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

                                                 FILED
                                                                         December 7, 2009

                                       No. 08-70042                    Charles R. Fulbruge III
                                                                               Clerk

ANTHONY LEROY PIERCE

                                           Petitioner-Appellee Cross-Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                           Respondent-Appellant Cross-Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CV-1561


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       In 1986, a Texas jury convicted and sentenced to death petitioner–appellee
Anthony Leroy Pierce for the murder of Fred Eugene Johnson during a robbery
of a Church’s Chicken restaurant in 1977. State appellate courts affirmed the
conviction and sentence and denied post-conviction relief. Pierce then brought
a federal habeas petition under the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), 28 U.S.C. § 2254. The district court granted Pierce substantive


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-70042

relief on one of his sentencing claims, concluding that the special issues
presented to the jury at the sentencing phase did not properly permit the jury
to consider and give effect to Pierce’s mitigating evidence, in violation of Penry
v. Lynaugh, 492 U.S. 302 (1989). The district court denied the remaining bases
for substantive relief and denied a certificate of appealability (COA) on those
issues. The State’s appeal of the district court’s grant of relief under Penry is
now before us, as is Pierce’s request for a COA for some of the claims he
unsuccessfully raised in the district court. We grant Pierce’s request for a COA
as to his claims that he is mentally retarded (rendering him ineligible for the
death penalty under Atkins v. Virginia, 536 U.S. 304 (2002)), and that he
received ineffective assistance of counsel. Pierce’s request is denied on all other
claims.
      We reserve opinion on the government’s appeal of the Penry issue until
after oral argument, during which we will hear argument as to Pierce’s Penry,
Atkins, and ineffective assistance claims.
                 I. Factual and Procedural Background
      The district court’s exhaustive opinion more than adequately documents
the factual background and procedural development of this case. See Pierce v.
Quarterman, No. H-07-1561, 2008 WL 4445064 (S.D. Tex. Sept. 26, 2008). Here,
we recite only so many of the facts and procedure as are necessary to provide a
framework for our grant in part and denial in part of a COA.
      Pierce was indicted for capital murder for the shooting death of Fred
Eugene Johnson, the manager of a Church’s Chicken in Houston, during a
robbery of that restaurant on August 4, 1977. Pierce’s first two convictions were
overturned, in both cases because the trial court had improperly overruled
defense counsel’s challenges to certain venire members. See Pierce v. State, 604
S.W.2d 185 (Tex. Crim. App. 1980); Pierce v. State, 696 S.W.2d 899 (Tex. Crim.
App. 1985). Pierce was tried and convicted a third time and sentenced to death

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in 1986. The Texas Court of Criminal Appeals (TCCA) affirmed the conviction
and sentence, Pierce v. State, 777 S.W.2d 399 (Tex. Crim. App. 1989), cert.
denied, 496 U.S. 912 (1990), and denied his application for postconviction relief,
Ex parte Pierce, No. 15859-03 (Tex. Crim. App. Sept. 19, 2001). On August 29,
2002, Pierce filed a successor state habeas application, which the TCCA denied
on April 18, 2007. Ex parte Pierce, No. 15,859-04, 2007 WL 1139414 (Tex. Crim.
App. Apr. 18, 2007). Pierce filed a 28 U.S.C. § 2254 federal habeas petition on
May 9, 2007, an amended federal habeas petition on August 30, 2007, and a
supplemental federal habeas petition on July 1, 2008.
      Pierce presented thirteen issues to the district court. On cross-motions for
summary judgment, the district court granted Pierce relief on the first of these
issues: whether the statutory special issues presented to the jury at sentencing,
and the prosecutor’s closing arguments regarding those special issues, precluded
the jury from “consider[ing] and giv[ing] effect to” Pierce’s mitigating evidence,
as Penry v. Lynaugh, 492 U.S. 302 (1989), requires. The district court granted
summary judgment to the State on the remaining twelve issues, denying the
relief Pierce sought and declining to grant a COA. Pierce now seeks a COA as
to five issues on which the district court denied relief.
                          II. Standards of Review
      Pierce’s motion is governed by the applicable provisions of AEDPA. See
Lindh v. Murphy, 521 U.S. 320, 335–36 (1997). Under AEDPA, a state habeas
petitioner may appeal a district court’s dismissal of his petition only if the
district court or the court of appeals first issues a COA.             28 U.S.C.
§ 2253(c)(1)(B); see also Miller–El v. Cockrell, 537 U.S. 322, 336 (2003)
(describing a COA as a “jurisdictional prerequisite” without which “federal
courts of appeals lack jurisdiction to rule on the merits of appeals from habeas
petitioners”). In determining whether to grant a petitioner’s request for a COA,
we limit our “examination to a threshold inquiry into the underlying merit of

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[the petitioner’s] claims.” Miller–El, 537 U.S. at 327 (citing Slack v. McDaniel,
529 U.S. 473, 481 (2000)).       “This threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of the claims. In
fact, the statute forbids it.” Id. at 336.
      We will grant a request for a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.”          28 U.S.C.
§ 2253(c)(2). In order to grant a COA for one of Pierce’s substantive claims, we
must conclude only that Pierce has demonstrated the threshold showing for that
substantive claim. See Miller–El, 537 U.S. at 327. “Although the issuance of a
COA ‘must not be pro forma or a matter of course,’ the petitioner satisfies the
burden under § 2253(c) ‘by demonstrat[ing] that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.’”
Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005) (alteration in original)
(quoting Miller–El, 537 U.S. at 337–38). “[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.”
Miller–El, 537 U.S. at 338. “[A]ny doubt as to whether a COA should issue in a
death-penalty case must be resolved in favor of the petitioner.” Pippin, 434 F.3d
at 787.
      In determining whether the district court’s denial of Pierce’s petition for
a COA on his claims was debatable, we must keep in mind the deferential
standard of review that AEDPA requires a district court to apply to the state
court’s rulings. See Brown v. Dretke, 419 F.3d 365, 371 (5th Cir. 2005) (“With
respect to the review of factual findings, AEDPA significantly restricts the scope
of federal habeas review.”). Under AEDPA,
      a federal court is not to grant a writ of habeas corpus “with respect
      to any claim that was adjudicated on the merits in State court
      proceedings” unless it determines that the state court’s adjudication
      “resulted in a decision that was contrary to, or involved an

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      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States.”
Pippin, 434 F.3d at 787 (quoting 28 U.S.C. § 2254(d)(1)).              Moreover, a
“‘determination of a factual issue made by a State court shall be presumed to be
correct’ unless the petitioner rebuts the presumption ‘by clear and convincing
evidence.’” Id. at 788 (quoting 28 U.S.C. § 2254(e)(1)). “This presumption of
correctness attaches not only to explicit findings of fact, but also to
‘unarticulated findings which are necessary to the state court’s conclusions of
mixed law and fact.’” Id. (quoting Pondexter v. Dretke, 346 F.3d 142, 148 (5th
Cir. 2003)).
      Under AEDPA, a federal district court may grant an evidentiary hearing
only if the prisoner diligently and reasonably attempted, “in light of the
information available at the time, to investigate and pursue claims in state
court.” Williams v. Taylor, 529 U.S. 420, 435 (2000); see also 28 U.S.C.
§ 2254(e)(2)(a)(ii) (“[T]he [district] court shall not hold an evidentiary hearing on
the claim unless the applicant shows that . . . the claim relies on . . . a factual
predicate that could not have been previously discovered through the exercise
of due diligence.”).   For state courts to have a full and fair opportunity to
adjudicate the habeas applicant’s constitutional claims, “[d]iligence will require
in the usual case that the prisoner, at a minimum, seek an evidentiary hearing
in state court in the manner prescribed by state law.” Williams, 529 U.S. at 437.
Even then, mere requests for an evidentiary hearing will not demonstrate
reasonable diligence.    Burton v. Terrell, 576 F.3d 268, 273 (5th Cir. 2009);
Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000). “In cases where an
applicant for federal habeas relief is not barred from obtaining an evidentiary
hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in
the discretion of the district court.” Schriro v. Landrigan, 550 U.S. 465, 468
(2007). A district court’s decision to grant or deny an evidentiary hearing is


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reviewed for abuse of discretion. Clark v. Johnson, 202 F.3d 760, 765–66 (5th
Cir. 2009).
                                 III.   Analysis
      Pierce seeks a COA as to five issues: (1) whether the prosecution’s failure
to disclose certain exculpatory evidence violated Brady v. Maryland, 373 U.S. 83
(1963), and therefore entitles Pierce to a new trial; (2) whether the trial court
erred in not allowing an architect to testify as an expert witness regarding
alleged flaws in the lineup in which Pierce was identified; (3) whether the jury
improperly considered extraneous information or otherwise committed
misconduct; (4) whether Pierce is a mentally retarded offender whose execution
is barred by Atkins v. Virginia, 536 U.S. 304 (2002); and (5) whether Pierce’s
trial counsel provided ineffective assistance by failing to investigate and present
certain mitigating evidence during the sentencing phase. As to the last three
issues, Pierce also contends that the district court abused its discretion in
refusing to grant his request for an evidentiary hearing.
A.    The Brady Claim
      Pierce contends that the district court’s refusal to grant him a new trial
under Brady v. Maryland, 373 U.S. 83 (1963), was debatable or wrong. Before
ruling on the cross-motions for summary judgment on Pierce’s federal habeas
petition, the district court granted limited discovery as to whether the
prosecution had failed to disclose that certain witnesses at Pierce’s third trial
had received a monetary reward. Documents produced from Pierce’s prosecution
file revealed that two of the witnesses who testified against Pierce at all three
of his trials, the brothers Reginald and George Sanders (who were aged twelve
and fifteen, respectively, at the time of the crime), as well as another teenage
witness who did not testify, shared equally in a $1,000 reward that they received
shortly after Pierce’s first conviction. The district court acknowledged that this
undisclosed evidence would have been material for impeachment but

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nevertheless denied Brady relief, concluding that there was not a reasonable
probability, in light of the other evidence, that disclosure would have changed
the outcome of the trial.    Pierce v. Quarterman, No. H-07-1561, 2008 WL
4445064, at *25 (S.D. Tex. Sept. 26, 2008).
      There are three essential components to a Brady prosecutorial misconduct
claim: “‘The evidence at issue must be favorable to the accused, either because
it is exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice must
have ensued.’” Banks v. Dretke, 540 U.S. 668, 691 (2004) (quoting Strickler v.
Greene, 527 U.S. 263, 281–82 (1999)). Prejudice is established where there
exists a “reasonable probability” that had the evidence been disclosed the result
at trial would have been different. Id. at 699. “A ‘reasonable probability’ of a
different result is shown when the [state]’s evidentiary suppression ‘undermines
confidence in the outcome of the trial.’” See Kyles v. Whitley, 514 U.S. 419, 434
(1995) (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)).
      The district court concluded that the nondisclosure did not prejudice Pierce
because the Sanders brothers identified Pierce as the shooter shortly after the
murder, provided testimony consistent with that identification at trial, and did
not receive the reward money until after the first trial was complete. The
district court also noted that there were two additional eyewitnesses, Brenda
Charles and Ronald Cooks, who testified that Pierce was the shooter and who
did not receive a reward. The state habeas court specifically found, in response
to other issues raised in Pierce’s state habeas application, that Charles and
Cooks were credible witnesses who had identified Pierce through a legally-
appropriate lineup. The district court accepted the state habeas court’s factual
and legal conclusions on those issues as reasonable, and Pierce does not seek a
COA as to those issues. The district court’s holding that the nondisclosure did
not prejudice Pierce because there was no reasonable likelihood that it would

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have changed the result is not debatable.1 Accordingly, Pierce’s application for
a COA on this issue is denied.
B.     The Expert Evidentiary Claim
       Pierce next seeks a COA on the issue of whether the trial court improperly
excluded the testimony of an architect, Ken Austin, as an expert witness for
Pierce. Because the record contained no photograph of Pierce’s lineup, Austin
sought to introduce an illustration of the lineup drawn to scale based on the
descriptions of the lineup participants in the Houston Police Department’s
lineup sheet.      Austin also proposed to testify more generally about how
perceptions of size are affected by what surrounds the item viewed, and that this
phenomenon can influence identification. Austin proposed additional exhibits
to illustrate these concepts.



       1
          With respect to Judge Dennis’s dissent on the Brady issue, we provide a somewhat
fuller treatment of the issues with respect to the Sanders boys’ testimony.

        First, we describe the trial record on the Sanders brothers’ testimony. Although only
Reginald Sanders saw the crime being committed, both boys saw Pierce flee the scene.
Reginald Sanders testified that although he did not know Anthony Pierce by name, he had
seen him before around their housing project and in fact had seen Pierce earlier that day
wearing the same distinctly-patterned shirt that he was wearing when fleeing the scene of the
crime. When questioned by a police officer on the night of the crime, Reginald Sanders
identified the shooter’s last name as Pierce but added that “I wasn’t too sure about his first
name because I never really met him and I thought his first name was James.” George
Sanders similarly testified that he had seen Pierce before in their housing project and that he
recognized the shooter as “one of the Pierce brothers,” though he did not know his first name.
When brought to the police station as witnesses shortly after the shooting, both boys identified
Pierce’s shirt as the shirt worn by the shooter. The district court concluded that in light of
these identifications, made immediately after the shooting, together with the testimony of two
additional eye witnesses who did not receive a reward, there was no reasonable probability
that disclosure of the reward paid after Pierce’s trial would have changed the outcome of the
trial.

        Second, we address the “arguably suggestive lineup” which the dissent urges as a basis
for concluding that the reward money could have had material impeachment value. The
district court concluded with regard to a separate issue raised in Pierce’s habeas petition that
the lineup was not impermissibly suggestive under Simmons v. United States, 390 U.S. 377,
384 (1968), and Pierce does not seek a COA to appeal this conclusion.

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      On direct appeal, the TCCA affirmed the trial court’s exclusion of Austin’s
proposed illustration of the lineup because Austin could not establish that it was
an accurate representation of the lineup. The court based this conclusion on
Austin’s admission that he based his drawing on hearsay police reports and did
not know if his drawing was an accurate depiction of the lineup. As to Austin’s
proposed testimony and other exhibits, the TCCA held that Austin offered no
specialized knowledge that was not already possessed by the jurors. See Pierce
v. State, 777 S.W.2d 399, 413–14 (Tex. Crim. App. 1989). The TCCA reached the
same legal conclusions in denying Pierce’s habeas application. The federal
district court held that the TCCA had reasonably concluded that Austin’s
proposed illustration of the lineup was not competent evidence and that his
proposed expert testimony offered the jury no helpful specialized knowledge.
Pierce v. Quarterman, 2008 WL 4445064, at *18.
      On this motion for COA, Pierce does not dispute that the applicable state
rules of evidence required exclusion of the proffered testimony, but urges that
due process nevertheless required the trial court to allow the jury to hear the
testimony. Pierce cites Chambers v. Mississippi, 410 U.S. 284 (1973), Green v.
Georgia, 442 U.S. 95 (1979), and Rock v. Arkansas, 483 U.S. 44 (1987), for the
proposition that a state’s evidentiary rules should not be applied to deprive
Pierce of the ability to present a defense where the proffered evidence otherwise
bears indicia of trustworthiness. But this mischaracterizes the holdings of these
cases. The Supreme Court subsequently clarified, in Montana v. Egelhoff, 518
U.S. 37 (1996), that Chambers and its progeny do not stand for the proposition
“that a defendant is denied a fair opportunity to defend against the State’s
accusations whenever critical evidence favorable to him is excluded,” but rather
that “erroneous evidentiary rulings can, in combination, rise to the level of a due
process violation.” Id. at 53 (internal quotation marks omitted). The Court
specifically rejected the possibility that due process requires that “all competent,

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reliable evidence must be admitted.” Id. (internal quotations omitted). The
state habeas court’s conclusion that the architect’s proposed testimony was
inadmissible was a reasonable application of clearly-established Supreme Court
law.   The district court’s conclusion that the exclusion of the architect’s
testimony did not provide a basis for habeas relief is not debatable.
C.     The Jury Misconduct Claim
       Pierce contends that the jury improperly considered extrinsic evidence and
engaged in other acts of misconduct. He also contends that the district court
erred in refusing to grant an evidentiary hearing on these issues. First, Pierce
asserts that one juror improperly performed an out-of-court experiment during
deliberations in order to evaluate the testimony of one of the eyewitnesses,
Reginald Sanders, who testified that he saw Pierce’s reflection in a window of
the Church’s Chicken as he went around a corner of the restaurant. The juror
regularly ate breakfast at a cafeteria and confirmed, based on visual
observations of the cafeteria window, that one could indeed see a reflection in a
window before going around the corner. Second, Pierce contends that the jurors
improperly considered Pierce’s failure to take the stand as evidence of his guilt.
Finally, Pierce contends that the jury improperly consulted a dictionary to define
the term “deliberate” in the first special issue. Pierce’s federal habeas petition
attached signed affidavits by three of the jurors attesting to these facts.
Although these affidavits were subscribed and sworn to in August and
September 1990 (before Pierce filed his state habeas petition in December 1990),
they were never presented to the state habeas court, and there was no other
evidence before the state habeas court to establish a factual basis for Pierce’s
assertions.
       The state habeas court denied relief, concluding that Pierce had offered no
proof to support his juror misconduct claims and, with one exception, had not
named the jurors allegedly involved. The federal district court also denied relief,


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citing lack of proof: “Pierce points to no evidence supporting any of these claims.”
Pierce v. Quarterman, 2008 WL 4445064, at *26. As Pierce points out in the
motion for COA, the district court’s statement was incorrect—Pierce’s federal
habeas petition attached the three juror affidavits swearing to the facts that he
alleged. We nevertheless conclude that jurists of reason would not find the
district court’s ultimate denial of relief debatable because Pierce’s affidavit
evidence was procedurally barred.
       This court has looked to the exhaustion requirements of 28 U.S.C.
§ 2254(b) in determining whether a federal district court may consider affidavit
evidence offered for the first time in a federal habeas petition. Under § 2254(b),2
federal habeas petitioners must fully exhaust available state court remedies
before proceeding in federal court. This court reviews de novo the legal question
of whether a federal habeas petitioner has exhausted state court remedies.
Smith v. Quarterman, 515 F.3d 392, 400 (5th Cir. 2008). “The exhaustion
requirement is satisfied when the substance of the federal habeas claim has been
fairly presented to the highest state court.” Morris v. Dretke, 379 F.3d 199, 204
(5th Cir. 2004).      Affidavits presented for the first time in federal habeas
proceedings may not contain new factual allegations and must supplement—as
opposed to fundamentally alter—claims presented to the state court. Id. at
204–05. We conduct a fact- and case-specific exhaustion inquiry to determine
whether additional evidence fundamentally alters or merely supplements the
state petition. Id. at 205. “If the petitioner presents material evidentiary
support for the first time in federal court, then he has not exhausted his state
remedies.” Smith, 515 F.3d at 400 (citing Morris, 379 F.3d at 204–05).




       2
         Section 2254(b) provides, in relevant part, that the district court should not grant a
writ of habeas corpus to a state prisoner unless “the applicant has exhausted the remedies
available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).

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      Smith v. Quarterman, 515 F.3d at 403, presented certain facts similar to
those in the present case. In Smith, we concluded that affidavits presented for
the first time in the federal habeas petition were procedurally barred for failure
to exhaust under § 2254(b). Id. We noted that the affidavits provided the first
actual evidence in support of the petitioner’s claims that trial counsel had
performed ineffectively by failing to present evidence that the plaintiff was
abused as a child.       The petitioner’s state habeas application, by contrast,
“contain[ed] no evidence of child abuse other than the petitioner’s allegations.”
Id. at 402. We concluded that by failing to submit the affidavits to the state
habeas court, “Smith failed to allow the TCCA an opportunity to review the
credibility of” the affidavits and therefore “threaten[ed] the state’s right to pass
upon and correct alleged violations of its prisoners’ federal rights.” Id. (internal
quotation marks omitted).
      This court has also looked to 28 U.S.C. § 2254(e)(2), which governs the
circumstances under which a district court may grant an evidentiary hearing on
a state court prisoner’s federal habeas petition, to determine whether a district
court may consider an affidavit submitted for the first time with a federal habeas
petition. Where a state court prisoner “has failed to develop the factual basis of
a claim in State court proceedings,” § 2254(e) restricts the availability of an
evidentiary hearing to narrow circumstances that Pierce does not allege are
present here.3

      3
        Section 2254(e)(2) provides:
      If the applicant has failed to develop the factual basis of a claim in State court
      proceedings, the court shall not hold an evidentiary hearing on the claim unless
      the applicant shows that—
      (A) the claim relies on—
              (i) a new rule of constitutional law, made retroactive to cases on
              collateral review by the Supreme Court, that was previously unavailable;
              or
              (ii) a factual predicate that could not have been previously discovered
              through the exercise of due diligence; and
      (B) the facts underlying the claim would be sufficient to establish by clear and

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      We addressed a set of facts similar to those in this case in Diaz v.
Quarterman, 239 F. App’x 886 (5th Cir. 2007) (per curiam), which, though
unpublished, is persuasive in its reasoning. In Diaz, the state habeas court
denied relief on the petitioner’s claim that counsel provided ineffective
assistance by failing to present the mitigating testimony of certain family
members who were willing to testify at trial. The state habeas court emphasized
that the petitioner made various allegations but did not “attach any type of
affidavit or other form of factual support for his claim that some of his family
members would have been willing to testify.” Id. at 887. The petitioner then
sought federal habeas relief and filed, for the first time, a series of affidavits that
provided evidentiary support for the factual allegations raised in the state
habeas court. We affirmed the district court’s denial of habeas relief, concluding
that the affidavits were barred by § 2254(e)(2) because they had not been raised
during the state court proceedings, and that absent that evidence, there was no
basis to rebut the state court’s finding that no evidence supported the
petitioner’s ineffective assistance claim. We observed:
      Pursuant to AEDPA, we must presume these factual determinations
      to be correct absent clear and convincing evidence to the contrary.
      The only evidence Diaz offers to rebut the state court’s findings is
      the series of affidavits presented for the first time to the district
      court. . . . [W]e cannot consider them per [28 U.S.C.] § 2254(e)(2),
      as they comprise “new evidence” that was not properly presented to
      the state court, and they do not evidence a factual predicate that
      could not have been discovered through the exercise of due
      diligence. Without the affidavits, Diaz has failed to rebut the
      presumption of correctness that attaches to the state court’s
      findings, and he cannot make his case that counsel were
      constitutionally ineffective at the punishment phase of trial.
Id. at 890 (emphasis added, citation omitted).



      convincing evidence that but for constitutional error, no reasonable factfinder
      would have found the applicant guilty of the underlying offense.

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         Pierce acknowledges that he failed to exhaust and to build an evidentiary
record as to juror misconduct in the state habeas court but argues that this
failure should be excused because he sought an evidentiary hearing from the
state habeas court but never received one.4 But this argument ignores the fact
that the affidavits that Pierce contends that the district court should have
considered did not require an evidentiary hearing and were in fact available to
him before his state habeas petition was filed.               Under either § 2254(b) or
§ 2254(e)(2), the affidavits in support were procedurally barred at the district
court level. Jurists of reason would not find the district court’s ultimate denial
of relief on the issue of juror misconduct debatable.
         For related reasons, we conclude that the district court did not abuse its
discretion in refusing to grant an evidentiary hearing on the juror misconduct
issue.       As noted, except in narrow circumstances, § 2254(e)(2) bars an
evidentiary hearing in the federal district court where the applicant has failed
to develop a factual basis for the claim in the state habeas court. A failure to
establish a factual basis is not established, however, “unless there is a lack of
diligence, or some greater fault, attributable to the prisoner or the prisoner’s
counsel.” Williams v. Taylor, 529 U.S. at 341. Pierce argues that his failure to
establish a factual basis is excused because he requested an evidentiary hearing
in the state habeas court.
         We rejected precisely this argument in Dowthitt v. Johnson, 230 F.3d at
758. In Dowthitt, as here, the petitioner urged that his failure to develop the


         4
        The procedural disposition of the motion for evidentiary hearing was odd. Pierce filed
the motion in January 1991, shortly after filing his state court habeas petition. Court
documents reflect that the motion was still pending in November 1995, when Pierce sought
new appointed counsel. There was virtually no further activity on the docket until November
2000, when both parties filed proposed findings of fact and conclusions of law. The record does
not show that the state habeas court ruled on the motion before ruling on the proposed
findings of fact and conclusions of law, but also does not show that Pierce’s counsel raised any
objection to submitting proposed findings of fact and conclusions of law without a ruling on the
pending motion.

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factual basis for his habeas claims was excused under § 2254(e)(2) because he
requested but was denied evidentiary hearings in the state habeas court. We
disagreed, concluding that “[m]ere requests for evidentiary hearings will not
suffice; the petitioner must be diligent in pursuing the factual development of
his claim.” Id. We observed that the petitioner had failed to present affidavits
in the state habeas court from the witnesses that he claimed would provide
material information and “did not show that they could not be obtained absent
an order for discovery or a hearing.” Id. (internal quotation marks omitted). We
concluded that the petitioner’s “proffers” to the state habeas court of what the
witnesses would present at a hearing did not fulfill the diligence requirement,
holding that “[g]iven that the [witnesses] were willing to testify at a hearing,
[the petitioner] could easily have obtained their affidavits. A reasonable person
in [petitioner]’s place would have at least done as much.” Id. As in Dowthitt, we
conclude that Pierce’s request for an evidentiary hearing was not enough to
avoid the restrictions imposed by § 2254(e)(2). By failing to attach the juror
affidavits, which were already in existence when he filed his petition in state
habeas court, Pierce failed to take the proper steps to support a request for an
evidentiary hearing in federal district court. The district court did not abuse its
discretion in refusing to hold an evidentiary hearing.
D.    The Atkins Claim
      Pierce seeks a COA as to whether he is mentally retarded and therefore
ineligible for execution under Atkins v. Virginia, 536 U.S. 304 (2002). Pierce’s
arguments focus almost exclusively on what Pierce describes as “new evidence”
about the credibility of the State’s expert witness, Dr. George Denkowski, who
evaluated Pierce in 2005 in connection with his state court habeas application.
The TCCA refused to credit Dr. Denkowski’s testimony in another recent habeas
case, Ex parte Plata, No. AP-75820, 2008 WL 151296 (Tex. Crim. App. Jan. 16,
2008), due to several methodological errors.         The Texas State Board of

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Examiners of Psychologists subsequently filed a complaint against Dr.
Denkowski with the State Office of Administrative Hearings regarding his work
in the Plata case, seeking to sanction him for intentionally misapplying
psychiatric testing methods. See SOAH Docket No. 520-09-2282.
         Pierce raises the following arguments in support of an evidentiary hearing
and COA:
         1.    As in Plata, Dr. Denkowski improperly contended that
               depression and anxiety had a suppressive effect on Pierce’s IQ
               score;

         2.    As in Plata, Dr. Denkowski improperly evaluated Pierce’s
               adaptive deficits and overstated the impact of sociocultural
               factors on these deficits;

         3.    Dr. Denkowski improperly criticized the results of other IQ
               tests administered to Pierce as being less reliable because
               only certain subparts were administered;

         4.    Dr. Denkowski failed to inform the court of the “Flynn Effect,”
               which might have artificially inflated Pierce’s IQ score on
               tests administered in 1975 and 1976. Dr. Denkowski also
               failed to inform the court that these same tests may be
               structured so as to overrepresent IQ.

         5.    The state habeas trial court made clearly erroneous findings
               of fact about one of Pierce’s experts, Dr. Garnett, some of
               which were adopted by the TCCA in its denial of Pierce’s
               habeas application.
         The district court arguably erred in concluding that none of these issues
merited habeas relief or at least an evidentiary hearing. Accordingly, we grant
a COA on the issues that Pierce raises with respect to his Atkins claim. Pierce
is instructed to provide record cites that show where each such issue was raised
before the state habeas court and federal district court—or, if the issue was not
raised in these forums, to explain why the issue could not have been raised
there.


                                          16
                                   No. 08-70042

E.    The Ineffective Assistance Claim
      Finally, Pierce seeks a COA as to whether his trial counsel performed
deficiently during the sentencing phase by failing to investigate and present
mitigating evidence that he was mentally retarded, abused as a child, and
suffered an impoverished upbringing. Pierce also seeks an evidentiary hearing,
arguing that such a hearing would conclusively establish deficiencies in counsel’s
performance. Pierce argues that the state habeas court improperly denied such
a hearing, and that because of this improper denial, the federal district court in
turn abused its discretion in failing to hold an evidentiary hearing.
      The district court held that Pierce’s ineffective assistance of counsel claim
did not provide a basis for habeas relief because even if Pierce could show that
his counsel performed deficiently, Pierce could not establish prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984), provides the two-prong
standard for establishing ineffective assistance of counsel. First, the petitioner
“must show that . . . counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. Second,
the petitioner must “show that the deficient performance prejudiced the defense
. . . [with] errors [that] were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.” Id. The district court also noted the standard
for establishing “prejudice” under the second prong:          “[W]hether there is a
reasonable probability that, absent the errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.” Id. at 695.
      The district court concluded that even if counsel had in fact rendered
deficient performance under the first prong, Pierce could not show prejudice
under the second because the special issues posed to the jury at sentencing




                                         17
                                       No. 08-70042

would not have permitted the jury to consider or give effect to the evidence that
Pierce asserts should have been presented.5 The district court observed:
       The     evidence    Pierce     claims   went     undeveloped      and
       unpresented—evidence of his low intelligence, his poor health as a
       child, the physical abuse he suffered at the hands of his father, the
       extreme poverty in which he grew up, and other evidence of a
       similar nature—is all general mitigation evidence, i.e., evidence that
       might have elicited sympathy or reduced his general moral
       culpability, but not evidence directly relevant to the special issues
       presented to the jury. As discussed . . . in connection with Pierce’s
       Penry claim, the special issues provided the jury with no mechanism
       to consider or give effect to such general mitigation evidence.
Pierce v. Quarterman, 2008 WL 4445064, at *16. The district court held that
“because the special issues provided no mechanism for the jury to give effect to
such mitigating evidence, it cannot be said that there is a reasonable probability
that such evidence would have changed the outcome.” Id.
       The district court’s holding is debatable. Although the special issues
would not have permitted the jury to give full effect to the types of mitigating
evidence that Pierce contends should have been introduced,6 as we have held
that Penry requires, see Nelson v. Quarterman, 472 F.3d 287, 316 (5th Cir. 2006),

       5
           The special issues were:

       1)       Whether Pierce’s conduct that caused Johnson’s death was deliberate
                and undertaken with the reasonable expectation that the death of the
                victim or another would result; and

       2)       Whether there was a probability that Pierce would commit future
                criminal acts of violence that would constitute a continuing threat to
                society.

       TEX . CODE CRIM . PROC . ANN ., Art. 37.071(b) (Vernon 1981).
       6
         See, e.g., Penry, 492 U.S. at 320 (Texas special issues did not permit jury to consider
and give full effect to evidence of mental retardation, childhood abuse); Tennard v. Dretke, 542
U.S. 274, 287 (2004) (same, as to mental defect); Abdul-Kabir v. Quarterman, 550 U.S. 233,
259 (2007) (same, as to difficult childhood, lack of self-control, and possible neurological
damage); Brewer v. Quarterman, 550 U.S. 286, ---, 127 S.Ct. 1706, 1721–22 (2007) (same, as
to childhood abuse).

                                              18
                                  No. 08-70042

the special issues were sufficient for the jury to give the evidence some effect.
See, e.g., Coble v. Quarterman, 496 F.3d 430, 447 (5th Cir. 2007) (observing that
jury could give some effect to evidence of mental illness and a troubled
background through deliberateness special issue); Tennard v. Dretke, 442 F.3d
240, 254 (5th Cir. 2006) (noting that jury could give some effect to evidence of
impaired intellectual functioning through deliberateness special issue); Lucas
v. Johnson, 132 F.3d 1069, 1083 (5th Cir. 1998) (concluding that jury could give
some effect to evidence of schizophrenia and troubled upbringing through future
dangerousness special issue). The district court’s conclusion—that the omitted
mitigating evidence could not have prejudiced the outcome because the jury had
“no mechanism” to give it effect—is therefore at least debatable. Pierce is
entitled to a COA on this issue.      Pierce may urge his entitlement to an
evidentiary hearing as to ineffective assistance as part of his appeal.
      The State contends that there is an independent basis for denying a COA
on Pierce’s ineffective assistance claim: that Pierce’s counsel did not render
ineffective assistance because the omission of the mitigating evidence was part
of a sound trial strategy. In the state habeas court, Pierce’s lead counsel from
his third trial testified by affidavit that he had properly investigated and was
aware of the mitigating evidence but chose not to introduce it because he had
pursued a theory of innocence and misidentification during the guilt/innocence
phase and feared that he would lose credibility with the jury if he changed
strategy to pursue a mitigation theory at sentencing. Pierce’s counsel introduced
evidence as to lack of future dangerousness but avoided presenting evidence that
would tend to admit but excuse the crime. The state habeas court found that
Pierce’s counsel did not render ineffective assistance and had omitted the
mitigating evidence as part of a “plausible trial strategy.”
      The federal district court did not describe or address the state habeas
court’s grounds for denying relief on the ineffective assistance claim. Therefore,


                                       19
                                  No. 08-70042

on this motion for COA, we do not have the benefit of a district court finding as
to whether the state habeas court’s conclusion was objectively unreasonable or
a violation of clearly-established Supreme Court law. Nor has Pierce, whose
motion for COA properly challenged only the district court’s conclusions, had the
opportunity to brief the issue for this court. Accordingly, we do not decide at this
time whether the state habeas court’s findings provide an independent basis for
the denial of habeas relief. The State may reurge this argument in its appellate
briefing.
                                IV. Conclusion
      Pierce’s request for a COA is GRANTED as to the Atkins and ineffective
assistance of counsel claims. The parties are directed to submit supplemental
briefing on these claims in advance of oral argument on a schedule to be
established by the Clerk. Pierce’s request for a COA is otherwise DENIED. The
State’s appeal of the district court’s grant of relief under Penry will be addressed
after oral argument, during which we will hear argument as to Pierce’s Penry,
Atkins, and ineffective assistance claims.




                                        20
                                  No. 08-70042

DENNIS, Circuit Judge, concurring in part, dissenting in part:
      I concur in the denial of a COA on Pierce’s expert evidentiary claim and
his jury misconduct claim.      I also concur in granting a COA on Pierce’s
ineffective assistance of counsel claim and his Atkins claim, but I write
separately to provide my reasons for granting a COA on the Atkins claim.
Finally, I respectfully dissent from the majority’s denial of a COA on Pierce’s
Brady claim for the reasons set forth below.
                             I. The Atkins Claim
      Pierce has never been granted an evidentiary adversary hearing on his
mental retardation vel non. The question of whether the Supreme Court’s
decisions in Atkins v. Virginia, 536 U.S. 304 (2002), and Ford v. Wainwright, 477
U.S. 399 (1986), require a court to conduct a live evidentiary hearing before
declaring a defendant who presents evidence of mental retardation eligible for
the death penalty is res nova and may be properly presented by this case. See
Hall v. Quarterman, 534 F.3d 365, 383-84 (5th Cir. 2008) (Higginbotham, J.,
concurring in part and dissenting in part).
      In the state proceedings, three mental retardation experts, Dr. Kaufman,
Dr. Garnett, and Dr. Rosin, expressed their opinions by affidavits that Pierce is
mentally retarded. The state habeas court categorically excluded the opinion
of Dr. Garnett on the basis that he was not licensed in the State of Texas, and
thus ineligible to opine on mental retardation in civil commitments under the
Persons with Mental Retardation Act (“PMRA”), Tex. Health & Safety Code §
591.003(16). Further, that court found that only the state’s mental retardation
expert, Dr. Denkowski, presented a “credible affidavit.” On the strength of Dr.
Denkowski’s affidavit’s criticism of petitioner’s experts, the state habeas court
disregarded as immaterial the opinions of all three of petitioner’s experts and
accepted Dr. Denkowski’s opinion that Pierce is not mentally retarded. Except
for Dr. Denkowski’s criticism of the defense experts’ opinions, the state court did
not explain why his “affidavit [was] credible” and theirs were not. The TCCA
                                       No. 08-70042

rejected the state habeas court’s finding that Dr. Garnett was not qualified as
an Atkins mental retardation expert but adopted all of that court’s other findings
and conclusions. Although the TCCA recognized that the state habeas court
clearly erred in this respect,1 it did not assess the prejudice it caused Pierce or
take any action to rectify the error. The district court also refused to grant Pierce
an evidentiary hearing and approved the state courts’ determination that Pierce
is not mentally retarded and therefore death-penalty eligible based primarily on
Dr. Denkowski’s affidavit.
       Because Pierce has never been granted an adversary evidentiary hearing
on whether he is mentally retarded, because different state judges presided over
the state capital murder case and the state Atkins habeas proceedings, because
the state mental retardation rulings were based only on diametrically conflicting
affidavits, and because of the state courts’ unrectified error in holding that Dr.
Garnett was not qualified as a mental retardation expert, it is debatable that the
state Atkins proceeding did not afford Pierce due process or a full and fair
hearing on his Atkins claim.
       This case is substantially analogous to Hall. In Hall, we noted that it
might be possible for a state court to adjudge a prisoner not mentally retarded
based on a paper trial when the same judge presided over the capital murder
trial and the state habeas proceedings.            534 F.3d at 971. Although the same



       1
         “[The PMRA] is inapplicable in the Atkins context, and the state court’s conclusion to
the contrary was clearly erroneous. ‘The PMRA by its own terms, is irrelevant to the
application of Atkins. For Eighth Amendment purposes, it neither defines mental retardation
nor -- more relevantly -- establishes who may diagnose mental retardation.’” Hall, 534 F.3d
at 971 (quoting In re Hearn, 418 F.3d 444, 447 (5th Cir. 2005)). The Court of Criminal Appeals
has also recognized that it is erroneous to exclude a mental retardation expert’s opinions on
the grounds that the expert is not licensed in Texas. See Ex parte Lewis, 223 S.W.3d 372, 374
(Tex. Crim. App. 2006) (Cochran, J., concurring) (explaining that the exclusion of an expert’s
opinion on the ground that he is not licensed in the State of Texas under Tex. Health & Safety
Code § 531.003(16) is of no “legal significance in deciding whether [an] applicant is mentally
retarded for purposes of eligibility for the death penalty under Atkins v. Virginia or Ex parte
Briseno.”).

                                              22
                                        No. 08-70042

judge had presided over both state proceedings, we held that Hall was entitled
to a federal adversarial evidentiary Atkins hearing, because the state courts
erroneously held that a defense expert was not qualified (for the same reason as
Dr. Garnett was found unqualified) and because the Atkins decision was decided
shortly before the state habeas proceedings and drastically changed the
principles and standards applicable to mental retardation-death eligibility
determinations. See id. at 370-72.
       Like the petitioner in Hall, Pierce diligently developed the factual basis
for his claim in state court by consistently raising the issue that he is mentally
retarded, and submitting evidence to that effect – including the opinions of three
experts that he is mentally retarded. The state court did not provide a full and
fair hearing on the claim: The state court denied his claim on a “paper hearing,”
different judges presided over his Atkins claim and capital murder trial, and
Atkins was decided long after his original trial.2 Finally, it is beyond doubt that
Pierce would be entitled to relief if he proves that he is mentally retarded. By
failing to hold an evidentiary hearing, the district court may have overlooked
potential errors in the state court’s resolution of the claim, including: (1) the
exclusion of petitioner’s expert’s opinion on the ground that he was not licensed
in the State of Texas based on the same statute at issue in Hall, an error the
TCCA recognized but failed to effectively cure; (2) the state court disregarded the
opinions of petitioner’s three experts in favor of the state’s expert, Dr.


       2
          In Hall, we noted that there is a “crucial distinction” between cases in which we have
found paper hearings adequate because the capital murder trial judge and the state habeas
judge were one and the same, and cases such as Pierce’s in which different state judges
handled each proceeding. See Hall, 534 F.3d at 371; see also id. at 372 (criticizing the district
court’s reliance on “the conflicting expert opinions of psychologists, asserted in affidavits
unaired in court and shielded from cross examination”); Perillo v. Johnson, 79 F.3d 441, 447
(5th Cir. 1996) (finding the state court did not provide a full and fair hearing in determining
the petitioner’s claim on paper alone because “[i]n the instant case, the judges were different.
. . . Because the judge in the state habeas corpus proceeding was not the trial judge, he could
not compare the information presented in the various affidavits against his own firsthand
knowledge of the trial”).

                                               23
                                        No. 08-70042

Denkowski, without making any affirmative findings as to why Dr. Denkowski
was credible (instead finding only that petitioner’s experts were not); and (3) the
state court failed to account for the many problems with Dr. Denkowski’s
methods and opinions in assessing mental retardation in death row petitioners,
errors recognized by this court, the Texas state courts, and the state licensing
authorities.3     Principally, given the lack of identity between the state capital
murder trial judge and the Atkins paper trial judge, and the erroneous finding
that Dr. Garnett was not qualified, Pierce is entitled to a COA on his Atkins
claim and his request for an evidentiary hearing.
                                  II. The Brady Claim
       The Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963), that
the Due Process Clause of the Fourteenth Amendment prohibits “the
suppression by the prosecution of evidence favorable to an accused upon request
. . . where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.” Id. at 87. Accordingly, to
establish a Brady violation, the petitioner must show: (1) that the evidence at
issue is favorable to the accused; (2) that the evidence has been suppressed by
the State, either wilfully or inadvertently; and (3) that he has been prejudiced
as a result, meaning that the evidence is material. United States v. Sipe, 388
F.3d 471, 477 (5th Cir. 2004) (citing Strickler v. Greene, 527 U.S. 263, 281-82
(1999); Brady, 373 U.S. at 87).
       As the district court concluded, the prosecution’s case against Pierce rested
on the testimony of its four identifying witnesses, including the two Sanders
brothers, who split a $1,000 reward for identifying Pierce–a fact that was never
disclosed to the defense and therefore suppressed. The Government, moreover,


       3
        See Hall, 534 F.3d at 371 n.27; id. at 376 (Higginbotham, J., concurring in part and
dissenting in part); Ex parte Plata, No. 693143-B (351st Dist. Ct. Sept. 28, 2007), aff’d, No. AP-
75820, 2008 WL 151296 (Tex. Crim. App. Jan. 16, 2008); Tex. State Bd. of Examiners of
Psychologists v. Denkowski, 520-09-2882 (Tex. State Office of Admin. Hrgs).

                                               24
                                 No. 08-70042

does not contest the district court’s holding that this impeachment evidence was
favorable to Pierce.    Thus, the only debatable question is whether this
suppressed evidence was material. Jurists of reason could debate whether the
evidence was material because it called into doubt the credibility of two of the
state’s four identifying witnesses, and I therefore dissent from the denial of
Pierce’s application for a COA on his Brady claim.
      Eyewitness impeachment evidence is particularly important where, as
here, there was little or no physical evidence and the prosecution’s case rested
solely on the witness’ identification of the shooter-robber. There were a number
of problems with the Sanders brothers’ initial, pre-reward identification (for
example, only one brother saw the robbery, they initially identified Pierce’s
brother, James Pierce, as the robber, but they changed their identification to
Anthony Pierce after Derwin Bankett told them that James Pierce was not in
Houston that day). The jury reasonably could have discredited the Sanders’
testimony had it been informed that they received two-thirds of a $1,000 state-
approved reward for their testimony. The identifications of Anthony Pierce by
the four witnesses would have been more vulnerable to cross-examination: they
made their identification after the stressful robbery-murder in context of an
arguably suggestive live lineup containing Pierce as the distinctively smallest,
youngest person, placed in the No. 1 position. Thus, the impeachment of two of
the state’s four eyewitnesses reasonably could have had a devastating effect
upon the prosecution’s entire case. See Lindsey v. King, 769 F.2d 1034, 1042 (5th
Cir. 1985) (rejecting an “arithmetical approach” to Brady-tainted eyewitness
identifications because “positive identification by two unshaken witnesses
possesses many times the power of such an identification by one only, and that
the destruction by cross-examination of the credibility of one of two crucial
witnesses—even if the other remains untouched—may have consequences for the
case extending far beyond the discrediting of his own testimony.”).


                                       25
                               No. 08-70042

     Therefore, because reasonable jurists could debate whether a jury would
have found this evidence so impeaching as to discredit the identification of
Pierce as the shooter-robber, I respectfully dissent from Part III.A of the
majority opinion.




                                    26
