Full opinion text
ORDER CUMMINGS, District Judge. Came on for hearing the above-styled and -numbered cause. Both parties appeared and announced ready. Having considered the testimony and arguments, as well as the pleadings, the state court records, and the relevant law, the Court enters the following Order, which constitutes the Court’s findings of fact and conclusions of law. I. BACKGROUND A. Procedural Background Petitioner Michael F. Rosales (“Rosales”), Texas Department of Criminal Justice, Institutional Division (“TDCJ-ID”), identification no. 999274, is incarcerated pursuant to a judgment and sentence from the 364th Judicial District Court of Lubbock County, Texas, in cause no. 97-425,078. Rosales was indicted for the offense of capital murder in that cause on July 2, 1997. See Tex. Penal Code § 19.03(a)(2) (stating that a person commits the offense of capital murder if he commits murder as defined in § 19.02(b)(1) and he intentionally commits murder in the course of committing or attempting to commit, inter alia, burglary or robbery). Rosales pleaded not guilty and his jury trial commenced on April 6, 1998. The jury subsequently found Rosales guilty of capital murder, answered the punishment special issues affirmatively, and on May 20, 1998, the state trial court sentenced Rosales to death. Tex.Code Crim.P. art. 37.071 § 2 (Vernon’s Supp.2001). Rosales was represented at trial by court-appointed attorneys Jesse Mendez and David Ha-zlewood. Attorney David Duncan was appointed to represent Rosales on appeal and he filed a direct appeal which raised six points of error. See Clark v. Johnson, 227 F.3d 273, 283 (5th Cir.2000) (finding that a defendant sentenced to death in Texas appeals directly to the Court of Criminal Appeals). The Court of Criminal Appeals, however, affirmed the conviction and sentence of death in a published opinion issued on October 13, 1999. Rosales v. State, 4 S.W.3d 228 (Tex.Crim.App.1999). The United States Supreme Court denied Rosales’s petition for writ of certiora-ri on November 27, 2000. On September 16, 1999, Rosales filed an application for a writ of habeas corpus in the state trial court and raised the following eleven grounds for review: (a) ineffective assistance of counsel because his trial counsel failed to investigate and present mitigating evidence during the punishment phase of trial; (b) ineffective assistance of counsel because his trial counsel failed to investigate and present evidence during the guilt-innocence phase trial that “questioned his guilt of capital murder”; (c) ineffective assistance of counsel because trial counsel failed to investigate, obtain, and use evidence to impeach the State’s witnesses and evidence during the guilt-innocence phase of trial; (d) ineffective assistance of counsel because trial counsel failed to present live at trial two expert witnesses, originally retained by the State as consultants, who previously opined in written reports to the District Attorney that Rosales was not likely to be a continuing threat to society; (e) ineffective assistance of counsel because the attorney handling his direct appeal failed to raise a point of error in the Court of Criminal Appeals challenging the sufficiency of the evidence on the jury’s finding of future dangerousness; (f) ineffective assistance of counsel because his attorney on direct appeal failed to raise a point of error in the Court of Criminal Appeals challenging the trial court’s overruling of trial counsel’s objection to testimony elicited by the prosecution on whether Rosales’s expert on future dangerousness had interviewed Rosales; (g) his Fifth Amendment right against self-incrimination when the trial court overruled his trial counsel’s objection to testimony elicited by the prosecution on whether Rosales’s expert on future dangerousness had interviewed Rosales; (h) his Sixth Amendment right to confront the witness, Dr. Gary Mears, the State’s expert on future dangerousness, because the trial court barred Rosales’s trial counsel from impeaching Dr. Mears with excerpts from an incomplete and uncertified transcript from a previous trial in which Dr. Mears testified; (i) ineffective assistance of counsel because his appellate attorney failed to argue that Rosales’s constitutional rights under the Confrontation Clause were violated by the trial court’s improper limitation on impeachment of Dr. Mears by means of the incomplete and uncertified trial transcript from a different proceeding; (j) ineffective assistance of counsel because trial counsel failed to preserve the issue for appeal on whether the trial court erroneously prohibited trial counsel from impeaching Dr. Mears by means of the incomplete and uncertified trial transcript from a different proceeding; and (k) his rights under the Due Process and Equal Protection clauses because of alleged errors in the Court’s Charge on Punishment. On February 28, 2000, the Honorable Bradley S. Underwood, the same judge who presided over Rosales’s capital murder trial, determined that there were “no controverted, previously unresolved factual issues material to the legality of [Rosales’s] confinement”; adopted the State’s proposed findings of fact and conclusions of law; and recommended to the Court of Criminal Appeals that the application for habeas relief be denied. On April 12, 2000, the Texas Court of Criminal Appeals adopted the trial court’s findings and conclusions and denied Rosales’s habeas application in an unpublished per curiam opinion. Rosales filed the instant petition for writ of habeas corpus in this Court on November 29, 2000, and raised the same eleven grounds for review that he raised in his state habeas application. Respondent filed an answer to the petition, along with a motion for summary judgment and brief in support thereof, on January 30, 2001. Rosales’s state court records were filed with this Court on July 27, 2000. This Court conducted a hearing on February 27, 2001, regarding Rosales’s federal habeas claims. Petitioner Michael Rosales was present and represented by attorneys Gary Taylor and Philip Wischkaemper; Respondent was represented by an Assistant Attorney General for the State of Texas. The only witness called to testify was Jesse Mendez, one of Rosales’s trial attorneys, and he was examined and cross-examined. Both parties presented arguments in support of their respective positions. B. The Offense In the spring-summer of 1997, twenty-three-year-old Michael Rosales was staying with various friends and relatives in Lubbock, Texas. Rosales was originally from Lamar, Colorado, but had been to Lubbock a number of times, often staying with friends or relatives for several months at a time. Moreover, Rosales was on probation in Lubbock County for the felony offense of possession of a controlled substance in cause no. 95-420,425 in the 72nd Judicial District Court of Lubbock County, Texas. Although Rosales had previously violated the terms and conditions of his probation and was on intensive supervision on June 4, 1997, he had removed his electronic monitor and was avoiding his probation officer at that time. Prior to June 4, 1997, Rosales had been convicted of the class A misdemeanor theft of property of the value of $200 or more but less than $750 in cause no. 91-483,570 in the County Court at Law # 1 of Lubbock County, Texas, and the class A misdemeanor burglary of a vehicle in cause no. 95-445,860 in the County Court at Law # 1 of Lubbock County, Texas. Testimony at trial showed that sometime on Tuesday, June 3, 1997, Rosales went to the apartment of Angela Ammons (“Am-mons”) in the Four Seasons Apartments in Lubbock, Texas, and offered to share some beer with Ammons and Rosales’s friend, Alfreda Latrice Bunton (“Bunton”). Rosales used the telephone several times while he was at the apartment and asked to borrow $10.00. When Bunton told Rosales that she did not have the $10.00, Rosales left the apartment. He returned several times during the night to make additional telephone calls. At about 4:00 a.m., Rosales returned to Ammons’s apartment and asked to use the telephone. Ammons let Rosales in the apartment, but Bunton was on the telephone with her boyfriend and would not let Rosales make a call. Rosales again left the apartment. At about 5:00 a.m., Rosales knocked on Ammons’s apartment door and repeated his request to use the telephone. Bunton went to the door, but suspecting that Rosales might be high on cocaine because of his agitated movements and red eyes, she refused to let him in the apartment. Rosales left and neither Ammons nor Bunton saw him again until later in the day on June 4,1997. Rudy Perez (“Perez”), who had known Rosales for approximately nine (9) years and occasionally allowed Rosales to stay in his apartment, lived in apartment no. 18 at the Four Seasons Apartments with his wife, children, and a niece. On June 4, 1997, Perez received a telephone call from Rosales at about 2:00 a.m. Rosales asked Perez if he could borrow $20.00, but Perez informed him that he did not have the money. Rosales then asked if Perez’s wife, Yesenia Olivas (“Olivas”), would have the money. When Perez told him “No,” Rosales asked if he could come to Perez’s apartment and use the telephone. In less than five minutes, Rosales arrived at the apartment, used the telephone for about ten minutes, and left. Perez’s wife came home from work between 3:00 a.m. and 4:00 a.m. on June 4, 1997, and she heard the telephone ring soon after she arrived at their apartment. Perez answered it and after he hung up, he told Olivas that Rosales was going to spend the night with them. Olivas heard someone come in between 6:00 and 6:30 a.m., so she asked, “Michael, is that you?” When he answered, “Yes,” she told him to lock the door behind him and help himself to the guest blankets. Corinna Cantu (“Cantu”), Perez’s twenty-four-year-old niece who was temporarily living with Perez’s family, arrived at the apartment at about 8:00 a.m. on June 4, 1997. Finding the front door locked, she knocked on the door. Rosales opened the door and appeared to be getting ready to leave. After Perez, his wife, and Rosales left the apartment to go to work, Cantu went to sleep on the couch. She was awakened, however, at about 10:00 a.m. by knocking on the front door. When Cantu looked out the door, she saw Rosales and let him in the apartment. She then went back to sleep on the couch until 11:00 a.m., when Olivas arrived home from work. When Olivas came home from work, she brought fried chicken with her from work for lunch. She invited Rosales to have lunch with her family, but before he ate lunch, Rosales asked if he could shower or clean up. Rosales then went into the bathroom. While waiting for Rosales to finish in the bathroom, Cantu could hear the water running. After Rosales finished in the bathroom, Cantu went in to wash and noticed wet drops of blood around the sink. After Cantu finished washing, she, Oli-vas and her children, and Rosales sat down to eat lunch. As they were eating, Rosales asked Olivas if she knew how to remove blood from a white shirt. She replied that if he had not already washed it, he should soak it in cold water. Rosales then went into either the bedroom or the bathroom and came back carrying a white T-shirt. He showed the shirt to Cantu, who saw what appeared to be a bloody handprint on the left shoulder that was smudged down to the right across the back of the shirt. Without commenting on the shirt, Rosales went into the kitchen and placed the shirt in cold water to soak. Sometime later that afternoon, Olivas rented a carpet shampooer and Rosales watched her children while she and Cantu cleaned the carpets in their apartment. Sixty-eight-year-old Mary Felder (“Felder” or the “victim”) lived in apartment no. 19 at the Four Seasons Apartments, next door to Rudy Perez and his family. On June 4, 1997, her twenty-one-year-old grandson Lafayette Robinson came to her apartment at about 10:00 a.m. He testified that he came to check on his grandmother because she had failed to come to his apartment to wake him, as was her custom. When Robinson knocked on her door at 10 a.m., there was no answer so he left to go visit a friend. Although Robinson had a key to his grandmother’s apartment, he testified that he had lost it sometime prior to June 4, 1997. Robinson stayed at his friend’s apartment for about two hours and then returned to his grandmother’s apartment. He knocked on the door once more but again received no answer. He returned to his friend’s apartment, where he remained until about 4:00 p.m. that afternoon. Robinson went to his grandmother’s apartment for the third time on June 4, 1997, at about 4:00 p.m., and this time he noticed that a small window near the knob of his grandmother’s front door was “broken out.” Robinson reached in to unlock the door to the apartment but discovered that it was already unlocked. After entering the apartment, Robinson called out to his grandmother. When she did not answer, he looked through the apartment and went into the kitchen to get a bowl of cereal. Before Robinson started eating his cereal, however, he went to his grandmother’s bedroom door and called her name again. Although there was no answer, he testified that he felt compelled to go into her bedroom, where he discovered his grandmother slumped over against the wall in a sitting position and apparently not breathing. Robinson panicked and ran downstairs to the apartment laundry room to call 911 from a pay phone. Robert Bunton (a relative of Alfreda Bunton) and Rosales were standing outside the laundry room talking when Robinson hurried past. Robinson said to them that his grandmother was either sick or had suffered a heart attack and then went on into the laundry room to call 911. Robert Bunton and Rosales immediately ran upstairs to check on Mary Felder. Although Robert Bunton stopped at the apartment door and called out her name, Rosales went into the apartment. In a matter of seconds, Rosales came out of the bedroom, said “Oh gee,” and went outside. Robert Bunton then went into the apartment, saw the victim slumped against the wall in her bedroom, and came back to the doorway where he stayed until the authorities arrived. Robert Bunton testified that neither he nor Rosales touched anything in Mary Felder’s apartment when they went in to check on her. Cantu and Olivas were cleaning the carpet in apartment no. 18 when they heard a commotion outside the apartment and heard someone yell to call 911. Cantu called 911, but she did not have any information to give the operator. Cantu observed Robinson run out of his grandmother’s apartment and saw Rosales and Robert Bunton go into apartment no. 19. The two men remained in the apartment for no more than a minute or a minute and a half before she saw them run back out. Rosales then ran past her into Perez’s apartment and she heard him vomiting in the bathroom. When Robinson called 911, he could not tell the operator whether his grandmother was breathing, but EMS arrived at the apartment within minutes of his call. Paramedic Kasey Johnson testified that she entered Felder’s bedroom in apartment no. 19 and found the victim covered in blood. Because she was not breathing, some of the blood was dry, and there was an odor in the apartment which indicated that the victim had been dead for some time, Johnson did not perform any medical treatment but merely waited for the police to arrive. When the police arrived, the paramedics stated that they did not touch anything or observe anyone else touch anything in Felder’s apartment. Later in the evening on June 4, 1997, Cantu testified that she, Rosales, and Rudy Perez were sitting outside Perez’s apartment and talking when she wondered “who would do something like that to a lady like Mrs. Mary.” She heard Rosales reply that he “did it. I killed Ms. Mary.” Cantu noted that Rosales’s voice was unemotional and he looked serious. Disbelieving Rosales, however, she told him to “shut up.” Rosales then told her that he really would not do anything like that. C. The Investigation Two detectives from the Lubbock Police Department’s Crimes Against Persons Division, Leland Hufstedler and Rey Martinez, were dispatched to the Four Seasons Apartments shortly after 4 p.m. on June 4, 1997. Detective Martinez testified that when he entered the courtyard of the apartment complex, Rosales approached him and told him that he knew the victim, that he had last seen her alive on Tuesday, and that he had taken the EMS personnel to her apartment. Martinez spoke with him for about ten minutes and did not notice any blood on Rosales’s clothing or shoes. The police sealed off the victim’s apartment as soon as they arrived and began taking photographs of the apartment and collecting evidence. There was testimony that Felder’s bedroom was disorganized and there appeared to have been a struggle in the room. Her purse was found at the foot of her bed and had blood on it; no money was found in the apartment and the scene was consistent with a burglary or robbery. The police found Felder “in a seated position up against the wall in [a] chair.” Blood was found on a curtain near her, on the floor, on the bed, underneath the bed, on the walls, and on the ceiling, and blood covered her body. Bloody shoe prints were found on the purse and a dayplanner. The investigation continued for several hours and Detective Martinez spoke to Rosales several times during this period. At one point when he was searching some dumpsters on the west side of the apartment complex, Detective Martinez noticed Rosales sitting on the rear of a parked car watching him. Rosales asked the detective what he was doing and why, and then suggested that the police needed to be looking in the apartment complex and questioning the residents of the Four Seasons Apartment complex. Detective Martinez further testified that he returned to the Four Seasons Apartments on the morning of June 5, 1997, to continue his investigation. He was approached in the apartment complex’s courtyard by Rosales, who asked if the police had solved the crime. Detective Martinez replied that the investigation was still ongoing, and then he routinely invited Rosales to accompany him to the police station to give a formal witness statement. Rosales agreed, and they went together to the station. While Rosales was giving his statement to Detective Martinez at the police station, Detective Hufstedler was summoned to the Four Seasons by another detective. This detective had spoken with Cantu, who had begun to “add things up” and now suspected that Rosales might be the killer. When Detective Hufstedler arrived, he spoke with Cantu, who told him about Rosales wanting to know how to get blood out of a shirt and about the blood on Perez’s bathroom sink. The detective asked for and obtained Perez’s permission to search his apartment. In the bathroom closet of Perez’s apartment, amongst a pile of dirty clothes, the detectives found a damp, white, bloodstained T-shirt and a pair of bloody blue jeans identified as belonging to Rosales. Subsequent DNA testing showed that the blood on the T-shirt and the jeans was consistent with Mary Felder’s blood. Criminalists from the Department of Public Safety were summoned to Perez’s apartment to collect blood samples from around the sink in the bathroom and the front door of the apartment. Subsequent DNA analysis showed that the sample taken from the bathroom sink was consistent with both the victim’s blood and Rosales’s blood, but the sample taken from Perez’s front door was consistent only with the victim’s blood. While Rosales was at the police station giving his witness statement, Detective Martinez received a call from Detective Hufstedler, who told him of the discovery of the bloody clothes. Although Detective Martinez testified that Rosales immediately became a suspect, he did not tell Rosales that he was a suspect; rather, he read Rosales the Miranda warnings at that time and allowed him to finish his witness statement. Detective Martinez further stated that Rosales was not free to leave the police station after giving his witness statement because he had discovered that Rosales had an outstanding arrest warrant for a traffic violation. Shortly thereafter, Detective Martinez received Polaroid pictures of the bloody clothing recovered from Perez’s apartment. When confronted with the photographs, Rosales offered an explanation for the bloody clothing that was inconsistent with the physical evidence. Detective Martinez testified that when advised of the inconsistency, Rosales became quiet and eventually told the detective that he wanted to make another statement. Detective Martinez then recorded Rosales’s second statement, which stated: I am giving this statement and I only want to make one request, that I don’t deserve to live, and I want the lethal injection or the gas chamber for me as soon as possible because I don’t want to live after I tell Detective Martinez the truth about what happened. I want to say Tuesday night, I was smoking some rock cocaine, and I think I smoked about $50 worth. I had run out of money and cocaine. So sometime early Wednesday morning, I think it was about 3:00 o’clock or 4:00 o’clock a.m., I went to Ms. Mary’s apartment to see if I could steal something from her, like a VCR, so I could trade it and score some more cocaine. When I got to her apartment, there was a mop by the door on the outside, and I used it to break a small window on the door so I could get in. I unlocked the door and went inside her apartment. I went into her bedroom and started looking around. Ms. Mary woke up and started to get up. I was kneeling down by the bed, but when she got up, she stepped on me. She recognized me. She called me by my name and told me that she was going to call the police. She grabbed me by the front of my shirt, and I grabbed her by the wrists. I then pulled her off the bed and grabbed her by the hair. I took her into the kitchen and told her that I did not want to hurt her. She kept hitting me. I grabbed a steak knife off the kitchen table and dragged her back to her room. She kept talking about the police and started yelling. I told her to keep it down, but she kept yelling. I then started stabbing her. I think I stabbed her in the stomach first, and she fell where you found her. I then kept stabbing her. I told her that I was sorry and asked her to die, but she kept breathing. I started to leave at one point after I had stabbed her, but she was still alive, so I went back, and I started stabbing her on her neck or chest. I think I was in there with her for about 30 minutes. I then left her apartment, but I took the knife with me. I walked to the 6th Street gate from the complex and walked across the street to the alley and threw the knife away, I went to apartment number 18 and went inside and went to bed. I did not leave the apartment until in the morning. Before I went to bed, I went into the restroom and cleaned my arms off because I had a lot of blood on them. I also changed clothes and put the bloody clothes I had on with Yesenia’s dirty clothes. The next day, I soaked the shirt to get the blood off. I want to say that I did not go into Ms. Mary’s apartment to kill her. I wanted to just steal something from her. I also just want to die as quick as she did. Rosales signed the confession before a notary public. After Rosales signed the second statement, he went with Detective Martinez and several other officers to the Four Seasons Apartment complex so that he could show them where he disposed of the murder weapons. Rosales initially directed the officers to a vacant lot, but when the officers could not locate the weapons and confronted him with this fact, he directed them to a dumpster in the alley adjacent to the Four Seasons — the same dumpster that Rosales watched Detective Martinez search the day before. In the search of the dumpster, the police uncovered a white, -plastic trash bag containing: (1) a bloody pair of,, needle nose pliers; (2) a bloody steak .knife with a 4]é inch blade with its.,tip bent upwards; and (3) a bloody two-pronged kitchen fork with its tongs bent backwards. Subsequent DNA testing revealed that the blood on these instruments was consistent with the victim’s blood. . The testimony regarding the autopsy of Mary Felder showed that altogether, she sustained a total of 113 wounds, including: 21 stab wounds; 28 incised or cut wounds; 33 blunt force injuries; and 31 puncture wounds. Of these, 5 wounds were lethal, and 2 wounds were inflicted after Felder died. The autopsy further revealed that she sustained a lethal “blunt force injury” at the base of her neck that crushed her larynx and produced trauma that closed off her airway, causing her to “traumatically suffocate.” There were wounds surrounding her mouth and lips indicative of blunt force trauma inflicted by a hard object, and there were extensive amounts of abrasions, contusions, and discoloration on her neck and throat. Several of her teeth were “traumatically displaced” and she had aspirated one of her dislocated teeth into her vocal cords. There was a lethal stab wound in her right cheek, close to her nose and below her right eye, that penetrated into the roof of her mouth, lacerated her tongue almost in two, entered into the cranial cavity, and lacerated her brainstem and a substantial artery in the area. Stab wounds in both her left and right eye sockets penetrated her cranial cavity and lacerated the front of her brain. There was another lethal stab wound in the back of her neck that penetrated deeply enough to lacerate the left side of her brainstem. Several other cut or incised wounds were also apparent on the back of her neck. There were two areas of multiple puncture wounds: one in the victim’s left upper chest and one in 'her abdomen. There were eleven “individual, rounded puncture wounds” in her left chest that were approximately %z of an inch in diameter. There were thirty-one puncture wounds in her abdomen that were %2 of an inch in diameter. The forensic pathologist who performed the autopsy on Felder testified that she was alive when she received the puncture wounds to her chest and abdomen. He described wounds on her arms and hands, which he opined were indicative of defensive wounds, that is, wounds typically inflicted “in the process of the victim trying to defend against a lethal force.” The pathologist finally testified that, of the 108 non-lethal wounds inflicted, the wound patterns suggested that the person inflicting the wounds did not inflict them to kill but, rather, to inflict pain. He concluded that, considering the nature, number, and type of wounds present, Mary Felder’s death was “very painful.” II. STANDARDS OF REVIEW A. Jurisdiction Jurisdiction is vested in this Court by virtue of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §§ 2241 and 2254. See Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (holding that a federal petition filed after April 24, 1996, by an inmate convicted of capital murder in state court is reviewed under the AED-PA). B. Review under the AEDPA Under § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief on any of his claims that were adjudicated on the merits in the state-court proceedings unless the adjudication of the claims— (1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). “In the context of federal habeas proceedings, adjudication ‘on the merits’ is a term of art that refers to whether a court’s disposition of the ease was substantive as opposed to procedural.” Neal v. Puckett, 239 F.3d 683, 686 (5th Cir.2001). If faced “with a silent or ambiguous state habeas decision, the federal court should ‘look through’ to the last clear state decision on the matter” to determine whether the state court decision was procedural or substantive. Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir.1999). “Adjudication on the merits” requires that a state court afford a state prisoner a full and fair hearing on the merits, but a “full and fair hearing” does not necessarily require live testimony, and a paper hearing may be sufficient, especially where the state trial court and the state habeas court are one and the same. Clark v. Johnson, 202 F.3d 760, 766 (5th Cir.2000). When the Texas Court of Criminal Appeals explicitly adopts the trial court’s findings of fact and conclusions of law and denies relief, the decision qualifies as an “adjudication on the merits” for purposes of § 2254(d). Hill v. Johnson, 210 F.3d 481, 485 (5th Cir.2000). See also Barrientes v. Johnson, 221 F.3d 741, 780 (5th Cir.2000) (holding that a denial of relief by the Texas Court of Criminal Appeals is a denial of relief “on the merits”). In addition, findings of fact made by a state court after a “full and fair hearing” are presumed to be correct and need not be relitigated by a federal habeas court unless a petitioner rebuts the presumption with “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). See Jackson v. Anderson, 112 F.3d 823, 824 (5th Cir.1997) (holding that the burden of rebutting the presumption was made more onerous by the AEDPA amendments to § 2254). This presumption is especially strong where the state court judge presiding over the state habeas proceedings is the same judge who presided over the capital murder trial. Barrientes v. Johnson, 221 F.3d at 774 n. 26. If the state court decision is found to be an “adjudication on the merits,” Section 2254(d)(1) provides the standard of review for questions of law and mixed questions of law and fact. Caldwell v. Johnson, 226 F.3d 367, 372 (5th Cir.), cert. denied, 530 U.S. 1298, 121 S.Ct. 22, 147 L.Ed.2d 1045 (2000) (citing Williams v. Taylor, 529 U.S. at 412-13, 120 S.Ct. 1495). Under the “contrary to” clause of § 2254(d)(1), “a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. 1495; Hill v. Johnson, 210 F.3d at 485. “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. The Fifth Circuit has determined that “[i]n the absence of clear guidance from the Supreme Court, we conclude that our focus on the ‘unreasonable application’ test under Section 2254(d) should be on the ultimate legal conclusion that the state court reached and not on whether the state court considered and discussed every angle of the evidence.” Neal v. Puckett, 239 F.3d at 696. “Distinguishing between an unreasonable and an incorrect application of federal law, [the Supreme Court] clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable.” Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001) (citing Williams v. Taylor, 529 U.S. at 410, 411, 120 S.Ct. 1495). Section 2254(d)(2) provides the standard of review for questions of fact that have been “adjudicated on the merits” in the state courts. See Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir.2000). If a federal court determines, however, that there was no “adjudication on the merits” in state court, the federal court should conduct a de novo review. Miller v. Johnson, 200 F.3d 274, 281 n. 4 (5th Cir.2000). C. Exhaustion and Procedural Default A state prisoner seeking federal habeas relief must exhaust the remedies available in the state courts, or show the absence or ineffectiveness of such remedies before federal collateral relief can be granted. 28 U.S.C. § 2254(b)(1). “The exhaustion requirement is satisfied when the substance of the federal claim has been fairly presented to the highest state court.” Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir.1998). The Texas Court of Criminal Appeals is the highest court reviewing criminal cases in the state of Texas; thus, a prisoner incarcerated in the State of Texas pursuant to a capital sentence satisfies the exhaustion requirement by filing either an appeal directly to the Texas Court of Criminal Appeals or a state application for a writ of habeas corpus. See Tex.Code Crim.P. art. 37.071 § 2(h) (Vernon’s Supp.2001) (“The judgment of conviction and sentence of death shall be subject to automatic review by the Court of Criminal Appeals.”); art. 11.071 (establishing the procedures for an applicant seeking habeas relief from a judgment imposing the death penalty). “A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default.” Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir.1997). This doctrine requires a federal habeas court to refuse review of all claims which are found to have been defaulted in state court pursuant to “an independent and adequate state procedural rule,” unless the petitioner can “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). The procedural default doctrine applies “whether the default in question occurred at trial, on appeal, or on state collateral attack.” Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). “The doctrine presumes that a state procedural ground is adequate and independent — the rule must, for instance, be regularly followed — and, ordinarily, the burden is on the habeas petitioner to demonstrate otherwise.” Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir.1999). A state procedural ground is “independent” if the last reasoned state court opinion clearly and expressly indicates that its decision is independent of federal law, Reed v. Scott, 70 F.3d 844, 846 (5th Cir.1995), and “[t]he ‘adequacy’ of a state procedural rule depends on whether it is ‘strictly or regularly followed’ by the state courts.” Muniz v. Johnson, 132 F.3d 214, 220 (5th Cir.1998). In addition, a state court’s reliance on procedural default to dismiss a claim is an “independent and adequate state ground which bars federal habeas review,” even if the state court addresses the merits of the claim in the alternative. Sawyers v. Collins, 986 F.2d at 1499. See Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding.”). “With regard to the issue of cause [to excuse a procedural default], the Supreme Court has stated that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.... [A] showing that the factual or legal basis for a claim was not reasonably available to counsel, or that some interference by officials made compliance impracticable, would constitute cause under this standard.” Barrientes v. Johnson, 221 F.3d at 763-64 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (internal citations and quotations omitted)). To establish the “prejudice” requirement, a petitioner must first show “cause” and then demonstrate actual prejudice resulting from that cause. Keeney v. Tamayo-Reyes, 504 U.S. 1, 11, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). The “fundamental miscarriage of justice” exception is reserved for cases of actual innocence, that is, “ ‘where the petitioner shows, as a factual matter, that he did not commit the crime of conviction.’ ” Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir.1999) (quoting Ward v. Cain, 53 F.3d 106, 108 (5th Cir.1995)). “To establish the requisite probability that he was actually innocent, the petitioner must support his allegations with new, reliable evidence that was not presented at trial and must show that it was ‘more likely than not that no reasonable juror would have convicted him in the light of the new evidence.’ ” Id. (quoting Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). See Bousley v. United States, 523 U.S. at 623, 118 S.Ct. 1604 (“ ‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.”). D. The Teague Retroactivity Doctrine “The retroactivity principle established by the Supreme Court in Teague [v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989),] ‘prevents a federal court from granting habeas relief to a state prisoner based on a rule announced after his conviction and sentence became final.’ ” Jackson v. Johnson, 217 F.3d 360, 361 (5th Cir.2000) (quoting Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994)). “To apply Teague, a federal court engages in a three-step process”: (1) “it determines the date upon which the defendant’s conviction became final”; (2) it “survey[s] the legal landscape as it then existed and determinefs] whether a state court considering the defendant’s claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution”; and (3) “if the court determines that the habeas seeks the benefit of a new rule, the court must consider whether the relief sought falls within one of the two narrow exceptions to nonretroactivity.” Lambrix v. Singletary, 520 U.S. 518, 527, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (internal citations and quotations omitted). The Teague rule has two exceptions: (1) “if the rule ‘places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe’ or (2) “if it is a rule of procedure that is ‘implicit in the concept of ordered liberty.’ ” Barrientes v. Johnson, 221 F.3d at 763 (quoting Teague v. Lane, 489 U.S. at 307, 109 S.Ct. 1060). Federal courts should ordinarily consider the procedural default issue before addressing the Teague retroactivity issue. Lambrix v. Singletary, 520 U.S. at 524, 117 S.Ct. 1517. E. Ineffective Assistance of Counsel To establish ineffective assistance of counsel at trial or on direct appeal where the appeal is a matter of right under state law, a federal petitioner must demonstrate that (1) his counsel’s performance was objectively deficient and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Evitts v. Lucey, 469 U.S. 387, 395, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). To demonstrate “deficient performance,” a petitioner must show that his attorney’s performance was “professionally unreasonable in light of all the circumstances” at the time of the performance. Moore v. Johnson, 194 F.3d 586, 604 (5th Cir.1999). The Supreme Court has determined that “[j]udicial scrutiny of counsel’s performance must be highly deferential” because [i]t is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney perfor-manee requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. 2052 (internal quotations and citations omitted). See Neal v. Puckett, 239 F.3d at 687 (holding that in considering whether an attorney’s performance was objectively reasonable, a court “must determine whether there is a gap between what counsel actually did and what a reasonable attorney would have done under the circumstances”). Thus, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id. at 690-91. To demonstrate “prejudice,” a petitioner must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Clark v. Johnson, 227 F.3d at 283 (quoting Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. 2052). “The ‘prejudice’ component focuses on the question whether counsel’s deficient performance rendered] the result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (quotation omitted). Simply alleging prejudice will not suffice; the petitioner must affirmatively prove prejudice. DeVille v. Whitley, 21 F.3d 654, 659 (5th Cir.1994). “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Strickland v. Washington, 466 U.S. at 700, 104 S.Ct. 2052 (emphasis added). “[C]onclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding.” Miller v. Johnson, 200 F.3d at 282. A state court’s findings of fact made in the course of deciding a claim of ineffective assistance of counsel are entitled to a presumption of correctness, but the “ultimate conclusion that counsel did not render ineffective assistance ... is a legal question which must be reviewed de novo.” Amos v. Scott, 61 F.3d 333, 348 (5th Cir.1995); Wheat v. Johnson, 238 F.3d 357, 362 (5th Cir.2001). III. GROUNDS FOR REVIEW A. Trial counsel was ineffective because he failed to investigate and present mitigating evidence which called for a sentence less than death. Rosales argues that although several of his brothers and sisters could have presented evidence of his abusive and poor childhood and several neighbors could have testified that he was not violent, trial counsel failed to investigate this evidence or present it at trial. Although Rosales argues that this ineffectiveness claim was not adjudicated on the merits because he was not accorded a live evidentiary hearing in the state ha-beas proceedings, the Court finds the argument untenable. See Sawyers v. Collins, 986 F.2d 1493, 1504 n. 19 (5th Cir.1993) (quoting May v. Collins, 955 F.2d 299, 313 (5th Cir.1992)) (“This Court has ‘dealt on several occasions with factfinding by affidavit at the state trial court level, and each time we have found the procedures adequate for the purpose of § 2254(d) — even where the factual conclusions depended on credibility determinations.’ ”); Drew v. Collins, 964 F.2d at 423 n. 12 (“A state court need not conduct a live evidentiary hearing to be entitled to [the presumption of correctness]; it can evaluate an ineffective assistance of counsel claim based on the affidavits of the petitioner and the attorney.”). The state habeas court determined that in Exhibit X[,] attached to the Application for Writ of Habeas Corpus, trial counsel stated that he hired a mitigation specialist, spoke with the family, and made a decision not to call the family as witnesses during the punishment phase. Trial counsel decided that he had elicited the most favorable information from one of the Applicant’s sisters during cross-examination during the punishment phase and that the other family members’ testimony would have done more harm than good. Further, defense counsel’s trial strategy was to rely upon expert testimony to demonstrate that the Applicant was not a future danger. .... [T]he Applicant has failed to show that trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Additionally, the Applicant has failed to establish prejudice.... Because this was clearly an adjudication on the merits, the findings of fact that trial counsel hired a mitigation specialist, spoke with the family, and made a tactical decision not to call family members are entitled to the presumption of correctness. See Hill v. Johnson, 210 F.3d at 489 (holding that the “absence of an evidentia-ry hearing at the state level does not lead to the conclusion that the state court’s findings should not be presumed correct”). Rosales has failed to present any evidence to rebut these findings. The finding that trial counsel was not ineffective is a legal conclusion which this court must review de novo. “[I]n the context of a capital sentencing proceeding, defense counsel has the obligation to conduct a ‘reasonably substantial, independent investigation’ into potential mitigating circumstances.” Neal v. Puckett, 239 F.3d at 688 (quoting Baldwin v. Maggio, 704 F.2d 1325, 1332-33 (5th Cir.1983)). The “failure to develop or present mitigating background evidence is not per se deficient performance.” Moore v. Johnson, 194 F.3d 586, 615 (5th Cir.1999). To determine prejudice on a failure to investigate or present mitigating evidence claim, the court is “required to compare the evidence actually presented at sentencing with all the mitigating evidence contained in the postconviction record” and determine whether the “additional mitigating evidence is so compelling that there is a reasonable probability that the jury could have determined that death was not an appropriate sentence.” Neal v. Puckett, 239 F.3d at 691-92. Rosales’s trial counsel presented the following evidence during the punishment phase of his capital murder trial: (1) James Reynolds, custodian of records at the Lubbock County Jail, testified that Rosales’s demeanor and behavior did not indicate a need for placement in the highest security level at the jail even though a charge of capital murder would indicate such a need. (2) Detective Rey Martinez testified that Rosales wrote a note to Mary Felder’s family on June 5, 1997, and apologized for his actions. The note was admitted into evidence and Detective Martinez further testified that he had delivered a copy of it to the victim’s family. (3) Professor Jonathan Sorensen, a criminologist with a Ph.D. in criminal justice, testified that based on Rosales’s age, prior convictions, and prior behavior while institutionalized, the probability that he would commit another homicide was “at or below 1 per cent,” the probability that he would commit a future act of violence was 10 per cent, and in his opinion, Rosales was not likely to be a danger in the future. (4) Dr. Walter Quijano, a Ph.D. in clinical psychology, testified that Rosales was not likely to be a danger while he was incarcerated. Although defense counsel did not call a member of Rosales’s family, he did cross examine one of Rosales’s sisters when she testified as a witness for the State. Mary Rosales testified that she was the older sister of Michael in a family of ten siblings; Michael had grown up in a very poor family who often did not have enough to eat; his father died about four years before his murder trial and Michael started drinking alcohol at that time; he dropped out of school in the 8th grade; only one of his brothers had graduated from high school; all but one of Rosales’s brothers had been “locked up” at different times; and Mary did not want to see her baby brother “die.” The State also called Rosales’s mother to testify, but the record indicates that she was released before answering any questions because she was so emotionally distraught. Rosales now contends, by way of affidavits from family members, that his family members would have testified that the Rosales family was very poor and moved often; their father was an alcoholic who beat his wife and children and often spent his paychecks on alcohol rather than food for his family; Michael often received the worst of the beatings and had even lost consciousness as a result of the beatings; although athletically talented, Michael was in special education classes and could not perform well enough academically to be allowed to participate in school athletics; Michael was depressed after the death of his father; he was good with his nieces and nephews and would often babysit for them; Michael and his brothers fought often while growing up; he considered himself a “screw up” and the “black sheep” of the family; and Michael told his brother that he wanted to return to jail. Although Rosales’s family members acknowledge that they met with trial counsel and spoke with him on the telephone prior to the trial, they contend that counsel would not let them testify. Rosales also argues, by way of affidavit, that at least four other witnesses could have testified that Rosales was not violent, his reputation in the community was for being a “nice kid,” and he had never caused problems in an apartment complex full of trouble makers. He argues that this evidence was available, could have been presented at sentencing to bolster the testimony of his expert witnesses, and would have persuaded the jury to assess a life sentence rather than the death penalty. The Court has compared the evidence presented by defense counsel at the punishment phase with the additional mitigating evidence proposed by Rosales and finds that the additional evidence is both cumulative and not of such character or quantity that it raises “a reasonable probability that the result of the sentencing proceeding would have been different” if counsel had presented it at trial. Williams v. Taylor, 529 U.S. at 399, 120 S.Ct. 1495. See Tucker v. Johnson, 242 F.3d 617, 623 (5th Cir.2001) (holding that a court considering a claim for ineffective assistance for failure to present mitigating evidence must consider the “quality and volume of the additional mitigating evidence”). Accordingly, the Court finds that the state court’s determination that Rosales failed to show prejudice from his counsel’s decision to exclude evidence from the penalty phase was neither “contrary to” nor involved an “unreasonable application of’ clearly established Federal law as determined by the Supreme Court. See Neal v. Puckett, 239 F.3d at 697 (holding that “the state court’s prejudice determination was objectively reasonable in the sense that it was not inconsistent with the facts of [the] case — specifically, when those facts are viewed in the context of the extreme cruelty of the murder as an aggravating circumstance and that much of the mitigating evidence had already been presented to the jury, albeit in an abbreviated form”). Moreover, the Court also finds the state court’s determination that trial counsel’s performance did not fall below an objective standard of reasonableness is neither “contrary to” nor involved an “unreasonable application of’ clearly established Federal law. The “‘failure to present mitigating evidence “if based on an informed and reasoned practical judgment, is well within the range of practical choices not to be second-guessed’ ” under Strickland.” Drew v. Collins, 964 F.2d 411, 422 (5th Cir.1992) (quoting Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir.1992) (quoting Mattheson v. King, 751 F.2d 1432, 1441 (5th Cir.1985))). See Livingston v. Johnson, 107 F.3d 297, 308 (5th Cir.1997) (holding that an informed decision by counsel not to present family members and friends simply because counsel does not believe they would make a good impression on the jury can be a plausible trial strategy). The Court notes, however, that even if the state court incorrectly determined that trial counsel’s performance was reasonable, the failure “to show the existence of evidence of sufficient quality and force to raise a reasonable probability that, had it been presented to the jury, a life sentence would have resulted,” renders this claim' for ineffective' assistance meritless. Clark v. Johnson, 227 F.3d at 284 (quoting Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir.1992)). Accordingly, the Court finds that the state court decision was neither contrary to nor an unreasonable application of clearly established Federal law as determined by the Supreme Court. B. Trial counsel was constitutionally ineffective when he failed to investigate and present evidence which questioned his guilt of capital murder. Rosales argues that “there was extensive evidence which questioned the truthfulness of his written statement — as well as his guilt of this offense,” and trial counsel ineffectively failed to investigate this evidence, focusing their defense on the punishment phase of trial rather than on the guilt/innocence phase. Specifically, Rosales claims that there is potential testimony insinuating that the victim’s grandson, Lafayette Robinson, may have murdered her, and that several people claim to have seen the victim alive between 7 and 8 a.m. on June 4, thus contradicting Rosales’s written confession to the police. A petitioner who alleges that his trial counsel was constitutionally ineffective because he failed to adequately investigate must “allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial.” Lockett v. Anderson, 230 F.3d 695, 713 (5th Cir.2000) (quoting United States v. Green, 882 F.2d 999, 1003 (5th Cir.1989)). “[T]o show prejudice in regard to a claim that the attorney failed to raise a certain defense, the petitioner must show that the defense likely would have been successful at trial.” Mangum v. Hargett, 67 F.3d 80, 84 (5th Cir.1995). The state habeas court considered this claim and determined that Rosales could not establish prejudice because of the overwhelming evidence presented at the guilt/innocence phase. Specifically, the state habeas court determined that [e]vidence at the guilt/innocence phase was overwhelming that the Applicant committed the offense. Trial counsel filed a motion to suppress the Applicant’s confession and vigorously contested the admission of the confession at a hearing. Trial counsel cross-examined the State’s witnesses during the guilt innocence phase. Trial counsel stated that he converséd with the Applicant and reviewed the police reports and discovery from the prosecutor’s office. He spoke with several of the police officers involved and viewed the physical evidence several times. Trial counsel determined that the Applicant’s resources were best spent on investigating and presenting a punishment case. It is not ineffectiveness per s'e for counsel to concentrate his efforts at the punishment phase in a capital murder case. Ex parte Davis, 866 S.W.2d 234, 237 (Tex.Crim.App.1993). In this case, it was not deficient performance to concentrate defense efforts on the punishment phase. In addition, given the overwhelming evidence against the Applicant, the Applicant has failed to establish prejudice by the alleged deficient performance^] as the Applicant’s allegations do not undermine the reliability of the guilty verdict. * * * * * * ... The Applicant contends that there was possible evidence that two other people, Lafayette Robinson or Rudy Perez, may have committed the offense. The Applicant claims that his attorney was deficient for failing to investigate the potential evidence and put it forth at trial. However, the evidence is based on mere conjecture and does not undermine the reliability of the verdict given the [Applicant's] confession to the police and two independent witnesses, the victim’s blood found on the [Applicant’s] clothing and the sink where the [Applicant] was seen washing off the blood, and the [Applicant] taking the police to the secreted murder weapons. Hence, the state court addressed the merits of this ineffectiveness claim and the findings of fact are presumed to be correct under § 2254(e)(1). Rosales has offered no evidence to rebut these findings. The record clearly supports the state court findings that trial counsel vigorously contested the admission of Rosales’s confession, reviewed the police reports, interviewed several police officers, examined the physical evidence, cross-examined the State’s witnesses during the guilt/innocence phase, and determined that his resources were best spent investigating and presenting a case at the punishment phase. In addition to these findings, the state court record shows that Rosales was given a polygraph examination, and the officer administering the exam advised that Rosales “was telling the truth” about acting alone. The record further shows that Lafayette Robinson was given a polygraph examination regarding his sworn statement detailing his actions on the day of the murder, and the officer administering the exam concluded that Robinson “answered all the questions honestly.” Hence, the Court finds that trial counsel’s decision not to argue that Robinson or someone else “may have committed the offense” but to focus his attention on the punishment phase was a strategic decision made after an objectively reasonable investigation of the facts and evidence. See Williams v. Collins, 16 F.3d 626, 632 (5th Cir.1994) (stating that the Fifth Circuit upholds “decisions of counsel not to put on evidence in mitigation of culpability when the decisions result from a strategic choice”). See also Jones v. Jones, 163 F.3d 285, 299 (5th Cir.1998) (“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.”). The state court finding that trial counsel’s performance was not objectively deficient was therefore a reasonable application of clearly established Federal law. Nevertheless, even if trial counsel had pointed out the inconsistencies in Robinson’s statements and presented the proposed witnesses who believe that they saw the victim, Rosales cannot demonstrate that such evidence was sufficient to create a “reasonable probability that the outcome of the trial would have been different,” given his confessions of guilt, his knowledge of the location of the murder weapons, the forensic evidence, and the circumstantial evidence. Id. at 304. Thus, he cannot demonstrate that he was prejudiced by trial counsel’s failure to investigate or present evidence at the guilt/innocence phase, and the state court finding of no prejudice was neither contrary to nor an unreasonable application of clearly established Federal law. Accordingly, the Court finds that the state court’s adjudication of this claim was neither contrary to nor involved an unreasonable application of clearly established Federal law as determined by the Supreme Court. C. Trial counsel was constitutionally ineffective when he failed to investigate, obtain, and use evidence available to impeach the state’s witnesses and/or evidence. Rosales next argues that trial counsel was ineffective because he failed to impeach witness Rudy Perez with evidence that he was a violent man and a known drug abuser, and he failed to impeach witness Corinna Cantu with evidence that she w