Dowthitt v. Johnson (180 F. Supp. 2d 832, 2000)

United States District Court for the Southern District of Texas 2000-01-27

Citations

Full opinion text

MEMORANDUM AND ORDER

ATLAS, District Judge.

Petitioner Dennis Thurl Dowthitt was convicted and sentenced to death for the capital murder of Gracie Purnhagen committed in the course of aggravated sexual assault. Petitioner, though counsel, filed a Petition for Writ of Habeas Corpus [Doc. # 19] on December 30, 1998, and an Amended Petition (“Petition”) [Doc. # 24] on February 11, 1999. The Court has jurisdiction pursuant to 28 U.S.C. § 2254.

The Amended Petition is before the Court on Respondent Gary Johnson’s Motion for Summary Judgment (“Motion”) [Doc. # 47] and Amended Motion for Summary Judgment (“Amended Motion”) [Doc. # 50], to which Petitioner has responded in opposition (“Response”) [Doc. #52] and (“Supplemental Response”) [Doc. # 55]. The Court has thoroughly reviewed the entire record in this case, including the full state court pretrial, trial, and habeas record.

The Court authorized substantial funding for Petitioner to obtain requested expert and other investigative services. The Court conducted an evidentiary hearing on the allegation that Delton Dowthitt, post-trial, recanted his trial testimony and confessed to the murder for which Petitioner was convicted. The Court also carefully considered and applied the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Based on this review of the record and the application of governing legal authorities, the Court concludes that Petitioner is not entitled to federal habeas relief.

FACTUAL BACKGROUND

Petitioner is in the custody of the Texas Department of Criminal Justice, Institutional Division, pursuant to a judgment and sentence of death from the 221st Judicial District Court of Montgomery County, Texas, in Cause No. 91-10-01240. Petitioner was tried before a jury upon a plea of not guilty and, on October 7, 1992, was found guilty of capital murder.

At Petitioner’s trial, the State presented evidence that Petitioner and his son, Del-ton Dowthitt (“Delton”) picked up Gracie and Tiffany Purnhagen, ages 16 and 9, on June 13, 1990. The State presented evidence that Petitioner cut Gracie’s throat and sodomized her with a beer bottle. While Petitioner was murdering and sexually assaulting Gracie, Delton strangled Tiffany.

Following a separate punishment phase hearing, the jury answered in the affirmative both special issues submitted pursuant to Article 37.071(b) of the Texas Code of Criminal Procedure. The jury then answered negatively the sentencing issue submitted pursuant to the Supreme Court’s decision in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In accordance with the jury’s answers and applicable state law, the trial court sentenced Petitioner to death.

The Texas Court of Criminal Appeals affirmed Petitioner’s conviction and sentence in a published opinion issued June 26, 1996. Dowthitt v. State, 931 S.W.2d 244 (Tex.Crim.App.1996).

Petitioner filed a state application for habeas relief on August 19, 1997, and later supplemented the state application. The Montgomery County District Court entered Findings of Fact and Conclusions of Law on March 6, 1998, and recommended that relief be denied. See Findings of Fact and Conclusions of Law, contained in the state court record at 1121-1135 (cited herein as “FFCL”). The Court of Criminal Appeals reviewed the record and, finding the trial court’s findings and conclusions to be accurate and supported by the record with some limited exceptions, denied Petitioner’s request for habeas relief. Ex Parte Dowthitt, No. 37,557 (Tex.Crim. App. Sept. 16, 1998). Petitioner’s request for a writ of certiorari was denied by the United States Supreme Court on April 19, 1999. Dowthitt v. Texas, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).

After having obtained appointment of counsel on October 14, 1998 [Doe. # 10], Petitioner filed a petition for federal habe-as relief on December 30, 1998 and supplemented the petition on February 11, 1999. The Court issued an order on January 4, 1999, staying Petitioner’s scheduled execution.

STANDARDS OF REVIEW

This federal petition for habeas relief is governed by the applicable review provisions of the AEDPA, which became effective April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 335-36, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Williams v. Cain, 125 F.3d 269, 274 (5th Cir.1997) (“the relevant date for determining the applicability of the AEDPA to habeas corpus petitions is the date that the actual habeas corpus petition is filed”), cert. denied, 525 U.S. 859, 119 S.Ct. 144, 142 L.Ed.2d 116 (1998). Under the AEDPA, federal habeas relief based upon claims that were adjudicated on the merits by the state courts cannot be granted unless the state court’s decision (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Kitchens v. Johnson, 190 F.3d 698, 700 (5th Cir.1999).

With reference to the first standard of review, applicable to legal issues and mixed issues, the “contrary to” clause applies to the state court’s legal conclusions, and the “unreasonable application” clause applies to mixed questions of law and fact. 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). The “unreasonable application” standard regarding mixed questions permits federal habeas relief- only if a state court decision is “so clearly incorrect that it would not be debatable among reasonable jurists.” Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir.1997) (quoting Drinkard, 97 F.3d at 769), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). “In applying this standard, we must decide (1) what was the decision of the state courts with regard to the questions before us and (2) whether there is any established federal law, as explicated by the Supreme Court, with which the state court decision conflicts.” Hoover v. Johnson, 193 F.3d 366, 368 (5th Cir.1999).

The second standard of review under the AEDPA applies to factual issues and precludes federal habeas relief unless the state court’s adjudication of the merits of Petitioner’s claim was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d); Drinkard, 97 F.3d at 767. The state court’s factual determinations are presumed correct unless rebutted by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Kitchens, 190 F.3d at 700.

“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” certain conditions are satisfied. 28 U.S.C. § 2254(e)(2); see also Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (requiring Petitioner in pre-AEDPA habeas proceeding to show cause and actual prejudice for failure to develop facts in the state court proceeding before he can obtain an evidentiary hearing). The Fifth Circuit has held that “a petitioner cannot be said to have ‘failed to develop’ a factual basis for his claim unless the undeveloped record is a result of his own decision or omission.” Robison v. Johnson, 151 F.3d 256, 268 (5th Cir.1998), cert. denied, 526 U.S. 1100, 119 S.Ct. 1578, 143 L.Ed.2d 673 (1999). Even in cases where the record does not establish that Petitioner “failed to develop” the factual basis for his claim in state court, the federal district court has discretion whether to conduct an evidentiary hearing. Id. (citing McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir.1998)). An evidentiary hearing is not required if there are “no relevant factual disputes that would require development in order to assess the claims.” See id. A federal habeas court properly denies an evidentiary hearing “when the only basis offered to establish a disputed fact question was an inadmissible affidavit.” Beathard v. Johnson, 177 F.3d 340, 349 (5th Cir.), cert. denied, 528 U.S. 954, 120 S.Ct. 380, 145 L.Ed.2d 296 (1999).

The AEDPA’s standards of federal habeas review apply to claims which were “adjudicated on the merits” by the state court. 28 U.S.C. § 2254(d); see also Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir.1999). Under the AEDPA, an “explicit denial of relief by the Texas Court of Criminal Appeals of [the petitioner’s] claims qualifies as an ‘adjudication on the merits’ entitled to deference under AED-PA.” Trevino v. Johnson, 168 F.3d 173, 181 (5th Cir.1999); see also Miller v. Johnson, 200 F.3d 274, 281-82 (5th Cir.2000) (denial of relief by Court of Criminal Appeals is a denial of relief on the merits). If the state habeas decision did not address an issue, the federal habeas court “should ‘look through’ to the last clear state decision on the matter.” Jackson, 194 F.3d at 651.

The Court must evaluate each claim for relief individually. Relief based on cumulative error is available only where “(1) the individual errors involved matters of constitutional dimensions rather than mere violations of state law; (2) the errors were not procedurally defaulted for habeas purposes; and (3) the errors so infected the entire trial that the resulting conviction violates due process.” Westley v. Johnson, 83 F.3d 714, 726 (5th Cir.1996) (internal quotations and citations omitted), cert. denied, 519 U.S. 1094, 117 S.Ct. 773, 136 L.Ed.2d 718 (1997). “Meritless claims or claims that are not prejudicial cannot be cumulated, regardless of the total number raised.” Id.

PETITIONER’S CLAIMS FOR RELIEF

I. ACTUAL INNOCENCE

Petitioner alleges that he is entitled to federal habeas relief from his capital murder conviction and resulting death sentence because he is innocent. Petitioner alleges (1) that Delton has now confessed to murdering Gracie Purnhagen; (2) that corroboration of Delton’s accomplice witness testimony was “false, unreliable, or implicates Delton ... ”; (3) that Delton previously committed similar attacks; and (4) that the murders were cult related.

As an initial matter, Petitioner’s claim of actual innocence does not provide an independent basis for federal habeas relief. Additionally, Petitioner has not presented evidence which satisfies the standard for an “actual innocence” claim under either Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), or Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). On each of these bases, the Court denies relief.

A. Actual Innocence Is Not an Independent Basis for Federal Habeas Relief

In support of his “actual innocence” claim for relief, Petitioner cites Herrera and Schlup. Neither case supports Petitioner’s argument that he may assert an independent claim for federal habeas relief based on his allegation that he is innocent.

In Herrera v. Collins, the United States Supreme Court noted that “[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Herrera, 506 U.S. at 400, 113 S.Ct. 853. While recognizing that a petitioner whose claims are otherwise barred from consideration as an abuse of the writ may obtain federal review of those claims upon a showing of actual innocence, the Supreme Court clearly held that “a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Id. at 404, 113 S.Ct. 853. This is true because a defendant who has received a fair trial and been convicted no longer enjoys the presumption of innocence. Id. at 399, 113 S.Ct. 853. “Thus, in the eyes of the law, petitioner does not come before the Court as one who is ‘innocent,’ but, on the contrary, as one who has been convicted by due process of law of [a] brutal [murder].” Id. at 399-400, 113 S.Ct. 853.

Similarly, in Schlup v. Delo, the Supreme Court again noted that “Schlup’s claim of innocence does not by itself provide a basis for relief.” Schlup, 513 U.S. at 315, 115 S.Ct. 851. The Supreme Court held that “if a petitioner ... presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims.” Id. at 316, 115 S.Ct. 851.

The Fifth Circuit has repeatedly recognized that Supreme Court jurisprudence does not support an independent claim for federal habeas relief based on an allegation of actual innocence. See Graham v. Johnson, 168 F.3d 762, 788 (5th Cir.1999)(pet. for cert. filed June 21, 1999); Robison v. Johnson, 151 F.3d 256, 267 (5th Cir.1998), cert. denied, 526 U.S. 1100, 119 S.Ct. 1578, 143 L.Ed.2d 673 (1999); Lucas v. Johnson, 132 F.3d 1069, 1075 (5th Cir.), cert. denied, 524 U.S. 965, 119 S.Ct. 4, 141 L.Ed.2d 765 (1998).

The controlling case law from both the Fifth Circuit and the United States Supreme Court precludes Petitioner’s independent claim for relief based on his assertion of actual innocence. The Court denies federal relief based on this claim.

B. Petitioner’s “Evidence” Does Not Show Actual Innocence

Because the Supreme Court in Herrera discussed the standard for establishing a claim of actual innocence if one arguably existed and because the Petition contains procedurally defaulted claims which could be considered by this Court upon a showing of actual innocence, the Court has considered Petitioner’s actual innocence claim on the merits. The Court has carefully and thoroughly examined the full record, including Delton’s testimony at the eviden-tiary hearing held January 7, 2000. Based on this review, the Court finds that Petitioner does not satisfy either the standard for an independent claim for relief based on actual innocence, if one exists, or the lesser standard for a claim of actual innocence asserted to permit consideration of defaulted claims.

1. Applicable Standards

In Herrera, the Supreme Court stated that, assuming arguendo an independent claim for habeas relief based on actual innocence existed, the petitioner would need to satisfy an “extraordinarily high” threshold showing by making “a truly persuasive demonstration of ‘actual innocence’ ....” Herrera, 506 U.S. at 417, 113 S.Ct. 853.

To establish actual innocence for purposes of avoiding procedural default, the petitioner must “establish sufficient doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial.” Schlup, 513 U.S. at 316, 115 S.Ct. 851 (emphasis in original). Petitioner must support his claim with “new reliable evidence.” Id. at 324, 115 S.Ct. 851. Petitioner must “show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Id. at 327, 115 S.Ct. 851.

Petitioner satisfies neither standard.

2. Allegation that Delton Has Confessed to Murdering Gracie Purn-hagen

Petitioner asserts that, since the time of trial, Delton confessed to murdering Gracie. In support of this assertion, Petitioner has submitted statements allegedly made by Delton’s cousin, Billy Dowthitt, to state habeas counsel and investigator and to Billy’s father. In the numerous statements, Billy has given conflicting accounts of a conversation in prison during which Delton allegedly told Billy either that he killed both girls or that he killed his “girlfriend.”

Petitioner also presents unsigned affidavits attributable to David Tipps and a defense investigator’s account of a conversation with David Tipps. The unsigned Tipps affidavit and the investigator’s account contain statements that Delton told fellow inmate Tipps that Delton küled Del-ton’s girlfriend and her sister.

The proffered statements regarding what Delton allegedly told fellow prison inmates are inadmissible hearsay under the Federal Rules of Evidence. See FED. R. EVID. 801. The statements do not fall within any of the hearsay exceptions, including Rule 804(b)(3). Even if admissible, the Billy Dowthitt statements are conflicting and “fail to provide a convincing account” of any conversation between Billy and Delton. See, e.g., Herrera, 506 U.S. at 418, 113 S.Ct. 853. Indeed, given the internal inconsistencies in Billy’s statements and the contradictions with uncontested matters, Billy’s statements have no indicia of reliability.

The relevant, admissible evidence regarding Petitioner’s claim that Delton recanted his trial testimony and confessed to murdering Gracie was presented at the evidentiary hearing on January 7, 2000. At that time, Delton testified clearly, unequivocally, and credibly that he killed only Tiffany and that his father, Petitioner in this case, killed Gracie. The Court finds without reservation that Delton has not confessed or otherwise recanted his trial testimony, but instead testifies consistently under oath that his father killed Gracie. Petitioner’s allegation to the contrary is rejected as unsupported by the record.

2. Allegedly “False, Unreliable” Corroboration

Petitioner argues that his actual innocence is established by the “false, unreliable” nature of the corroboration of Delton’s accomplice witness testimony. Petitioner specifically challenges the corroborating evidence: (1) that Gracie Purnhagen’s blood was on a beer bottle found at Petitioner’s auto shop; (2) that Petitioner admitted being present during the commission of the crime; (3) that there were blood spatters on his shirt; (4) that Petitioner’s statement to “Aunt Dixie” that he “did it and made Delton do it” referred to the murders; (5) that he asked his daughter, Darla, for forgiveness; and (6) that the knife introduced into evidence as the murder weapon belonged to Petitioner.

Initially, the claim fails to support Petitioner’s request for federal habeas relief because there is no constitutional requirement for corroboration of accomplice testimony. See Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 61 L.Ed. 442 (1917); United States v. Rasco, 123 F.3d 222, 229 (5th Cir.1997), cert. denied, 522 U.S. 1083, 118 S.Ct. 868, 139 L.Ed.2d 765 (1998). This Court reviewed Delton’s trial testimony, and the Court heard and observed Delton as he testified in the evidentiary hearing in this proceeding. This Court found Delton to be a credible witness, regardless of whether his testimony is corroborated by other evidence.

As discussed below, however, the Court has considered the merits of Petitioner’s challenges to the corroborating evidence. The Court finds that the Texas Court of Criminal Appeals’ decision that “Delton’s testimony was sufficiently corroborated” is neither contrary to nor an unreasonable application of clearly established federal law.

Blood on the Beer Bottle. — Petitioner challenges the reliability of the corroborating evidence that blood on the beer bottle was from a group of donors remaining after DNA analysis excluded 95% of the relevant population and that Gracie was among the 5% remaining. Petitioner alleges in connection with his innocence contentions that the chain of custody for the blood scrapings and the liver sample from Gracie were not established. This claim is not supported by the trial record. Trial testimony from the medical examiner, law enforcement officers, and forensic examiners established the chain of custody for the evidence and defense counsel’s objections based on the chain of custody were properly overruled by the trial court.

Petitioner also challenges the validity of the DNA evidence but, as discussed more fully in connection with Petitioner’s DNA claim, the reliability of the evidence was established through testimony at trial. Petitioner argues that “DNA testing proved nothing about the contributor of the scrapings.” Petition, at 52. To the contrary, as discussed more fully in a later section, the DNA testing proved that Grade Purnhagen was among the 5% remaining after 95% of the relevant population was excluded through DNA testing.

Petitioner also challenges the State’s failure to perform DNA testing “on the bottle itself or on other items that should have been tested.” Petition, at 55. The record establishes that DNA testing was performed on the blood found on the bottle (Tr., XXXIL903); the knife which was introduced into evidence did not have enough blood on it to determine even whether it was human blood (id. at XXVI-11:267); and the clothing worn by Delton and Petitioner on the night of the murders was thrown into a dumpster which was emptied before it could be searched by law enforcement officers (id. at XXIX:426, 560). None of Petitioner’s DNA challenges raise a doubt as to the corroborative effect of the DNA evidence.

Admitted Presence at Murder Scene.— As discussed more fully in a later section, the State properly established that Petitioner stated “I was there the whole time.” The State’s evidence was neither false nor unreliable, and the statement was properly admitted as Petitioner’s admission to being present at the pipeline at the time of the murders.

Blood of Petitioner’s Shirt. — Kellie Holloway, the 19-year-old girlfriend of Petitioner’s son Stacey, testified at trial that she saw Petitioner on the night of the murders and his shirt had stains on it that looked like blood. Tr., at XXVIII:362. Marcia Holloway, Kellie’s sister, testified at trial that she also saw Petitioner on the night of the murders and he had blood splattered on his shirt. Id. at XXVI-11:375. These witnesses were not inherently unreliable. They admitted that their view of Petitioner was limited to seeing him through a car window, but each witness testified to having seen the spots on Petitioner’s shirt. Additionally, during preliminary discussions in connection with the polygraph examination, Petitioner admitted having blood on his shirt the night of the murders.

The jury, having heard the evidence, could properly assess its weight. It was not unreasonable for the jury to determine that the Holloway sisters’ testimony was credible and corroborated Delton’s testimony.

Statement to Aunt Dixie. — Dixie Becker, Petitioner’s aunt, testified at trial regarding a statement made shortly after the murders. Over defense counsel’s strenuous objection, Ms. Becker testified that a few days after the murders Petitioner told her privately, “Aunt Dixie, I did it and I made Delton do it.” Tr., XXXIL1002. Ms. Becker testified that Petitioner did not explain his statement. Id. at XXXII:1009.

Petitioner now submits an affidavit from Ms. Becker stating that at the time she testified at trial she did not know about “molesting, sexual deviant acts ... & incest.” Becker Affidavit, Exh. 69 to Petition, ¶ 5. Ms. Becker further stated in her affidavit that had she known of these acts, she “would not have been so certain that the statement meant only that which I thought at the time of trial.” Id.

The Becker affidavit does not raise a doubt about either the corroborative effect of the statement or Petitioner’s guilt. Ms. Becker did not testify at trial regarding what she thought the statement meant. She merely testified that the statement was made. The jury considered the statement and reached its own decision regarding what it meant and whether it corroborated Delton’s testimony.

Request for Forgiveness from Darla.— Darla Dowthitt Garcia (“Darla”), Petitioner’s daughter, testified at trial that the morning after the murders, Petitioner telephoned her and asked if she would “forgive him for what he’s done.” Tr., XXVI-11:388. Darla testified that when she asked Petitioner if he was talking “about Sunday,” he said, “no, about yesterday.” Id.

Petitioner argues that he was actually asking his daughter for forgiveness “for his own treatment of her on a camping trip” and that the request for forgiveness was not made by telephone, but in person. Petition, at 62. Again, the Court concludes that the new explanation for his statements to Darla is not evidence of actual innocence. Darla testified only to the making of the statement, not regarding any possible meaning. The jury, hearing all the evidence presented at trial, made its own decisions regarding the evidentiary and corroborative value of Darla’s testimony. If believed by the jury, Darla’s testimony clearly corroborated Delton’s testimony.

Knife Belonged to Petitioner. — Darla testified at trial that the knife introduced into evidence was her father’s. Tr., XXVI-11:388. Darla testified that she had seen and used the knife several times on camping trips. Id. Donna Dowthitt Beeson, another of Petitioner’s daughters, testified that Petitioner carried a knife all the time. Id. at XXXL851. Darlene Dowthitt Glover, Petitioner’s sister, testified that Donna Dowthitt was not around Petitioner much during the first part of 1990. Id. at XXXL856. Petitioner argues that this testimony failed to corroborate Delton’s testimony.

Again, the evidence was presented, and the jury determined whether or not they found it credible. “Federal courts are not forums in which to relitigate state trials.” Herrera, 606 U.S. at 401, 113 S.Ct. 853 (quoting Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).

Conclusion. — The claims challenging the corroboration evidence are not established by the record either as a “truly persuasive demonstration” of actual innocence or as a showing that it is more likely than not that no reasonable juror would have convicted Petitioner if presented with the new “evidence.” Petitioner’s challenges to the corroborating evidence do not establish his innocence.

4. Prior Similar Assaults by Delton

Petitioner alleges that Delton previously attacked Jamie Havard, raping her, choking her on one occasion, and threatening her with a knife on another. In support of this allegation, Petitioner presented a law enforcement investigation report. Supplementary Investigation Report, Hearing Exh. 2, ¶ 5. Petitioner did not present an affidavit from Jamie Havard.

The law enforcement investigation report is improper impeachment and inadmissible hearsay under the Federal Rules of Civil Procedure. See FED. R. EVID. 404(b), 608(b), 801, 803(8). Even if admissible, the alleged statements of Jamie Havard do not possess indicia of reliability. The statement indicates that Jamie Havard had been Delton’s girlfriend and that she knew that Delton and Gracie dated. There is no evidence in the record that Havard reported the alleged attacks before being questioned regarding Gracie’s murder.

Even if deemed admissible and reliable, the Havard statement does not raise a doubt as to Petitioner’s guilt. Delton admits his participation in the murders, testifying at trial and at the evidentiary hearing that he strangled Tiffany. The alleged attacks on Havard do not provide evidence that Petitioner did not also participate in the murders, killing and sodomizing Gracie as described in Delton’s testimony.

The statements attributed to Havard present neither a “truly persuasive demonstration” of actual innocence or a showing that it is more likely than not that no reasonable juror would have convicted Petitioner if presented with the Havard statement.

5. Cult-Related Murders

As proof of his actual innocence, Petitioner alleges that the murders of Gracie and Tiffany Purnhagen were “a cult-related ritualized killing.” Petition, at 66. Petitioner addressed this claim more fully in relation to his ineffective assistance of counsel claim, and this Court will do likewise. As more fully explained in the following section, Petitioner’s allegation that the murders were “cult-related” is nothing more than imaginative fiction without any evidentiary support. The argument fails to raise a fact-based doubt as to Petitioner’s guilt and falls well short of a “truly persuasive demonstration” of actual innocence. Nor does this fiction meet the lesser standard that it is more likely than not that no reasonable juror would have convicted Petitioner if presented with the “cult-related” argument.

C. Conclusion

To the extent that Petitioner is attempting to assert an independent claim for federal habeas relief based on his allegation that he is innocent, there is no legal basis on which to recognize such an independent claim. If such an independent claim arguably existed, Petitioner does not satisfy his burden of proof to make a “truly persuasive demonstration” that he is actually innocent. See Herrera, 506 U.S. at 417, 113 S.Ct. 853. The trial transcript, the exhibits at trial, the state court record, and the supplemental materials submitted by Petitioner in this federal habeas proceeding clearly establish Petitioner’s guilt beyond a reasonable doubt.

To the extent Petitioner argues that he is actually innocent of the murder of Gracie Purnhagen as a means of avoiding procedural default arguments raised by Respondent, Petitioner’s argument fails because he has not shown that it is more likely than not that no reasonable juror would have found him guilty of Gracie’s murder if informed of the matters raised in this Petition. Additionally, as discussed more fully herein, Petitioner has not identified and established a constitutional error that “‘probably’ resulted in the conviction of one who was actually innocent.” See Schlup, 513 U.S. at 321, 115 S.Ct. 851.

Based on the foregoing, the Court denies federal habeas relief based on Petitioner’s asserted claim of actual innocence. The Court further concludes that Petitioner has not presented evidence of actual innocence necessary to permit consideration of procedurally defaulted claims where cause and prejudice are not proven.

II. PETITIONER WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION

Petitioner alleges that he was denied his constitutional right to the effective assistance of counsel. Petitioner summarizes his allegations as follows:

— counsel failed to conduct an independent investigation and interviewed none of the state’s witnesses;

— counsel failed to prepare adequately for trial and, as a result, was unable to challenge the reliability of the state’s physical evidence;

— counsel failed to prepare and present a defense, despite the availability of potential witnesses and evidence;

— counsel failed to consult with necessary experts prior to trial;

— counsel failed to present an adequate defense by failing to present necessary expert witness testimony at trial;

— counsel presented inadequate and deficient closing arguments at both stages of the trial;

— counsel failed to conduct an investigation into Petitioner’s mental status, ranging from his potential mental irresponsibility at the time of the commission of the offense to his lack of capacity to form the required mens rea for the alleged offense to his lack of competence to stand trial;

— counsel failed to conduct an adequate and meaningful mitigation investigation;

— counsel failed to prepare adequately for the punishment phase;

— counsel provided objectively deficient representation during the penalty phase by failing to use an independent mental health expert as a witness, to use a favorable report of the defense mental health expert, and by adopting the state’s mental health expert for the defense despite his extremely damaging testimony; and

— counsel failed to prepare and present pretrial and post-trial motions in a timely and legally sufficient fashion.

Petition, at 75-76. The state habeas court found that “counsel rendered reasonably effective assistance of counsel.” FFCL, at 1134, ¶ 13. The state habeas court also made specific factual findings on the underlying allegations, which will be discussed more fully herein.

A. Standard for Ineffective Assistance of Counsel Claim

“The right to the effective assistance of counsel is ... the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has occurred.” United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

To prevail on his claim of ineffective assistance of counsel, Petitioner must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by showing both a deficiency in counsel’s performance and resulting prejudice. Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir.1999). “Because an ineffective assistance of counsel claim is a mixed question of law and fact, [the Court looks] to whether the state court decision rested on an unreasonable application of clearly established federal law.” Id. (citations omitted). The underlying findings of fact on which the decision is based, however, are entitled to a presumption of correctness. 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).

The first prong of the Strickland analysis requires a showing that counsel’s performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Kitchens, 190 F.3d at 701. Petitioner must establish “that his trial counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.” Crane, 178 F.3d at 312 (citations omitted). In meeting this requirement, Petitioner must overcome the strong presumption that counsel was competent. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Kitchens, 190 F.3d at 701. “A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” Kitchens, 190 F.3d at 701 (quoting Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir.1997)).

Secondly, Petitioner must prove that he suffered actual prejudice as a result of the ineffectiveness and that, but for counsel’s inadequacies, there is a reasonable probability that the result of the proceedings would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Kitchens, 190 F.3d at 703. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Crane, 178 F.3d at 312 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “[T]he mere possibility of a different outcome is not sufficient to prevail on the prejudice prong.” Crane, 178 F.3d at 312.

Petitioner has failed to satisfy either prong as to any element of his ineffective assistance of counsel claim.

B. Alleged Failure to Conduct an Independent Investigation

Petitioner alleges that trial counsel “failed to conduct an independent investigation of the state’s case at the guilt/inno-eence trial and interviewed none of the state’s witnesses in preparation for trial.” Petition, at 79.

1. Failure to Interview Family Members

Petitioner complains that trial counsel did not talk to Petitioner’s family and failed to gather medical or mental health records. Trial counsel admit in their affidavit that they did not talk with many of Petitioner’s family members, but state that they understood that Petitioner did not want his family members testifying at trial. Counsel Affidavit, Exh. 2 to Petition, at 2.

The state habeas court found that Petitioner “did not want any of his family testifying on his behalf.” FFCL, at 1131, ¶ 61. Additionally, the state habeas court found that “trial counsel attempted to talk to Darla Dowthitt in preparation for trial, but she refused to talk with them.” Id. at 1131, ¶ 69. These findings are fully supported by the record.

Trial counsel stated in their affidavit that they talked “to anyone who would talk to us” and that some of the people to whom they spoke “had knowledge of factors that ... would be extremely detrimental to Dennis Dowthitt and would in all probability be revealed under the State’s cross examination.” Counsel Affidavit, Exh. 2 to Petition, at 2. Trial counsel stated specifically that they spoke with Stacey Dowthitt {id. at 3) and with Dennis E. Dowthitt {id. at 4). Indeed, as found by the state habeas court and as established by the trial transcript, Dennis E. Dowthitt was called to testify at trial as a defense witness. FFCL, at 1131, ¶ 62; Tr., at XXXIII:1132-39.

2. Failure to Gather Medical and Mental Health Records

Trial counsel stated in their affidavit that they did not gather medical and mental health records because they had no knowledge that Petitioner alleged he had brain damage, because Petitioner appeared sane and competent at all times, and because the psychiatric expert retained by defense counsel found no indication of incompetence or symptoms of brain damage. Id. at 6. Petitioner has submitted no evidence which refutes counsel’s affidavit.

3. Failure to Challenge State’s Version

Petitioner also alleges that defense counsel “deferred at every turn to the state’s version of the events” and “never looked for any evidence with which to challenge the state’s version .... ” Petition, at 84. Trial counsel stated in their affidavit, and there is no evidence to the contrary, that they hired a DNA expert (Counsel Affidavit, at 10-11), a fingerprint expert {id. at 11), and a psychiatric expert {id. at 6). Each of these experts agreed with the State’s reports and/or made findings detrimental to Petitioner’s defense.

4.Failure to Conduct Background Investigation of Witnesses

Petitioner also complains that trial counsel failed to undertake any background investigation of the State’s witnesses.

Darla Dowthitt. — Petitioner - complains that trial counsel failed to investigate Darla’s background and, had they done so, they would have discovered that she was under felony indictment at the time she testified at Petitioner’s trial. As discussed more fully below, the evidence of a felony indictment, if discovered earlier by trial counsel, would not have been admissible.

Greg Hunt. — Petitioner complains that trial counsel failed to investigate Greg Plunt, who had written a letter to the judge presiding over his unrelated criminal charges mentioning his cooperation in Petitioner’s case and asking for consideration in his own case. As was true with Darla’s felony indictment, there is no evidence that Greg Hunt subjectively believed that he had a “deal” with the government in exchange for his cooperation in Petitioner’s prosecution. Additionally, the record establishes that Greg Hunt admitted at trial that he was then in the Montgomery County Jail serving time for his third DWI offense. Tr., XXVL61.

Delton Dowthitt. — Petitioner also complains that trial counsel failed to investigate Delton’s background. Petitioner alleges that Delton has a history of torturing animals, attempting to rape a girlfriend, stabbing someone, soliciting murder, and other juvenile offenses. Petitioner complains that although “the media had talked to people who stated that Delton was a bad person, linking him to drugs and violence, the trial attorneys made no attempt to follow up on any of these people.” Petition, at 87.

The record establishes that trial counsel knew, through statements made by Rich Schuschu and Dr. Quijano, about Delton’s prior bad acts and attempted to introduce them at trial. The trial court properly excluded the evidence of Delton’s alleged prior bad acts. Tr., at XXXIII:1037.

Cult-Related Murders. — In connection with his claim that trial counsel failed to investigate Delton’s background, Petitioner presents the creative theory that the murders were “cult-related” and that Delton was “known to practice the kinds of acts frequently associated with teenage satanic cults.” Petition, at 88. This argument is patently frivolous.

“[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, 656 n. 19, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). “ ‘[Contentions that in the face of the record are wholly incredible’ will not entitle one to discovery or a hearing.” Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir.1996) (quoting Blackledge v. Allison, 431 U.S. 63, 174, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)).

: The physical evidence in the case does not support Petitioner’s “cult” theory. !55jThe girls were murdered through different ^means — both being common methods of committing murder; only one was sodomized or otherwise sexually abused; and there was nothing at the murder scene to suggest the performance of a cult ritual. Contrary to Petitioner’s argument, there is nothing about the age of the victims which raises a reasonable inference that their murders were cult-related. Most telling, Petitioner admitted being present at the pipeline immediately before and immediately after the murders took place and described nothing that would raise an inference of cult ritual activity.

Petitioner supports his “cult” theory with photographs depicting graffiti spray-painted in front of a local Montgomery County dentist’s office and with evidence he argues indicates that Delton was a cult member. The graffiti on which Petitioner relies included, inter alia, a skull containing a swastika and the word SATAN, and the phrase “Grade and Tiffany are dead!” See Petition, at 88. Petitioner offers no evidence regarding who painted the graffiti or when they may have done so. Instead, he relies on illogical supposition that “[i]f these photographs were taken before the bodies were discovered, or before the story of the murders appeared in the press, it is more likely that Delton himself drew the graffiti, or someone he had told about the murders drew the graffiti.” Petition, at 91.

The only evidence in the record on this issue is Hidalgo’s affidavit, filed in the state habeas proceeding, that the report of the graffiti was received after Richard Schuschu, Delton, and Petitioner were already in custody. Hidalgo Affidavit, State Court Record, IV:803. Based on this un-controverted affidavit, the state habeas court found that “the graffiti was made known to [Hidalgo] by a citizen after all suspects had been arrested and statements taken from them.” FFCL, at 1133, ¶ 89. This finding is fully supported by the record and is entitled to a presumption of correctness.

The evidence on which Petitioner relies to support his argument that Delton was a member of a cult is equally without probative value. Petitioner alleges, with questionable hearsay evidence, that Delton once drowned a cat, that he wanted to kill a homeless person to see what it felt like, that a friend of Gracie described Delton as a “jealous weirdo,” and that Rich Schus-chu’s girlfriend’s mother stated that Del-ton had a violent past and tortured animals. See Petition, at 88-89. Petitioner also characterizes Delton’s tattoos as “Satanic symbols.” None of this “evidence” raises a reasonable inference that Delton was a cult member. Moreover, none of the “evidence” proffered by Petitioner to support his cult theory “rule[s] out [Petitioner] as being involved in the killings.” See Petition, at 91.

Petitioner’s argument that trial counsel provided constitutionally ineffective representation because they failed present an argument that the murders were cult-related is frivolous at best. Trial counsel are not required to destroy their credibility before the jury by presenting fanciful theories that have no evidentiary tie to reality.

C. Alleged Failure to Challenge Properly the Reliability of the State’s Physical Evidence

Petitioner alleges that trial counsel “failed to prepare adequately for trial by virtue of being unprepared to and unable to challenge the reliability of the state’s physical evidence admitted against Mr. Dowthitt.” Petition, at 93. Specifically, Petitioner argues that trial counsel should have challenged the knife, the fingerprints, and the DNA evidence. Petitioner’s allegations are refuted by the record.

1. The Knife

A knife was introduced into evidence as the murder weapon. Petitioner states that “counsel failed to cross-examine any one of [the] women [who testified] regarding the pocketknife .... ” Petition, at 94. Of the three females who testified about the knife, only Darla identified the knife as belonging to Petitioner. See Tr., XXVIIL388-89. Petitioner does not suggest any basis for cross-examination of Darla, other than the conclusory assertion that Darla lacked “any personal knowledge of the pocketknife shown in the courtroom being either the Petitioner’s pocketknife or the murder weapon.” Petition, at 94. This assertion regarding a lack of personal knowledge that the knife belonged to Petitioner is contrary to Darla’s testimony at trial. Darla testified unequivocally that she knew the knife belonged to Petitioner because she had “used it several times when we was [sic ] on camping trips.” Id. at XXVHL388.

Petitioner also asserts that “habeas counsel has learned that Mr. Dowthitt owned many of these knives, all of them identical, which lay around his shop, and even his home.” Petition, at 94. The jury in Petitioner’s trial learned this same information through the testimony of Dennis E. Dowthitt. See Tr., XXXIIL1135-36 (Petitioner had more than one knife similar in nature to the one introduced into evidence); 1136 (Petitioner had “two or three, four” similar knives in and around his shop); 1136-37 (witness found some more knives identical to State’s exhibit when shop was cleaned out after Petitioner’s arrest). It is clear from the record that trial counsel conducted the “basic investigative step of interviewing Dennis Dowthitt, Junior [sic ], who ... alerted trial counsel to the available testimony that could have been presented ... in rebuttal to the ‘identity’ of the pocketknife .... ” See Petition, at 95.

2. Fingerprint and DNA Evidence

The undisputed evidence, as cited above, establishes that trial counsel obtained independent fingerprint and DNA experts. That these experts were unable to provide reports which challenged the reliability of the State’s evidence or otherwise benefited Petitioner is not a deficiency in trial counsel’s performance.

D. Alleged Failure to Prepare and Present a Defense

Petitioner alleges that “trial counsel failed to prepare and present a defense for Petitioner, despite the availability of potential defense witnesses and evidence.” Petition, at 97. Specifically, Petitioner alleges that trial counsel did not present a proper defense in connection with the blood spatter evidence, the “blood on Del-ton Dowthitt’s sweat pants,” and the pocketknife. Id. at 97-99.

1. Blood Spatter Evidence

As discussed previously, Kellie and Marcia Holloway testified at trial that, when they saw Petitioner on the night of the murders, he had blood splattered on his shirt. On cross examination, defense counsel elicited an admission from Kellie that she was approximately three feet away from Petitioner, that she did not conduct tests to determine whether the spots she claimed to have seen were blood, and that there were maybe five spots on Petitioner’s shirt. Tr., XXVIII:364-68. Defense counsel also elicited cross-examination testimony from Marcia that she only saw Petitioner through the open car window and that she was the farthest person away from that window. Id. at XXVI-11:381, 383.

Trial counsel interviewed Stacey Dow-thitt and Dennis E. Dowthitt, the two individuals who were with the Holloway sisters on the night of the murders. Dennis, when called as a witness for the defense, testified that he did not see blood on his father’s shirt that night. Tr., XXXIII:1139.

Petitioner also alleges, citing the affidavit of his “forensic evidence expert” Ron Singer, that “had an expert been consulted, they [sic ] myths that any spots on Mr. Dowthitt’s shirt were blood and were deposited there because he cut Gracie’s throat would have been exposed to the jury as mere speculation.” Petition, at 98. This argument, however, ignores the un-controverted evidence in the record that the clothes Petitioner and Delton wore on the night of the murder were placed in a dumpster which was emptied before law enforcement officers had the opportunity to search it for the clothing. See Tr., XXIX:426, 560.

2. “Blood on Delton Dowthitt’s Sweat Pants”

Petitioner concedes that trial counsel raised an alternate theory to explain the presence of blood on the beer bottle which contained Petitioner’s fingerprint. Petitioner alleges, however, that counsel “did not use any witnesses to present this theory to the jury.” This argument is refuted by the record. Delton testified that he cut himself so he and Petitioner would have an explanation for the blood on their clothes. Tr., XXIX:423. Buster Emmons, the State’s crime scene investigator, testified on cross-examination that the blood was located on the part of the bottle “that would normally rest on a surface if it was standing up.” Id. XXXIL932. As noted above, Petition argues that an expert should have been retained to test Delton’s clothes. This argument is frivolous since it ignores the undisputed evidence that the clothes had been thrown away and were not available for testing.

3. The Pocketknife

Petitioner alleges that Dennis E. Dow-thitt was “shown a bloodied knife by law enforcement officers who told him it was the murder weapon.” Petition, at 99. • Petitioner submits that the knife introduced in evidence was not the murder weapon because Dennis was shown a knife with blood on it and the State’s evidence indicated that the alleged murder weapon with Petitioner’s fingerprint on it contained only one small speck of blood. Id. at 100-01.

The state habeas court found that “no bloody knife or knife ‘covered with blood’ was recovered in this case.” FFCL, at 1129, ¶ 39. This factual finding, which is supported by the record, is entitled to a presumption of correctness unless rebutted by clear and convincing evidence. In support of his allegation that Dennis was shown a bloody knife, Petitioner presents the affidavit of Danna Taft, Petitioner’s ex-wife, who states that Dennis told her that the police officers showed him a bloody pocketknife. Taft Affidavit, Exh. 54 to Petition, ¶ 10. Petitioner also submits the affidavit of Dennis E. Dowthitt, who states that he does not remember what happened when the officers showed him the knife. Dennis Dowthitt Affidavit, Exh. 53 to Petition, ¶ 5. These affidavits from Petitioner’s wife and son were easily obtainable for submission to the state habeas court, but they were not submitted. Moreover, on the merits, they do not present clear and convincing evidence that Dennis E. Dow-thitt was shown a bloody knife which was the actual murder weapon.

E. Alleged Failure to Consult With and Present Necessary Experts

Petitioner alleges that trial counsel “failed to consult with the necessary and appropriate experts prior to trial, and ... failed to present the necessary and appropriate expert witness testimony at trial.” Petition, at 101. Petitioner’s allegation that trial counsel failed to obtain fingerprint and DNA experts is refuted by the record, as discussed in prior sections. Petitioner also argues that trial counsel was constitutionally ineffective because they did not obtain a blood-spatter expert, a serology expert, an expert in hair analysis, and a forensic pathologist. Petitioner does not establish either deficient performance or prejudice based on these allegations.

1. Blood-Spatter Expert

Petitioner argues that if trial counsel had obtained a blood-spatter expert, they would have learned that “it is impossible to link the ‘spots’ supposedly on Mr. Dowthitt’s shirt to proving that he killed Grade.” Petition, at 103. Trial counsel elicited testimony from the Holloway sisters that they did not know how the blood may have gotten onto Petitioner’s shirt (Tr., XXVTII:378) and did not run any tests on the blood spots (id. at XXVI-11:367). Trial counsel also elicited testimony from the medical examiner on cross-examination that someone standing behind a person whose carotid artery is severed will “not get any type of blood spatters on them” and someone in front of a person with a severed carotid artery would get blood “sprayed” on them, with the blood spray becoming “weaker and weaker until the heart stops.” Id. at XXVIII:258-59.

Petitioner does not establish that trial counsel’s failure to obtain a separate blood-spatter expert would have enabled trial counsel to deal with the “bloody shirt” evidence more effectively. Indeed, it can often be more effective to elicit beneficial testimony from the State’s expert than to present the same evidence through an expert retained and paid by the defense.

2. Serology and Hair Analysis Experts

Petitioner alleges summarily that trial “counsel did not consult with experts regarding the serological evidence” and “did not consult with experts in hair analysis.” Petition, at 104. Petitioner does not even attempt to argue how this failure was deficient performance or prejudicial. The Court denies relief on this unsupported allegation.

3. Forensic Pathologist

Petitioner opines that there was a “mix up at the morgue.” Petition, at 104. This allegation was not presented to the state habeas court and, as a result, is barred under Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). See, e.g., Jones v. Jones, 163 F.3d 285, 297 (5th Cir.1998), cert. denied, 528 U.S. 895, 120 S.Ct. 224, 145 L.Ed.2d 188 (1999); Nobles, 127 F.3d at 420. Additionally, Petitioner’s Exhibit 21 establishes that the mix-up regarding the case numbers for the two murder victims was corrected almost immediately and well before the tissue samples were submitted for DNA testing.

Petitioner also argues that it was constitutionally ineffective assistance of counsel not to retain a forensic pathologist to “challenge the validity of the autopsy report, or investigate allegations of Gracie’s pregnancy that were not addressed in state’s autopsy report.” Petition, at 105. By the time of trial, there was no genuine allegation that Gracie had been pregnant. Delton testified that Gracie had not told him that she was pregnant. Tr., at XXIX:411. The medical examiner testified that Gracie showed no sign of pregnancy. Id. at XXVIIL260. Petitioner has presented no evidence which indicates to the contrary that Gracie may have been pregnant.

Petitioner also alleges that “trial counsel did not seek funding for an expert to present in order to cast doubt upon the conclusions drawn by the state’s pathologist.” Petition, at 105. Petitioner does not explain what evidence an expert retained by defense counsel could have presented which would have cast such a doubt. In the Petition filed February 11, 1999, Petitioner represents that “habeas counsel’s pathology expert is still reviewing the materials sent to Ron Singer .... ” Petition, at 106. To date, no evidence from the pathology expert has been presented to “cast doubt upon the conclusions drawn by the state’s pathologist.”

F. Alleged Failure to Investigate Petitioner’s Mental Status and Mitigation Evidence

Petitioner alleges in related allegations 5-8 of the Petition that trial counsel failed to conduct an appropriate investigation, preparation and presentation of Petitioner’s mental status and family history. Specifically, Petitioner states in allegation 5 that counsel failed to conduct an appropriate investigation into Petitioner’s mental status, in allegation 6 that counsel failed to investigate mitigation evidence, in allegation 7 that counsel failed to prepare adequately for the punishment phase, and in allegation 8 that counsel failed to perform effectively during the punishment phase.

The Court has reviewed the allegations fully in the context of investigation, preparation, and presentation of evidence at trial. To avoid unnecessary duplication, the Court will discuss these four allegations as they relate (1) to Petitioner’s alleged mental illness and brain damage and (2) to Petitioner’s family history as mitigating evidence.

1. Legal Standards

“Informed strategic decisions of counsel are given a heavy measure of deference and will not be second guessed.” Lamb v. Johnson, 179 F.3d 352, 358 (5th Cir.), cert. denied, 528 U.S. 1013, 120 S.Ct. 522, 145 L.Ed.2d 401 (1999). “Moreover, a tactical decision not to pursue and present potential mitigating evidence on the grounds that it is double-edged in nature is objectively reasonable, and therefore does not amount to deficient performance.” Id. (internal quotations and citations omitted). Petitioner’s claims are not that trial counsel failed totally to investigate Petitioner’s mental health and family history, as indeed the record establishes that such investigation was conducted and family history evidence was presented on Petitioner’s behalf during the punishment phase. Petitioner’s “argument essentially comes down to a matter of degrees. Did counsel investigate enough? Did counsel present enough mitigating evidence? Those questions are even less susceptible to judicial second-guessing.” Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir.1999).

2. Alleged Mental Illness and Brain Damage

Petitioner alleges that trial counsel did not fully understand and appreciate Petitioner’s mental illness and brain damage and, as a result, rendered constitutionally ineffective assistance at each stage of the proceedings. Petitioner alleges that the “MMPI-II indicates that Mr. Dowthitt may not have been able to assist his attorney in his defense.” Petition, at 107. Petitioner also alleges that trial counsel failed to present evidence of Petitioner’s “severe mental illness” during the punishment phase and improperly failed to present Dr. Fason, the defense-retained mental health expert.

State Habeas Court Findings. — The state habeas court found that Petitioner “was competent to stand trial.” FFCL, at 1131, ¶ 65. The state habeas court also found that “[n]o neuropsychological expert has found that [Petitioner] suffers from brain damage” (id. at 1127, ¶ 21); and that Petitioner “did not exhibit any symptoms of brain damage” (id. at 1131, ¶ 66). The state habeas court also found that Petitioner’s medical records “include information which could have hurt [Petitioner’s] case.” Id. at 1131, ¶ 63.

To the extent these are findings of fact or underlying facts in connection with mixed questions of law and fact, they are fully supported by the record and are entitled to a presumption of correctness. To the extent these are decisions on mixed questions of law and fact, the record establishes that they are not an unreasonable application of clearly established federal law to the underlying facts.

Petitioner’s Failure to Reveal Alleged Mental Illness. — The record establishes that Petitioner did not inform his trial counsel of any history of mental illness, emotional disorders, or brain damage. Petitioner informed Kelly Hendricks, the polygraph operator, that he had never been treated for any mental or emotional disorder, and that he had never been under the treatment or care of a psychiatrist or psychologist. Videotape, Tape 1 of 3, Exh. 81 to Petition. Even when advised by Hendricks that he could not administer a polygraph examination to anyone who is mentally or emotionally unstable, Petitioner failed to disclose any prior history of mental illness and instead proceeded with the polygraph examination. Id.

Notwithstanding Petitioner’s steadfast denial of