on cross-examination, JG was
alive when he drove onto the CCNAS. He testified that when his truck broke



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                                     No. 11-70024

down on the CCNAS, he, JG, and AB1994 were singing ABCs.19 He said that
when he got the truck started, JG was sitting on her potty in the sleeper, getting
her hair combed by Robin.
      Dr. Rouse, who performed the autopsy on JG on June 29, 2002, testified
for the prosecution that JG’s death was caused by closed head injuries resulting
from tremendous forces applied to her brain. JG had ten bruises on her head,
each of which indicated where something hit her or she hit something. All were
recent injuries, within a few days, with red, fresh blood. Dr. Rouse observed the
following factors: (1) a subdural hematoma (“where blood has leaked, and that
indicates where tremendous forces have been applied to the brain, resulting in
her death”); (2) a subarachnoid hemorrhage (“which is blood over the actual
surface of the brain”); (3) swelling of the brain; (4) hemorrhage along the optic
nerve; and (5) hemorrhage on the back of the retina on both eyes. Dr. Rouse
testified that a scenario in which JG was grabbed by the shoulders, by an adult,
and then repeatedly slammed into a truck window “could certainly explain the
injuries that were seen on the child.”
      Slides of JG’s brain tissue were sent to Dr. Kathleen S. Kagan-Hallet, an
associate professor of pathology with the University of Texas Health Science
Center in San Antonio, for microscopic examination. Dr. Kagan-Hallet’s report
was incorporated into Dr. Rouse’s autopsy report. In the portion of her report
entitled “microscopic findings and comments,” Dr. Kagan-Hallet noted older
injuries and some “in a stage of early organization.” In the section entitled
“neuropathologic diagnosis,” she noted a “history of head trauma” and described
a   “right   subdural     hematoma,       mostly    recent,     minimal    organization



      19
         FBI Agent Harris testified that when he interviewed Bourgeois on June 27, while
JG was in the hospital, Bourgeois told him that JG had been sitting in his lap singing her
ABCs while he was sending a message to dispatch that his truck was broken down on the
CCNAS.

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                                  No. 11-70024

(approximately 10 days’ duration).” She also noted “Cerebral white matter.
Organized contusion infarcts (7+ days’ duration), myelin tearing and axonal
bodies.”
      Dr. Akhtar, the pediatric intensive-care physician who saw JG in the
emergency room on June 27, testified that JG was limp and not breathing on her
own. He observed blood behind her eyes and called in a retina specialist. He
stated that blood in the retina is a sign of severe trauma to the head. According
to Dr. Akhtar, the kind of damage he saw – blood behind the eyes, blood in the
brain, and edema to the brain – could not have been caused by a fall from a
height of five to seven feet. Dr. Kuffel, an ophthalmologist and retina specialist,
testified that he observed multiple, massive hemorrhages all over the backs of
both of JG’s eyes, consistent with life-threatening trauma. When asked if the
injuries he observed were consistent with someone holding the child by the
shoulders and slamming her head into a window four or five times, he answered,
“Yes. Definitely.”
      In closing argument, the prosecutor only briefly mentioned jurisdiction:
      The last element that we have to prove is that it happened on a
      Special Territorial or Maritime Jurisdiction of the United States
      and that was because it was on the Navy base. That’s why we had
      the FBI investigating and the Naval Criminal Investigative Service,
      and the Medical Examiner came from the Army.
Defense counsel did not refer to jurisdiction in their closing arguments.
                                        2.
      Although the district court concluded that an evidentiary hearing was not
necessary for this claim, it nevertheless permitted Bourgeois to present
considerable evidence in support of it, including the report and deposition
testimony of Dr. Jan Leestma, a forensic neuropathology consultant.            Dr.
Leestma’s report did not answer the “critical question . . . of when the fatal head
injuries to the child were caused” and did not specify a cause of death. Although


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                                  No. 11-70024

he acknowledged that JG’s condition deteriorated after the reported incident in
Bourgeois’s truck, he suggested that some of JG’s brain injuries – specifically “a
coagulopathy which appears to have included sagittal sinus thrombosis and
possibly cortical venous infarctions” – may have “resulted in the child’s death at
any time with or without any new episode of trauma.”
      In his deposition, Dr. Leestma testified that JG’s death was caused by
increased intracranial pressure caused by venous thrombosis – clotting of the
cerebral veins and the superior sagittal sinus. He stated that the thrombosis
antedated JG’s collapse and decompensation at the CCNAS by several days and
that it led to infarctions in the brain and cerebral edema and bleeding. He
acknowledged that the blood clot in the sagittal sinus contained some recent red
blood cells that could be two to three days from the time of death but stated that
the blood clot itself was probably several days older than that. It was his opinion
that the retinal bleeding was caused by increased intracranial pressure and not
by physical forces or impact and that the subdural hematoma observed by Dr.
Rouse was not consistent with an injury that was inflicted while JG was on the
CCNAS. However, he acknowledged that there are two components to the
subdural hematoma: (1) the chronic component, which was 10 days to 2 weeks
before JG’s death; and (2) an acute component, the fresh blood, which cannot
reliably be aged and dated more precisely than within about two to three days
from the time of death.     He opined that it cannot be known if the acute
component contributed to or caused JG’s death and that a child who had suffered
an injury that led to this type of subdural hematoma could have acted normally
for several days before dying. He also testified that a pre-existing subdural
hematoma can bleed without additional injury. Dr. Leestma admitted that the
intracranial pressure could have resulted from a head injury that occurred on
the CCNAS but stated that what percentage that might be, or even if it occurred,
cannot be assessed. He concluded that there was insufficient scientific evidence

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                                         No. 11-70024

presented at trial to conclude that JG died as a result of an injury that was
inflicted on the CCNAS. Dr. Leestma’s opinion about when and where the fatal
injuries occurred was based solely on the medical evidence; he did not consider
any eyewitness testimony or any other circumstantial evidence that would have
put JG’s injuries in context.20
       The government presented the testimony of Dr. Rouse in rebuttal, by
telephone. She testified that trauma explained all of the autopsy findings. She
agreed with Dr. Leestma that there was a thrombus in the sagittal sinus but
said that it could not have caused the tearing of the myelin and the axonal
bodies, which are all traumatic. She explained that one of the difficulties of
dating injuries is that the time varies widely, depending on the physiological
condition of the person. JG was on life support and her body’s healing was not
normal. According to Dr. Rouse, JG’s scalp injuries and bruising were recent –
within days, and there was fresh blood in the scalp bruises, which indicated an
impact site. Dr. Rouse acknowledged that, as Dr. Kagan-Hallet found, part of
the subdural hematoma was approximately 10 days old. However, she pointed
out that Dr. Kagan-Hallet also saw evidence of an acute component – recent
bleeding in that hematoma.21
       Dr. Rouse agreed with Dr. Leestma that the medical evidence, alone,
cannot be used to determine the exact date of JG’s fatal brain injury. However,
Dr. Rouse testified that it is necessary to consider the medical evidence along
with the witness reports that correspond with the injuries seen in the autopsy


       20
          In the appendix to his § 2255 motion, Bourgeois submitted an affidavit of forensic
pathologist, Dr. Werner Spitz, who disagreed with AB1994’s testimony that JG’s head was
struck multiple times on the interior of the vehicle and concluded that the autopsy findings
“place in question causation of the injuries and their timing.” The district court found that Dr.
Spitz’s affidavit was not credible because he dismissed AB1994’s testimony without having
viewed her in court.
       21
            Dr. Kagan-Hallet died after the trial and prior to the § 2255 proceedings.

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                                  No. 11-70024

to determine what caused JG’s death. Dr. Rouse concluded that JG suffered
injuries that fit within the timing that she was on the CCNAS and that the
description by witnesses of what occurred on the CCNAS “certainly would
explain the injuries, would explain the trauma to the brain and would explain
her clinical course.”
      At the evidentiary hearing, during Gilmore’s testimony, the district court
asked him if there was any indication that the fatal injury did not occur on the
CCNAS and whether Bourgeois had testified that it occurred there. Gilmore
stated that he did not recall there being any discussion about that or any
controversy.
                                        3.
      The district court, comparing the testimony of Dr. Leestma and Dr. Rouse,
found that the most important disagreement of the experts was whether the
medical findings must be considered in the light of other evidence. Dr. Leestma
did not take into account any testimony about the circumstances of JG’s death,
such as AB1994’s testimony. Dr. Rouse, however, testified that professionals use
the circumstances surrounding the death to inform their medical findings. Dr.
Leestma’s refusal to consider anything but the medical evidence made his
conclusions less credible to the district court. The district court found that the
trial testimony was consistent with Dr. Rouse’s explanation at the evidentiary
hearing that a complex series of injuries caused JG’s death. The district court
also found that Dr. Rouse’s testimony harmonized with testimony from other
medical experts who examined JG before she died and found that she bore signs
of recent trauma when she arrived at the hospital.
      The district court also relied on AB1994’s testimony, observing that
AB1994 was a highly-credible witness who convincingly described, to the best of
her ability and beyond expectations for her young age, what her father had done
to her little sister. The court also noted that AB1994’s testimony was consistent

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                                  No. 11-70024

with the accounts of the CCNAS employees who spoke with Bourgeois when he
stopped to ask for directions and for help in re-starting his truck and whose
descriptions of their encounters with Bourgeois suggested that JG had not yet
suffered a life-threatening injury.       The court stated that Bourgeois’s and
AB1994’s actions in the hour leading up to the murder, as described by those
who came into contact with them, did not even suggest the urgency that they
showed once it became clear that JG was dying. The district court also pointed
out that Bourgeois’s own testimony, as well as his statements to the FBI at the
time, placed the fatal injury on federal property.
      The district court concluded that Bourgeois had failed to show that trial
counsel had any basis to raise a reasonable doubt about the location of the
killing. The court observed that trial counsel were aware, before trial, that the
forensic evidence could be interpreted in such a manner that the fatal injury
could have occurred more than two days before JG’s death but that, if they had
tried to argue insufficiency of the evidence of jurisdiction, they might have
lessened their credibility with jurors.
                                          4.
      No reasonable jurist could debate the district court’s decision to limit the
evidentiary hearing on the issue of whether counsel rendered ineffective
assistance by failing to present medical evidence to challenge the basis for
federal jurisdiction. Although the district court did not allow a full evidentiary
hearing on this claim, the court nonetheless permitted Bourgeois to present
considerable evidence, including expert testimony, to support his claim.
Bourgeois claims that if he had been given a hearing, he would have presented
evidence about Tinker’s alleged misunderstanding of the law and would have
questioned the prosecutor about his notes from the interview with Dr. Rouse.
He has not identified any other evidence, beyond that which he was allowed to



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                                  No. 11-70024

present in the § 2255 proceedings, that he would have presented at a full
evidentiary hearing.
      The record supports the district court’s observation that trial defense
counsel were aware, before trial, that the forensic evidence, considered in
isolation, could be interpreted in such a manner that the fatal injury could have
occurred more than two days before JG’s death. At a hearing on March 1, 2004,
the prosecutor stated that a doctor was going to testify that JG was brain dead
when picked up by the ambulance at the CCNAS. Tinker responded, “A doctor
will also testify that it could have occurred more than two days before.” Tinker’s
statement indicates that he understood the law and is evidence that he made a
strategic decision not to challenge jurisdiction. The prosecutor’s notes that
Bourgeois relies on state: “*If incident occurred off mil base - NO jurisdiction!*”
Those notes prove nothing more than that the prosecutor was aware of what
needed to be shown to establish jurisdiction.
      The record also supports the district court’s conclusion that Bourgeois’s
reliance on Dr. Kagan-Hallet’s description of the subdural hematoma as being
of “approximately 10 days’ duration” is misplaced.          Dr. Kagan-Hallet and
Bourgeois’s own expert, Dr. Leestma, as well as the medical examiner, Dr.
Rouse, all found that the subdural hematoma had two components: (1) a chronic
component, that was approximately ten days old; and (2) an acute component,
fresh blood, that was one to three days old. Dr. Rouse testified that the fresh
blood, as well as the other recent injuries JG suffered, were all consistent with
eyewitnesses’ descriptions of the events on the CCNAS. Bourgeois’s argument
improperly discounts AB1994’s testimony, which the district court found
credible. Thus, although the medical evidence did not establish conclusively that
Bourgeois fatally injured JG on the grounds of the CCNAS, there was, as the
district court noted, considerable circumstantial evidence that Bourgeois
administered the fatal blows to JG while they were on the CCNAS.

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                                   No. 11-70024

      Bourgeois criticizes the district court for relying on his trial testimony that
JG was singing her ABCs on the grounds of the CCNAS when his truck broke
down. However, that is what Bourgeois told the investigators while JG was still
in the hospital and he repeated it when he testified at trial. Trial counsel
obviously were aware of Bourgeois’s statements to the investigators and his
testimony, as well as the other eyewitness testimony and substantial
circumstantial evidence that JG was fatally injured on the CCNAS, and
reasonably could have decided not to challenge jurisdiction.
      Because Bourgeois has failed to demonstrate the existence of a contested
fact issue with regard to whether trial counsel’s decision not to challenge the
evidence that the fatal injury occurred on federal land was unreasonable or that
Bourgeois was prejudiced by their decision, no reasonable jurist could debate the
district court’s decision not to expand further the evidentiary hearing to address
this issue. See Hall, 455 F.3d at 519. Accordingly, Bourgeois is not entitled to
a COA for this claim.
               B. Ineffective Assistance of Counsel Claims
      We now turn to consider Bourgeois’s ineffective assistance of counsel
claims. These claims are governed by Strickland v. Washington, 466 U.S. 668
(1984). To succeed, Bourgeois had to
      show that counsel’s performance was deficient. This requires
      showing that counsel made errors so serious that counsel was not
      functioning as the “counsel” guaranteed the defendant by the Sixth
      Amendment. Second, the defendant must show that the deficient
      performance prejudiced the defense. This requires showing that
      counsel’s errors were so serious as to deprive the defendant of a fair
      trial, a trial whose result is reliable. Unless a defendant makes
      both showings, it cannot be said that the conviction or death
      sentence resulted from a breakdown in the adversary process that
      renders the result unreliable.
Id. at 687.



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                                  No. 11-70024

      “[T]he proper standard for attorney performance is that of reasonably
effective assistance.”   Id.    “[T]he defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688.
             Judicial scrutiny of counsel’s performance must be highly
      deferential. It is all too tempting for a defendant to second-guess
      counsel’s assistance after conviction or adverse sentence, and it is
      all too easy for a court, examining counsel’s defense after it has
      proved unsuccessful, to conclude that a particular act or omission of
      counsel was unreasonable.          A fair assessment of attorney
      performance requires that every effort be made to eliminate the
      distorting effects of hindsight, to reconstruct the circumstances of
      counsel’s challenged conduct, and to evaluate the conduct from
      counsel’s perspective at the time. Because of the difficulties
      inherent in making the evaluation, a court must indulge a strong
      presumption that counsel’s conduct falls within the wide range of
      reasonable professional assistance; that is, the defendant must
      overcome the presumption that, under the circumstances, the
      challenged action might be considered sound trial strategy. There
      are countless ways to provide effective assistance in any given case.
      Even the best criminal defense attorneys would not defend a
      particular client in the same way.
Id. at 689 (citations omitted) (internal quotation marks omitted).
      With respect to the duty to investigate,
      strategic choices made after thorough investigation of law and facts
      relevant to plausible options are virtually unchallengeable; and
      strategic choices made after less than complete investigation are
      reasonable precisely to the extent that reasonable professional
      judgments support the limitations on investigation. In other words,
      counsel has a duty to make reasonable investigations or to make a
      reasonable decision that makes particular investigations
      unnecessary. In any ineffectiveness case, a particular decision not
      to investigate must be directly assessed for reasonableness in all the
      circumstances, applying a heavy measure of deference to counsel’s
      judgments.
Id. at 690-91; see also Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v. Smith,
539 U.S. 510 (2003); Williams v. Taylor, 529 U.S. 362 (2000). The Supreme
Court recently stated that these three post-Strickland cases, each of which

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                                   No. 11-70024

granted relief on ineffective assistance claims, did not establish “strict rules” for
counsel’s conduct “[b]eyond the general requirement of reasonableness.” Cullen
v. Pinholster, 131 S. Ct. 1388, 1406-07 (2011). “An attorney need not pursue an
investigation that would be fruitless, much less one that might be harmful to the
defense.” Harrington v. Richter, 131 S. Ct. 770, 789-90 (2011). Bourgeois’s trial
counsel were “entitled to formulate a strategy that was reasonable at the time
and to balance limited resources in accord with effective trial tactics and
strategies.” Id. at 789.
      To demonstrate prejudice, Bourgeois
      must show that there is a reasonable probability that, but for
      counsel’s unprofessional errors, the result of the proceeding would
      have been different. A reasonable probability is a probability
      sufficient to undermine confidence in the outcome.
Strickland, 466 U.S. at 694. “The likelihood of a different result must be
substantial, not just conceivable.” Richter, 131 S. Ct. at 792.
      “When a defendant challenges a death sentence . . ., the 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.” Strickland, 466 U.S. at 695.
“In making this determination, a court hearing an ineffectiveness claim must
consider the totality of the evidence before the judge or jury.” Id. When
considering the prejudice prong, the district court’s task was “to evaluate the
totality of the available mitigation evidence–both that adduced at trial, and the
evidence adduced in the habeas proceeding in reweighing it against the evidence
in aggravation.” Williams v. Taylor, 529 U.S. at 397-98.
         1. Failure To Present Expert Testimony To Challenge
                        Sexual-Assault Evidence



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                                      No. 11-70024

       Bourgeois requests a COA for his claim that trial counsel ineffectively
failed to present expert testimony to counter the government’s evidence (1) that
JG suffered trauma, consistent with sexual assault, and (2) that swabs from her
rectum were positive for p30, a protein indicating the presence of semen.
                                             a.
       In its opening statement at the guilt-innocence phase of trial, the
prosecution stated that expert testimony would establish that “there was
seminal fluid in the rectum of that baby.” At trial, the government presented
evidence that JG slept with Bourgeois and AB1994 in the master bedroom, with
the door locked, while Robin and AB2001 slept in another room. In addition, the
government presented evidence that Bourgeois tried to obtain custody of JG by
claiming that her mother had mistreated her. Shortly after JG came to live with
the Bourgeois family, Bourgeois and Robin noticed that JG was bleeding from
her vagina. Bourgeois told Robin that someone had told him that one of JG’s
mother’s boyfriends had attempted to sexually molest JG. They took JG to Child
Protective Services (CPS) in Louisiana, where they reported that JG might have
been molested before they took custody of her and that JG was not being taken
care of at her mother’s home in Texas.22 CPS sent them to New Orleans, where
Dr. Scott Anthony Benton examined JG and found no evidence of abuse and no
explanation for the reported bleeding.
       On May 24, 2002, Bourgeois complained to the Texas Department of
Family Protective Services that JG’s mother and her home were unfit and
expressed concern that JG’s mother was associated with a rapist.                         An


       22
          Dana Banks testified that Bourgeois and his family visited her and her husband in
June 2002. While they were there, Bourgeois told her that he had JG because the mother and
the mother’s boyfriend were abusing her. He told her that JG was molested with a finger and
it caused bleeding. Nathaniel Banks, Dana’s husband, testified that Bourgeois told him that
he had JG because the mother was neglecting her and she had been abused but did not say
that she had been sexually abused. Bourgeois testified, on cross-examination, that he thought
JG had been molested before he took custody of her.

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                                       No. 11-70024

investigation was conducted and no evidence was found to support Bourgeois’s
allegations, which were found to be frivolous and made in bad faith.
        The day after her death, JG was examined at the hospital by Carol Ann
McLaughlin, a Sexual Assault Nurse Examiner. McLaughlin testified that she
did not observe any trauma to JG’s genitalia but that it was very common to find
no trauma, even when there had been sexual abuse. On cross-examination, the
defense elicited more detailed testimony that McLaughlin found no trauma in
the genital examination. On redirect, McLaughlin testified that no trauma did
not mean that there had been no penetration.
        During the autopsy, Dr. Rouse, the medical examiner, conducted a sexual-
assault examination and did not observe any external trauma to JG’s genital
area.23 Dr. Rouse also took photographs of JG’s genital area and swabs from
JG’s mouth, vagina, and rectum. Slides were made from the swabs, and the
slides and swabs were given to the FBI for testing.
        The tests conducted by the FBI revealed the presence p30 on three of the
swabs taken from JG’s rectum during the autopsy, but no male DNA was
detected in tests conducted on the swabs. In October 2003, the district court
granted defense counsel’s motion to appoint a DNA expert, Dr. Elizabeth
Johnson. Biological samples were sent to Dr. Johnson for testing in January
2004.
        On February 19, Technical Associates, the lab Dr. Johnson used to conduct
the tests, reported to her that no acid phosphatase (AP) and no spermatozoa
were detected but that weak p30 activity was detected. On February 25, the
prosecutor told the district court that the government had not yet gotten Dr.
Johnson’s report. The court reiterated its previous order that all expert reports,


        23
        The autopsy report stated: “The external genitalia are those of a normal female child,
and there is no evidence of any trauma to the labia or introitus. The hymen is present and
appears atraumatic. The back is straight and the anus is unremarkable and atraumatic.”

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                                 No. 11-70024

including Dr. Johnson’s, must be turned over to opposing counsel by the
following day or counsel would be precluded from presenting the testimony of
those experts at trial. Tinker stated that he had called Dr. Johnson the previous
week and asked for a report. Although defense counsel received the report of Dr.
Johnson’s laboratory findings on February 26, they did not provide it to the
prosecution.
      On March 1, 2004, Dr. Johnson, who was in Colorado at the time, faxed
Tinker a two-page handwritten summary of her findings and conclusions, which
stated:
      (1) The FBI did not test the rectal swabs with AP reagent or do a sperm
search. They did only a p30 test and a DNA test. The p30 test was positive but
there is no indication of male DNA found.
      (2) The AP test performed by Technical Associates was negative. A weak
positive result was obtained in the p30 test performed by Technical Associates.
A microscopic sperm search yielded a negative result.
      (3) The FBI’s positive p30 result could be a false positive due to bacterial
proteins found on the rectal swab. If the p30 positive result was due to the
presence of semen, sperm should also be detectable.
      (4) The tested sample would be expected to contain 500 sperm, enough to
observe microscopically, even if a small portion is used to make a slide, and
enough to produce a male DNA result on DNA testing.
      Dr. Johnson also sent Tinker an excerpt of an article describing levels of
p30 that have been detected in bodily fluids other than semen, including
amniotic fluid, breast milk, saliva, female urine, and female serum (blood).
      The government used the autopsy photographs and the p30 test results
to argue that Bourgeois sexually assaulted JG and called three witnesses: Dr.
Scott Anthony Benton, Caroline Zervos, and Anthony Onorato.



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                                  No. 11-70024

      Dr. Benton, the Medical Director of the Children-at-Risk Evaluation
Center and Clinical Associate Professor with LSU and Tulane Schools of
Medicine, had examined JG on May 21, 2002, after Bourgeois reported to
Louisiana CPS that blood had been found in JG’s diaper. He testified that he
found nothing in that examination that would account for the blood. Although
the area surrounding JG’s urethra was very red and inflamed when he examined
her in May, tests revealed no evidence of blood in the urinary-tract system.
However, he stated that a normal physical exam does not preclude there having
been a sexual assault a day or two before the exam. Dr. Benton testified that the
autopsy photographs of JG taken on June 29, 2002 show blood in the
periurethral area of the skin – a bruise, most likely from trauma. In his
examination of JG when she was alive, she had inflammation, not a bruise.
      Dr. Benton testified further: Sexual assault in children can be difficult to
detect because they heal quickly and often there is no physical evidence when
they are examined. However, even in the absence of signs of trauma or a report
of assault, male sexual assault can be proven through forensic testing: (1) a test
for AP, which is a substance predominantly produced in the male prostate and
deposited in ejaculation or pre-ejaculation; (2) a test for the presence of the
prostatic specific antigen, called p30 or PSA; (3) the “more confirmatory”
observation of sperm cells; and (4) Y chromosome DNA analysis. The p30 assay
is a “confirmatory” test for the presence of semen because p30 is found only in
the male prostate gland and in human breast milk. It is not unusual to identify
semen where no sperm are detected, in part because of the low survivability and
rapid degradation of sperm.        Sperm also would not be found in other
circumstances, such as if the man has had a vasectomy, if he only deposits pre-
ejaculate fluid, or has been ill. Because sperm rapidly lose their tails and die in
a vaginal and rectal environment, “they’re very difficult to find, on a rape kit or
trace forensic evidence” and “you could still detect semen, but not find sperm.”

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                                        No. 11-70024

      On cross-examination, defense counsel did not challenge Dr. Benton’s
observation of trauma. Instead, the cross-examination focused on the reliability
of p30 testing. Dr. Benton testified that although “very low levels of false
positives” had been reported with the p30 test, “there is no such thing as 100%
accuracy.”
      FBI forensic-serology examiner Caroline Zervos testified that the FBI
Laboratory usually does two-step testing on blood and semen:                          first a
presumptive test and then a confirmatory test. In this case, they conducted only
the confirmatory p30 test for the presence of semen on the swabs taken from
JG’s rectum. The p30 test was positive for the presence of semen on three of the
swabs. On cross-examination, trial counsel asked Zervos whether anything
other than prostate proteins could result in a positive p30 test. She responded
that other substances could test positive on a p30 test besides PSA, and that the
p30 protein has been found in male peripheral blood24 and male urine, at very
low concentrations. She was not aware of p30 being found in female fluids and
did not know if anything could be ingested that would have the same kind of
reaction in the anal tract. Later, Tinker told the district court that he got more
than he wanted from Zervos because she did not know whether substances in
food might cause a false positive.
      FBI forensic DNA examiner Anthony Onorato testified as follows. In the
autosomal STR testing he performed, the only DNA found on the swabs taken
from JG’s rectum belonged to JG; male DNA was not detected. It is not unusual
to detect semen, but not male DNA, on a swab. He recommended Y-chromosome
DNA testing, a more sensitive test for the presence of male DNA. Orchid-
Cellmark Laboratories conducted Y-chromosome testing on behalf of the FBI,




      24
           Zervos explained that peripheral blood is blood circulating in the extremities.

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                                       No. 11-70024

and no male DNA was detected.25 On cross-examination, Onorato testified that
Zervos’s report revealed that a sperm search conducted by the FBI laboratory
was negative for the presence of sperm. When trial counsel attempted to elicit
testimony about other possible sources of the p30 protein, Onorato testified that
there are no foods that contain p30, but there are other substances, body fluids,
that may contain p30 at very low levels. The protein is astronomically high in
semen, compared to its content in something like male blood, and generally it is
only found in male blood when the man has a prostatic malignancy.
       In closing argument at the guilt-innocence phase, the prosecutor argued:
       The DNA, our DNA, expert testified that the swabs that were taken
       from JG-1999’s little bottom had semen on them. There was semen
       in that baby’s bottom. But the swabs were taken at the autopsy and
       the autopsy was done on June 29th. The baby was thrown on the
       side of the truck on June 27th and died on the 28th, two days. Dr.
       Benton testified, the DNA specialist testified that the sperm is very
       delicate, that it degrades quickly. But when you get a confirmatory
       test for semen, you’ve got semen. It’s an ejaculate from a man, not
       from a woman, from a man from sexual arousal. And that’s what we
       know.
       The other thing that Dr. Benton told us, as many of the other
       physicians, is that there can be things happen and not show. You
       know, I thought it was real interesting yesterday when Mr.
       Bourgeois was testifying because I said, what was that around her
       eyes? I said [was] that Vaseline? No, we don’t have Vaseline in the
       truck.
       What is so bad about having Vaseline? I thought that was
       interesting. It’s a lubricant. Why would you have to deny that?



       25
         Bourgeois asserts that trial counsel’s objection when the government sought to elicit
testimony from Onorato that Y-chromosomal DNA testing had been performed by Orchid
Cellmark on behalf of the government and that those results were negative for male DNA
demonstrates either that trial counsel had never seen the Orchid Cellmark results, even
though they were provided in pretrial discovery, or that he failed to understand their
beneficial significance.


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                                  No. 11-70024

      The defense closing argument highlighted the weaknesses in the evidence
of sexual assault. Tinker pointed out that the prosecutor did not “talk about the
fact that they found no evidence of trauma to the rectum or the genitalia when
they examined this child at the hospital.” Tinker reminded the jury that the
DNA test was negative and that the government’s testing should have “no
reliability as far as your decision making in this case” because the government’s
evidence of sexual assault rested on “nothing but insinuations since that test for
the semen, the advanced test, I don’t know what it’s called, was negative.
There’s no evidence of semen being found on this child.” The district court
sustained an objection to the argument that there was no evidence of semen.
      The prosecution did not present any additional evidence of sexual assault
in the punishment phase. In its initial closing argument at the punishment
phase, in discussing the statutory aggravating factor (whether the defendant
committed the offense in an especially heinous, cruel, or depraved manner and
whether it involved torture and physical abuse), the prosecution did not mention
sexual assault or the evidence of semen. During its final closing argument at the
punishment phase, the prosecution mentioned the evidence of semen twice.
First, in discussing videotapes depicting Bourgeois laughing while tormenting
children, the prosecutor asked: “Was he laughing when he beat JG1999 to
death? Was he laughing when he bit her, or he burns her, or he put his filthy
semen in her little body?” Second, in arguing that Bourgeois had not shown
remorse, the prosecutor stated:
      The defendant spoke to you. Was there remorse in his voice? Did
      he ever admit to you that he lost it and accidentally killed the baby,
      and that it was his background that did it to him? No, he didn’t.
      Not ever. He murdered this baby. His signature with his teeth
      marks and his semen is all in that baby.
                                        b.




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                                 No. 11-70024

      Bourgeois argues that trial counsel should have (1) challenged Dr.
Benton’s alleged observations of genital trauma in the autopsy photographs; (2)
elicited testimony from Dr. Rouse, who performed the autopsy and took the
photographs relied on by Dr. Benton, that she found no evidence of vaginal or
anal trauma; and (3) presented the Sexual Abuse Nurse Examiner reports that
support Dr. Rouse’s conclusion that there was no evidence of vaginal or anal
trauma. He contends further that trial counsel should have challenged the
government’s forensic evidence that semen was detected on the swabs by calling
Dr. Johnson to testify that (1) because all of the other tests for semen yielded
negative results, a positive p30 test, alone, is inadequate to establish the
presence of semen; (2) p30 is found in many bodily fluids other than semen; (3)
the “very weak” and “weak” p30 results could have been the result of rectal
bacterial contamination on the swabs or even JG’s own biology, not semen; (4)
if semen had been present, sperm would have been detected, and it was not; and
(5) contrary to Dr. Benton’s testimony, sperm cells do not easily die and rapidly
degrade. Bourgeois contends that trial counsel also should have presented (1)
evidence that the FBI’s protocols, as well as protocols from other law-
enforcement crime labs and the manufacturer of the p30 test used by the FBI,
require that “borderline” p30 results, such as the “weak” and “very weak”
positive results obtained in the FBI tests, be confirmed through the
identification of sperm; and (2) expert testimony that even after three more
specific and sensitive sperm searches were conducted, no sperm were detected
on any of the swabs that allegedly contained semen.
      Bourgeois argues that the district court’s post hoc creation of a strategic
basis for counsel’s failure to present expert testimony is inconsistent with
Tinker’s explanation that he did not call Dr. Johnson as a witness because he
had trouble getting her to return telephone calls, she did not have her own lab,
and she did not do the testing he requested in a timely fashion. Bourgeois

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                                 No. 11-70024

contends further that Tinker’s explanation is inconsistent with his statement to
the district court on January 16, 2004, that Dr. Johnson had been prompt in her
work and good at communicating with him. Bourgeois argues that the fact that
Dr. Johnson’s report was submitted to counsel after the court-imposed deadline
for disclosing expert reports serves only to highlight Tinker’s deficient
performance because it was Tinker’s responsibility to make sure that all expert
reports were submitted in a timely manner. He maintains that, in any event,
Tinker should have requested leave of court to present Dr. Johnson’s testimony.
      Bourgeois maintains that if trial counsel had presented evidence that
there was no semen in JG’s rectum and no physical evidence of sexual assault,
there is a reasonable probability that at least one juror would have refused to
return a guilty verdict or would have chosen to spare his life. He asserts that,
in addition to the obvious inflammatory nature of the evidence of sexual abuse,
that evidence effectively negated the guilt phase defense – that Robin had
abused and murdered JG. He contends that this evidence also prejudiced him
at the punishment phase because it was used to support the statutory
aggravating circumstance that the murder was committed in a heinous,
atrocious, or depraved manner. He asserts that because no evidence is more
inflammatory and prejudicial than the alleged sexual assault and anal rape of
a two-year-old girl by her own father, any reasonable juror would have weighed
this evidence in its deliberations and likely found it impossible to grant mercy.
Finally, Bourgeois argues that the district court applied the wrong standard in
assessing prejudice:    He did not need to show that counsel could have
“eviscerated” or completely “eliminated” the government’s evidence of sexual
assault.




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                                   No. 11-70024

                                          c.
      In the § 2255 proceeding, Bourgeois presented the declaration and
testimony of Dr. Johnson. In her declaration, Dr. Johnson stated that if she had
been called as a witness at trial, she would have testified that:
      (1) There was insufficient scientific evidence to conclude that the
substance on the swabs was semen, and four scientific tests (AP, p30, sperm
search, STR DNA testing and Y-chromosome DNA testing) were negative for the
presence of male fluids or male cells.
      (2) The weak positive p30 result should not be considered conclusive in the
light of numerous contradictory tests.
      (3) The government’s evidence regarding the alleged semen was erroneous
and scientifically unsubstantiated.
      (4) Dr. Benton’s testimony about sperm was erroneous.
      (5) Spermatozoa are very durable and do not easily degrade; they can be
easily detected microscopically; their abundance in seminal fluid facilitates
microscopic detection even after the tail is lost; and they can be found for up to
six days in the vaginal tract of a living female.
      At the evidentiary hearing, Dr. Johnson testified that if she had been
called as a trial witness, she would have testified consistently with the summary
report that she faxed to trial counsel on March 1, 2004. Further, she would have
testified that, despite the weak positive p30 result, “taking all of the test results,
some of which were negative, negative for sperm, negative for acid phosphatase,
negative for DNA, even on Y chromosome testing, that it was not reasonable to
conclude that there was semen present on the swabs.” She explained that
although p30 is referred to as prostate specific antigen (PSA), it is a protein that
is found in abundance in human seminal fluid and in lesser concentrations in
other fluids – amniotic fluid, breast milk, male urine, male and female serum,
and some female urine.

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                                  No. 11-70024

      Dr. Johnson testified that the testing she had done was completed at the
end of January 2004. She claimed that she was not aware of the February 26
deadline for expert reports and said that if Tinker had made her aware of it, she
would have sent her report on time. She was critical of Tinker, stating that he
was not well-versed in semen and DNA detection and that although she tried to
bring him up to speed, she got the impression that he still did not grasp the
concepts that well.
      Dr. Johnson characterized Dr. Benton’s trial testimony that sperm might
not have been found because it could have degraded as “totally erroneous”
because sperm are incredibly tough and very durable, have been located decades
after an offense, and can be found in decomposing bodies 30 days after death.
      On cross-examination, Dr. Johnson acknowledged that a stronger color on
a p30 test indicates a larger quantity of p30 than a weaker color but that a
weaker color still discloses the presence of p30. She also conceded that if the test
card used by the FBI was sensitive down to one half of a nanogram, that would
throw her numbers off, by eight-fold, with respect to the amount of sperm that
would be expected to be detected. However, she said that sperm still should be
able to be detected.
      Dr. Johnson testified that she did not know what was present in the serum
and urine of a two-year-old because none of the studies involve children. She
conceded, however, that if the blood found on JG’s underwear was tested and
was negative for p30, that is an indication that her blood did not contain p30 and
could be eliminated as the source of the positive p30 result. She testified that
breast milk could be digested and trigger a positive p30 result, prompting the
district court to point out that there was no evidence that JG had ingested any
breast milk. On redirect examination, Dr. Johnson stated that she was not
aware that JG had ingested male urine prior to her death and that might have
impacted the test.

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                                  No. 11-70024

      Bourgeois also presented in the § 2255 proceeding a report and testimony
from forensic criminalist Charles Alan Keel, who stated that:             (1) the
government’s proof of the presence of semen was inadequate and flawed and
should never have been offered as evidence by scientists; (2) Dr. Benton’s
testimony was false or, at best, erroneous, and many of his statements are
“patently absurd” and “ludicrous”; (3) sperm is the only definitive proof of the
presence of semen from a forensic specimen in the criminal-justice context; (4)
there is no proof of semen being detected in the evidence that was presented at
trial; (5) if the positive p30 test result was caused by semen, male DNA should
have been detected; (6) if the positive p30 test result was caused by semen,
sperm should have been detected because a positive p30 test result cannot
reliably predict the presence of semen without the presence of sperm; (7) sperm
cells die but can still be detected; (8) the fact that there was no semen found in
JG’s underpants is another red flag against a conclusion that semen was
present; and (9) there is no semen on the swabs. When the district court asked
Keel whether a toddler would produce p30, he replied that he did not know.
      The government presented Tinker’s answers to interrogatories, explaining
why he did not call Dr. Johnson as a witness at trial:
      I had met Dr. Johnson at a seminar and was very impressed with
      her presentation. I spoke with her afterward about helping us with
      Mr. Bourgeois’ case. I had a great deal of problems getting her to
      return my phone calls. I learned, during my dealings with her that
      she did not have her own lab. She did not do the testing I requested
      in a timely fashion and, therefore, we did not utilize her services.
      The government also presented Gilmore’s affidavit, in which he stated that
Tinker dealt with Dr. Johnson exclusively and that Tinker told him about
problems getting Dr. Johnson to communicate and to make herself available to
perform the testing he had asked her to do. Gilmore testified at the § 2255
evidentiary hearing that Tinker was very upset with Dr. Johnson toward the


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                                  No. 11-70024

trial date because she would not talk to him. Tinker was also upset that she
faxed him a handwritten note, not a formal, written report as he had requested.
      Finally, the government presented a letter report and the testimony of FBI
forensic examiner Jerrilyn Conway, in which she stated:
      (1) Zervos’s and Onorato’s decisions to not conduct the AP test is consistent
with the policies and practices of the FBI lab. The FBI lab does not conduct AP
testing in suspected semen samples from body orifices because of the possibility
of contamination from vaginal secretions that also contain AP and because AP
usually is not detectable after fourteen hours.
      (2) The FBI uses the p30 test to determine whether semen is present.
      (3) Although PSA has been found in bodily fluids other than semen (female
urine, female serum, amniotic fluid, breast milk, and the serum of boys and
girls), the FBI lab’s PSA test includes dilution steps to ensure that only semen
can produce a positive result, making the test confirmatory for the presence of
semen. Technical Associates, the lab used by Dr. Johnson to perform her tests,
stated in the report submitted to Dr. Johnson that the p30 test is a confirmatory
test for semen.
      (4) The complete article containing the page Dr. Johnson faxed to Tinker
regarding other substances that would trigger a positive PSA result describes
experiments that the authors conducted to determine whether female urine and
female blood would give a positive result on the PSA test.           The authors
eliminated those substances as potential positive triggers and verified the
reliability of the PSA test with respect to both female urine and female serum.
Further, the concentration levels described on the page sent to Tinker by Dr.
Johnson refer to undiluted substances containing PSA, which is not the dilution
level that would be tested in a PSA test. Applying the dilution levels that the
test requires and that the FBI used in this case, none of the substances listed
would have produced a positive PSA result. The only one that would be close

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                                  No. 11-70024

would potentially be breast milk, but it would not be expected to give a positive
result. Ingestion of male urine would not be expected to produce a positive PSA
result on a rectal swab because the digestive system would have broken down
the protein to the point that it would not be detected.
      (5) A study published in a British journal in 2004 determined that the
level of PSA in girls’ serum is .004 nanograms per mil, which could not trigger
a positive PSA result, even if undiluted. Further, the PSA test of blood on JG’s
underwear was negative, so her blood could be eliminated as the source of the
positive PSA result from the rectal swab.
      (6) The weak positive p30 result in this case means that there is a limited
amount of PSA present, which means there is a limited amount of semen
present. The term “weak” does not call into question the results; it only refers
to the amount of semen that is detected. The p30 test is a qualitative test. If it
is positive, then PSA is present, and it is present at a level that semen can be
concluded to be on the swab.
      (7) Because of the confirmatory nature of the PSA test, the decisions to not
conduct a microscopic search for sperm by Zervos and Onorato is consistent with
the policies and practices of the FBI Lab.
      (8) The FBI protocol is to only identify a sperm cell if the head, midpiece,
and tail are all intact. The survivability of a sperm cell within a live rectum is
limited. Most of the studies show that sperm cells can only be identified after
maybe 24 hours, sometimes longer in cervical samples.
      (9) Dr. Johnson’s calculations regarding the amount of sperm that she
would expect to be detected do not take into account the natural variability of
both PSA and sperm within a semen sample.                 Further, Dr. Johnson’s
calculations were based on a sensitivity of 4 nanograms per mil, which is what
the PSA test manufacturer guarantees. The FBI’s validation, however, found
that the cards used in this test were sensitive down to about .5 nanograms per

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                                 No. 11-70024

mil, which would reduce Dr. Johnson’s calculations by a factor of 8. Thus, sperm
that could be expected to be detected on that sample range from 1 to 1,000.
      (10) Studies have shown that PSA from seminal fluid can be detected in
the absence of AP activity, identifiable spermatozoa, or even male DNA.
      When asked how she could explain positive p30 results, a negative AP
result, and the inability to identify any sperm cells, Conway responded that the
sample was a limited one that had potentially been degraded; the AP could have
degraded to a point that it was not detectable; and the sperm cells either may
not have been deposited in abundance because of the natural variation in the
semen or there could have been a limited number, and they also would have
been degraded.
      On cross-examination, Conway testified that the FBI’s position is that
despite all the other negative tests, the p30 test alone confirms the presence of
semen. She conceded that studies existing at the time of trial in 2004 had
identified the presence of low levels of PSA in female fluids and that Zervos’s
trial testimony that PSA had not been detected in female fluids was incorrect.
She also conceded that Onorato did not give a complete list of all the fluids
where p30 has been found and that Dr. Benton incorrectly testified that p30 does
not exist anywhere else in bodily products except the male prostate and human
breast milk. She conceded that evidence of sperm potentially can be found after
they lose their tails; it depends on how many there are and whether the biologist
can recognize them. She stated that the position of the FBI is that its dilution
steps ensure that only semen can produce a positive PSA result, making the test
confirmatory for the presence of semen. That dilution process eliminates a
possibility of anything else reacting with the card.
                                       d.
      The district court began by observing that, to succeed, Bourgeois had to
prove that (1) Dr. Benton was incorrect in his physical observations of trauma

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                                        No. 11-70024

and (2) the positive p30 test results did not necessarily equate to positive results
for semen. The court stated: “Absent evidence that would likely eviscerate the
effect of either prong, the other would give the jury a sufficient basis to find that
Bourgeois sexually assaulted his daughter.”
       Noting that Bourgeois did not call any witnesses at the evidentiary
hearing to criticize Dr. Benton’s observations of trauma and did not question Dr.
Rouse about her sexual assault examination, the district court concluded that
Bourgeois had not shown that Dr. Rouse’s initial observation of no trauma was
more valid than Dr. Benton’s trial testimony, had not shown that Dr. Benton’s
specialized knowledge about childhood sexual abuse and prior treatment of JG
did not provide sufficient support for his expert opinion, and had relied on the
unproven speculation that Dr. Rouse would not defer to Dr. Benton’s
observations.26 The court pointed out that, unlike Dr. Rouse, Dr. Benton could
comment on the condition of JG’s genital area over time and could compare the
autopsy photographs with those he had taken when he examined JG a little over
a month before her death. The court found that, at best, Bourgeois had shown
that experts could disagree on how to interpret the evidence collected during the
autopsy.
       The district court also pointed out that trial counsel challenged the
evidence of sexual trauma in cross-examining McLaughlin, the nurse who
examined JG the day after her death. Further, in closing arguments, Tinker
stressed that “they found no evidence of trauma to the rectum or genitalia when


       26
           The district court also stated that Bourgeois relied on Dr. Spitz’s affidavit in which
he stated that Dr. Rouse, who performed the autopsy and took photographs, was in a much
better position than Dr. Benton, who only looked at the photographs, to determine whether
there was sexual trauma. The court found that Dr. Spitz was not a credible expert and that
his affidavit did not “necessarily eviscerate Dr. Benton’s interpretation of the evidence.” In
his reply brief, Bourgeois asserts that he never relied on Dr. Spitz’s opinion for lack of trauma;
that Dr. Spitz was not presented at the § 2255 hearing; and that his credibility is not at issue.


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                                  No. 11-70024

they examined this child at the hospital.” The district court held that Bourgeois
had not adduced any evidence or testimony during the post-conviction
proceedings that would put a stronger case against the evidence of sexual
trauma than the essence of that brought out by trial counsel. Therefore, the
court held that he failed to show that counsel performed deficiently in not
challenging Dr. Benton’s testimony about sexual trauma.
      The district court held that although trial counsel did not call Dr. Johnson
as a witness, it was evident that he was familiar with her report and had used
it to prepare for cross-examination. The court added that trial counsel did not
leave the forensic testimony about sexual assault unrebutted: cross-examination
of Dr. Benton focused on whether the p30 test was susceptible to false-positive
results, Zervos and Onorato were asked whether substances other than semen
could cause a positive result on the p30 test, and Zervos acknowledged on cross-
examination that she did not know if digested food could contain p30 – a factor
that Dr. Johnson’s testimony would have refuted if she had been called. The
court noted that trial counsel’s questioning and argument also highlighted that
the government’s experts observed no sperm and that the absence of sperm
caused the government experts to recommend DNA testing. The court concluded
that trial counsel’s questioning introduced doubts that could not have been
raised by expert testimony, such as that digested food could contribute to the
positive p30 results.
      The district court acknowledged, however, that expert testimony could
have provided some benefit to the defense: Dr. Johnson’s testimony would have
been valuable in showing that the weak positive results obtained by the
government should have compelled it to perform the more-confirmatory sperm
search.   However, Dr. Johnson’s testing did not completely discount the
possibility that Bourgeois sexually assaulted JG: Dr. Johnson acknowledged
that a weak positive result indicates the amount, not the presence, of PSA,

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                                  No. 11-70024

which was consistent with the testimony of government expert Conway that a
“weak” p30 result does not question the identification of the substance as semen,
but only the amount of semen that is detected.
      The court also noted that the testimony of Bourgeois’s experts at the §
2255 hearing would only have re-confirmed that a substance containing PSA,
foreign to JG’s body, was found in JG’s rectum: Dr. Johnson agreed that because
the blood on JG’s underwear tested negative for p30, JG’s blood could be ruled
out as the source of the positive p30 result. Bourgeois’s other expert, Keel, could
not conclusively identify a substance naturally occurring in a two-year-old girl
that would contain p30 and stated that he did not know if a toddler could
produce p30. There was no evidence to suggest that the p30 came from amniotic
fluid, breast milk, or female urine.
      The district court relied on the testimony of the government’s expert,
Conway, that the only substance other than semen that contains PSA at a level
near that which could trigger a positive reaction is breast milk. Because there
was no evidence that breast milk could have been in JG’s rectum, the district
court was persuaded by Conway’s testimony that “if the PSA test was positive,
they can be assured that that came from semen.”
      The district court concluded that, considered in the context of the trial and
post-conviction record, the testimony from Dr. Johnson and Keel did not show
that trial counsel were ineffective in relying on cross-examination to challenge
the government’s forensic evidence. The court stated that, given the complex
scientific issues at play, and the fact that Bourgeois’s experts questioned, but did
not conclusively eliminate, the possibility of sexual assault, he failed to show
that using experts to highlight that information would have swayed the jury.
The court therefore held that it was a reasonable tactical decision for trial
counsel to utilize Dr. Johnson’s expertise to assist on cross-examination of the



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                                  No. 11-70024

government’s experts, without calling her as a witness to confirm the presence
of semen.
      Based on its observations of their testimony, the district court also found
that Keel and Dr. Johnson would not have been persuasive witnesses because
they identified the same errors in testing that trial counsel had identified but got
bogged down with fine distinctions that did not completely discount the
possibility of sexual assault.    The court concluded that a reasonable trial
attorney could be concerned that a prolonged attack, without a clear-cut
resolution, could make a minor, but highly inflammatory, issue a much more
prominent feature in the jury’s deliberation.
      The court also held that Bourgeois failed to show a reasonable probability
of a different result at the punishment phase had trial counsel disputed the
sexual-assault evidence in the manner he proposed in the § 2255 proceedings.
Even if trial counsel could have shown that there was no semen on the rectal
swabs and that Dr. Benton incorrectly identified sexual trauma, and performed
deficiently by failing to do so, there was other evidence that hinted that
Bourgeois committed improprieties on his daughters (JG and AB1994) when he
spent nights locked in a bedroom alone with them. The court also pointed out
that an aggressive challenge to the sexual assault evidence could have opened
the door to additional prejudicial evidence that trial counsel had successfully
prevented the prosecution from presenting, including evidence that witnesses
had seen Bourgeois “French kiss” AB1994, that he would have her sit on his lap
inappropriately, and that he treated her like a mature adult.            The court
concluded that the evidence of sexual abuse was an inflammatory, but not
decisive or pronounced, factor in both phases of the trial and the post-conviction
evidence questioned, but did not completely eliminate, the possibility that
Bourgeois had sexually assaulted JG. The court held that the sexual abuse
evidence did not substantially affect the factors the jury had to consider reaching

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                                  No. 11-70024

a verdict as to his guilt. With respect to the punishment phase, the court held
that although the sexual abuse evidence made Bourgeois seem more selfish,
uncaring, and inhuman, even if trial counsel had conclusively rebutted the
government’s evidence of sexual abuse, the jury nevertheless had heard graphic
testimony about how Bourgeois viciously abused JG in numerous other ways.
Accordingly, the government’s brief mention of sexual assault in the punishment
phase closing argument was only another reminder that JG bore the signs of her
father’s abuse throughout the rest of her body. The court acknowledged that
although evidence of sexual abuse could unduly inflame a jury in other
circumstances, the evidence of Bourgeois’s abusive and violent tendencies
prevented any reasonable likelihood that jurors would have reacted differently
in the punishment phase had they heard the evidence of sexual abuse.
                                        e.
      No reasonable jurist could debate the district court’s assessment of this
claim. The evidence Bourgeois presented in the § 2255 proceeding was no more
effective at removing the possibility that Bourgeois sexually assaulted JG than
the evidence his counsel elicited at trial. As the district court noted, the § 2255
evidence established, at best, that experts could disagree about whether there
was evidence of trauma to JG’s genital area. Although it would have been
helpful to the defense if Dr. Rouse had testified that she did not observe any
genital trauma at the autopsy, defense counsel challenged the evidence of sexual
trauma in cross-examining Nurse McLaughlin, and in closing arguments, trial
counsel reminded the jury that no evidence of trauma was found when JG was
examined. Such testimony by Dr. Rouse would not, however, have rebutted
Nurse McLaughlin’s testimony that it is common to find no trauma even when
there has been sexual abuse and that the absence of trauma does not mean that
there was no penetration or Dr. Benton’s testimony about the difficulty of



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detecting sexual assault in children because they heal quickly and often there
is no physical evidence when they are examined.
      No reasonable jurist could debate the district court’s decision that trial
counsel did not perform deficiently in relying on cross-examination to challenge
the prosecution’s forensic evidence.     On cross-examination in the § 2255
proceeding, Dr. Johnson acknowledged that a stronger color on a p30 test
indicates a larger quantity of p30 than a weaker color but that a weaker color
still discloses the presence of p30. Dr. Johnson was not aware of any studies
showing that p30 could be found in girls of JG’s age, and Keel did not know
whether a toddler could produce p30. Critically, the testimony of Bourgeois’s
experts at the § 2255 hearing failed to establish that any of the bodily fluids
identified by Dr. Johnson and Keel, other than semen, contain p30 at levels high
enough to trigger a positive p30 test result.
      Finally, no reasonable jurist would debate the district court’s conclusion
that Bourgeois was not prejudiced.      The district court applied the correct
standard of prejudice, stating in the first sentence of its discussion that
“Bourgeois must also show a reasonable probability of a different result had trial
counsel vigorously attacked the evidence of sexual assault.” Dist. Ct. Op. at 180.
In the light of the medical and photographic evidence of JG’s torture, abuse, and
the fatal blows to her head, corroborated by the testimony of AB1994 and Robin,
as well as the evidence of premeditation demonstrated by the unfounded reports
to CPS, the post cards sent to JG’s biological mother, and Bourgeois’s statements
to Robin about what he would do when he killed JG, there is not a reasonable
probability that the outcome of the guilt-innocence phase of the trial would have
been different, even if trial counsel had done everything Bourgeois contends they
should have done. And, considering the graphic evidence of Bourgeois’s vicious
torture of JG during the final weeks of her life, culminating in the brutal
bashing of her head in the presence of his seven-year-old daughter, there is no

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reasonable probability that a juror would not have found that the government
had proved the statutory aggravating circumstance that the murder was
committed in a heinous, atrocious, or depraved manner, even if trial counsel had
rebutted the evidence of sexual assault in the manner Bourgeois contends they
should have done. Furthermore, as the district court pointed out, it is likely that
if counsel had challenged the sexual-assault evidence in the manner that
Bourgeois suggests they should have done, it could have opened the door to
additional prejudicial evidence.27
                2. Ineffective Assistance - Mitigating Evidence
       Bourgeois’s final COA request is for his claim that trial counsel rendered
ineffective assistance at the punishment phase by failing to present mitigating
evidence of his impoverished background, dysfunctional family, physical abuse,
sexual abuse, Borderline Personality Disorder (BPD), brain damage, low
intelligence, and the stress that he was under at the time of the murder.
                                               a.
       We begin by describing the events leading up to the trial and the evidence
presented at the punishment phase of the trial.
       Defense counsel retained Dr. Mark Cunningham as an expert witness on
mitigation evidence and the risk of violence in prison society. Pursuant to Dr.



       27
          In his reply brief, Bourgeois asserts that the allegations of his sexual misconduct with
AB1994 emanated from Robin, who lied about the circumstances of JG’s death and testified
to avoid prosecution. He states that none of his children, including his two other daughters,
have ever alleged that he engaged in sexually-inappropriate behavior. He thus contends that
the presentation of evidence to support counsel’s attempted arguments that there was no
semen and no sexual assault would not have highlighted the issue any further and would not
have opened the door to any excluded evidence. No reasonable jurist could debate the district
court’s conclusion to the contrary, and the record supports that conclusion. The transcript
reflects that at a hearing on the admissibility of evidence that Bourgeois may have engaged
in inappropriate conduct of a sexual nature with AB1994, the district court was unchallenged
by trial counsel when it commented that “everybody in this room knows what was going on
with Mr. Bourgeois and AB1994. . . . One can only imagine, when Robin was locked out of the
bedroom, and AB1994 was sleeping in there with him, what was going on.”

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Cunningham’s recommendation, defense counsel retained mitigation specialist,
Lisa Milstein and her associate, Gerald Bierbaum.
       Milstein and Bierbaum interviewed Bourgeois on October 23, 2003. In
that interview, Bourgeois denied child abuse. He reported a head injury from
a three-wheeler accident in 1984, and said that he was in a coma for three
months. The mitigation investigators also learned that when he was six or seven
years old, Bourgeois moved in with an elderly neighbor, Mary Clayton, with
whom he lived until her death when he was a teenager.
       In December 2003, defense counsel filed a motion for a mental-health
evaluation of Bourgeois because they had “observed highly-unusual, often
bizarre behavior, . . . listened to abnormal conversations, and . . . noticed an
unnatural writing style.”         The parties agreed to have Dr. Carlos Estrada
examine Bourgeois, and the examination was conducted on December 26, 2003.28
       Dr. Estrada submitted a report of his evaluation on January 20, 2004. Dr.
Estrada reported that Bourgeois had denied any history of childhood physical or
sexual abuse, neglect, or trauma but that he suffered a broken leg, broken nose,
and concussion from a 1984 motorcycle accident and broke a collar bone in a
1989 accident when he fell asleep behind the wheel of a pick-up truck.                     Dr.
Estrada found that Bourgeois “appears to have an above average intelligence
and memory and an average knowledge commensurate with his level of
education and experience.”29 He found that Bourgeois’s “thought processes show
no thought disorder, no delusions, no hallucination, no obsessions, and no

       28
          Trial counsel wanted to retain Dr. Estrada as a mental-health expert, but he had
already been retained by the government. Trial counsel had worked with Dr. Estrada
previously and considered him to be a trusted, candid witness.
       29
         Bourgeois untruthfully told Dr. Estrada that he had attended college for two years
and had worked as a police officer. At a hearing on April 10, 2003, Bourgeois told the district
court that he had attended college for two years. At his arraignment on the second
superseding indictment on July 25, 2003, Bourgeois stated that he had attended college for one
year.

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                                       No. 11-70024

compulsions.” He stated that Bourgeois “has a very clear recollection of the
events before, during the incident, and afterwards”30 and was “able to remember
and describe the details and postulate alternative theories for his defense; none
of which involves disturbed mental status.”                Dr. Estrada reviewed taped
telephone conversations Bourgeois had with family members and others and
stated that they “reveal a clearcut understanding of the events that led to the
death of the daughter and a clear understanding of the evidence against him
that reveals no altered mental status at the time, no presence of delusions, and
no presence of irrational thinking or irrational behavior or inability to know
right or wrong.”
       Defense counsel also retained Dr. George W. Holden, a psychologist who
specialized in family violence and parent-child relationships. In a letter report
dated December 19, 2003, Dr. Holden stated that Bourgeois did not intend to kill
JG, but was merely punishing her for making a mess and was trying to teach her
a lesson so she would not spill the contents of her potty in the future. He stated
that Bourgeois’s fatigue and lack of attachment to JG probably contributed to his
overreacting and being especially brutal to JG, and that Bourgeois was also
stressed by traveling in a confined space with four other people, including three
young children. Dr. Holden stated that toilet training incidents are a common
cause of physical abuse and that what Bourgeois did to JG is “largely
understandable and not uncommon, just a more extreme case with a tragic end.”
In a supplemental letter report dated February 25, 2004, Dr. Holden stated that


       30
         Bourgeois told Dr. Estrada that as he started to unload the truck at the CCNAS, he
found JG lying on the pavement by the side of the passenger door of his truck unconscious and
foaming from the mouth. He proclaimed his innocence and insinuated that Robin was to
blame because she could not get over the jealousy of him having JG as a result of an
extramarital affair. He offered two theories for how JG was fatally injured: (1) she was
playing and may have fallen out of the truck or (2) Robin might have accidentally hurt her
when pulling her from the front seat to the back of the cabin, hitting her head and causing the
unconsciousness, and then JG fell through the door.

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when a child dies during the course of discipline, it is much more likely that the
parent did not intend to seriously injure, let alone kill, the child. He stated that
what probably happened was that, in a fit of rage over the spilled potty,
Bourgeois lost control of himself and, in the course of administering physical
discipline, fatally injured JG.
       The mitigation investigators interviewed dozens of witnesses in the two
months prior to jury selection, including Bourgeois’s siblings and other family
members as well as friends of Bourgeois and several members of Ms. Clayton’s
family.
       On January 30, 2004, about two weeks before trial, the mitigation
investigators furnished reports to Dr. Cunningham and trial counsel. Upon
receiving the reports, Dr. Cunningham complained to Bierbaum about the
quality of the mitigation interviews and reports.
       On February 4, 2004, Bierbaum wrote a memo regarding a lengthy
interview of Bourgeois that he and Tinker had conducted on January 29. That
memo records details about Bourgeois’s abuse by his mother, including being
tied to a chair by his wrists, naked, and being whipped with an extension cord
and being stripped down in the bathtub and whipped again the next day. His
mother continued to administer severe beatings when he visited his home after
he had moved in with Ms. Clayton. His mom always beat him with his clothes
off. She shaved his head bald and she had long fingernails that she used to pick
in his nose in an aggressive manner. Bourgeois also reported that he and Robin
argued a lot about money, were about to lose their house in the summer of 2002,
and he was behind in making payments on the car and all the credit cards.
       On February 7, about a week before trial, Dr. Cunningham conducted a
five-and-one-half-hour interview of Bourgeois.31 He also conducted extended

       31
         He also met with trial counsel and, for the first time, complained to them about the
quality of the mitigation investigators’ work.

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telephone interviews of Bourgeois’s older siblings. In a letter report dated
February 10, Dr. Cunningham stated that he had learned that Bourgeois had
suffered a serious head injury in 1984, when a three-wheeler he was driving
collided with a telephone pole. Claudia Williams, Bourgeois’s older sister,
reported to Dr. Cunningham that Bourgeois was unconscious for a number of
hours following this accident and did not regain consciousness until after
hospitalization and surgery.      Williams and her husband also told Dr.
Cunningham that Bourgeois experienced recurrent “rage” episodes, accompanied
by violent assaults and verbal aggression, observed from his early childhood but
which worsened in severity following the head injury.         Dr. Cunningham
recommended that trial counsel obtain a comprehensive neurological and
neuropsychological evaluation of Bourgeois.
      In a report dated February 25, 2004, Dr. Cunningham listed “a number of
adverse developmental factors that singly and collectively increased the
likelihood of an adverse and/or criminally violent outcome in adulthood,”
including Bourgeois’s abandonment by his father, emotional rejection and abuse,
physical abuse, the death of his older brother, and a significant head injury and
subsequent rage attacks. Dr. Cunningham also noted “pro-social patterns and
positive relationship behaviors” including that Bourgeois had maintained
continuous employment and was regarded as responsible and hardworking; that
he was an involved father who provided economic support as well as relationship
to his children; and that he displayed an ongoing interest in and was a
constructive influence on his nieces and nephews.
      Dr. Cunningham also gave trial counsel a risk-assessment letter dated
February 25, describing his opinion that Bourgeois would not present a risk of
violence while incarcerated.      Dr. Cunningham stated that it was his
understanding that despite sharing a common day room or group cell, Bourgeois
had “not engaged in any assaults on inmates or staff and further that he has

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                                   No. 11-70024

received few if any disciplinary write-ups.” He stated that rates of disciplinary
infractions and violence in prison are negatively correlated with age and that
inmates serving terms of life without parole represent better institutional
assault risks than inmates serving parole-eligible terms. He observed that most
life-sentenced capital inmates had a 20-30% risk for acts of assaultive violence
and an 8-10% chance of a more chronic violence problem in prison. He opined
that Bourgeois would have the following probabilities of serious institutional
violence across a capital life term: 2% of any serious assault, less than 1%
aggravated assault on staff, and less than 0.2% homicide of an inmate.
Characteristics that increased Bourgeois’s likelihood of a positive adjustment to
prison, and reduced his likelihood of perpetrating a serious institutional assault,
included his being over age 35 at the outset of his prison term, his history of
gainful employment, and his continuing relationships with family members.
      Dr. Cunningham acknowledged that Bourgeois had made threats of
inflicting violence from prison but stated that “the credibility of these reports has
not been determined.”      Further, he did not think that Bourgeois had the
financial resources or ties to organized criminal groups to order any violence
from prison. He also expressed confidence that the Department of Justice could
use special conditions of confinement to restrict and monitor Bourgeois’s
communications so that any risk would be negligible.
      Dr. Cunningham prepared two PowerPoint presentations – one for
mitigation and one for future risk of violence – and gave trial counsel a binder
with the proposed slides. He also prepared questions for counsel to ask him on
direct examination. He proposed to testify that adverse factors in Bourgeois’s
background – an overwhelmed family system, abandonment by his father,
difficulty in controlling his impulses from an early age, physical abuse,
emotional abuse, abandonment and rejection, and neuropsychological problems
including organic deficits and low IQ – were ingredients simmering in a pressure

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                                    No. 11-70024

cooker, the lid of which blew off as a result of the stress of marital and financial
problems.
      In his presentation about risk of future violence, Dr. Cunningham
proposed to provide general information about behavior in secure environments,
including the Bureau of Prisons, and mechanisms available in the prison to
control disruptive or violent inmates as well as specific factors that would make
Bourgeois less likely to be a threat in prison: his age, his behavior in pre-trial
custody, his continuing relationship with family and friends, and his history of
employment and stability in the community.
      Pursuant to Dr. Cunningham’s recommendation, trial counsel obtained
court funds to employ a neurologist to perform an EEG and a neuropsychologist,
Dr. Donald Weiner, referred to counsel by Dr. Estrada, to evaluate Bourgeois.
The results of the EEG did not reveal any abnormalities. Dr. Weiner evaluated
Bourgeois on February 28.         He reported that Bourgeois’s IQ was in the
borderline range of intellectual functioning and that Bourgeois did not have any
specific learning disabilities. Bourgeois told Dr. Weiner that he had been in a
three-wheeler accident in 1984, which resulted in him being in a coma for one
to two months. Dr. Weiner stated that neuropsychological test results revealed
“mild overall cerebral damage, with moderate cerebral damage in the posterior
portion of the cerebral cortex . . . likely due to the injuries sustained in the three-
wheeler accident.” Bourgeois told Dr. Weiner that he has become aggravated
more easily since the 1984 accident, and Dr. Weiner found that Bourgeois’s
performance on one of the tests suggests that he may exhibit inappropriate
behavior under stressful circumstances without always being aware of the
inappropriateness of his actions. Dr. Weiner found no evidence of malingering
and believed that his test results were a valid indication of Bourgeois’s level of
neuropsychological functioning.



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                                  No. 11-70024

      After the guilt-innocence phase, trial counsel furnished Dr. Weiner’s report
to the prosecution. In a hearing on March 17, the prosecution stated that Dr.
Estrada had reviewed the material and had found serious flaws in Dr. Weiner’s
methodology.     Noting that the EEG had not indicated any evidence of
impairment, the prosecution stated that it intended to bring in its own
neuropsychologist to test Bourgeois. Trial counsel objected to any additional
testing. The court ordered a hearing on Dr. Weiner’s proposed testimony to find
out what testing he had performed.
      In a hearing on March 19, defense counsel informed the court that they
had decided not to call Dr. Weiner as a witness. The district court told the
defense that if they were not going to call Dr. Weiner as a witness, they could not
rely on the results from his testing and that Dr. Cunningham and Dr. Estrada
would not be allowed to use Dr. Weiner’s report during their testimony.
      Before the sentencing hearing began, the district court discussed with Dr.
Cunningham his intended PowerPoint presentation. The government wanted
to exclude the part of Dr. Cunningham’s testimony that discussed the Bureau
of Prisons’s policies and practices, and the related testimony about how offenders
in general behave in prison, and focus instead on Bourgeois’s own propensity for
violence. The district court refused to limit the scope of Dr. Cunningham’s
testimony but stated that it would allow the government to call an expert
witness to rebut Dr. Cunningham’s testimony. The government announced that
it intended to call John Shaw from the Bureau of Prisons if the defense called
Dr. Cunningham.
      At the punishment phase, the government presented the following
evidence:
       Bourgeois beat Robin repeatedly, including while she was pregnant.
       Felony charges were pending against Bourgeois as a result of an
incident that occurred while Robin was in the hospital giving birth to AB2001,

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                                 No. 11-70024

in which he punched his mother-in-law in the mouth and beat her with a lamp,
in the presence of AB1994 and other children.
       At his and Robin’s wedding, Bourgeois fought with Robin’s brother when
the brother warned him not to beat Robin.
       Bourgeois terrorized Robin’s adopted brother, who was nine or ten years
old and could not swim, by holding him by his feet over the side of a high bridge
and over a pier at a boat launch. On another occasion, Bourgeois repeatedly
dunked the boy in the water at the beach until he threw up from swallowing
water. On yet another occasion, Bourgeois grabbed the boy by his ankles and
swung him around until his head hit Bourgeois’s sleeping dog, which woke up
and bit the boy.
       Bourgeois pushed, choked, and argued with his first wife, Sheila
Bourgeois, during their four-month marriage and while she was pregnant. She
left him after he pushed her over a chair and she “busted up” her nose. Their
daughter, SB1988, did not want to be alone with Bourgeois.
       Ex-wife Cynthia Bourgeois’s daughter shook with fear every time
Bourgeois was in her presence. When the child was three years old, Bourgeois
took her to a family gathering and when she returned, she had a “big knot” on
her head, walked with a limp, and had a bruise on her back in the shape of a
footprint. She said that Bourgeois had pulled her hair out and put her head in
the toilet.
       After divorcing Gaynell Belvin James, Bourgeois took their three-year-
old son for the day, and the boy returned very shaky, nervous, and withdrawn,
with a large bruise on his thigh. The child was too afraid to go with Bourgeois
again for many years. When the boy was thirteen years old, Bourgeois took him
for what was supposed to be a day but kept him for a more than a month.
       While Bourgeois was married to ex-wife, Gaynell Collins Bourgeois, he
had a bad temper and shoved and choked her.

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                                  No. 11-70024

       While incarcerated before trial, Bourgeois told a deputy United States
Marshal, “If I was going to hit somebody, I would hit you.” A couple of weeks
later, Bourgeois lunged at the officer.
       Bourgeois’s cousin, Isaac Bourgeois, III, got into a fight with Bourgeois
over insults to Isaac’s mother. Bourgeois bit Isaac’s little finger to the bone. The
next day, Bourgeois and his brother, Lloyd Ferdinand, confronted Isaac and his
mother with guns and threatened to kill them. Then they got in Lloyd’s truck,
circled around Isaac and his mother, and told them they “could die today.”
Bourgeois was convicted of disturbing the peace as a result of that incident.
Lloyd later apologized, but Bourgeois never did.
       On June 28, 2002, Bourgeois asked an FBI agent who was transporting
him from the Nueces County Jail “how that girl [JG] made out.”
       Four inmates testified about Bourgeois’s incriminating statements and
threats he made while they were incarcerated together before trial. Bourgeois
knew that Adam Longoria was a member of the Texas Syndicate prison gang.
Longoria represented that he was a “hit man.” Bourgeois communicated to
Longoria that he wanted his cousin, his ex-wife, and his wife killed and gave him
their telephone numbers and addresses. He promised that his brother, Lloyd,
would give Longoria a $100,000 18-wheeler truck and the names of people for
drug runs. Longoria said that Bourgeois told him that he beat JG with a bat and
extension cords. Orlando Campos testified that Bourgeois told him that he beat
up his wives and ex-girlfriends and that he was going to kill Robin when he got
out of prison. Wiley Taylor testified that Bourgeois told him that he was trying
to have Robin killed so that she could not testify against him and that he and his
brother made most of his money running drugs and illegal aliens. Taylor and
Darrick Moore testified that Bourgeois told them he beat his wives and
girlfriends.



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                                   No. 11-70024

         Robin testified that Bourgeois admitted that he did not have a
conscience. She read a letter that Bourgeois had written to her uncle, intending
that she see it, in which he stated: “in the name of God, Robin[’s] days will be
short. That niece of yours will have a short life.” The letter also stated: “All this
shit about extension cord beatings, biting this child, brutalizing this child, your
niece told those people all this.” On cross-examination, she testified that
Bourgeois could not handle the knowledge of her extramarital affair. She also
testified that in the summer of 2002, they were having financial problems and
he was stressed by finding out that he had another child to support.
         JG’s grandmother, Karen Jackson, testified about the impact of losing
JG.
         An FBI agent testified that Bourgeois was a liar and was manipulative.
        Dr. Carlos Estrada, the psychiatrist who had evaluated Bourgeois prior to
trial, testified for the government. Dr. Estrada had interviewed Bourgeois for
three hours, reviewed letters that Bourgeois had written, listened to recordings
of Bourgeois’s taped telephone conversations, and had reviewed statements
made by witnesses and family members, who reported that Bourgeois had been
rejected and abandoned and that his mother had abused him. He had also
observed Bourgeois throughout the trial and had reviewed reports of
psychologists who had evaluated Bourgeois.
        On direct examination, Dr. Estrada testified that Bourgeois has a number
of characteristics that have been found to be associated with violence, such as
being the subject of rejection, neglect, and abandonment and being the survivor
of physical, sexual, or emotional abuse, all of which can create a very high
predisposition for violence as an adult. If those characteristics are coupled with
three others – personal use of violence, belonging to a culture of beliefs where
violence is accepted, tolerated, or approved, and the presence of previous social
interventions regarding the violence – the predisposition for violence as an adult

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                                  No. 11-70024

is very, very high. Bourgeois shares these elements with a group of individuals
who engage in violent behavior as adults.
      In assessing Bourgeois’s personality for risk of violence, Dr. Estrada found
items that may decrease self-control, items that will decrease the regard and
respect and empathy for others, and motivations towards violence. He found
that Bourgeois has characteristics of a narcissistic personality disorder – an
individual whose basic motivation in life is the aggrandizing of his self-esteem.
Such individuals need to have continuous positive feedback to their self-esteem
and when that is not forthcoming, they feel extremely distressed, depressed, or
angry and need to do something to re-establish the sense of being special and
better than others. One of the characteristics of a narcissistic personality
disorder is the capacity to give a wonderful first impression. Individuals with
the disorder are lively, likeable, exciting, interesting, and sometimes very
persuasive or charismatic. But during the course of the relationship in the long
term, the fact that their interest is almost self-subservient leads to conflict and
disappointment with other people. As a result of disappointment, personal
problems are inevitable and result in friction that may lead to the break-up of
relationships or businesses or actual violence.
      On the basis of his assessment of the background factors and the
personality factors, Dr. Estrada’s opinion was that Bourgeois has a much higher
tendency toward violence than an ordinary person. He observed that Bourgeois’s
attitude throughout the legal proceedings had been one of a member of the
defense team, rather than the defendant or the father of the victim. He noted
that Bourgeois had been very attentive, had made profuse notes, and had been
able to discuss and provide assistance to his defense team as needed. Bourgeois
had also given the impression that he was disgusted with the presentation and
answers of the witnesses and was not going to let what they said shake or affect



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                                 No. 11-70024

him. Those two characteristics, in Dr. Estrada’s opinion, were very consistent
with a diagnosis of a narcissistic personality disorder.
      At a bench conference following the government’s direct examination of Dr.
Estrada, Tinker told the court that, depending on how Dr. Estrada’s cross-
examination went, the defense was going to rest. He noted that this was not the
consensus of the rest of the defense team, particularly Dr. Cunningham. He
continued: “For instance, he [Dr. Cunningham] would talk about how many
people are in the penitentiary and that there are only 10% commit murders.
Well, I think why the hell would I want the jury to know that? Maybe it’s 3
percent. But still.”
      Through cross-examination of Dr. Estrada, the defense presented
mitigating evidence about Bourgeois’s background and the circumstances of the
offense. When asked to tell the jury what he knew about Bourgeois’s childhood,
Dr. Estrada testified that Bourgeois was not truthful about his own abuse as a
child and was vague and reluctant to talk about his background. He said that
it is not unusual for individuals who abuse their children to gloss over or give
excuses for their parents’ neglect or abuse. He testified that, based on the
testimony of witnesses, there were several indications of neglect and rejection.
Tinker stated: “And I want you to understand that as I ask you these questions,
I’m not asking these questions to help excuse what he did, but to explain it.”
      Dr. Estrada testified that Bourgeois was a child from an illegitimate
relationship and his real father abandoned him. Further, his mother selected
him from among her many children for particular abuse.
      When Dr. Estrada mentioned that he had received a report of
neuropsychological testing by Dr. Weiner, the court called counsel to the bench.
The court stated that Dr. Weiner’s report had been excluded from evidence and
that no witness had testified that Bourgeois was abused or neglected in any way
and asked Dr. Estrada where he got that information. Tinker stated that he

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would not ask Dr. Estrada to discuss Dr. Cunningham or Dr. Weiner’s reports.
The court stated that Dr. Estrada should not testify from Dr. Weiner’s
examination but that it did not see any reason why he could not testify from the
information he got from Dr. Cunningham. The prosecutor pointed out that Dr.
Cunningham’s report contained references to Dr. Weiner’s report.
      Dr. Estrada testified that the prosecutor had asked him to provide
information about the profile of people who abuse their children and that he had
responded that people who commit that kind of offense generally were abused
themselves. He said that he sent the prosecutor a letter describing the main
personality characteristics of an abusive parent: a history of personal use of
violence to get their way; a reliance on violence rather than dialogue or conflict
resolution to take care of problems; being more concerned about themselves than
about other people, more self-centered; expecting a child to conform to their
needs, rather than conforming to the needs of the child; and a great difficulty
tolerating frustration and stress.
      Dr. Estrada stated that at the time of the murder, Bourgeois was stressed
because: he had discovered that he had a child as a result of an affair and was
very angry about that; he was under financial stress with debts; he had a serious
marital problem with his wife and they had been arguing about a number of
things, including their mutual affairs; and they were in a confined situation that
made any little accident in the toilet the trigger for an explosion of anger that
came from a number of different directions and ended up focused on the child.
      Dr. Estrada said that during their interview, Bourgeois felt that the times
where he was angry and violent with his wives were justified and that he had
good reasons to act that way. Dr. Estrada also observed that Bourgeois’s friends
and relatives did nothing to stop the abuse of his wives or JG because they felt
they did not have the right to interfere in the way he was handling his family.
That is why Dr. Estrada found that Bourgeois was the product of an

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environment where a certain measure of violence in family relationships, like
harsh discipline of children or hitting the wife, is accepted.
      When asked whether there was something that could have happened that
would have prevented this, Dr. Estrada responded: “Yes, intervention before
adulthood.” He said that, ideally, such intervention should have occurred while
Bourgeois was in elementary school.
      Trial counsel tried to get Dr. Estrada to limit his assessment of the risk of
future violence to family situations.        Dr. Estrada responded that given
Bourgeois’s background and personality, and the pattern of abusive
relationships, the short-term prognosis was that Bourgeois will become violent
in a family situation. When asked whether Bourgeois would be a risk for violent
conduct in the penitentiary, Dr. Estrada was unable to express a definite opinion
without knowing the details of the prison circumstances in which Bourgeois
would be confined. Dr. Estrada agreed with trial counsel that, the older a person
is, the less likely they are to cause problems, and that there is a lesser degree of
all kinds of violent incidents, the higher the supervision available. He also
agreed that he would expect a person of Bourgeois’s age to able to adjust better
in the penitentiary than someone who enters prison as a rebellious youth.
      On redirect examination, the prosecutor challenged the basis for Dr.
Estrada’s impression that Bourgeois had an abusive childhood. Dr. Estrada
testified that Bourgeois reported being well cared for as a child and that no one
had told him directly that there was any abuse or neglect, but he had read it in
reports. He testified that it was his conclusion that Bourgeois is self-centered,
angry, and has a high risk towards violence. He observed that when AB1994
approached the witness stand, she tried to establish eye contact with Bourgeois,
but Bourgeois avoided eye contact with her. Dr. Estrada also acknowledged that
this is not the usual case of child abuse and that he did not hear anything from



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the evidence that communicated a culture that would allow for the systematic
beating and torture and killing of a two-year-old.
      On further cross-examination, trial counsel elicited testimony that
Bourgeois’s avoidance of eye contact with AB1994 could have been an effort not
to intimidate her. Dr. Estrada also testified that Bourgeois is not a sociopath
and that he believed Bourgeois would adjust well in custody.
      At a bench conference, the court stated: “I don’t think, Mr. Tinker, you
could have hired a better witness for your defense than Dr. Estrada.” Later,
after the defense rested, the court stated that in cross-examining Dr. Estrada,
Tinker essentially got into evidence the reports of both Dr. Cunningham and Dr.
Weiner. The defense did not present any expert testimony, but did present the
testimony of several lay witnesses.
      Michelle Armont, Bourgeois’s paternal half-sister, testified that their
father had twenty-two children; that Bourgeois came to live with her after Ms.
Clayton died; that Bourgeois had a temper, but that usually she could calm him
down; that his only problem in school was tardiness; and that she had observed
the same type of behavior by Bourgeois that she had observed by her nephew,
who had attention deficit disorder.          She testified that she assumed that
Bourgeois did not move back in with his mother after Ms. Clayton died because
they did not have a good relationship at the time; however, she said that
Bourgeois and his mother resolved the problem in the end.32
      Bourgeois’s first cousin, Carl Henry, testified that Bourgeois’s mother
cleaned his nose with her long fingernails, causing a bad sore and a constant
bloody nose; that she whipped Bourgeois with an extension cord and threw a
telephone receiver at his head; that his mother sent him to live with Ms.


      32
         The record contains some evidence of an apparent reconciliation between Bourgeois
and his mother. In a handwritten letter to Bierbaum and Milstein on February 5, 2004,
Bourgeois referred to a fish fry at his mother’s home on the day JG was christened.

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Clayton, but Bourgeois liked living there because Ms. Clayton cared for him
better than his mother did; and that Bourgeois was hurt when teased about his
father’s absence from his life.
      Ms. Clayton’s grandson, Reverend Herman Clayton, Jr., who grew up in
the same neighborhood as Bourgeois, testified that they were raised on a street
that housed about thirty poor, black families. He stated that Ms. Clayton asked
Bourgeois’s mother to allow Bourgeois to live with her and that Bourgeois’s
mother refused on several occasions, but Ms. Clayton persisted. He said that
Bourgeois would hide at Ms. Clayton’s when his mother came to look for him.
Although he did not witness any abuse, he was told by others that Bourgeois’s
mother whipped her children, and that she abused Bourgeois and whipped him
for things he did not do. On cross-examination, he testified that Ms. Clayton
was doing a favor for Bourgeois when she provided a home for him.               He
explained that Bourgeois’s mother could not come to court because she had just
come home from the hospital after having a heart attack.
      After the defense rested, Bourgeois complained to the district court,
outside the presence of the jury, about his lawyers not putting up a fight for him.
He reiterated his belief that he had been convicted for something he did not do,
based on what Robin’s family had said, and complained that his family did not
get a chance to testify prior to the punishment phase, when it was too late. The
court told Bourgeois that his attorneys had a right to make strategic decisions
in his best interest and that they had, in the court’s opinion, exercised extremely
good judgment. The court then stated that it wanted to make a record of the
investigation that was done for Bourgeois. Defense investigator Tenore stated
that he had been working on the case since March 2003 and had interviewed
over fifty witnesses. Gilmore stated that he had a synopsis of every witness
interview. Tenore also stated that mitigation investigator Bierbaum had spent
a significant amount of time in Louisiana. The district court noted that it had

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                                  No. 11-70024

appointed one case-in-chief investigator, two mitigation investigators, and a
mitigation expert as well as a neuropsychologist, a neurologist, a DNA expert,
a forensic odontologist, a battered-baby expert, a juror selection specialist, and
a polygraph examiner.
      Against trial counsel’s advice, Bourgeois testified at the punishment phase
as follows:
      My sympathy goes out to the soul of JG1999, my baby, her family,
      my family, relatives and friends, and I’m very sorry for the death of
      my child. It’s a hurting pain and a sorrowful thing that happened.
      And I feel or believe that I have been wrongfully accused of this
      crime that I’ve been convicted for . . . .
      So I feel like you all have been misled and I’ve been wrongfully
      convicted, and I’m just sorry for the pain and suffering, that I’ve
      been wrongfully accused for the death of my baby, and I did not kill
      my baby.
      I just want to close with that I loved JG1999, she’s an infant that
      didn’t actually come in this world and I think the real murderer got
      off with this crime. I just think you all should know that I have
      been wrongfully convicted. I feel my wife had a lot to do with this
      and she walked away free, and I just had to say this. If I never get
      an opportunity to say this to nobody else, my family, Katrina’s
      family, JG1999 came from a lovely family. When I picked her up,
      when she got in my custody I had no problems with JG1999. She
      was a lovely kid, very lovely. I realize some of the pictures that you
      all seen in the swimming pool, I will say I was a little rough like
      that, I’m like that with all my children. And I just feel you all have
      been wrongfully misled.
      I just think I want to close with that, saying that I love my baby, I
      love her family, I love my family. And I thank each and every one
      of you for participating, the lawyers for the job they did, and for
      everybody that communicated. And God bless all of you all. Thank
      you.
      Gilmore began his closing argument by saying: “It’s difficult for me to
come up here and argue to you about this punishment and what you’re going to
do to him knowing that he maintains his innocence, and knowing that you don’t


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                                  No. 11-70024

believe that.” After pointing out that Bourgeois’s mother singled him out for
abuse and that he went to live with Ms. Clayton to get away from his mother,
Gilmore stated:
      Now, these things are offered to you not as an excuse for committing
      this crime, but to try to help you understand his mind set, and
      trying to help you understand where he comes from. This is – it’s
      not an excuse for him, if you believe he committed this crime, for
      him doing it. It’s something to show you that he’s a human being.
Next, he mentioned that Bourgeois was upset about Robin’s affair, was having
economic problems, and then found out that he had a child from a one-night
stand. Then he stated: “Something happened in that trip. If you believe that
he did this, something happened during that trip that brought all these factors
together and caused him to snap.         If you believe he did it, it was not a
premeditated act.” He pointed out that if a person wants to kill a child of that
age, it could be done immediately. Then he stated: “And I think that what
happened is that at the Naval Air Station, these factors all came together and
he snapped. Intending to discipline her, it got out of hand and it ended up
killing her. That’s not to excuse his behavior; it’s in an attempt to try to explain
what happened.” He concluded by pointing out that the things Bourgeois had
done in the past had been in family situations where emotion was involved and
that such circumstances would not exist in the penitentiary; but if they did, the
people who run the penitentiary know how to deal with it.
      In his portion of the defense closing argument, Tinker told the jury that
Bourgeois was an unwanted child in a large family with a mother who abused
him. Referring frequently to Dr. Estrada’s testimony, he argued that Bourgeois
grew up in a society where it was accepted conduct to hit children and wives.
Tinker noted that Dr. Estrada had explained that JG “ended up the victim of
who he [Bourgeois] ended up because he started out getting abused himself.” He
concluded: “I hope that helps you out on who it is that they have called on you


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                                       No. 11-70024

to give the death penalty. There’s no evidence he is a danger to anybody other
than in the family setting. That’s what their expert, Dr. Estrada, said. Dr.
Estrada told you that because of his age he’s least likely to cause any problem
in the penitentiary.”
       In rebuttal, the prosecutor pointed out the inconsistency between
Bourgeois’s insistence that he is innocent and the explanations offered by
Bourgeois’s counsel: “Was there remorse in his voice? Did he ever admit to you
that he lost it and accidentally killed the baby, and that it was his background
that did it to him? No, he didn’t. Not ever.”
       After the jury’s punishment verdict, the court asked Gilmore if the defense
investigated Bourgeois’s neighbors, childhood friends, and school and
employment records. Gilmore replied: “Yes, Your Honor. Mr. Tenore and Mr.
Bierbaum did a fairly thorough investigation. They followed up all the leads.
They dealt mostly with Mr. Bourgeois’s brother, Lloyd Ferdinand, who directed
them to all these people.”
                                             b.
       In this § 2255 proceeding, Bourgeois argues that trial counsel were
ineffective in presenting only a small fraction of his life story and omitting any
compelling and descriptive details about his impoverished background,33




       33
          Bourgeois grew up in an impoverished, isolated neighborhood on the banks of the
Mississippi River, about fifty miles from New Orleans. His community, called “the Bend,”
consisted of a one-lane dirt road connecting about twenty homes, representing two or three
different family units. The neighborhood was surrounded by sugar cane fields and hemmed
in on one side by the River. The families of the Bend had all lived there for five generations
or more and could trace their lineage back to “slave time.” Most of the homes had been lived
in for generations. The Bend was not connected to a sewage line.

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                                         No. 11-70024

dysfunctional family,34 physical abuse and neglect,35 sexual abuse, BPD,36 brain
damage,37 low intelligence,38 and the stress he was under during the summer of
2002.39 According to Bourgeois, counsel’s failings were the result of a lack of


       34
          Bourgeois’s mother was an alcoholic; he was the fifth of seven children born to her
in less than nine years; his next older brother, Anthony, was born with cerebral palsy, was
profoundly retarded, and required significant extra care, for which the family received no
outside services; and his mother was overwhelmed by the number of children in her care.
       35
         Bourgeois acknowledges that some evidence of childhood abuse was presented at trial
but contends that it was not similar to the detailed evidence presented in the § 2255
proceedings and thus the jury did not hear firsthand, detailed accounts of how young
Bourgeois was subjected to merciless, chronic, and long-standing physical abuse at the hands
of his mother.
       36
          Bourgeois argues that evidence that persons with BPD are extremely vulnerable to
stress, and tend to experience dissociative and psychotic episodes in which they are unaware
of their actions and unable to control their behavior, contrasts greatly with the prosecution’s
theory at trial, which was that he acted with premeditation when he killed JG in an effort to
avoid paying child support. He contends further that the district court erred by concluding
that a reasonable attorney could rationally decide not to present evidence of BPD in the light
of its “aggravating edge” because (1) trial counsel never offered that explanation; and (2) trial
counsel was never able to consider the option of a BPD diagnosis in the first place because they
failed to provide Dr. Estrada or any expert with sufficient information about Bourgeois.
       37
         Bourgeois contends that if trial counsel had consulted with Dr. Weiner about the
substance and basis for his conclusions, and had provided medical records to him, he would
have told them that whether Bourgeois had suffered a coma was not crucial to his findings,
which were based on neuropsychological testing, and that regardless of the cause, Bourgeois
has some brain damage. He also argues that the district court erred by speculating that
counsel may have decided not to present evidence of brain damage because neurological
conditions are double-edged. He asserts that trial counsel never offered that theory, nor could
they, because they failed to prepare and consult with their expert about his findings and
conclusions and were therefore not in a position to make an informed decision about the pros
and cons of his testimony.
       38
          Bourgeois argues that trial counsel ineffectively failed to present evidence that he
has, at best, an IQ that is in the range of borderline intellectual functioning. He contends that
the district court’s subjective view of Bourgeois’s testimony and the meaning or significance
of his behavior at trial are belied by the testimony of government expert Dr. Price, who
acknowledged that, despite Bourgeois’s ability to testify and to drive a truck, he functions in
the borderline level of intelligence.
       39
         Bourgeois contends that trial counsel ineffectively failed to present all of the available
evidence that, at the time of the murder, Bourgeois was experiencing stress as a result of his
marital difficulties, financial pressures, and legal difficulties.

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                                  No. 11-70024

preparation rather than a strategic decision. He contends that if trial counsel
had conducted their investigation in a timely manner, they would have
discovered and addressed any concerns regarding Dr. Cunningham’s testimony.
Bourgeois contends further that the district court erred by suggesting strategic
reasons for counsel’s failure to pursue and present certain categories of
mitigating evidence because such strategies were either never offered by trial
counsel or were not the strategies that counsel stated that they pursued. He
asserts that at the punishment phase, trial counsel did not pursue their
purported strategy of innocence but instead presented mitigating evidence and
argued that Bourgeois’s childhood history of abuse and the stress that he was
under at the time of the murder explained his actions. In addition, trial counsel
asked the jury to find mitigating factors that would have been supported by the
lay and expert testimony they failed to present, including: Bourgeois’s capacity
to appreciate the wrongfulness of his conduct was significantly impaired; he
suffered from extreme mental or emotional disturbance; and he was abused as
a child.
      In support of his claims in the § 2255 proceedings, Bourgeois relied on
eight experts and numerous lay witnesses to present the evidence that he claims
his trial counsel should have discovered and presented at the punishment phase.
      Bourgeois submitted a declaration and the deposition testimony of Dr.
Estrada, the government’s expert witness at trial. In his declaration, Dr.
Estrada stated:
      (1) New information provided by Bourgeois’s habeas counsel confirmed
what he strongly suspected at the time of trial: Bourgeois has a history of family
dysfunction and childhood physical and sexual abuse, and he has cognitive
deficits that further affect his ability to make good judgments. That history is




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                                    No. 11-70024

consistent with BPD,40 which supplements the earlier diagnosis of narcissistic
personality disorder.
      (2) Bourgeois’s abuse and killing of JG is consistent with the type of rage
attacks that a borderline patient might experience under extreme stress, such
as that experienced by Bourgeois at the time of the offense. The brutal and
bizarre manner of the killing, along with Bourgeois’s background and mental
health deficits, show that this “was purely a rage killing,” born of Bourgeois’s
lifetime experiences, the psychological effects of those experiences, and his
cognitive deficits. In addition, Bourgeois, like many borderline personalities, can
decompensate into rageful outbursts when frustrated.
      (3) If allowed to rely on Dr. Weiner’s report at trial, he would have
explained that Bourgeois’s cognitive deficits were important factors that mitigate
the offense and help explain Bourgeois’s violent behavior.
      (4) Knowing what he now knows and previously suspected, he does not
believe the jury was provided with an accurate and complete picture of
Bourgeois’s mental-health profile.          Although Bourgeois’s actions were
unquestionably evil, it is equally unquestionable that there is a reasonable and
not particularly controversial mental health explanation for his actions.
       In his 2010 deposition, Dr. Estrada testified that the sources of BPD
include genetics as well as a childhood history of rejection, neglect, and
abandonment. He stated that BPD is characterized by unstable relationships,
including “episodes of honeymoon, followed by episodes of hate and violence.”
In addition, persons suffering from BPD are “extremely vulnerable to stress.
And during episodes of stress, they are involved in impulsive behavior, behavior




      40
          At the evidentiary hearing, the prosecutor stated that the government did not
dispute the diagnosis of BPD.


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                                  No. 11-70024

with very poor judgment, bordering in psychotic, irrational behavior.” Dr.
Estrada connected Bourgeois’s BPD to JG’s abuse, stating:
      Under stress, this man went into episodes of rage against this child.
      He was frustrated. He already was predisposed to some form of
      inappropriate behavior by the fact that he was under stress, but the
      inappropriate behavior took both a violent sadistic form and sexual
      form. . . . This went on for six weeks until the accumulations of all
      the rages and violence, aggressive behavior toward this little girl
      caused her death.
He stated that Bourgeois’s killing of JG was not premeditated, but resulted from
rage and a loss of control. He explained:
      [I]t is clear that under stress his judgment is very poor and that he
      makes decisions that are driven by impulses and by emotions rather
      than by reason. And whatever his measured IQ or academic
      achievement is, his intellectual capacities and his knowledge are put
      aside by his feelings of rage, and he acts on those feelings in a
      manner that shows very poor judgment, very poor self-control and
      no concern about the consequences of his behavior on his life.
Dr. Estrada testified that Bourgeois’s rage would impact his executive function
and inhibit his judgment, planning, decision making, control of impulses, and
management of cause and consequences. He summarized his opinion as follows:
      [T]his man under the serious stress that he was facing, finances,
      marital problems and being dumped with a new child that he didn’t
      expect and fatherhood, care and financial obligations, under this
      stress, he reacted in a typical borderline fashion caused by his
      background of trauma, neglect and rejection by losing control of his
      anger and torturing, tormenting and abusing this child
      intermittently throughout six weeks with periods in which he was
      actually caring and nice to the child in typical borderline fashion
      that ultimately the abuse caused this child’s death. It is my opinion,
      therefore, that this is not the act of a premeditation.
      On cross-examination by the government, Dr. Estrada testified that he
had not changed his opinions, expressed at trial, that: (1) Bourgeois is of above-
average intelligence and memory; (2) Bourgeois’s rage is triggered by
interpersonal relationships, especially intimate ones, and such patients do much

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                                  No. 11-70024

better in a structured environment where there is no closeness or intimacy; and
(3) Bourgeois is prone to violence, is a future danger, and is a self-centered,
angry person. He acknowledged that there had been trial testimony about times
when Bourgeois was violent outside the context of an intimate relationship. He
testified that he still believes Bourgeois is narcissistic, but now has diagnosed
him as having BPD as well. He explained, however, that BPD and narcissistic
personality are an elaboration of the same issues. He acknowledged that many
of the factors he used to diagnose narcissistic personality are the same factors
he had used, post-trial, to diagnose BPD. His reassessment of the case, based
on the additional information he had been given by Bourgeois’s habeas counsel,
was that in addition to being a narcissist, Bourgeois has BPD, which explains
what he did, but does not make him any less violent.
      On redirect examination, Dr. Estrada reiterated that “we are splitting
hairs here about narcissistic borderline. The fact is whatever we call it, my
opinion at the time that I testified and is documented and my opinion now,
which has been reinformed with the new documentation that I have received, is
that Mr. Bourgeois suffered from a condition that under frustration or stress
results in violence and that this – as a result of this tendency, he became violent
continuously through a manner of six weeks against the child that led to her
death.”
      Bourgeois also presented a declaration and testimony from Dr.
Cunningham. In his declaration, Dr. Cunningham criticized Bourgeois’s trial
counsel’s efforts to develop mitigating evidence, their lack of a strategy for the
punishment phase, and their lack of supervision of the mitigation investigators;
stated that trial counsel’s cross-examination of Dr. Estrada was inadequate for
the jury to appreciate the mitigating quality of Bourgeois’s history of abuse; and
stated that he was confident that his testimony would have had a significant
impact on the jury’s sentencing determination and that he was “flabbergasted”

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                                    No. 11-70024

when told that he would not be called as a witness. Dr. Cunningham stated
further that Bourgeois’s rage attacks were consistent with an Intermittent
Explosive Disorder, and that Bourgeois’s developmental history, along with the
emotional instability, relationship devaluation, and rage that almost certainly
accompanied his conduct in killing JG, are consistent with BPD.
      At the § 2255 evidentiary hearing, Dr. Cunningham complained that he
did not timely receive information from the mitigation investigators and
complained about the quality of their work. However, he acknowledged that he
did not inform defense counsel about his concerns until early February, when he
came to Corpus Christi to interview Bourgeois. He also elaborated on his
previous criticism of trial counsel.
      Dr. Cunningham testified that the symptoms described by Bourgeois’s
family implicate neurobehavioral disinhibition or attention deficit hyperactivity
disorder and are mitigating because they indicate that he was psychologically
damaged from an early age but that damage can be treated by providing a highly
structured environment, like prison, and with anti-rage medications.
      Dr. Cunningham also described his “pressure cooker” theory that he
wanted to present at trial: Bourgeois had a historical susceptibility to rage
attacks and was like a pressure cooker. Within that pressure cooker, there is a
history of an overwhelmed family system, domestic conflict, physical abuse,
father abandonment, and emotional rejection. Bourgeois keeps a lid on this most
of the time, and that lid is composed of being a hard worker and maintaining
steady employment, being involved with his children, and being a caring uncle.41
      Dr. Cunningham testified further that, based on his research about risk
factors for child abuse, to the extent that Bourgeois is someone who batters, he


      41
         The district court interrupted and questioned him about whether the testimony
about Bourgeois dangling his nephew over a bridge would look bad with the “caring uncle”
comment.

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                                     No. 11-70024

is among millions of men in the United States who engage in that conduct.
Therefore, his singular malevolence in terms of making him a candidate for the
death penalty is somewhat reduced by a recognition, at least in terms of
domestic violence, that this is a widespread, tragic dysfunction in our society.42
       Dr. Cunningham stated that if he had testified at trial, he would have told
the jury that risk assessments for prison are best based on the person’s personal
track record in confinement and on group statistical data on how capital
offenders and murderers and inmates behave in prison; that research
demonstrates that the seriousness of the offense is not a good predictor of
violence in prison; and that the overwhelming majority of capital murderers, if
sentenced to life in prison, never engage in serious violence. He said he was
prepared to address the evidence that Bourgeois tried to hire a hit man by
describing the differences between the Nueces County Jail and the Federal
Bureau of Prisons and the latter’s ability to maintain a safe environment.
       Dr. Cunningham testified that if trial counsel had provided him with the
materials provided to him by habeas counsel, those materials would have
supported additional adverse developmental factors in Bourgeois’s background:
a genetic predisposition to personality disorder; corruptive paternal modeling of
promiscuity and reproductive irresponsibility; corruptive maternal modeling of
neglect, abuse, and scapegoating; borderline personality features; deficient
intelligence and potential mental retardation; mother’s inadequacy and
potentially deficient intellect; inadequate primary attachment; rejection by
legitimate paternal siblings; peer rejection and isolation; additional information
regarding maternal rejection and expulsion; and additional information
regarding emotional neglect and supervisory neglect.


       42
          The district court interjected that it could see why Tinker would not have wanted
to present that testimony to the jury because it probably would have offended most of the
jurors.

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                                     No. 11-70024

       Dr. Cunningham testified that when he interviewed Bourgeois on
February 7, 2004, Bourgeois told him that his nose was broken when his mother
hit him with a mop handle for lying to her about the sexual abuse that he said
was perpetrated by Jacob Clayton, whom he identified as the gay son of Ms.
Clayton. This information about Bourgeois’s allegation of sexual abuse is not in
the reports that Dr. Cunningham provided to trial counsel.
       On cross-examination, Dr. Cunningham stated that he was not aware that
the government had a psychiatrist and a psychologist to testify about mitigation
in rebuttal or that John Shaw of the Bureau of Prisons was going to testify in
rebuttal about how many murders take place in the prison facility. He also
acknowledged that his proposed testimony is inconsistent with a defense of
innocence but pointed out that the information elicited from Dr. Estrada on
cross-examination at trial was also inconsistent with the innocence defense. He
also characterized such a defense as an “extremely high risk decision to make,
in light of the jury’s verdict and in light of the evidence in this case.” During
cross-examination, the district court noted for the record that Dr. Cunningham
seemed to be very angry.
       Bourgeois also submitted a declaration and testimony from Dr. Weiner,
who stated that his test results and conclusions prior to trial are valid regardless
of whether Bourgeois accurately reported a head injury and a coma and
regardless of how the brain damage was caused. He testified that if defense
counsel had provided him with Bourgeois’s medical records, he would have
known that Bourgeois did not suffer a head injury or a coma as a result of the
1984 accident and, if given the opportunity to do more testing, he could have
offered a psychological explanation for Bourgeois’s lie about the coma.43 Dr.


       43
          Dr. Weiner testified that Bourgeois’s medical records, which were not provided to
him by trial counsel, also contain a report of Bourgeois striking his head in an 18-wheeler
accident in July 1993 but he admitted that would not necessarily account for Bourgeois’s

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Weiner said that if he had been called as a witness at trial, he would have
testified that the brain dysfunction would impair Bourgeois’s cognition so that
he may at times perceive things in a distorted way and act in an inappropriate
manner; and that brain damage can impair a person’s ability to deal with
emotions and cause problems with impulse control, ability to make judgments,
and judging the future consequences of one’s actions.
       Bourgeois submitted the declaration and testimony of Dr. Michael M.
Gelbort, a clinical neuropsychologist, who evaluated and tested Bourgeois in
April 2007. He offered the following opinions:
       (1) His test results are similar to Dr. Weiner’s results and indicate no
malingering.      Test results showed Bourgeois’s brain functioning is in the
impaired range. Bourgeois’s score on a cognitive dysfunction test indicated
impulsivity, disinhibition, and trouble keeping his actions in line with
reasonable thoughts.
       (2) Bourgeois’s IQ score is in the range of mental retardation. Formal
psychometric data does not support Dr. Estrada’s assessment of above average
intelligence.
       (3) Bourgeois’s neuropsychological profile shows deficits in frontal lobe
abilities, and there is clear evidence of impairment and impact on his executive
functioning, which may result in acting impulsively and without forethought.
Bourgeois’s organic brain damage makes it more difficult for him to deal with
emotional disturbance.
       (4) Bourgeois’s impairment is significant, particularly considering his
abusive childhood, because the adult survivors of childhood abuse often suffer
from impulse control difficulties. When this psychological damage is overlaid



deficits and there could be other reasons for them, such as his long history of physical abuse.
.

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with Bourgeois’s organic deficits, his ability to modulate his conduct is quite
impaired.
      (5) It is irrelevant whether Bourgeois suffered a head injury as reported
by Dr. Weiner because what is significant is that the deficits predated the
murder. Bourgeois’s impairments exist, even if the cause is not clear. The fact
that Bourgeois may not have suffered a loss of consciousness in the three-
wheeler accident that Dr. Weiner reported does not affect the validity or
significance of Dr. Weiner’s testing because one can suffer a traumatic brain
injury without a loss of consciousness.
      (6) Bourgeois described physical abuse from his mother and sexual abuse.
      (7) Bourgeois is rather narcissistic. Dr. Gelbort did not express an opinion
about whether Bourgeois is sociopathic although he “would absolutely agree”
that many of the behaviors he had seen described can be caused by sociopathic
etiology. He elaborated:
      [Bourgeois] says things to cover for himself at times. That’s a
      characteristic of people who have sociopathy.             It’s also a
      characteristic, which is I think in this case more central, to someone
      who has a borderline personality disorder. I don’t want them for my
      neighbor.
      On cross-examination, the government pointed out that Dr. Weiner
thought there was more posterior impairment than frontal lobe impairment. Dr.
Gelbort testified that he would have localized the injury in another part of the
brain but that he did not see the source of the impairment as being as influential
as its effect. He acknowledged that Bourgeois’s EEG was normal and stated that
he did not know how to explain Bourgeois’s behavior but that one could certainly
understand that a brain with limitations and impairments such as Bourgeois’s
is much more likely to do things that are strange, bizarre, or out of the norm.
      As an appendix to his § 2255 motion, Bourgeois presented a declaration
from Dr. Holden, who stated that if he had been called as a witness in the


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punishment phase, he would have testified that research reveals that the
majority of filicides occur at the end of a disciplinary incident and that, in most
cases, the parent does not intend to kill the child; and that Bourgeois’s killing of
JG was likely a disproportionate rage reaction resulting from stress and
frustration. He opined that Bourgeois was in a violent rage during the incident,
stemming from three sources:         (1) his pathological child rearing; (2) the
stressors, both immediate and distal, that he was suffering at the time; and (3)
his organic deficits and impaired cognitive functioning. Dr. Holden concluded
that his testimony could have helped the jury understand that Bourgeois’s
behavior fits a common pattern of abuse and that his acts of violence, although
cruel, are actually common in cases of severe child abuse. He stated that if
called as a witness at the sentencing phase, he could have (1) helped the jury
place this awful crime in the context of family violence; (2) reviewed the
neuropsychological and psychosocial factors that pre-disposed Bourgeois to
violence against children; and (3) explained that Bourgeois’s actions on the day
of the crime were the behaviors of an abuse-survivor, experiencing high stress,
with low functioning, and with consequent impairments in impulse control.
Habeas counsel offered Dr. Holden’s declaration in lieu of his testimony at the
§ 2255 evidentiary hearing.
      Bourgeois also submitted the declaration of forensic psychiatrist Dr.
Robert L. Sadoff, who evaluated Bourgeois and found that Bourgeois has four
prominent features that affect his ability to function: (1) a history of significant
childhood physical and sexual abuse; (2) significant, debilitating personality
disorders, including BPD; (3) clinically significant organic brain damage; and (4)
an IQ in the range of mild mental retardation. He noted that at the time of the
crime, Bourgeois was under a great deal of stress from driving cross country in
the cab of a tractor trailer, sharing close quarters with a family of five, including
two children still in diapers, financial problems, and his wife’s recent infidelity.

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As a result of this combination of severe psychosocial stressors and
neuropsychological deficits, Dr. Sadoff stated that Bourgeois had great
difficulties coping and he responded with repeated impulsive acts that
eventually led to the tragic death of JG.
      Bourgeois also presented the declaration and testimony of Jethro W.
Toomer, Ph.D., a clinical and forensic psychologist who evaluated Bourgeois and
administered psychological personality tests.      He expressed the following
opinions:
      (1) Bourgeois is a deeply troubled and impaired individual with precarious
psychological functioning, he suffers from the lasting impact of savage childhood
sexual and physical abuse, he has impaired intelligence, he has organic brain
impairments which impact his ability to control impulses, make judgments, and
predict the consequences of his actions, and his psychological functioning
deteriorates during times of stress. When Bourgeois has acted in a rageful
manner, he was likely acting out of mini-psychotic episodes secondary to his
BPD. Bourgeois is not a sociopath.
      (2) Results of psychological tests indicate that Bourgeois suffers from a
delusional paranoid disorder, post-traumatic stress disorder, and a combination
of schizoid, narcissistic, and borderline personality disorders.      Individuals
suffering from BPD manifest mini-psychotic episodes caused by stress or cues
in the environment that serve as catalysts for unresolved emotional issues.
There is evidence that Bourgeois has undergone such mini-psychotic states
throughout his life. Bourgeois was experiencing numerous stressors at the time
of the murder: financial hardship, child custody, the infidelity of his wife,
resulting in him being “a time bomb waiting to happen.” The mental health
explanation for why he was a time bomb is mitigating because the behavior is
not necessarily premeditated but is a function of all of his deficiencies.



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      Finally, Bourgeois submitted a declaration and the testimony of clinical
psychologist Victoria Swanson, Ph.D., in which she expressed the following
opinions: based on testing she conducted, Bourgeois is mentally retarded; and
he has more of a borderline than a narcissistic personality disorder, but both
disorders are in the same cluster of personality disorders. On cross-examination,
she agreed that with the personality disorders that Bourgeois has and the
deficits that she observed, it is difficult even for an expert to assess him and
therefore, it would be logical for a defense lawyer to rely on the advice of experts
when dealing with a difficult assessment.
      In the appendix to his § 2255 motion, Bourgeois submitted declarations
from many lay witnesses to support his claim that trial counsel were ineffective
because they did not give the jury a complete view of his background.44 The
information provided in these declarations may be summarized as follows:
      1. Bourgeois’s mother drank alcohol heavily and hated Bourgeois because
he looked like his father.
      2. Bourgeois’s mother singled him out for abuse, whipping and beating
him more than her other children. She had long fingernails and would pick at
his nose until it was bleeding and eventually disfigured. She called him “little
yellow bastard.” One witness said that she burned Bourgeois with cigarettes.
      3. Bourgeois was abandoned by his father.
      4. Bourgeois had rages, temper tantrums, and mood swings. He could not
control his behavior and calm himself down.
      5. Bourgeois was picked on and teased as a child because he was “slow”
and because he had light skin and green eyes.
      6. The neighborhood where Bourgeois grew up was very poor.



      44
          Several of the witnesses who submitted declarations had been subpoenaed by trial
counsel, and several of them were witnesses at trial.

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          7. Bourgeois was a braggart and liar who exaggerated a lot to impress
people and cover up his failures.
          8. Bourgeois felt rejected when his mother sent him to live with Ms.
Clayton and he was hurt because he missed out on family outings.
          9. One of Ms. Clayton’s relatives, Michael Clayton, beat Bourgeois up
repeatedly.
          10. Bourgeois was “slow,” “not smart,” and “kind of dumb” and had lots of
trouble with his school work.
          11. Bourgeois could not handle pressure and at the time of JG’s death he
was under a lot of stress: financial problems, child support payments, the
knowledge of his wife’s adulterous affair, and the loss of his childhood home in
a fire.
          12. When Bourgeois was a young boy, his brother Clyde drowned. His
brother Anthony was disabled and needed a lot of extra care from their mother.
          13. Bourgeois had several accidents, including driving a three-wheeler
into a tree and an accident driving a truck.
          At the § 2255 evidentiary hearing, Bourgeois presented testimony from
several lay witnesses to show mitigating evidence of an abused childhood, sexual
abuse, and low intelligence.
          Claudia Williams, Bourgeois’s oldest maternal half-sister, described how
their mother whipped Bourgeois with an extension cord while he stood naked in
the tub, leaving him bruised and bloody, and cut off the tip of his finger with a
meat cleaver. She stated that Bourgeois had temper fits and bad rages from an
early age. On cross-examination, she admitted that she had talked to the
mitigation investigators three times before the punishment phase but did not
tell them about their mother cutting off the tip of Bourgeois’s finger or that their
mother had whipped him in the tub with an extension cord until he bled because
it was sad and she was ashamed of her mother. Because her mother was still

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                                       No. 11-70024

alive at the time of trial, family members did not want to talk about the way the
mother treated Bourgeois. She denied having heard that Ms. Clayton’s son was
a pedophile and had raped Bourgeois but said that she heard, from a family
member, that a homosexual Sunday-school teacher had raped Bourgeois. She
testified that she was present when Bourgeois had the three-wheeler accident
and that he was unconscious for days.45 She admitted that she knew that
Bourgeois had hit his wives.
       Ms. Clayton’s granddaughter, Beverly Frank, testified that Ms. Clayton
took Bourgeois in because he was mistreated by his mother. She said that she
witnessed Bourgeois’s mother whipping him with a belt and saw where the
mother had picked at Bourgeois’s nose until it bled. On cross-examination, she
testified that Ms. Clayton’s sons visited Ms. Clayton often while Bourgeois was
living there but denied knowledge that any of them raped Bourgeois. She knew
that one of them, Jacob, was “living a gay life,” but said that did not make him
a child molester. She testified that her father was the church choir director and
denied knowledge of Bourgeois claiming to have been sexually assaulted during
choir practice.
       Another of Ms. Clayton’s granddaughters, Brenda Goodman, testified that
Bourgeois’s mother drank alcohol excessively; was overwhelmed, frustrated, and
neglectful; cursed and beat Bourgeois more than her other children; and picked
at his nose, which stayed bloody all the time. Goodman testified that after they
discovered that her Uncle Jake had AIDS, Bourgeois told her that her uncle had
raped him. She described it as a “dark thing” that she could not tell her family,
and admitted that she did not tell anyone about it until recently. Although



       45
          The medical records of Bourgeois’s three-wheeler accident on July 17, 1984, reflect
that he tore his scrotum, broke his leg, and had surgery on his leg. The records state: “neuro
signs OK”; “[n]ot knocked out”; and “Neurological: Within normal limits.” There is no
indication from the medical records that he lost consciousness.

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Bourgeois’s habeas investigators asked her about abuse in his background, she
did not report it to them and did not mention it in her 2007 statement to them.
      Bourgeois’s cousin, Carl Henry, testified that Bourgeois’s mother resented
Bourgeois because she had a one-night relationship with his father and it did not
work out. He testified that he saw evidence of Bourgeois’s mother’s abuse but
did not provide specific details. On cross-examination, he said that Bourgeois
was not raped at church during Sunday school but he did not know about choir
rehearsal.
      Another cousin, Murray Bourgeois, testified about Bourgeois’s mother’s
abuse of him and her alcohol consumption. On cross-examination, he testified
that Bourgeois lived with Ms. Clayton because she felt sorry for him and was
trying to get him out of his abusive environment. He denied hearing that Ms.
Clayton’s sons were raping Bourgeois or that the Sunday school teacher raped
him at church during the choir meetings.46
      Kerry Brown, Bourgeois’s lawyer in Louisiana, testified that Bourgeois
had several child-support issues during the summer of JG’s murder; that
Bourgeois was having problems with debt but made poor decisions about money;
and that Bourgeois was distressed by the knowledge of his wife’s adulterous
affair. On cross-examination, Brown admitted that if he had testified at trial,
he could have said that he was defending Bourgeois on a charge that he had
beaten his mother-in-law and that Bourgeois was overbearing, jealous of his
wife, had a bunch of children he was not paying child support for, and had been
charged with destruction of property.
      Mitigation investigator Bierbaum testified at the evidentiary hearing and
described his and Milstein’s investigative efforts. He stated that he did not see


      46
          As the district court observed, the testimony was inconsistent as to whether Ms.
Clayton rescued Bourgeois from an abusive atmosphere or whether his mother sent him to
serve as a care giver to the elderly, physically-impaired woman.

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Bourgeois’s hospital records until trial and expressed his belief that the medical
record of a 1993 accident where Bourgeois went to the hospital and complained
that he hit his head on the steering wheel of his 18-wheeler is potential
mitigating evidence. On cross-examination, Bierbaum testified that he thought
Bourgeois showed signs of neurological dysfunction but did not remember noting
any symptoms of mental retardation.
      In an affidavit and testimony at the § 2255 hearing, trial counsel Gilmore
stated: When he met with Bourgeois he did not notice any mental health
problems. In his dealings with Bourgeois he never had any indication or thought
that Bourgeois might be mentally retarded. He did not recall what “highly
unusual, often bizarre behavior, abnormal conversations, and unusual writing
style” he was referring to in his motion for a mental-health evaluation prior to
trial.47 He had no reason to doubt Dr. Estrada’s assessment that Bourgeois was
of above-average intelligence. Bourgeois was very active in the defense team:
he provided names and telephone numbers of persons to be contacted for
mitigation as well as guilt-innocence; provided instructions to counsel in letters;
and frequently passed notes to them at trial. He and Tinker always discussed
the witnesses with Bourgeois and did not contact any witness without
Bourgeois’s direction. Bourgeois refused to talk about pleading guilty and
maintained his innocence throughout the case.               Gilmore praised Tinker,
describing him as the best lawyer he has ever met.
      With respect to the decision not to call Dr. Cunningham as a witness,
Gilmore stated: He met with Tinker and Dr. Cunningham in his office, before
the defense punishment case, where Dr. Cunningham showed them a notebook


      47
           The record reflects that at a hearing on December 10, 2003, the district court
questioned why the defense was asking for a mental examination after defense counsel had
stated, repeatedly, that there was no competency or sanity issue. Gilmore responded that
when the mitigation experts began interviewing Bourgeois and going over the materials,
particularly the letters that Bourgeois had written, they felt that it was necessary.

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                                  No. 11-70024

of his proposed PowerPoint presentation as well as a list of proposed questions
for counsel to ask him. After Dr. Cunningham’s presentation, Gilmore and
Tinker discussed it. Tinker did not like the PowerPoint presentation. They both
thought Dr. Cunningham’s testimony would conflict with Bourgeois’s defense
that he did not commit the crime. In addition, “we weren’t impressed with him,
to tell you the truth.” They also did not think Dr. Cunningham was going to
impress the jury. Tinker told Gilmore that he thought it would be more effective
to develop mitigation evidence through Dr. Estrada than through Dr.
Cunningham. After comparing what Dr. Cunningham could offer with Dr.
Estrada’s testimony, Gilmore and Tinker decided not to call Dr. Cunningham as
a witness. They also discussed Dr. Cunningham’s proposed presentation with
Bourgeois and explained that Dr. Cunningham thought he exploded and
committed the murder because he had a lot of pressure on him. Bourgeois
agreed with counsel’s assessment and their decision not to call Dr. Cunningham
as a witness. The decision not to call Dr. Cunningham was a group decision. Dr.
Cunningham was very angry that he was not going to be asked to testify and did
not accept the decision in a professional manner. They elicited testimony from
Dr. Estrada that mirrored the main part of Dr. Cunningham’s proposed
testimony – that Bourgeois did it but he did it because of all these pressures that
were on him. Dr. Estrada was effective for the defense. With respect to the
alleged inconsistency with the innocence defense in closing argument, Gilmore
stated that they argued about Bourgeois’s abusive history but did not argue that
it caused him to commit the offense.
      Gilmore testified about mitigating evidence as follows: He and Tinker and
the investigators spoke with over fifty people. During the trial, they rented a
conference room and talked to the witnesses individually; it took most of the day.
They based the decision whether to call witnesses on how the witnesses would
present in court, whether they had relevant evidence, and whether they had too

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                                  No. 11-70024

much baggage in terms of prior convictions. Gilmore knew that there were some
allegations about childhood sexual abuse but he did not think it came from
Bourgeois. He probably would have asked Bourgeois about those kinds of things,
but did not remember whether he had done so.
      Gilmore did not disagree with Dr. Estrada that the jury was not provided
with an accurate and complete picture of Bourgeois’s mental health profile.
                                        c.
      The government presented Tinker’s answers to interrogatories as an
exhibit in the § 2255 proceedings. Tinker stated: Gilmore was in charge of
coordinating the investigation of the availability of non-expert defense witnesses
and presenting their testimony at trial, and Tinker was in charge of dealing with
the government’s expert witnesses and obtaining and presenting rebuttal expert
testimony. They made the majority of trial decisions jointly. In preparing for
trial, they discussed and investigated the propriety of a defense based on
Bourgeois’s mental functioning, and that is why they had Bourgeois evaluated
by Dr. Estrada.     Dr. Estrada found that Bourgeois was of above-average
intelligence, was competent to stand trial, and sane at the time of the offense.
Some of the information gathered by the defense mitigation investigators might
have helped the defense, but other information would have had a negative
impact on their case. He had a neurological examination of Bourgeois done
because there was a claim that Bourgeois had been in an accident and had been
in a coma. He did not recall the examination resulting in any information that
would have been helpful at trial. Furthermore, the government had informed
the defense that it had medical records that proved that Bourgeois was never in
a coma and that he only sustained broken bones in the accident. Based on the
information he and Gilmore had, from experts and family members, they were
unaware that Bourgeois was mentally retarded or near retardation level.



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      The government also relied on two expert witnesses: Dr. J. Randall Price,
a neuropsychologist, and Dr. Roger Byron Moore, Jr., a forensic psychologist.
      Dr. Price expressed the following opinions in his report:
      Mr. Bourgeois does not warrant a diagnosis of mental retardation.
      He does, however, have a Personality Disorder, Not Otherwise
      Specified, with predominately narcissistic, borderline, anti-social,
      and paranoid traits and features. He is grandiose, preoccupied with
      himself, has a sense of entitlement, and is arrogant. He has avoided
      real or perceived abandonment by others, experiences identity
      disturbance, and has a history of inappropriate, intense anger. He
      has failed to conform to social norms and has engaged in repeated
      deceit. He is impulsive, irritable, and aggressive. He is suspicious
      of others, reads meaning into benign events, and reacts angrily to
      perceived attacks on his character or behavior. He views himself as
      a victim. Available indicators of measured intelligence fall in the
      range of the upper limits of mild mental retardation to the lower
      limits of borderline intellectual functioning. However, he does not
      evidence significant deficits in adaptive functioning in adulthood.
      The difficulties in life experienced by Mr. Bourgeois are associated
      with his disordered personality structure rather than with mental
      retardation.
      At the evidentiary hearing, Dr. Price testified that it would be of concern
for malingering that Bourgeois lied to Dr. Weiner about being in a coma and that
it was corroborated by Bourgeois’s sister. According to Dr. Price, the ability to
make up such a story and coordinate its telling with another person is consistent
with a personality disorder or with an attempt to manipulate the results of the
evaluation.
      Dr. Price did not disagree that Bourgeois has features of BPD, which is an
unstable personality, and that some people with unstable personalities act out
in angry and aggressive ways that are not normal. He acknowledged such
behavior by Bourgeois but stated that he thinks it is not organic but is
associated with Bourgeois’s unstable personality.       He stated further that
Bourgeois’s plan to have people killed would not be consistent with a rage


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                                  No. 11-70024

disorder or a mini-psychotic episode; instead, it would be consistent with
antisocial psychopathic traits and features.        Dr. Price pointed out that
Bourgeois’s impulsivity is selective and does not pervade all areas of his life.
      Dr. Price testified that there is not a neuropsychological test that isolates
the frontal lobe of the brain and, therefore, both Dr. Gelbort and Dr. Weiner
were wrong when they localized the deficits in different parts of Bourgeois’s
brain. Dr. Price concluded that Bourgeois’s problems are personality trait issues
and not organic brain dysfunction or mental retardation.
      On cross-examination, Dr. Price expressed his opinion that Bourgeois’s
BPD came from his abusive childhood. He conceded that under significant
stress, persons with BPD can decompensate into dissociative states and can also
undergo psychotic episodes; and that the rages, dissociation, and psychosis are
manifested in the intimate relationships in the subject’s life. He acknowledged
that Bourgeois has suffered black-outs under stress, which is consistent with
dissociation.
      Dr. Price testified that Dr. Estrada was wrong in his assessment that
Bourgeois has above-average intelligence because Bourgeois is nowhere near
that – he is either borderline or mildly mentally retarded on IQ testing. Dr.
Price agreed that Bourgeois’s low intellectual functioning affects his ability to
manage his personality disorders and added that having lower intelligence in
general is associated with more aggressive criminal actions because such
individuals have problems with judgment and impulse control.            Dr. Price
testified that he did not think Bourgeois was malingering and he found no
indication that Bourgeois suffers from attention deficit disorder. He testified
that it is possible that Bourgeois does not test well because of low intelligence,
impulsivity, or BPD. He testified further that some of Bourgeois’s problems that
have been interpreted as being adaptive behavior deficits are consistent with a
personality disorder rather than mental retardation.

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      Dr. Price testified that he had no credible evidence that Bourgeois had a
brain injury. He conceded that it would be significant from a neuropsychological
standpoint that Bourgeois struck his head on a steering wheel in an accident but
stated that if there was not at least an alteration in consciousness, it would
probably be insignificant.
      Dr. Price testified that he did not diagnose Bourgeois as having an
antisocial personality disorder, although Bourgeois does have some sociopathic
features. He agreed that Bourgeois’s anxiety, nervousness, excessive worry and
low self-esteem, observed by a psychiatrist when he applied for a sheriff’s deputy
job in 1985, are all consistent with an adult survivor of childhood abuse.
      The government’s other expert, Dr. Moore, evaluated Bourgeois for mental
retardation, focusing on adaptive functioning. In his report, Dr. Moore stated:
      Mr. Bourgeois had a traumatic, abusive childhood. Multiple mental
      health experts have indicated that he has Borderline Personality
      Disorder, and he appears to be appropriately diagnosed as such.
      Borderline Personality is a disorder that is characterized by frantic
      efforts to avoid abandonment, intense and unstable interpersonal
      relationships, impulsivity, emotional instability (inappropriate,
      intense anger or difficulty controlling anger), and transient, stress-
      related paranoid thoughts or dissociative episodes. Mr. Bourgeois’
      abuse history provided the setting conditions that frequently lead
      to the development of this personality disorder.
      A key issue is whether the symptoms of intense interpersonal
      relationships, impulsive spending, and emotional volatility are due
      to cognitive deficits or personality factors. . . . His behavioral style
      is more reflective of a personality disorder than of a cognitive deficit,
      and appears to have possibly been fueled by the significant others
      that he had relationships with, some of whom were reported to be
      impulsive spenders and emotionally volatile. Bourgeois had
      adequate adaptive functioning but also displayed maladaptive
      behaviors reflective of Borderline Personality Disorder.
      He reportedly stuttered as a child and was described as having
      symptoms consistent with ADHD. He was also described as being
      somewhat uncoordinated and thus not a good athlete. These factors


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                                  No. 11-70024

      led him to be teased by his peers and, along with the physical,
      emotional and sexual abuse that he suffered, it appears that his self
      esteem suffered significantly. It also appears that he developed
      Borderline Personality Disorder. . . . Neuropsychological testing
      indicates he has some degree of cognitive impairment. . . .
      Regardless of his performance on formalized tests of intelligence, his
      level of adaptive functioning is in line with that expected of his
      peers and he does not meet the diagnostic criteria for mental
      retardation.
      At the evidentiary hearing, Dr. Moore agreed that Bourgeois is not a
sociopath, and agreed that Bourgeois is driven in his conduct primarily by his
BPD. He acknowledged that people with BPD are most likely to act out in a
rageful or violent way with people with whom they are in a close relationship
and that there would not be many of those kinds of relationships in the
penitentiary.
                                        d.
      The district court, in addressing the ineffective-counsel claim regarding
mitigating evidence, described the obstacles trial counsel faced in trying to
defend Bourgeois and save his life: First, the horrendous facts made it likely
that the jury would not see Bourgeois as a sympathetic defendant. Second, he
often provided misinformation to defense counsel, the investigators, and the
defense experts, which hampered the development of evidence and made a
mitigation defense even more difficult. Bourgeois’s untruthful reporting to Dr.
Weiner that he had suffered a head injury that caused a coma was a critical lead
that guided the mitigation investigation and resulted in several experts reaching
unsupportable conclusions. Third, Bourgeois’s violent behavior and threats
while he was incarcerated before trial impaired his attorneys’ efforts to
demonstrate that he would not be violent in prison if the jury spared his life.
Finally, Bourgeois’s unwavering insistence that he did not kill JG compounded
the challenges his counsel faced and limited their strategic choices, forcing them


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                                  No. 11-70024

to sometimes present inconsistent information to the jury as they built their case
around the theory, insisted on by Bourgeois, that Robin killed JG. Despite those
obstacles, trial counsel developed favorable evidence that Bourgeois was a hard-
working man, a good provider, and that sometimes life with him was happy and
good.
        The district court concluded that trial counsel made a constitutionally-
sound investigation, including seeking the assistance of expert witnesses and
making a probing effort to investigate mitigating evidence. The court concluded
that, with the possible exception of Dr. Weiner’s evaluation, Bourgeois had failed
to prove that trial counsel’s investigation was not done quickly enough.
        The district court found that the defense team was familiar with and had
spoken with many of the lay witnesses Bourgeois presented at the § 2255
hearing. Many of the lay witnesses trial counsel spoke to were not willing to
testify either because they feared Bourgeois or because they did not want to
disparage his mother by testifying about childhood abuse. Similarly, the lay
witnesses who testified about Bourgeois’s personal history at the § 2255 hearing
did not provide some of the information they testified about to Bourgeois’s
mitigation experts prior to trial, and some of them admitted that they would not
have been willing to present that testimony at trial in 2004. In addition, some
of the defense mitigation witnesses from Bourgeois’s family were also aware of
damaging information, including allegations that Bourgeois beat young children.
The court also pointed out that the mitigation investigators’ reports reflect more
than suspicion that Bourgeois had sexually molested young relatives. Based
upon its review of the whole of the unpresented mitigation evidence, the court
concluded that trial counsel did not provide ineffective assistance in the
investigation, preparation, or presentation of lay testimony in the punishment
phase.



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      After recounting in detail all of the expert assistance that trial counsel
secured before the punishment phase, the district court held that defense
counsel made strategic decisions to attack the government’s evidence through
cross-examination rather than by calling experts in an effort to avoid, as much
as possible, an obvious conflict between Bourgeois’s defense, which blamed Robin
for killing JG, and yet still present a psychological explanation of his personality
disorder in an effort to obtain a life sentence. In attempting to craft a defense
that would remain true to Bourgeois’s wishes but still advocate for a sentence
less than death, trial counsel had to make hard choices. The court acknowledged
that no trial is perfect, that trial counsel made mistakes, and that hindsight and
second-guessing might possibly suggest different courses of action. However,
focusing on how trial counsel viewed the landscape before them at the time, the
court found that trial counsel engaged in reasonable decision making bolstered
by a reasonable investigation with regard to the decision not to present expert
testimony.
      The court held that each category of evidence Bourgeois faulted trial
counsel for not presenting carried sharp aggravating factors with its mitigating
thrust and that such evidence may have militated in favor of a finding that
Bourgeois would be dangerous in the future. Accordingly, the court concluded
that trial counsel’s decisions had to be weighed with the recognition that the
evidence Bourgeois faulted them for not presenting was not exclusively
mitigating.
      The district court further found that the trial investigators made a wide-
ranging investigation that uncovered information about Bourgeois’s abusive
childhood and presented evidence of the same nature as the evidence developed
by habeas counsel. Each of the four lay witnesses that trial counsel called in the
punishment phase described his abused childhood. However, Bourgeois claimed
not to have been abused, and his family was hesitant to discuss the abuse until

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                                  No. 11-70024
his mother died. The court stated that, to whatever extent the trial testimony
lacked the depth of Bourgeois’s post-trial evidence, the breadth of testimony
about his abused childhood is nearly identical. Thus, the trial evidence largely
followed the same themes and allowed for the jury to arrive at the same
conclusions that they would have reached if they had before them the entirety
of the mitigating evidence of physical abuse developed after trial.
      The district court also found that the most troubling allegation Bourgeois
made was that trial counsel failed to investigate his allegations of sexual abuse
by two men. However, the court found that the testimony at the evidentiary
hearing could not credibly validate those allegations. With the exception of
Brenda Goodman, none of the other lay witnesses at the § 2255 hearing had
heard about it, and the court found Goodman’s testimony to be somewhat
suspect because it was based solely on what Bourgeois told her, and no other
witness could corroborate the allegations. The court concluded that Goodman’s
reluctance to tell others about a “dark thing” that she could not tell her family
gave no confidence that she would have relayed the information to trial counsel.
Because trial counsel could not be held responsible for introducing mitigating
evidence that their client and other witnesses had failed to disclose, the court
held that Bourgeois had not shown that trial counsel were ineffective by not
presenting evidence of sexual abuse.
      The district court was not convinced that a reasonable attorney would
encourage the jury to choose a life sentence based on Bourgeois’s intellectual
limitations in the light of the fact that the jury was aware that Bourgeois had
successfully worked for years as a truck driver, had heard his cogent, descriptive
testimony that lacked any sign of mental impairment, and had observed his
interaction with counsel and his ability to follow the course of the legal
proceedings.   Further, the government would have subjected any witness
testifying about Bourgeois’s low intelligence to the same cross-examination it

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                                  No. 11-70024
conducted at the evidentiary hearing. The court concluded that a reasonable
attorney could weigh the probable benefit against the possible loss of credibility
and decide not to focus the defense on Bourgeois’s low intelligence.
      The district court held that trial counsel were not ineffective by failing to
present expert testimony from Dr. Cunningham about Bourgeois’s abused
childhood and its impact on his behavior.      The court credited trial counsel’s
explanation that they decided not to call Dr. Cunningham as a witness because
his theory of the case conflicted with Bourgeois’s defense that he did not commit
the crime. The court found that defense counsel elicited testimony from Dr.
Estrada on cross-examination that sufficiently blamed Bourgeois’s violence as
an adult on his childhood abuse and adequately addressed Bourgeois’s decreased
threat of violence when incarcerated.        The court found that trial counsel
discussed Bourgeois’s abused childhood and history as a sympathetic, not an
explanatory or justifying factor, and that Bourgeois agreed with their decision.
The court concluded that further discussion would only have emphasized that
Bourgeois was like his mother, only much worse.
      The district court rejected Bourgeois’s complaints that trial counsel failed
timely to provide information to Dr. Cunningham. The court found that the
investigators turned over to Dr. Cunningham the results of their investigation
well before the guilt-innocence phase started, and there was no evidence that Dr.
Cunningham complained contemporaneously to trial counsel about the timing
or completeness of that information. In addition, the court found that Dr.
Cunningham had interviewed potential witnesses and the record contained no
indication that those interviews unveiled a wealth of evidence that the
investigators failed to find.
      The district court found that trial counsel was familiar with Dr.
Cunningham’s conclusions and had sufficient communication with him as the
trial approached. However, counsel knew that calling Dr. Cunningham would

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                                  No. 11-70024
bring along “so many hazards.” The government had informed the court that,
if Dr. Cunningham testified about Bourgeois’s future danger, the door would be
open to harmful evidence that did not come before the jury, including additional
information that Bourgeois claimed to have committed another killing, had told
people he wanted to kill Robin, had sexually assaulted AB1994, and was cruel
to animals. The district court observed that other aspects of Dr. Cunningham’s
testimony would have offended jurors, citing as an example his proposed
testimony that Bourgeois’s repeated violence against women should be excused
because domestic violence is a common and accepted feature in society.
      The district court also characterized Dr. Cunningham’s testimony as being
detached from the extensive testimony that the jury had already heard about
Bourgeois. First, Dr. Cunningham’s conclusions that Bourgeois was an involved
father who provided economic support to his children and that he was a positive
influence on his nieces and nephews were at odds with the government’s
evidence that Bourgeois’s reluctance to support more children played a role in
the murder and the evidence of Bourgeois’s abusive treatment of a nephew.
Second, Dr. Cunningham’s assertion that his research proved that Bourgeois
was not a violent risk while kept in a highly-structured environment was at odds
with the evidence of Bourgeois’s actual behavior while incarcerated before trial.
Third, Dr. Cunningham’s confidence that prison officials could use special
conditions of confinement to restrict and monitor Bourgeois’s communications
and prevent him from ordering violence from prison, was contradicted by
evidence that Bourgeois had already bypassed similar conditions before trial.
The court concluded that, for these reasons, Dr. Cunningham’s testimony would
seem hollow, and even unbelievable, given the evidence of Bourgeois’s vicious
nature and that Dr. Cunningham’s claim that Bourgeois would not be violent if
given a life sentence could offend the jury and lessen trial counsel’s credibility.



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                                     No. 11-70024
      The district court further found that in his evidentiary hearing testimony,
Dr. Cunningham bore an arrogant demeanor as he broadly faulted defense
counsel’s efforts and lauded his own.           Noting that Dr. Cunningham was
appointed eight months before trial, the court stated that his records showed
that he did little, if anything, until the last few weeks before trial. The court
also pointed out that he interviewed witnesses, some of whom testified in the
evidentiary hearing, and could have secured the information that he claimed
went undiscovered by trial counsel.
      The district court stated that from its own observations, Dr. Cunningham
would not have been a good witness for the defense because (1) his presentation
consisted of information he had apparently prepared and used in numerous
cases in which he had testified previously; (2) although his speech was generally
of a level pitch, his demeanor in the evidentiary hearing was consistently
argumentative and condescending in tone and facial expression; and (3) he
openly showed scorn, both in his physical manifestation and his substantive
testimony, for the defense’s case at trial. In sum, he did not appear to the court
as an impartial scientific expert, but as someone seeking to advance an agenda.
      The district court noted that all of the experts in the § 2255 proceeding
who had examined and evaluated Bourgeois agreed that he suffers from BPD
and all of them agreed that the disorder caused Bourgeois to be emotionally
unstable, impulsive, and to have difficulties in his interpersonal relationships.48
Although the court acknowledged the difficulty of diagnosing BPD because of
Bourgeois’s tangled mental-health issues, it concluded that Dr. Estrada had
sufficient information prior to trial to diagnose BPD because he knew that
Bourgeois had suffered neglect, rejection, and physical abuse at the hands of his


      48
          The district court stated that Dr. Cunningham’s testimony did not discuss BPD.
However, he did state in his declaration, described supra, that Bourgeois’s background and
conduct in killing JG are consistent with BPD.

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                                       No. 11-70024
mother, was aware of Bourgeois’s violence toward his wives, and had enough
information to diagnose Bourgeois with the closely related disorder of
narcissism.     The court noted that Dr. Estrada conceded in his post-trial
deposition that it was possible that he had sufficient information at the time of
trial to have diagnosed BPD and that the “key features of [Bourgeois’s] violent
actions” had not changed as a result of the information he received after the
trial.49 The district court concluded that trial counsel had placed the building
blocks for the diagnosis of BPD before the expert witnesses in compliance with
their duty to investigate possible mental illness and that they could not be
blamed for the experts’ failure to properly diagnose and label Bourgeois’s
personality disorder.
       The district court then addressed whether reasonable trial counsel would
present the evidence of BPD if the experts had diagnosed it prior to trial. The
court found that Dr. Estrada provided the fullest view into how Bourgeois’s BPD
affected him and that, in many ways, Dr. Estrada’s deposition testimony differed
little from the testimony presented at trial by both parties, but particularly by
the government, as an aggravating circumstance.50 The jury heard testimony
that Bourgeois had a narcissistic personality disorder, which has in common
with BPD the fact that Bourgeois would remain subject to violent rages. Thus,
the diagnosis of BPD did not lessen Bourgeois’s potential for future violent
behavior. The court found it very possible that the jury might view the disorder




       49
         The district court also found it telling that Dr. Cunningham’s report did not mention
the possibility of BPD, whereas Bourgeois now claims that the condition should have been
abundantly obvious. As noted supra, however, Dr. Cunningham’s report did mention BPD,
although he did not explicitly state that it was his diagnosis.
       50
          The district court noted that Dr. Estrada’s deposition testimony about BPD was very
similar to Dr. Cunningham’s “pressure cooker” demonstration and would have raised similar
concerns for the defense had it been presented at trial.

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                                 No. 11-70024
presented at the § 2255 proceeding as solely aggravating in nature because it
could result in the increased likelihood that Bourgeois will act violently again.
      The court also found that presentation of evidence that Bourgeois suffered
from BPD was problematic for the defense because there was no evidence that
BPD is susceptible to treatment. The court pointed to Dr. Estrada’s deposition
testimony that, although BPD would explain what Bourgeois did, it would not
make him less violent in the future. Thus, the same evidence that would explain
Bourgeois’s violence toward JG would predict violence toward others. The court
found that jurors might not have been impressed by knowing the cause of
Bourgeois’s viciousness; instead, they might conclude that when violent behavior
appears to be outside the defendant’s power of control, capital punishment is
appropriate. The court therefore concluded that, without some evidence that
treatment or confinement would control the effects of his BPD, the jury would
be left to assume that Bourgeois’s violent acts would persist immutably.
      The court characterized the decision whether to present evidence of BPD
as a difficult question over which reasonable and seasoned defense counsel could
disagree but found that Bourgeois had not sufficiently recognized the
aggravating edge of that evidence, the fact that the government used similar
evidence against him at trial, and the absence of any testimony about
rehabilitation. The court concluded that even if trial counsel had placed the
mitigating influence of the BPD diagnosis before the jury, cross-examination
would have gone the way it did in the § 2255 hearing, the government would
have presented rebuttal evidence similar to Dr. Price’s testimony in the § 2255
hearing that the commission of the murder was more a function of antisocial
psychopathic traits and features, and the jury would have responded to the
information in much the same way as Bourgeois’s § 2255 expert, Dr. Gelbort,
who said, “I don’t want them for my neighbor.” Thus, the court held that a



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                                        No. 11-70024
reasonably-competent attorney could rationally decide not to present evidence
of BPD.
       The district court held that trial counsel obviously made a strategic
decision not to rely on Dr. Weiner’s testing because he premised his conclusion
that Bourgeois had brain damage on Bourgeois’s fabricated claim that he had
suffered a coma after a three-wheeler accident. The court stated that although
Bourgeois now points to other potential episodes that may have resulted in brain
trauma, the fact remains that Dr. Weiner’s testimony would have allowed the
government to label Bourgeois a manipulator and a liar. With Bourgeois’s
chosen defense to blame the killing on Robin, and his decision to testify, trial
counsel would have incentive to shore up his credibility.                    The court thus
concluded that trial counsel’s decision not to call Dr. Weiner, on that basis alone,
was reasonable.51
       The court concluded that in the end, counsel must approach the decision
whether to present evidence of brain damage with careful deliberation because
evidence of mental and neurological conditions is double-edged: although it can
create jury sympathy, it can also bolster the government’s claims of future
dangerousness by showing poor ability to control impulses and learn from past
mistakes.      With the certainty that Dr. Weiner’s testimony would reveal
Bourgeois’s manipulation and lies and the marginal benefit to the defense, the
district court concluded that trial counsel did not perform deficiently in deciding
not to present evidence of neurological impairment.



       51
          The court found that additional factors developed in the § 2255 hearing confirmed the
wisdom of trial counsel’s decision not to call Dr. Weiner as a witness: (1) Bourgeois repeatedly
criticized Dr. Weiner for using an outdated IQ test; (2) Dr. Price testified that Dr. Weiner used
outdated methodology and that Dr. Weiner’s attempt to localize the injury in Bourgeois’s brain
was an out-of-date approach; (3) Dr. Price credibly testified that Dr. Weiner and Dr. Gelbort
failed to apply norms to adjust Bourgeois’s raw test scores; and (4) Dr. Price attributed the
defects that Dr. Weiner described to a personality disorder, not a brain injury.

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                                  No. 11-70024
      The district court found that the record does not contain a clear
explanation of why trial counsel chose not to call Dr. Holden at the punishment
phase to testify that Bourgeois did not commit an intentional or premeditated
murder but that in a fit of rage over the spilled potty, Bourgeois lost control of
himself and in the course of administering physical discipline, fatally injured JG.
However, the court observed that Dr. Holden’s opinion was premised on
Bourgeois’s having committed the murder, a theory incompatible with that
chosen by the defense and which would have conflicted with Bourgeois’s
testimony at the punishment phase. The court also found that Dr. Holden’s
testimony was academic, speculative, and untethered to the facts of the crime.
After seeing how his opinions fared when subjected to scrutiny (as trial counsel
did in the hearing regarding the admissibility of Dr. Holden’s opinions at the
guilt-innocence phase), the court concluded that a reasonable and competent
attorney might not have chosen for him to testify. The court observed that, in
fact, the government seemed eager for Dr. Holden to testify, knowing how it
would benefit the prosecution. The court concluded that its observations assured
that trial counsel did not render deficient performance in not calling Dr. Holden
as a punishment phase witness.
      In addition to holding that counsel did not perform deficiently, the district
court also held that Bourgeois was not prejudiced by counsel’s decisions
regarding the presentation of mitigating evidence. In evaluating prejudice, the
court stated that it considered the entirety of Bourgeois’s unpresented evidence,
along with all of the available evidence, not just that favoring the defense.
      The court began by noting that the facts of this case are “atrocious” and
that the jury saw Bourgeois as a violent man: Bourgeois committed a horrible
murder, preceded by torture, neglect, and abuse of his helpless victim; he was
indifferent to JG’s injuries, unremitting in his beatings, uncaring about her
death, and unremorseful at trial; he bit her, beat her with various objects, and

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                                  No. 11-70024
probably sexually assaulted her; the government presented significant evidence
that the rage he reserved for his young daughter resulted from financial
concerns, not psychological conditions; and the episode that resulted in JG’s
death was not an isolated incident – Bourgeois had been violent in the past and
continued his violence while in custody; he had been cruel to children before,
beat his wives, assaulted his mother-in-law, threatened jail guards, tried to
assault a deputy United States marshal; and had threatened to kill witnesses.
      The court pointed out that trial counsel adduced some of the evidence upon
which Bourgeois relied on in the § 2255 proceeding: the jury knew that his
mother abused, neglected, and abandoned him, and Dr. Estrada’s testimony put
some of the blame on mental-health issues. The court acknowledged that habeas
counsel had presented more nuanced and detailed defensive theories, but
concluded that the jury would not have responded more favorably to the
additional evidence than it did to the theory defense counsel fashioned to
conform to Bourgeois’s chosen defense. The court concluded that, given the
whole of the evidence, there was no reasonable probability of a different result
and thus no prejudice and consequently no cognizable ineffective-counsel claim
based on a failure to investigate and present mitigating evidence of Bourgeois’s
background and mental state and condition.
                                        e.
      No reasonable jurist could debate the district court’s decision that trial
counsel’s investigation and presentation of mitigating evidence was not deficient.
Further, no reasonable jurist could debate the district court’s decision that,
considering the totality of the available mitigation evidence presented at trial
and in the § 2255 proceeding, weighed against the evidence in aggravation,
Bourgeois failed to demonstrate a reasonable probability that he would not have
received a death sentence if counsel had presented all of the mitigating evidence
that he claims they should have presented.

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                                  No. 11-70024
      As the district court pointed out in careful detail, trial counsel presented
some evidence of Bourgeois’s impoverished background, dysfunctional family,
abandonment, rejection, physical abuse, and the stress he was under at the time
of the murder. The supplemental mitigating evidence developed in the § 2255
proceeding added more details, some of which were not reasonably available to
trial counsel because of witnesses’ reluctance to disparage Bourgeois’s mother
while she was still alive. Bourgeois’s argument is that counsel should have
presented all of the details. That is essentially an attack on counsel’s strategic
choices about what evidence to present. For example, Kerry Brown, Bourgeois’s
lawyer in Louisiana, was subpoenaed by trial counsel. Although the details he
provided in the § 2255 proceedings about the stress that Bourgeois was under
in the summer of 2002 might have been helpful, his testimony on cross-
examination that Bourgeois had “beat the hell out of his mother-in-law” would
not have been helpful to the defense if he had testified at trial.
      The record supports fully the district court’s finding that trial counsel
made a strategic decision not to call Dr. Cunningham as a witness because his
testimony would have been inconsistent with the defense theory, they were not
impressed with him or his presentation and believed it would be better to elicit
the information through cross-examination of Dr. Estrada, and they were
concerned with the evidence they expected the prosecution to present in rebuttal.
The record also supports the district court’s observation that Dr. Cunningham
would not have been a good witness for the defense not only because his
proposed testimony would have been inconsistent with the defense theory, but
also because jurors would likely be offended by his suggestion that Bourgeois’s
culpability was reduced by the recognition that he is one among millions of men
in the United States who engage in domestic violence, which is widespread in
our society. Moreover, his testimony about the risk of prison violence would
have been rebutted by a government expert and was inconsistent with

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                                  No. 11-70024
Bourgeois’s actual behavior while incarcerated. As the district court noted, trial
counsel elicited from Dr. Estrada on cross-examination the most valuable points
that Dr. Cunningham would have made: that Bourgeois’s background of abuse
and neglect reduced his ability to tolerate frustration and the stress that he was
under at the time of the murder and that Bourgeois was less likely to be violent
in prison because of his age and because of the higher supervision available in
prison.   Although some of trial counsel’s questions to Dr. Estrada were
somewhat inconsistent with Bourgeois’s theory of innocence, and thus did not
fully support that part of trial counsel’s rationale for not calling Dr. Cunningham
as a witness, the record reflects that Tinker was quite clever in getting much of
the mitigating evidence before the jury by asking Dr. Estrada – who was the
government’s expert – what he had told the prosecution.
      The record supports the district court’s finding that trial counsel had
available to them evidence of brain damage but made a strategic decision not to
use it. The defense proposed mitigation factors, filed under seal on March 17,
2004, include the following: (1) “Bourgeois suffers from a brain dysfunction
which has impaired his ability to function under duress or extreme stress”; (2)
“The stress endured by Bourgeois, combined with his organic brain disorder,
played a role in causing the offense”; and (3) “Bourgeois’ brain disorder, while
not extreme, relates to his character, background, record, and to the
circumstances of the offense.” Those factors ultimately were not presented to the
jury because counsel had decided not to present the testimony of Dr. Weiner. As
the district court correctly observed, calling Dr. Weiner as a witness necessarily
would have resulted in revealing to the jury that Bourgeois and his sister,
Claudia Williams, had not been truthful when they reported that Bourgeois was
in a coma after his three-wheeler accident. Furthermore, as the district court
noted, the jury might have perceived the evidence of brain damage as solely
aggravating because it would have supported a finding that Bourgeois was likely

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                                       No. 11-70024
to be violent in the future because his brain damage made him impulsive and
reduced his ability to control his rages.
       Counsel also had available to them, from Dr. Weiner’s evaluation, evidence
of Bourgeois’s low intelligence. However, they were aware, as well, of Dr.
Estrada’s pretrial evaluation, in which he reported that Bourgeois appeared to
be of above-average intelligence. Under these circumstances, and in the light of
the jury’s knowledge of Bourgeois’s reasonable success in his career as a truck
driver (he had been driving 18-wheel trucks across the country, working for
different corporations for over 15 years), as well as the jury’s observations of
Bourgeois at trial, counsel reasonably could have decided that presentation of
evidence of Bourgeois’s low intelligence may well have fallen flat and thus may
have undermined counsel’s credibility.52
       The supplemental mitigating evidence developed in the § 2255 proceeding
also added evidence of sexual abuse and BPD. The sexual abuse evidence is the
most troubling. The district court’s finding that the evidence was not reasonably
available to trial counsel because no one told them about it is not surprising in
the light of the fact that, in closing arguments at the evidentiary hearing,
Bourgeois’s counsel and the government’s counsel agreed that Bourgeois never
mentioned sexual abuse to anyone on the defense team before trial. Our review
of the record, however, indicates some question as to the accuracy of that
representation.



       52
          Although Bourgeois criticizes the district court’s reliance on its own observations of
Bourgeois to determine that trial counsel reasonably did not rely on evidence of low
intelligence, the record contains numerous instances of interactions between Bourgeois and
the court that fully support the district court’s observations. For example, at an in camera
meeting with defense counsel and Bourgeois on February 25, 2004 (the final day of jury
selection) Bourgeois complained to the court about his lawyers. The court told Bourgeois it
would not let him fire his lawyers during jury selection, but offered to let him fire them and
represent himself. He responded: “Your Honor, I couldn’t represent myself. That just
wouldn’t work.”

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      Dr. Cunningham’s testimony at the evidentiary hearing indicates that
Bourgeois mentioned sexual abuse to him before trial, although Dr. Cunningham
did not include that information in his report to trial counsel. The government
exhibits at the § 2255 hearing also contain an undated, handwritten letter from
Bourgeois to defense mitigation investigator Bierbaum, in which he provides
“History on myself Alfred Bourgeois that I couldn’t look you eye to eye to tell
you.” The letter describes in detail Bourgeois’s sexual molestation by Ms.
Clayton’s son, Jacob, as well as by “neighborhood punk” Raymond Adam.
Bourgeois also stated in that letter that his Uncle Isaac Bourgeois, Jr. beat up
both of the molesters; that he became a police officer for a year so that he could
get revenge on his molesters; that he spit in Jacob Clayton’s casket when he died
in April 2002; and that he caught Raymond Adam in a parking lot about a month
before he was arrested, but AB1994 was with him, and that was the only thing
that saved Adam. It is not clear from the record whether this letter was
provided to trial counsel prior to trial. However, it apparently was available to
Bierbaum, a member of the defense team.
      Bourgeois’s accounts of the alleged sexual abuse are not consistent. Dr.
Cunningham testified that when he interviewed Bourgeois on February 7, 2004,
Bourgeois told him that his nose was broken when his mother hit him with a
mop handle for lying when telling her of the sexual abuse that he said was
perpetrated by Ms. Clayton’s son, Jacob. Three days earlier, however, in an
interview with Bierbaum and Tinker, Bourgeois told them that his nose was
injured when his mother slapped him off a swing. Bourgeois reported to Dr.
Toomer, who evaluated him for habeas counsel during the § 2255 proceedings,
that when he reported to his mother that he was sexually molested by a man in
the neighborhood at about age seven, his mother chastised him for lying about
it and beat him with a skillet and an extension cord. Bourgeois told Dr. Price,
the government’s neuropsychologist who evaluated him during the § 2255

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                                  No. 11-70024
proceedings, that Ms. Clayton’s son, a gay pedophile, sexually abused him during
the entire time he lived with Ms. Clayton and that he was also sexually abused
by a Sunday school teacher in the church after choir practice, from age six until
age fourteen. Gilmore testified in the § 2255 proceeding that he could not recall
whether he had asked Bourgeois about sexual abuse but that he probably had
done so.
      It is not possible to determine from the record whether trial counsel were
aware of the sexual-abuse evidence and chose not to present it or whether that
evidence was unknown to them, as counsel for both parties represented to the
district court at the § 2255 evidentiary hearing. In any event, a rational defense
attorney reasonably might have decided not to present the evidence, for at least
two reasons. First, if offered as an explanation or excuse for Bourgeois’s abuse
and murder of JG, it would have been inconsistent with the defense theory.
Second, and more important, if offered as grounds for the jury to feel sympathy
for Bourgeois and spare his life, the presentation of such evidence might have
boomeranged inasmuch as the numerous inconsistencies in the allegations would
have been brought out and the jury might well have concluded that the
allegations were fabricated.
      No reasonable jurist could debate the district court’s decision that if trial
counsel had obtained and presented the evidence of BPD, it might have done
more harm than good because the jury could have perceived such evidence as
solely aggravating in that it strongly supported a finding that Bourgeois would
pose a risk of future violence. Dr. Estrada’s testimony about BPD in the § 2255
proceeding – including the fact that Bourgeois’s abuse and killing of JG is
consistent with the type of rage attacks that a borderline patient might
experience under extreme stress, such as that experienced by Bourgeois at the
time of the offense – is the kind of testimony that a reasonable trial lawyer
might well choose not to present. Moreover, Dr. Estrada’s § 2255 testimony that

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                                  No. 11-70024
Bourgeois’s BPD caused him to engage in “inappropriate behavior [that] took a
violent sadistic form and sexual form” would not have helped the effort to rebut
the government’s evidence that Bourgeois sexually abused JG.
      Contrary to Bourgeois’s argument, the district court did not refuse to
consider the mitigating value of any evidence that it believed might have an
aggravating edge. The court’s opinion clearly indicates that the court thoroughly
and exhaustively considered the mitigating and aggravating value of all of the
evidence, including that which the court found to be double-edged.
      Finally, we reject Bourgeois’s argument that the district court failed to
apply the correct standard of prejudice when it concluded that “the jury” would
not have responded favorably to the mitigating evidence presented at the § 2255
hearing. According to Bourgeois, the district court should have instead assessed
whether there was a reasonable probability that the new evidence, when
considered in totality, would have caused at least one juror to strike a different
balance. As the government notes, if the additional mitigating evidence would
have caused at least one juror to strike a different balance, then it naturally
follows that the jury’s decision would be a different, due to the requirement of
unanimity. In any event, the district court’s discussion of prejudice, considered
in its entirety, reflects that the court was both aware of, and applied, the correct
standard in assessing prejudice. See Dist. Ct. Op. at 145-48.
      In sum, we conclude that no reasonable jurist would debate the district
court’s conclusion that Bourgeois was not prejudiced by trial counsel’s failure to
present the evidence developed by Bourgeois’s habeas counsel.
                               III. CONCLUSION
      Bourgeois has not made a substantial showing of the denial of a
constitutional right.    The issues he presents are not adequate to deserve
encouragement to proceed further, and no reasonable jurist could debate the



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                                 No. 11-70024
district court’s assessment of his claims. Accordingly, Bourgeois’s request for a
COA is
                                                                       DENIED.




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