Full opinion text
MEMORANDUM AND ORDER CRONE, United States Magistrate Judge. I. Introduction Petitioner Nathan Lynn Rose (“Rose”) challenges his 1995 conviction for aggravated robbery and forty-year sentence of imprisonment. Having reviewed the pending motion, the submissions of the parties, the state court record, and the applicable law, the court is of the opinion that Respondent Gary L. Johnson’s (“Johnson”) Motion for Summary Judgment (# 13) should be granted, Rose’s Amended Petition for Writ of Habeas Corpus (# 4) and Motion for Summary Judgment (# 14) should be denied, and a certificate of ap-pealability should not be issued. II. Procedural History On August 17, 1995, a jury convicted Rose of the aggravated robbery of Mary Aldape (“Aldape”), which occurred on March 30, 1993. See State v. Rose, No. 662269 (183d Dist. Ct., Harris County, Tex., Aug. 17, 1995). On November 13, 1995, after Rose pleaded true to prior convictions for possession of cocaine and delivery of cocaine alleged for enhancement purposes, the court sentenced Rose to forty years’ imprisonment. See State v. Rose, No. 662269 (183d Dist. Ct., Harris County, Tex., Nov. 13, 1995). On direct appeal, the Texas Fourteenth Court of Appeals affirmed Rose’s conviction in an unpublished opinion. See Rose v. State, No. 14-95-01413-CR, 1998 WL 268943 (Tex.App. — Houston [14th Dist.] May 28, 1998, pet. ref'd). The Texas Court of Criminal Appeals refused Rose’s petition for discretionary review on September 16, 1998. See Rose v. State, No. 1053-98 (Tex.Crim.App. Sept. 16, 1998). Rose subsequently filed a state habeas application challenging his conviction, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court without a hearing. See Ex parte Rose, No. 6,301-05 (Tex.Crim. App. Dec. 8, 1998). Rose filed his amended federal petition for writ of habeas corpus on August 30, 1999. III. Claims Rose raises a variety of claims in support of his petition for federal habeas corpus relief: A.he received ineffective assistance of trial counsel because: i. his attorney failed to object to the admission in evidence of a steak knife; ii. his attorney failed to file a motion for discovery, a motion to suppress evidence, and a motion to obtain exculpatory evidence from the prosecutor; iii. his attorney improperly relied on “a woman scorned” theory as part of his trial strategy; iv. hi: : orney failed 1) argue properly his motion for new trial; ,. his attorne .ailed to interview Rose ;>r ' his family members regarding his case; and his attorney failed to file a motion for instructed verdict based on an indie'meat that was fundamentally defective because it alleged that the offense occurred “on or about” April 16, 1993, which was not the actual date of the incident, the grand jury was never shown the knife before he was charged with aggravated robbery, and the indictment was amended without a change to the body of the indictment; B. there was insufficient evidence to support the conviction because: i. the knife offered into evidence was not shown to be the knife purportedly utilized in the offense; ii. the knife was dusted for fingerprints but was not retained as evidence by the police;- iii. his fingerprints were not found at the scene and there was no evidence that he had stolen any property; and iv. the complaining witness and the police officer gave differing testimony at trial; C. he received ineffective assistance of counsel on appeal because his appellate attorney did not raise the ineffectiveness of trial counsel; D. the State committed prosecutorial misconduct by: i. introducing evidence of prior offenses for which Rose was not convicted; ii. posing improper questions when cross-examining character witness Raymond Griffin; iii. improperly questioning Rose in the punishment phase of the trial; iv. making prejudicial statements during closing argument; v. fabricating a deadly weapon and suppressing evidence; vi. stating that Rose had represented himself for part of the proceeding; vii. accusing Rose of possessing information from the offense report which was not available to him; viii. questioning fingerprint examiners about items not admitted in evidence or about which they had no personal knowledge; ix. failing to notify Rose that it would seek a finding of the use of a deadly weapon; and x. claiming the fact that Rose’s fingerprints did not match any fingerprints found at the scene was irrelevant; and E. the court erred by failing to charge the jury on the lesser included offense of robbery. IV. Factual Background, At trial, Aldape and Rose, who had been co-workers at HEB Pantry Food Store, gave contradictory accounts of the events that occurred in her apartment on March 30, 1993. Aldape, who professed to be a lesbian, stated that she and Rose had a “hi/bye” relationship and that she had driven him home from work on several occasions. Aldape testified that on the date in question, she was caring for her roommate’s three-month-old baby when Rose came to the door of her apartment and asked for a glass of water. She brought him one glass, and when he asked for another, she let him into the apartment and directed him to the kitchen because she was occupied changing the baby. When returning from the kitchen, Rose pulled a knife on her, ordered her to give him some money, and shut her in a bedroom closet with the baby for forty-five minutes. After Rose left, Aldape discovered that he had pilfered through her belongings and stolen a class ring, a pager, and $100.00 in cash. According to Rose, Aldape was bisexual, and they had engaged in a sexual relationship for several months. Rose arrived at Aldape’s apartment and, after talking awhile, told her he was hungry and thirsty. He began to cook a sandwich, using a small butter knife to cut it. After the meal, the two talked and then began to use crack cocaine. Two hours later, Rose told Aldape that he no longer felt he could continue their relationship because he was engaged to another woman. Aldape allegedly replied that if she could not have Rose, neither could his fiancee. Rose denied robbing Aldape and contends that her accusation of him was motivated by revenge for his ending their relationship. V. Analysis A. Ineffective Assistance of Counsel In support of his ineffective assistance of counsel claim, Rose asserts that his trial counsel’s representation was deficient in a number of respects. Rose contends that his attorney, Tyrone Moncriffe (“Mon-eriffe”), failed to object to the admission in evidence of a small steak knife, failed to file a motion for discovery or a motion to suppress evidence, and failed to obtain exculpatory evidence from the prosecutor. Additionally, Rose maintains that his attorney unwisely utilized “a woman scorned” theory as part of his trial strategy and failed to argue properly the motion for a new trial. Finally, Rose complains that his attorney failed to file a motion for instructed verdict based on the fundamentally defective nature of the indictment. To prevail on an ineffective assistance of counsel claim, a habeas petitioner must satisfy a two-prong test. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Beets v. Scott, 65 F.3d 1258, 1273 (5th Cir.1995), cert. denied, 517 U.S. 1157, 116 S.Ct. 1547, 134 L.Ed.2d 650 (1996). First, he must show that counsel’s performance was deficient in that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” by demonstrating that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052; see Williams, 529 U.S. at 390-91, 120 S.Ct. 1495; Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir.1999); Boyd v. Johnson, 167 F.3d 907, 909 (5th Cir.), cert. denied, 527 U.S. 1055, 120 S.Ct. 20, 144 L.Ed.2d 824 (1999); Little v. Johnson, 162 F.3d 855, 860 (5th Cir.1998), cert. denied, 526 U.S. 1118, 119 S.Ct. 1768, 143 L.Ed.2d 798 (1999); Beets, 65 F.3d at 1272-73. To make this showing, he must overcome a strong presumption that counsel’s conduct fell within a wide range of reasonable professional assistance. See Strickland,, 466 U.S. at 698, 104 S.Ct. 2052; Kitchens, 190 F.3d at 701; Crane v. Johnson, 178 F.3d 309, 312 (5th Cir.), cert. denied, 528 U.S. 947, 120 S.Ct. 369, 145 L.Ed.2d 285 (1999); Ransom v. Johnson, 126 F.3d 716, 721 (5th Cir.), cert. denied, 522 U.S. 944, 118 S.Ct. 361, 139 L.Ed.2d 281 (1997); Amos v. Scott, 61 F.3d 333, 347 (5th Cir.), cert. denied, 516 U.S. 1005, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995); Teague v. Scott, 60 F.3d 1167, 1170 (5th Cir.1995). When reviewing such claims, “judicial scrutiny of counsel’s performance must be highly deferential,” uncolored by “the distorting effects of hindsight.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see Crane, 178 F.3d at 312; Boyd, 167 F.3d at 909; Davis v. Johnson, 158 F.3d 806, 812 (5th Cir.1998), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999); Amos, 61 F.3d at 347-48; Teague, 60 F.3d at 1170. Second, the petitioner must show that the deficient performance prejudiced his defense. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052; accord Williams, 529 U.S. at 390, 120 S.Ct. 1495; Fretwell, 506 U.S. at 370-72, 113 S.Ct. 838; Ransom, 126 F.3d at 721; Mangum v. Hargett, 67 F.3d 80, 84 (5th Cir.1995), cert. denied, 516 U.S. 1133, 116 S.Ct. 957, 133 L.Ed.2d 880 (1996); Beets, 65 F.3d at 1273. He must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different and that counsel’s errors were so serious as to deprive him of a fair trial, a trial with a reliable result. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052; accord Williams, 529 U.S. at 391, 120 S.Ct. 1495; Fretwell, 506 U.S. at 370-72, 113 S.Ct. 838; Kitchens, 190 F.3d at 703; Lamb v. Johnson, 179 F.3d 352, 359 (5th Cir.), cert. denied, 528 U.S. 1013, 120 S.Ct. 522, 145 L.Ed.2d 401 (1999); Little, 162 F.3d at 861; Davis, 158 F.3d at 812; Emery v. Johnson, 139 F.3d 191, 196 (5th Cir.), cert. denied, 525 U.S. 969, 119 S.Ct. 418, 142 L.Ed.2d 339 (1998); Sharp v. Johnson, 107 F.3d 282, 286 n. 9 (5th Cir.1997); Mangum, 67 F.3d at 84; Amos, 61 F.3d at 348. “Specifically, he must show a ‘reasonable probability’ that the jury would have otherwise harbored a reasonable doubt concerning guilt.” Emery, 139 F.3d at 196; accord Carter v. Johnson, 131 F.3d 452, 463 (5th Cir.1997), cert. denied, 523 U.S. 1099, 118 S.Ct. 1567, 140 L.Ed.2d 801 (1998). “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Williams, 529 U.S. at 391, 120 S.Ct. 1495 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052); accord Davis, 158 F.3d at 812; see Lamb, 179 F.3d at 359; Crane, 178 F.3d at 312. “[T]he mere possibility of a different outcome is not sufficient to prevail on the prejudice prong.” Id. (citing Ransom, 126 F.3d at 721). “[EJven ‘professionally unreasonable’ errors by counsel do not warrant setting aside a conviction if the error had no effect on the judgment.” Larsen v. Maggio, 736 F.2d 215, 217 (5th Cir.), cert. denied, 469 U.S. 1089, 105 S.Ct. 598, 83 L.Ed.2d 707 (1984). Hence, to succeed on his ineffective assistance of counsel claim, Rose must show both deficient performance of counsel and resulting prejudice. See Williams, 529 U.S. at 390, 120 S.Ct. 1495; Strickland, 466 U.S. at 700, 104 S.Ct. 2052; United States v. Kimler, 167 F.3d 889, 893 (5th Cir.1999); Little, 162 F.3d at 860; Moawad v. Anderson, 143 F.3d 942, 946 (5th Cir.), cert. denied, 525 U.S. 952, 119 S.Ct. 383, 142 L.Ed.2d 316 (1998); Pratt v. Cain, 142 F.3d 226, 230 (5th Cir.1998); Emery, 139 F.3d at 196; Ransom, 126 F.3d at 721; Tucker v. Johnson, 115 F.3d 276, 280 (5th Cir.), cert. denied, 522 U.S. 1017, 118 S.Ct. 605, 139 L.Ed.2d 492 (1997); Mangum, 67 F.3d at 84; James v. Cain, 56 F.3d 662, 667 (5th Cir.1995). Both prongs must be shown by a preponderance of the evidence. See Crane, 178 F.3d at 312; Rector v. Johnson, 120 F.3d 551, 563 (5th Cir.1997), cert. denied, 522 U.S. 1120, 118 S.Ct. 1061, 140 L.Ed.2d 122 (1998). Because a petitioner must satisfy both components of the Strickland test, the failure to establish either deficient performance or prejudice is fatal to such a claim and makes it unnecessary to examine the other component. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052; accord Lamb, 179 F.3d at 356-57; Kimler, 167 F.3d at 893; Moawad, 143 F.3d at 946; Pratt, 142 F.3d at 230; Amos, 61 F.3d at 348; Armstead v. Scott, 37 F.3d 202, 210 (5th Cir.1994), cert. denied, 514 U.S. 1071, 115 S.Ct. 1709, 131 L.Ed.2d 570 (1995). 1. Failure to Object at Trial Rose claims that his counsel rendered ineffective assistance when he failed to object to the State’s offering into evidence a small steak knife which came from Aldape’s kitchen and remained in her possession until the trial. Rose claims that Aldape produced the knife during trial and that Moneriffe should have objected to the admission of the knife because it could not be shown to be the actual knife used in the alleged robbery. Under Strickland, Rose must establish that his attorney “acted objectively unreasonably in failing to object and that he was prejudiced by the failure to object.” Vuong v. Scott, 62 F.3d 673, 684 (5th Cir.), cert. denied, 516 U.S. 1005, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052); see Burnett v. Collins, 982 F.2d 922, 930 (5th Cir.1993); Rushing v. Butler, 868 F.2d 800, 806 (5th Cir.1989). Specifically, Rose must demonstrate that his counsel’s performance was deficient under “ ‘prevailing professional norms.’ ” Vuong, 62 F.3d at 684 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). “While it is true that a failure to object properly or to preserve fundamental errors at trial may constitute ineffective assistance, ... the standard under Strickland ultimately diverts attention from legal error to assessing the probability that the outcome of the proceeding would have been different.” Smith v. Black, 904 F.2d 950, 980 (5th Cir.1990), vacated on other grounds, 503 U.S. 930, 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992) (citing Vela v. Estelle, 708 F.2d 954, 960-61 (5th Cir.1983), cert. denied, 464 U.S. 1053, 104 S.Ct. 736, 79 L.Ed.2d 195 (1984)); see Burnett, 982 F.2d at 930. Hence, to establish prejudice in this context, Rose must show that there is a reasonable probability that, but for counsel’s failure to object, the result of the proceeding would have been different. See Williams, 529 U.S. at 391, 120 S.Ct. 1495; Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. See Williams, 529 U.S. at 391, 120 S.Ct. 1495; Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Counsel’s performance cannot be deemed ineffective, however, if the challenged evidence was either admissible or duplicative of evidence that was properly received. See Romero v. Lynaugh, 884 F.2d 871, 879 (5th Cir.1989), cert. denied, 494 U.S. 1012, 110 S.Ct. 1311, 108 L.Ed.2d 487 (1990). Under Texas law, “[a]s a general rule an object offered in evidence should not be rejected merely because it is not positively identified as the exact object that was connected with the crime.” Hicks v. State, 508 S.W.2d 400, 402 (Tex.Crim.App.1974) (citing Pryor v. State, 449 S.W.2d 482, 484 (Tex.Crim.App.1969)). Instead, “an object, such as a knife, that is not an exact replica or duplicate of the original is admissible if it is relevant and material to an issue in the trial and is not overly inflammatory, and the original, if available, would have been admissible at trial.” Simmons v. State, 622 S.W.2d 111, 113 (Tex.Crim.App.1981). If the original weapon or instrumentality used in the commission of the crime would be admissible as being competent, material, or relevant to an issue in dispute at trial, then a replica or duplicate would, likewise, be admissible. See id. at 114. Because a conviction for aggravated robbery requires proof of either serious bodily injury inflicted on another or the use or exhibition of a deadly weapon by the perpetrator, the knife was relevant to an issue in Rose’s trial. See TEX. PEN. CODE ANN. § 29.03 (West 1993). In this instance, the indictment alleged the use of a “deadly weapon, to-wit: A Knife.” In addition, Aldape testified that Rose had threatened her with a knife, and R.W. Chappell (“Chappell”), a Houston Police Officer, testified that the knife proffered at trial was a deadly weapon in his opinion. The State need not introduce the exact knife used in a robbery to meet its burden of proof that a defendant exhibited a deadly weapon. See Morales v. State, 633 S.W.2d 866, 868-69 (Tex.Crim.App.1982); Victor v. State, 874 S.W.2d 748, 751 (Tex.App. — Houston [14th Dist.] 1994, pet. ref d). Here, because the knife the State introduced was admissible as a material element of the offense of aggravated robbery, the knife did not become inadmissible because it may have been a replica of the weapon used rather than the original knife. At trial, Aldape testified that the knife Rose used in the commission of the offense came from the same set of six steak knives as the one she brought to trial. The State’s purpose in introducing the knife was not to show that it was the exact knife used in the commission of the crime but to show that it was identical to the knife used in the robbery. On state habeas review, the trial court made the following findings of fact concerning the knife, findings that were subsequently adopted by the Texas Court of Criminal Appeals: 16. During the applicant’s trial, the trial court admitted into evidence, without objection, a steak knife as being like the steak knife which the applicant used to threaten the complainant in her apartment during the offense. 17. The Court finds, based on the testimony at trial, that the steak knife admitted into evidence was one of a set of identical steak knives belonging to the complainant. “The State can prove that a particular knife is a deadly weapon by showing its size, shape and sharpness, the manner of its use, or intended use, and its capacity to produce death or serious bodily injury.” Posey v. State, 763 S.W.2d 872, 875 (Tex. App. — Houston [14th Dist.] 1988, pet. refd); see Victor, 874 S.W.2d at 751. Therefore, because the knife was admissible, the outcome of the proceeding would not have been different had Moncriffe objected to its admission. See Williams, 120 S.Ct. at 1512; Romero, 884 F.2d at 879. Hence, Moncriffe cannot be faulted for failing to object to admissible evidence. It is well established that the “failure to assert a meritless objection cannot be grounds for a finding of deficient performance.” Emery, 139 F.3d at 198 (citing Clark v. Collins, 19 F.3d 959, 966 (5th Cir.), cert. denied, 513 U.S. 966, 115 S.Ct. 432, 130 L.Ed.2d 344 (1994)). Furthermore, even if the admission of the steak knife had been improper, isolated failures to object to procedural errors or improper evidence do not constitute ineffective assistance of counsel. See Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App.1984); Thomas v. State, 886 S.W.2d 388, 392 (Tex.App. — Houston [1st Dist.] 1994, pet. refd). To establish ineffective assistance of counsel, the petitioner must show that counsel committed “errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052; see Crane, 178 F.3d at 312; Rector, 120 F.3d at 563; Morris v. California 966 F.2d 448, 456 (9th Cir.), cert. denied, 506 U.S. 831, 113 S.Ct. 96, 121 L.Ed.2d 57 (1992). A petitioner seeking to prove ineffective assistance “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Tactical and strategical decisions of counsel ‘if based on informed and reasoned practical judgment’ will not be second-guessed.” Ransom, 126 F.3d at 721 (citing McCoy v. Lynaugh, 874 F.2d 954, 964 (5th Cir.1989) (quoting Mattheson v. King, 751 F.2d 1432, 1441 (5th Cir.1985), cert. dismissed, 475 U.S. 1138, 106 S.Ct. 1798, 90 L.Edüd 343 (1986))). “An attorney’s failure to object to the admission of inadmissible evidence is not necessarily ineffective.” Morris, 966 F.2d at 456. “Failure to object to inadmissible testimony can constitute a sound and plausible trial strategy.” Thomas, 886 S.W.2d at 392. In this instance, Moncriffe’s choice not to voice an objection to the admission of the knife was reasonable trial strategy. See Ransom, 126 F.3d at 721; Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir.1997); Teague, 60 F.3d at 1172; McCoy, 874 F.2d at 964. In his affidavit submitted in connection with the state habeas proceeding, Moncriffe states: After we gathered our factual background and aligned it with Mr. Rose’s story, we created a theme for the trial. “The complaining witness was in love with Mr. Rose and was bringing these charges as a personal vendetta.” “A woman scorned”. I made no objection to her bringing the knife because I thought it visually provided the Jury with a perspective of her vindictiveness. I was also aware that no prints were taken that could connect Mr. Rose to having touched the knife. Our trial strategy was based upon the central theme of the case. My voir-dire, cross-examination, and arguments were devised with an attempt to persuade the Jury of my theme. The state habeas courts recognized that Moncriffe “made a strategic trial decision to attempt to portray the complainant as a woman with a personal vendetta against the applicant.” Thus, Moncriffe’s decision not to contest the admission of the knife was part of an overall defensive strategy, a decision that will not be second-guessed by this court. Therefore, Rose’s ineffective assistance of counsel claim based on his attorney’s failure to object to the admission of the steak knife is without merit. 2. Failure to File Motions Rose also claims that he received ineffective assistance of counsel because his attorney failed to file a motion for discovery, a motion to suppress evidence, or a motion to obtain exculpatory or “Brady ” material from the prosecutor. A failure by counsel to file motions does not per se constitute ineffective assistance of counsel. See Kimmelman v. Morrison, 477 U.S. 365, 383-84, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). A determination of ineffectiveness “depends on whether either a suppression motion or an objection would have been granted or sustained had it been made.” United States v. Oakley, 827 F.2d 1023, 1025 (5th Cir.1987). Counsel, however, has no duty to file pre-trial discovery motions where, as here, the prosecution has established an open file policy that makes the filing of discovery motions and Brady requests pointless. See Smith v. Maggio, 696 F.2d 365, 367 (5th Cir.), cert. denied, 464 U.S. 831, 104 S.Ct. 111, 78 L.Ed.2d 113 (1983). Moreover, “the filing of pre-trial motions ‘falls squarely within the ambit of trial strategy.’ ” Schwander v. Blackburn, 750 F.2d 494, 500 (5th Cir.1985) (quoting Murray v. Maggio, 736 F.2d 279, 283 (5th Cir.1984)). Such a conscious and informed decision, based on trial tactics and strategy, cannot form the basis for federal habeas corpus relief unless it is so ill-chosen that it permeates the entire trial with obvious unfairness. See Garland v. Maggio, 717 F.2d 199, 206 (5th Cir.1983); see also Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052; Green, 116 F.3d at 1122; Teague, 60 F.3d at 1172; Moreno v. Estelle, 717 F.2d 171, 176-77 (5th Cir.1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984); Daniels v. Maggio, 669 F.2d 1075, 1079 (5th Cir.), cert. denied, 459 U.S. 968, 103 S.Ct. 295, 74 L.Ed.2d 278 (1982). No such unfairness has been shown here. Rose complains that his attorney failed to file a motion for discovery and a motion to suppress evidence, which he claims were important to his defense “because of the circumstances at hand.” He maintains that had his attorney filed these motions, he would have learned that the prosecution did not have the knife in its possession and the State would have been forced during the pre-trial motion hearing to reveal that it possessed no evidence. The standard for ineffective assistance of counsel in this context is based upon whether the motion to suppress would have been granted had it been made. See Kimmelman, 477 U.S. at 383-84, 106 S.Ct. 2574. In this case, as discussed above, the knife was admissible; thus, a motion to suppress such evidence would have been unavailing. Additionally, as Moncriffe states in his affidavit, “There was nothing to suppress in this case, so a Motion to Suppress was irrelevant.” Rose appears to claim that a discovery motion would have revealed that the State lacked any physical evidence against him, specifically the knife allegedly used in the robbery and any fingerprints at the scene. An attorney is not obligated to file pretrial discovery motions, however, where the prosecution has an open-file policy. See Smith, 696 F.2d at 367. Moncriffe states in his affidavit, “The District Attorney always had an open file on this case, and provided me with every request for Discovery, therefore it was useless to file a Motion for Discovery.” During a pre-trial hearing, Moncriffe concurred with the assertion of the prosecutor, John Miles (“Miles”), that he had been privileged to the trial proceedings prior to taking over as counsel. Additionally, Miles stated, and Moncriffe agreed, that he had access to anything in the file he needed. Furthermore, Rose’s previous attorney, Hazel R. Bolden, filed a Motion for Discovery and Inspection, so Rose cannot complain of the absence of such a motion. Rose’s contentions regarding Brady evidence and counsel’s duty to obtain exculpatory evidence are similarly misplaced. It is well established that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); see Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Little, 162 F.3d at 861; Pyles v. Johnson, 136 F.3d 986, 998 (5th Cir.1998), cert. denied, 524 U.S. 933, 118 S.Ct. 2338, 141 L.Ed.2d 707 (1998); Goodwin v. Johnson, 132 F.3d 162, 186 (5th Cir.1997). A prosecutor’s duty to disclose under Brady includes evidence that may be used to impeach a witness’s credibility. See Strickler v. Greene, 527 U.S. 263, 282 n. 21, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Felder v. Johnson, 180 F.3d 206, 213 (5th Cir.), cert. denied, 528 U.S. 1067, 120 S.Ct. 630, 145 L.Ed.2d 520 (1999); Thompson v. Cain, 161 F.3d 802, 806 (5th Cir.1998); Pyles, 136 F.3d at 998; Goodwin, 132 F.3d at 186. The duty to disclose has also been extended to the situation where no request is made by the defense “if the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce.” United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); see Strickler, 527 U.S. at 281-82, 119 S.Ct. 1936. To establish a Brady violation, the petitioner must prove: (1) the prosecutor suppressed or withheld evidence; (2) the evidence was favorable to the defendant; and (3) the evidence was material to the defendant’s case. See id.; Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Little, 162 F.3d at 861; United States v. Burns, 162 F.3d 840, 851 (5th Cir.1998), cert. denied, 526 U.S. 1076, 119 S.Ct. 1477, 143 L.Ed.2d 560 (1999); Castillo v. Johnson, 141 F.3d 218, 222 (5th Cir.), cert. denied, 524 U.S. 979, 119 S.Ct. 28, 141 L.Ed.2d 788 (1998); Westley v. Johnson, 83 F.3d 714, 725 (5th Cir.1996), cert. denied, 519 U.S. 1094, 117 S.Ct. 773, 136 L.Ed.2d 718 (1997); East v. Scott, 55 F.3d 996, 1002 (5th Cir.1995). Evidence is material if there is a reasonable probability that the result of the proceeding would have been different if the evidence had been disclosed to the defense. See Strickler, 527 U.S. at 280, 119 S.Ct. 1936; Wood v. Bartholomew, 516 U.S. 1, 5, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995); Bagley, 473 U.S. at 682, 105 S.Ct. 3375; Felder, 180 F.3d at 213; Little, 162 F.3d at 861-62; Burns, 162 F.3d at 851; Pyles, 136 F.3d at 998; Goodwin, 132 F.3d at 186; East, 55 F.3d at 1002; Blackmon v. Scott, 22 F.3d 560, 564 (5th Cir.), cert. denied, 513 U.S. 1060, 135 S.Ct. 671, 130 L.Ed.2d 604 (1994). A reasonable probability is “ ‘a probability sufficient to undermine confidence in the outcome’ ” of the proceedings. Bagley, 473 U.S. at 682, 105 S.Ct. 3375 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052); see Little, 162 F.3d at 862; Burns, 162 F.3d at 851; East, 55 F.3d at 1002. “ ‘[T]he adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.’ ” Strickler, 527 U.S. at 289-90, 119 S.Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)); accord Spence v. Johnson, 80 F.3d 989, 998 (5th Cir.), cert. denied, 519 U.S. 1012, 117 S.Ct. 519, 136 L.Ed.2d 407 (1996). The decision in Brady “does not establish a broad discovery rule; rather, it defines the Government’s minimum duty under the due process clause to ensure a fair trial.” United States v. McKinney, 758 F.2d 1036, 1049 (5th Cir.1985) (citing United States v. Campagnuolo, 592 F.2d 852, 855, 860 (5th Cir.1979)). “Brady claims involve ‘the discovery, after trial of information which had been known to the prosecution but unknown to the defense.’ ” West v. Johnson, 92 F.3d 1385, 1399 (5th Cir.1996), cert. denied, 520 U.S. 1242, 117 S.Ct. 1847, 137 L.Ed.2d 1050 (1997) (quoting Agurs, 427 U.S. at 103, 96 S.Ct. 2392); see Castillo, 141 F.3d at 223. Evidence is not suppressed, however, if “ ‘the defendant either knew, or should have known, of the essential facts permitting him to take advantage of any exculpatory evidence.’ ” West, 92 F.3d at 1399 (quoting Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir.1994)); see Rector, 120 F.3d at 560; Williams v. Scott, 35 F.3d 159, 163 (5th Cir.1994), cert. denied, 513 U.S. 1137, 115 S.Ct. 959, 130 L.Ed.2d 901 (1995). The State is not required to furnish a defendant with exculpatory evidence that is fully available to the defendant or that could be obtained through reasonable diligence. See Gibbs v. Johnson, 154 F.3d 253, 256 (5th Cir.1998), cert. denied, 526 U.S. 1089, 119 S.Ct. 1501, 143 L.Ed.2d 654 (1999); Blackmon, 22 F.3d at 564-65. “Under Brady, the prosecution has no obligation to produce evidence or information already known to the defendant, or that could be obtained through the defendant’s exercise of reasonable diligence.” Castillo, 141 F.3d at 223. Moreover, the Brady rule applies only to exculpatory and impeachment evidence, not to inculpatory or neutral evidence. See United States v. Nixon, 881 F.2d 1305, 1308 (5th Cir.1989); see also Lawrence, 42 F.3d at 257; Andrews v. Collins, 21 F.3d 612, 626 (5th Cir.1994), cert. denied, 513 U.S. 1114, 115 S.Ct. 908, 130 L.Ed.2d 790 (1995). It also does not encompass cumulative evidence. See Westley, 83 F.3d at 725; Andrews, 21 F.3d at 626. “[T]he prosecutor is under no duty to make a complete and detailed accounting to defense counsel of all investigatory work done.” Blackmon, 22 F.3d at 565; see Rector, 120 F.3d at 560. Thus, Brady does not extend due process to require that the prosecution pursue every possible avenue of investigation or present the defendant’s case for him. See Johnston v. Pittman, 731 F.2d 1231, 1234 (5th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 789, 83 L.Ed.2d 783 (1985); see also Moore, 408 U.S. at 795, 92 S.Ct. 2562. Here, Rose has not shown that any evidence was suppressed, that it was material, or that it would have been helpful to the defense. During the pre-trial hearing, Miles informed the court that all of the evidence he possessed was inculpatory. Rose has failed to demonstrate the existence of any evidence suppressed by the State that might have been favorable to him or material to his case. Consequently, Rose’s Brady claim is unfounded. In addition, Rose’s claim regarding pre-trial motions “falls squarely within the ambit of trial strategy.” See Schwander, 750 F.2d at 500. “Tactical and strategical decisions of counsel ‘if based on informed and reasoned practical judgment’ will not be second-guessed.” Ransom, 126 F.3d at 721 (citing McCoy, 874 F.2d at 964 (quoting Mattheson, 751 F.2d at 1441)); see Kitchens, 190 F.3d at 704; Lamb, 179 F.3d at 358; Carter, 131 F.3d at 466. Courts will not find ineffective assistance of counsel merely because of a disagreement with counsel’s trial strategy. See Crane, 178 F.3d at 312 (citing Green, 116 F.3d at 1122). An attorney’s decision regarding the filing of pre-trial motions is a “conscious and informed decision based on trial tactics and strategy” which, like all such decisions, cannot form the basis for habeas corpus relief unless “it is so ill chosen that it permeates the entire trial with obvious unfairness.” Garland, 717 F.2d at 206; accord Green, 116 F.3d at 1122; Teague, 60 F.3d at 1172; see Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052; Moreno, 717 F.2d at 177; Daniels, 669 F.2d at 1079. Rose has not shown such unfairness in this situation. See Jones v. Butler, 864 F.2d 348, 366 (5th Cir.1988), cert. denied, 490 U.S. 1075, 109 S.Ct. 2090, 104 L.Ed.2d 653 (1989). When Rose raised these claims in his state habeas application, the trial court made the following findings of fact: 6. The Court finds, based on the credible affidavit of counsel Moncriffe, that counsel made the strategic decision that a Motion for Discovery was unnecessary because he was able to review the State’s file and was provided information. 7. The court finds, based on the credible affidavit of counsel Moncriffe, that counsel made a strategic decision not to file a motion to suppress based on the lack of evidence which could be suppressed. 9.The Court finds, based upon official court documents, that prior counsel, who withdrew before the applicant’s trial, filed numerous motions, including a motion for discovery and inspection. 10. The Court further finds, based upon official court documents, that counsel Moncriffe also filed numerous motions after he was appointed as the applicant’s counsel. 11. The court finds that, during a hearing on pre-trial motions, the prosecutor stated that he had only inculpatory evidence; that counsel Moncriffe had reviewed the State’s file; and, that counsel was privileged to the communications between the State and the applicant’s previous attorneys. 12. The Court further finds that counsel Moncriffe, during the hearing, acknowledged that the prosecutor’s statement was true. The Texas Court of Criminal Appeals explicitly adopted these findings when it denied Rose’s state habeas application without written order on the findings of the trial court. These findings are presumptively correct under 28 U.S.C. § 2254(e)(1). See Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.), cert. denied, — U.S.-, 121 S.Ct. 84, 148 L.Ed.2d 46 (2000); Kitchens, 190 F.3d at 700; Carter, 131 F.3d at 460; Childress v. Johnson, 103 F.3d 1221, 1225 (5th Cir.1997); Vuong, 62 F.3d at 683. Section 2254(e)(1) retains “the traditional presumption of correctness afforded to state court factual determinations” under former § 2254(d). Childress, 103 F.3d at 1225. Therefore, federal courts in habeas corpus proceedings are required to accord a presumption of correctness to state court findings of fact, unless they lack even fair support in the record. See Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990); Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983); Emery, 139 F.3d at 199; Carter, 131 F.3d at 460; James v. Whitley, 39 F.3d 607, 609-10 (5th Cir.1994), cert. denied, 514 U.S. 1069, 115 S.Ct. 1704, 131 L.Ed.2d 565 (1995); Crank v. Collins, 19 F.3d 172, 176 (5th Cir.), cert. denied, 512 U.S. 1214, 114 S.Ct. 2699, 129 L.Ed.2d 825 (1994). The Fifth Circuit has confirmed that “any state-court factual determinations must be presumed correct unless rebutted by clear and convincing evidence.” Davis, 158 F.3d at 812 (citing 28 U.S.C. § 2254(e)(1)); accord Clark, 202 F.3d at 764; Kitchens, 190 F.3d at 700; Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir.), cert. denied,, 526 U.S. 1041, 119 S.Ct. 1339, 143 L.Ed.2d 503 (1999). The presumption is especially strong when, as here, the state habeas court and the trial court are identical. See Clark, 202 F.3d at 764; Boyle v. Johnson, 93 F.3d 180, 186 (5th Cir.1996), cert. denied, 519 U.S. 1120, 117 S.Ct. 968, 136 L.Ed.2d 853 (1997); Amos, 61 F.3d at 347. Hence, in the absence of affirmative proof of error, the state court’s findings are deemed to be correct. See Teague, 60 F.3d at 1170. “Mere disagreement with the state court factual findings is not sufficient to overcome those findings. Even an ambiguous record entitles the state court findings to this presumption of correctness.” Id. Nevertheless, “[w]hile the measure of deference afforded state court factual findings is substantial, ... it is not absolute.” Childress, 103 F.3d at 1226 n. 7. “Section 2254(d)(2) authorizes issuance of the writ if the state court decision ‘was based on an unreasonable determination of the facts in light of the evidence presented.’ ” Id. (quoting 28 U.S.C. § 2554(d)(2)). When the effectiveness of counsel is at issue, although the ultimate question of whether counsel’s performance was deficient and prejudicial is a mixed question of law and fact, state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of § 2254(e)(1). See Strickland, 466 U.S. at 698, 104 S.Ct. 2052; Davis, 158 F.3d at 812 (citing Nobles v. Johnson, 127 F.3d 409, 418 (5th Cir.1997), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998)); Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir.), cert. denied, 513 U.S. 960, 115 S.Ct. 418, 130 L.Ed.2d 333 (1994); Carter v. Collins, 918 F.2d 1198, 1202 (5th Cir.1990). When a state court has determined that counsel was reasonably effective, federal courts “look to whether the state court decision rested on ‘an unreasonable application of clearly established federal law.’ ” Kitchens, 190 F.3d at 701 (quoting 28 U.S.C. § 2254(d)(1)) (citing Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997)). “A state court’s application of federal law is unreasonable when ‘reasonable jurists considering the question would be of one view that the state court ruling was incorrect.’ ” Id. (quoting Drinkard, 97 F.3d at 769). In this instance, Rose, as the petitioner, has the burden of rebutting such findings by producing clear and convincing evidence that they are incorrect. See 28 U.S.C. § 2254(e)(1). He has not done so. Indeed, the trial court’s findings are amply supported by the record. This court, therefore, is required to accept as conclusive both the factual findings and the credibility choices of the state courts. See Carter, 918 F.2d at 1202. 3. Use of “A Woman Scorned” Trial Theme Rose further contends that he received ineffective assistance of counsel because Moneriffe made an unwise decision to utilize the trial theme of “a woman scorned” regarding the complainant. Rose argues that due to this trial theme, his attorney failed to object to the admission of the steak knife and failed to file a discovery motion or a motion to suppress. An attorney’s decision to use a specific theme at trial is a “conscious and informed decision based on trial tactics and strategy” which, like all such decisions, cannot form the basis for habeas corpus relief unless “it is so ill chosen that it permeates the entire trial with obvious unfairness.” Garland, 717 F.2d at 206; accord Green, 116 F.3d at 1122; Teague, 60 F.3d at 1172; see Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052; Moreno, 717 F.2d at 177; Daniels, 669 F.2d at 1079. No such unfairness has been demonstrated here, as Moncriffe’s choice of a trial theme comported with Rose’s recount of the incident, and due to the nature of the offense and other evidence in the record, he was restricted in the types of defenses he could reasonably pursue. As stated in his affidavit, Moncriffe created the “woman scorned” theory based upon Rose’s version of the events. The state habeas courts made the following finding regarding the trial theme: 3. The Court finds, based on the credible affidavit of counsel Tyrone Mon-criffe and on the evidence elicited at trial, that counsel made a strategic trial decision to attempt to portray the complainant as a woman with a personal vendetta against the applicant. Rose contends, however, that Moncriffe should have objected to Aldape bringing the knife to trial and further argues that his failure to object was “unprofessional.” Yet, he concedes in his motion for summary judgment that “he knew LAldape] was a woman scorned.” Moreover, as discussed previously, the knife was admissible in evidence, and counsel had no need to file a motion to suppress or a motion for discovery. Thus, it cannot be said that Moncriffe’s trial strategy “permeates the entire trial with obvious unfairness.” See Garland, 717 F.2d at 206. In addition, Rose posits no viable alternative theories to account for Aldape’s allegations, nor does he specify what other defenses his attorney should have advanced. Mere conclusory allegations in support of claims of ineffective assistance of counsel, such as those made by Rose, are insufficient as a matter of law to raise a constitutional issue. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, — U.S.-, 121 S.Ct. 122, 148 L.Ed.2d 77 (2000); Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir.), cert. denied, 513 U.S. 1054, 115 S.Ct. 660, 130 L.Ed.2d 595 (1994); Flores v. Johnson, 957 F.Supp. 893, 910 (W.D.Tex.1997). In the absence of a specific showing of the manner in which counsel’s alleged errors and omissions were constitutionally deficient and how they prejudiced his right to a fair trial, a habeas petitioner cannot prevail on an ineffective assistance of counsel claim. See Miller, 200 F.3d at 282; Barnard v. Collins, 958 F.2d 634, 642 n. 11 (5th Cir.1992), cert. denied, 506 U.S. 1057, 113 S.Ct. 990, 122 L.Ed.2d 142 (1993). In sum, the Fifth Circuit “has made clear that conclu-sory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding.” Miller, 200 F.3d at 282 (citing Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir.1983)). Moreover, counsel cannot be faulted for failing to pursue a defense that is not supported by the evidence. See Schwander, 750 F.2d at 499-500; Murray, 736 F.2d at 283. “[T]he Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade.” United States v. Cronic, 466 U.S. 648, 657 n. 19, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (citing Nickols v. Gagnon, 454 F.2d 467, 472 (7th Cir.1971), cert. denied, 408 U.S. 925, 92 S.Ct. 2504, 33 L.Ed.2d 336 (1972)). Thus, Rose’s complaints about counsel’s choice of a trial theme must be rejected. 4. Inadequate Argument on Motion for New Trial Rose further maintains that he received ineffective assistance of counsel because Moncriffe failed to adopt arguments Rose asserted in a motion for new trial filed pro se on September 6, 1995. After Rose was sentenced on November 13, 1995, Moncriffe filed a motion for new trial on November 27, 1995, alleging that there was insufficient evidence to support the conviction. Rose contends that Moncriffe was ineffective for failing to address all the arguments Rose raised in his pro se motion. He asserts that Moncriffe improperly omitted the following arguments: (1) the court misdirected the jury as to the law in not explaining alternative theories to the jury; (2) the court did not require proof of each element of the offense or offer the lesser included offense of robbery in its jury instructions; and (3) the verdict is contrary to the law and evidence. It is well settled that a “criminal defendant does not have the right ... to a ‘hybrid representation,’ partly by counsel and partly by himself.” Neal v. State, 870 F.2d 312, 315-16 (5th Cir.1989) (quoting United States v. Daniels, 572 F.2d 535, 540 (5th Cir.1978)). Because Rose elected to be represented by an attorney, his complaint regarding Moncriffe’s failure to adopt his pro se arguments is unfounded. “[T]here is no constitutional right to hybrid representation.” Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir.1996) (citing McKaskle v. Wiggins, 465 U.S. 168, 182-83, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984)). The trial court is not required to permit “ ‘hybrid’ representation,” as a “defendant does not have a right to choreograph special appearances by counsel.” McKaskle, 465 U.S. at 183, 104 S.Ct. 944; see Scarbrough v. State, 777 S.W.2d 83, 92 (Tex.Crim.App.1989). On state habeas review, the court found that “[b]ecause the applicant is not entitled to hybrid representation, trial counsel is not ineffective for failure, if any, to adopt the applicant’s pro se motions.” Furthermore, Moncriffe argued that the verdict was contrary to the law and evidence, and Rose had no constitutional right to a jury instruction on lesser included offenses. See Creel v. Johnson, 162 F.3d 385, 391 (5th Cir.1998), cert. denied, 526 U.S. 1148, 119 S.Ct. 2027, 143 L.Ed.2d 1038 (1999). Therefore, with respect to the omitted arguments, Rose has failed to raise a constitutional claim cognizable on federal habeas corpus review. 5. Failure to Conduct Thorough Investigation Rose additionally asserts that his attorney failed to conduct a thorough investigation of his case. He contends that Moncriffe did not interview Rose, his common-law wife, or other family members regarding the facts of the case in order to develop a proper defense. He also asserts that a proper investigation would have disclosed that the State was not in possession of the weapon allegedly used in the robbery. To render effective assistance, “counsel has a duty to make a reasonable investigation of defendant’s case or to make a reasonable decision that a particular investigation is unnecessary.” Ransom, 126 F.3d at 723 (citing Strickland, 466 U.S. at 691, 104 S.Ct. 2052); see Nealy v. Cabana, 764 F.2d 1173, 1177 (5th Cir.1985); Martin v. Maggio, 711 F.2d 1273, 1280 (5th Cir.1983), cert. denied, 469 U.S. 1028, 105 S.Ct. 447, 83 L.Ed.2d 373 (1984). The reasonableness of an investigation depends in part on the information supplied by the defendant. See Ransom, 126 F.3d at 723; McCoy, 874 F.2d at 964. “ ‘The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions .... In particular, what investigation decisions are reasonable depends critically on such information.’ ” Boyd, 167 F.3d at 910 (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052). In determining the reasonableness of a decision not to investigate, information provided by the defendant is only one factor, but in some cases it may be the controlling factor. See Ransom, 126 F.3d at 723 (citing McCoy, 874 F.2d at 964). Nevertheless, “[djefense counsel is not required ‘to investigate everyone whose name happens to be mentioned by the defendant.’” Schwander, 750 F.2d at 500 (quoting United States v. Cockrell, 720 F.2d 1423, 1428 (5th Cir.1983), cert. denied, 467 U.S. 1251, 104 S.Ct. 3534, 82 L.Ed.2d 839 (1984)). In order to establish that counsel was ineffective due to a failure to investigate the case or to discover and present evidence, the petitioner must do more than merely allege a failure to investigate — he must state with specificity what the investigation would have revealed, what specific evidence would have been disclosed, and how the evidence would have altered the outcome of the trial. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir.1994); Nelson v. Hargett, 989 F.2d 847, 850 (5th Cir.1993); United States v. Green, 882 F.2d 999, 1003 (5th Cir.1989); Lockhart v. McCotter, 782 F.2d 1275, 1282-83 (5th Cir.1986), cert. denied, 479 U.S. 1030, 107 S.Ct. 873, 93 L.Ed.2d 827 (1987); Alexander v. McCotter, 775 F.2d 595, 603 (5th Cir.1985); Schwander, 750 F.2d at 500-01. Moreover, when trial counsel’s decision not to pursue further investigation into a potential defense or into an area of potentially mitigating evidence is based on consultation with the defendant, which leads the attorney to believe that further investigation would be fruitless, that decision may not be challenged as unreasonable. See Boyle, 93 F.3d at 187-88; West, 92 F.3d at 1406-09; Andrews, 21 F.3d at 623. Hence, the extent of counsel’s investigation must be viewed in the context of the defendant’s cooperation with his attorney in facilitating the investigation. See Randle v. Scott, 43 F.3d 221, 225 (5th Cir.), cert. denied, 515 U.S. 1108, 115 S.Ct. 2259, 132 L.Ed.2d 265 (1995). With respect to counsel’s duty to investigate, the Supreme Court has observed: 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. Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052; see Bell v. Lynaugh, 828 F.2d 1085, 1088 (5th Cir.), cert. denied, 484 U.S. 933, 108 S.Ct. 310, 98 L.Ed.2d 268 (1987); Lowenfield v. Phelps, 817 F.2d 285, 290 (5th Cir.1987), aff'd on other grounds, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). Counsel, however, is not required to perform futile acts or embark on improvident investigations. See Westley, 83 F.3d at 722; Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir.1995); Clark, 19 F.3d at 966; McCoy, 874 F.2d at 963; Morlett v. Lynaugh, 851 F.2d 1521, 1525 (5th Cir.1988), cert. denied, 489 U.S. 1086, 109 S.Ct. 1546, 103 L.Ed.2d 850 (1989); Murray, 736 F.2d at 283. Thus, an attorney’s proper tactical choice not to conduct an investigation should not be confused with a breach of the duty to investigate. See Beavers v. Balkcom, 636 F.2d 114, 116 (5th Cir.1981). As with any ineffective assistance of counsel claim, the petitioner must prove that an alleged breach of his attorney’s duty to investigate “resulted in an actual and substantial disadvantage to the course of his defense.” Baldwin v. Maggio, 704 F.2d 1325, 1333 (5th Cir.1983), cert. denied, 467 U.S. 1220, 104 S.Ct. 2669, 81 L.Ed.2d 374 (1984). The petitioner may not simply allege, but must “affirmatively prove,” prejudice. See Strickland, 466 U.S. at 693, 104 S.Ct. 2052. In his affidavit, Moncriffe explains the extent of his investigation: After I was appointed to Mr. Rose, I immediately requested an investigator from the Court to assist me with gathering interviews and witnesses. I had extensive interviews with Mr. Rose and his wife in an attempt to structure his version of the events. My investigator, Mrs. Johnson, gathered interviews from the apartment complex in an attempt to obtain a visual perspective of Mr. Rose’s story. We interviewed Mr. Rose’s family members to gather mitigation information pertaining to Mr. Rose’s background, achievements and overall adjustments to society, both positive and negative. I spent a number of nights at the home of Mr. Rose’s family members gathering information about minute facts of his life. The state habeas courts confirmed that Moncriffe undertook a thorough investigation of the incident in question as well as Rose’s background, seeking to develop both defensive and mitigating evidence. The trial court made the following findings, which were adopted by the Court of Criminal Appeals: 4. The Court finds, based on the credible affidavit of counsel Moncriffe and on the appellate record, that counsel interviewed witnesses as to the facts of the offense. 5. The Court finds, based on the credible affidavit of counsel Moncriffe, that counsel interviewed the applicant’s family to attempt to gather mitigating evidence concerning the applicant’s background. These findings are presumptively correct under 28 U.S.C. § 2254(e)(1). See Clark, 202 F.3d at 764; Kitchens, 190 F.3d at 700. Rose has proffered no evidence to rebut the presumption. Furthermore, Rose does not detail what additional investigation counsel should have undertaken, what such investigation would have revealed, what specific evidence would have been disclosed, or how the evidence would have altered the outcome of the trial. See Anderson, 18 F.3d at 1221; Nelson, 989 F.2d at 850; Green, 882 F.2d at 1003. With respect to the knife, the only specific item mentioned by Rose, even if Moncriffe’s investigation had revealed that the State did not possess the knife allegedly used in the crime, such a discovery would not have altered the course of the trial, as the knife proffered in evidence would still have been admissible. Moreover, a perusal of the statement of facts indicates that Moncriffe was quite familiar with the salient facts of the case as well as its strengths and weakness. He attempted to fashion a defense that would explain Rose’s actions and account for the adverse evidence. Yet, as Moneriffe explains in his affidavit: The complaining witness was steadfast and unshakable. She came across as credible and sincere. Unfortunately, her story was more credible than Mr. Roses [sic], particularly when she stated that she had no love for Mr. Rose because she was a lesbian, preferring women over men. She stated very articulately that she was just trying to help Mr. Rose when he robbed her at knife point. Hence, Rose has failed to show how further investigation by his attorney would have altered the result of the trial. Therefore, Rose’s failure to investigate claim is without factual or legal basis. 6. Failure to Move for Instructed Verdict Based on Defective Indictment Rose further maintains that counsel w7as ineffective for failing to move for an instructed verdict on the basis that the indictment was fundamentally defective. He contends that the indictment was invalid because: (1) he was indicted for an offense committed “on or about” April 16, 1993, which was not the actual offense date; (2) the grand jury wras never shown the knife before he was charged with aggravated robbery; and (3) the indictment was amended without a change to the body of the indictment. Rose points out that Aldape testified that the offense occurred on March 30, 1993, rather than April 16, 1993. He also complains that the grand jury indicted him without seeing the deadly weapon alleged in the indictment. Moreover, although the trial court granted the State’s Motion for Leave to Amend Indictment, requesting that the cause number in the second enhancement paragraph be changed from “F-90-4800LNS” to “F-90-4800INS,” the body of the indictment was not changed. Rose’s indictment reads in part: IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS: The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Hams County, Texas, NATHAN LYNN ROSE, hereafter styled the Defendant, on or about APRIL 16, 199S, had then and there unlawfully, while in the course of committing theft of property owned by MARY ALDAPE and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place MANY ALDAPE in fear of imminent bodily injury and death, and the Defendant did then and there use and exhibit a deadly weapon, to-wit: A KNIFE. Under the Constitution, “an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” United States v. Bailey, 444 U.S. 394, 414, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (quoting Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)); see Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Devoll, 39 F.3d 575, 578 (5th Cir.1994), cert. denied, 514 U.S. 1067, 115 S.Ct. 1701, 131 L.Ed.2d 563 (1995). A plain reading of the indictment demonstrates that it informed Rose of the elements of the charge against him and provided sufficient detail to enable Mm to rely upon the indictment for a double jeopardy bar in the event of a subsequent prosecution. Thus, Rose’s indictment satisfies the requirements of the Constitution. See United States v. Hernandez, 891 F.2d 521, 525 (5th Cir.1989), cert. denied, 495 U.S. 909, 110 S.Ct. 1935, 109 L.Ed.2d 298 (1990) (citing Hamling, 418 U.S. at 117, 94 S.Ct. 2887; United States v. Manotas-Mejia, 824 F.2d 360, 365 (5th Cir.), cert. denied, 484 U.S. 957, 108 S.Ct. 354, 98 L.Ed.2d 379 (1987)); Calley v. Callaway, 519 F.2d 184, 226 (5th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976). Furthermore, the sufficiency of a state charging instrument is not a matter for federal habeas corpus relief unless the indictment is so defective that the convicting court had no jurisdiction. See Williams v. Collins, 16 F.3d 626, 637 (5th Cir.), cert. denied, 512 U.S. 1289, 115 S.Ct. 42, 129 L.Ed.2d 937 (1994); McKay v. Collins, 12 F.3d 66, 68 (5th Cir.), cert. denied, 513 U.S. 854, 115 S.Ct. 157, 130 L.Ed.2d 95 (1994); Yohey v. Collins, 985 F.2d 222, 229 (5th Cir.1993); Uresti v. Lynaugh, 821 F.2d 1099, 1102 (5th Cir.1987); Millard v. Lynaugh, 810 F.2d 1403, 1407 (5th Cir.), cert. denied, 484 U.S. 838, 108 S.Ct. 122, 98 L.Ed.2d 81 (1987); Liner v. Phelps, 731 F.2d 1201, 1203 (5th Cir.1984); Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir.1980). The indictment must be flawed to the extent that under no circumstances could a valid conviction result from the facts provable under the indictment. See Morlett, 851 F.2d at 1523; Johnson v. Estelle, 704 F.2d 232, 236 (5th Cir.1983), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 237 (1984). The sufficiency of an indictment is determined by looking to the law of the state where the indictment was issued. See Morlett, 851 F.2d at 1523; Liner, 731 F.2d at 1203; Johnson, 704 F.2d at 236. Thus, questions about whether an allegedly defective indictment confers jurisdiction on a state trial court are matters of state law. See McKay, 12 F.3d