Ford v. Cockrell (315 F. Supp. 2d 831, 2004)

MEMORANDUM OPINION AND ORDER

BRIONES, District Judge.

Petitioner Tony Egbuna Ford filed this federal habeas corpus petition pursuant to 28 U.S.C. § 2254, in which he attacks his otherwise final state capital murder conviction and death sentence. After careful consideration, the Court concludes that Ford’s claims are either procedurally barred or without merit under the Antiter-rorism and Effective Death Penalty Act of 1996. Accordingly, the Court concludes that Ford is not entitled to federal habeas relief.

I. Facts and Procedural History

A. Facts of the Offense

After reviewing the entire record, the Court finds that it supports the Texas Court of Criminal Appeals’ rendition of the facts:

On December 18, 1991, the Murillo family attended a Christmas play to see their cousin perform. At the conclusion of the play the family departed to their mother’s, Myra Concepcion Murillo’s, home for a quick dinner. The mother and her three children, Myra Magdalena, Armando, and Lisa, all planned to do some Christmas shopping later that evening. After dinner, Armando was in the family room watching television, Myra Magdalena was readying herself in her bedroom for her shopping trip, and Lisa was in the kitchen. Their mother called out to her children at some point to inquire if any had heard the two men who had knocked at the door. The two men were apparently looking for “the man of the house” and the mother had refused to permit their entrance. After the children informed her that they had heard nothing, each returned to his or her previous task.

Moments later Myra Magdalena stepped out into the hallway to encourage her family to hurry up. At that moment, she saw her mother and her brother retreating from the doorway. Her mother was backing up as if she was in fear for her life, kind of crouching down, and her brother looked as if he had been hit in the head and just huddled straight into the corner. She testified that within a few seconds, she saw [Ford] standing to her right, next to her at the entry to her bedroom. Subsequently she saw his cohort. She testified that both had guns. Lisa testified that she “heard a barging in, just a lot of noise, racket, like someone kicking wood.” She saw two strangers in the hallway with guns. Ford’s cohort pointed a gun at Lisa and walked her into the den area.

[Ford] and his cohort ordered the four individuals to kneel on the floor and to be quiet. The Murillos began to pray. [Ford] first demanded money, then jewelry. Throughout these demands, [Ford] would yell and threaten the family, occasionally pausing to strike Armando with the gun. Recognizing [Ford’s] cohort as “a very familiar face in the neighborhood,” Myra Magdalena attempted to divert her gaze away from the cohort to prevent being recognized. The four continued to pray as they were asked to remove their jewelry. Finally, [Ford] asked for the keys to the car parked outside. When Myra Magdalena hesitated in releasing her automobile keys, her sister retrieved them and awkwardly threw them towards [Ford]. The keys skinned his face and hit the wall. Myra Magdalena testified that [Ford’s] response was, “[F]uck you, just for that, I was just going to blow him. Now I’m just going to fucking blow you all.” She testified that [Ford] then began shooting.

[Ford] shot Armando in the back of the head. Myra Concepcion, upon seeing her son shot, jumped up to comfort Armando. [Ford] hooked his arm around her and shot her on the right side of the head. Myra Magdalena testified that [Ford] had to curve his gun around to aim it properly at her mother’s head before he shot her. Upon being shot in the head at point blank range, Myra Concepcion fell to floor. Myra Magdalena believed that she would be next. As [Ford] stepped toward her, Myra Magdalena rose and pushed him. The gun discharged and she fell to the ground pretending to be hit. The bullet had missed her. Another shot went off and she heard her sister “gulp.” After the robbers left, Myra Magdalena got up and phoned for help. Armando died from the gunshot wound. The others survived. [Ford] was identified as doing the shooting, and as being dominating, doing most of the talking and giving the most orders.

The record also supports the Court of Criminal Appeals’ summation of the evidence presented at the punishment phase:

Ford testified at guilt/innocence and at punishment. He steadfastly denied participating in the home invasion and shooting, but rather insisted that he had remained outside, initially sitting in the vehicle, but then getting out, while two associates entered the home and committed the offense. He maintained that he did not shoot or kill anybody.

At punishment, neither the State nor [Ford] presented any psychiatric or psychological testimony. The State did not present any evidence of prior criminal record, unadjudicated offense, or bad character. The State only presented testimony from the decedent’s father, mother, and two sisters. They testified about the effect that the decedent’s death and others’ injuries was having on them. The State also presented exhibits, which were medical records of the two survivors.

[Ford’s] mother testified that [Ford] was born on June 19, 1973, making him 18-years-old at the time of the offense. [Ford] also presented testimony from his sister, and three family friends who had known him for a number of years. They indicated that [Ford] previously had not exhibited any violence or acts of aggression, and opined that he would follow the rules and regulations of prison society, would take advantage of rehabilitation opportunities, and would not be a future danger if incarcerated for life. [Ford] himself testified at punishment and indicated that he could follow prison rules and regulations if incarcerated for life. He also cried on cross-examination, stating that he would not want what happened to the Murillos to happen to anybody, and acknowledging that he also felt bad that he was facing a possible death penalty. He added that “[everybody is a victim in this ease[,]” including in some instances himself in that he did not agree with the jury’s verdict because he did not do anything wrong besides sitting outside in the truck.

After deliberating for approximately seven-and-a-half hours, the jury returned with its answers to the special questions required under Texas law. It found beyond a reasonable doubt that: (1) there was a probability that Ford would commit criminal acts of violence that would constitute a continuing threat to society; and (2) Ford actually caused Armando Murillo’s death, or if he did not actually cause Armando Murillo’s death, that he intended to kill Armando Murillo or someone else, or he anticipated that a human life would be taken. It further found that there were not sufficient mitigating circumstances to warrant life imprisonment rather than a death sentence. Accordingly, the trial judge sentenced Ford to death.

B. Procedural History

Ford was convicted of capital murder on July 13, 1993 and sentenced to death in the 364th Judicial District Court of El Paso County, Texas. His capital murder conviction was automatically appealed to the Texas Court of Criminal Appeals (“Court of Criminal Appeals”), which affirmed his conviction and sentence in a published opinion issued February 21, 1996. Ford did not file a petition for a writ of certiora-ri, but filed a state application for writ of habeas corpus on May 1, 1997. The Court of Criminal Appeals adopted the trial court’s findings of fact and conclusions of law and denied that petition on September 12, 2001. Ford then filed his original federal habeas corpus petition on October 23, 2001, followed by the instant Amended Petition on January 3, 2003. In his Amended Petition, he asserts eleven claims for relief, arguing that: (1) his trial counsel was ineffective; (2) his appellate counsel was ineffective; (3) the trial judge denied him due process by refusing to appoint an eyewitness identification witness; (4) an unduly suggestive lineup denied him due process; (5) the State suppressed evidence favorable to Ford; and (6) jury misconduct denied him due process and violated his Sixth Amendment right to confrontation.

II.Exhaustion of Claims

A. The Parties’ Contentions

Respondent contends that Ford has failed to exhaust three of his claims in state court. In his first claim, Ford argues that his trial counsel was ineffective for losing his pre-trial motion to have an eyewitness identification expert, Dr. Rex Malpass (“Malpass”), appointed. To support his claim, Ford presents a report from Malpass. Respondent argues that:

[Malpass’ instant] report and accompanying exhibits are more extensive than the bare-bones material from Malpass that Ford submitted on state habeas review. Ex parte Ford at 162-64. In particular, the studies concerning Ford’s case on which he relies in this Court were not included in the report that he offered to the state courts. Because Ford did not present all of the materials on which he now relies to the state courts, he has not exhausted his state remedies. Hart v. Estelle, 634 F.2d 987, 989 (5th Cir.1981). If he were to file another state writ application including this material, it would be dismissed for abuse of writ under Section 5(a) of Article 11.071 of the Texas Code of Criminal Procedure, which forbids consideration of successive habeas petitions raising allegations for which the legal and factual basis previously was available.... [Wjhere the petitioner never has presented his claim to the state courts, it is procedurally barred in federal court “if it is clear that his claims are now procedurally barred under [state] law.” Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989).

Because Ford’s unexhausted claim would be dismissed as an abuse of writ if presented in a subsequent state writ application, Respondent continues, his claim is consequently procedurally barred from review in his instant federal writ application. Respondent advances the same argument regarding Ford’s sixth or Brady claim, in which Ford alleges that the State suppressed evidence that was favorable to him. Respondent further argues that Ford never raised his eleventh claim (that the jurors were tainted at the punishment phase by outside influences) in state court and that it would now be procedurally barred.

It is not clear whether Ford contends that he did exhaust his ineffective assistance claim in state court. He does argue, however, that taken together, his: (1) pre-state habeas application request for funds with which to engage Malpass’ services; and (2) renewed and amplified request for funds made in the state habeas application itself presented all the information presented in his request for funds made to this Court. Moreover, Ford contends, even if the Court were to find that he did not exhaust his claim in state court and it is now subject to dismissal for procedural default, he can nevertheless show cause and prejudice to overcome the procedural bar. Specifically, he argues that the reason Malpass’ studies concerning Ford’s case were not presented in state habeas proceedings to the extent that they are in his federal habeas petition is that the Court of Criminal Appeals and trial court denied his repeated requests for funds with which to engage Malpass’ services. Ford states that counsel requested funds for Malpass’ assistance before preparing his state habeas application, but was denied. Counsel proceeded to prepare Ford’s state habeas application; renewed and amplified his request for funds therein; and set out detailed claims based upon the trial court’s denial of an eyewitness identification expert. In Ford’s state ha-beas application, counsel explained that Malpass could conduct studies concerning the photo lineup and the similarity in appearance between Victor Belton and Tony Ford, thereby questioning the suggestiveness of the photo lineup and the likelihood that the Murillo sisters mistakenly identified Ford. Counsel argues that he did all he could to develop Ford’s claim but was prevented from doing so by the actions of the state courts, and that Ford cannot be faulted now for that omission.

Regarding his sixth or Brady claim, Ford concedes that he has not exhausted his claim in state court, but argues that he should be excused under the provisions of 28 U.S.C. § 2254(b)(l)(B)(ii) because the facts underlying his claim “have been and continue to be suppressed by the prosecution.”

Regarding Ford’s eleventh claim, that the jury was tainted by an outside influence, Ford concedes that he did not raise the claim in state court. He makes no other statement regarding exhaustion or cause and prejudice.

B. Legal Standard — Exhaustion of Claims under 28 U.S.C. § 225k

Under 28 U.S.C. §§ 2254(b)(1)(A), a court shall not grant habeas relief unless “the applicant has exhausted the remedies available in the courts of the State.”

The requirements of the exhaustion concept are simple: An applicant must fairly apprise the highest court of his state of the federal rights which were allegedly violated. Further, the applicant must present his claims in a procedurally correct manner. If, for whatever reason, an applicant bypasses the appellate processes of his state — whether through procedural default or otherwise — he will not be deemed to have met the exhaustion requirement absent a showing of one of two particulars. He must either demonstrate cause and prejudice or show that the failure to consider his claims will result in a fundamental miscarriage of justice.

Ford has satisfied the exhaustion requirement if he “fairly present[ed]” his issues to Texas courts.

To determine whether a claim has been fairly presented to state courts, the Supreme Court has provided the following guidance:

[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief... .We have also indicated that it is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the “substance” of such a claim to a state court.

“It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made.” “[Ojrdinarily a state prisoner does not ‘fairly present’ a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.” Thus, Ford will have failed to exhaust his claims if he presents new legal theories or factual claims in his federal habeas petition which he failed to present in his state court appeal. However, the presentation of supplemental evidence in a federal petition that “does not fundamentally alter the legal claim already considered by the state courts” does not render a claim unexhaust-ed for procedural purposes. “[Wjhether evidence ‘fundamentally alters’ or merely ‘supplements’ the state petition is an inquiry that is, by necessity, case and fact specific.” The Fifth Circuit has stated that “substantial new evidence rising to the level of a ’180 degree turn’ renders a claim unexhausted.” In contrast, a federal petitioner will not have failed to exhaust his claim if the evidence he adds in his federal petition falls short of a 180 degree turn.

Because the exhaustion requirement “refers only to remedies still available at the time of the federal petition,” it is satisfied “if it is clear that [the habeas petitioner’s] claims are now procedurally barred under [state] law.” However, the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default. “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.” “Objective factors that constitute cause include interference by officials that makes compliance with the State’s procedural rule impracticable, and a showing that the factual or legal basis for a claim was not reasonably available to counsel.”

With the foregoing principles in mind, the Court will consider whether Ford has exhausted his claims, and if not, whether he has adequately shown cause and prejudice for his default.

C. Discussion

1. Ineffective assistance of counsel

To the extent Ford contends that he did exhaust his ineffective assistance claim in state court because, taken together, his pre-state habeas application request and his renewed and amplified request in the actual state habeas application presented all the information presented to this Court in his request for funds, this argument is unpersuasive. The issue is whether Malpass’ report, produced as a result of this Court granting Ford’s request for funds, fundamentally alters or merely supplements the ineffective assistance of counsel claim raised in state court. If the report fundamentally alters the claim, then Ford has failed to fairly present his claim in state court and thus has not exhausted it. If the report merely supplements the claim presented to the state courts, then Ford will have satisfied the exhaustion requirement.

Although it is admittedly a close case, the Court concludes that Ford has exhausted his state court remedies regarding this claim, because Malpass’ report supplements rather than fundamentally alters the claim presented to state court. While the Court agrees with Respondent that Malpass’ instant report and accompanying exhibits are more extensive than the material from Malpass that Ford submitted on state habeas review and concludes that it strengthens Ford’s claim, it nevertheless concludes that the evidence does not rise to the level of a “180-degree turn.” Rather, the reports, exhibits, and Malpass’ studies “merely confirm[ ] what [Ford] has been claiming all along” (i.e., that an eyewitness identification expert was critical to his defense of mistaken identity and that trial counsel was ineffective for failing to secure Malpass’ services). The Court moreover notes that Ford has not attempted to defeat the purpose of the exhaustion doctrine by deliberately withholding essential facts from the state courts until he reached a more receptive forum. To the contrary, he has vigorously argued his claim throughout the state court proceedings. Accordingly, the Court concludes that Ford has exhausted his ineffective assistance claim and that it may evaluate it on the merits.

2. Brady claim

Ford concedes, and the Court agrees, that he failed to exhaust his Brady claim in state court and that it would now be procedurally barred from state review. Therefore, the only question before the Court is whether Ford has sufficiently demonstrated cause and prejudice for his procedural default. After reviewing the entire record below and the parties’ arguments, the Court concludes that Ford has demonstrated neither cause nor prejudice and therefore has not overcome the procedural bar to federal review of his Brady claim.

The prosecution’s suppression of evidence favorable to the accused upon request violates due process when the evidence is material either to guilt or innocence, or to punishment, regardless of the prosecution’s good or bad faith. The three essential elements of a Brady prosecutorial misconduct claim are: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.

“Cause and prejudice” [regarding a Brady claim] “parallel two of the three components of the alleged Brady violation itself.” Corresponding to the second Brady component (evidence suppressed by the State), a petitioner shows “cause” when the reason for his failure to develop facts in state-court proceedings was the State’s suppression of relevant evidence; coincident with the third Brady component (prejudice), prejudice within the compass of the “cause and prejudice” requirement exists when the suppressed evidence is “material” for Brady purposes.

“The materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury’s conclusions. Rather, the question is whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”

To support his argument for cause (ie., that the State suppressed relevant evidence), Ford relates the following events. In 2002, Ford’s investigator, William O. Juvrud (“Juvrud”) interviewed Robert Thomas (“Thomas”), a court reporter assigned to Ford’s case. Ford asserts that this interview yielded “new evidence” supporting his claim that Victor Belton, rather than Ford, entered the Murillo’s house with Van Belton. In his affidavit, Juvrud states that Thomas related a conversation that he had with several El Paso police officers soon after Ford’s trial. According to Juvrud, Thomas said that the officers told him that “the word on the street” was that Victor Belton “did the shooting.” However, Thomas could, not remember the officers’ names. This “new evidence” was then confirmed, argues Ford, by two “people on the street,” Tam-mond J. Brookins and Marvin Dodson. Brookins, in a written declaration, stated that, in December 1992, Victor Belton implied to him that he had been involved in a shooting. Brookins later concluded that Victor meant the murder of Armando Murillo. As evidence of further confirmation, counsel has submitted his own affidavit stating that Marvin Dodson told him that, in 1991, Van Belton asked Dodson to implicate Tony Ford in the Murillo murder.

Ford also contends that Lisa Milstein’s (another investigator, hereinafter, “Mil-stein”) 2002 conversation with Jose Chris-man revealed that El Paso police officers knew, as Ford has maintained, there were three people involved in the Murillo break-in and murder. Chrisman was apparently Mrs. Murillo’s boyfriend at the time of the murder. According to Milstein, Chrisman said that, when Mrs. Murillo was recovering from her gunshot wound, she told him that “there were three people involved in the crime. Two men came inside and one stayed outside as a lookout.” Ford asserts that the “fact” that Mrs. Murillo knew that three people were involved or was told this by the police was never revealed to the defense.

Lastly, Ford argues that Van Belton’s changing account of the crime should have alerted police officers that Van was attempting to divert suspicion from his brother, Victor. Upon arrest, Van maintained that only two people, himself and Tony Ford, had broken into the Murillo’s house. Van further stated that Ford had a gun and that he (Van) had left the house before the murders occurred. Some months before his trial, Van changed his story. He told his lawyers that a third person, “Tyrone Fields,” had been involved in the crime. Specifically, asserts Ford, Van told his lawyers that Fields had been in the house, too, and remained with Ford after Van left. Van’s lawyers then conveyed this information to Ford’s trial counsel. Ford’s trial counsel mentioned Fields in a letter to the prosecutor handling Ford’s case.

Ford contends that the prosecution “knew about Van Belton’s fabrication concerning Tyrone Fields and should have known its significance.” He cites counsel’s interview with Van in December 2002, in which Van exhibited scant knowledge of Tyrone Field’s background and was reluctant to inform counsel of Victor’s present whereabouts, as further support for the claim that Van was lying to protect Victor.

After due consideration, the Court concludes that Ford has not demonstrated cause because he has not shown State suppression. Further, the Court concludes that even if Ford could show “cause” within the meaning of Brady, he cannot show prejudice because the “evidence” simply cannot be characterized as material.

Petitioner utterly failed to present the state habeas court with any evidence suggesting that any basis in reality existed for these rank hearsay and hearsay within hearsay rumors about the offense. Further, neither the hearsay statement that Van Belton purportedly made to Dodson nor the double hearsay statement that Victor Belton purportedly made to Brookins shows that the State possessed this information, much less that the State suppressed it. Similarly, the investigator’s affidavit regarding Jose Chrisman’s purported statements about Mrs. Murillo’s purported statement does not show that Mrs. Murillo ever conveyed such information to the State, that the State conveyed the information to her, or that the State had independent knowledge of a rumor placing a third person at the scene of the crime.

Moreover, assuming that Van Belton altered his rendition of events before trial, implicating a third party in the crime, Ford has not shown that the prosecution learned about the change in Belton’s story until informed of it by Ford’s counsel. Counsel states that Van related the Fields story to his own lawyers; Van’s attorneys, in turn, related the change in Van’s account to Ford’s lawyers; then Ford’s lawyers disclosed the information to the prosecution. Further, it is difficult to argue that information was exculpatory or material. Belton’s story about Field does not exculpate Ford; Van’s altered account still placed Ford in the house with the gun. Additionally, the fact that Ford’s defense counsel had the information and yet did not attempt to use it at trial belies the claim that the information exculpated Ford and was material to his defense.

For the reasons discussed above, the Court concludes that Ford has failed to show cause or prejudice for failing to develop facts in state proceedings. Because, as Ford concedes, his Brady claim would now be proeedurally defaulted under Texas law and he has failed to show cause and prejudice for the default, the Court concludes that it may not review Ford’s instant Brady claim. Ford is therefore not entitled to federal habeas review of his sixth claim of error.

3. Tainted jury at punishment phase

Ford concedes that he did not raise the claim regarding Juror Aguilar in state court. He makes no argument that his claim would not now be proeedurally barred, nor does he attempt to show cause and prejudice for his failure to raise the claim in state court.

After reviewing the claim, the Court concludes that Respondent is correct that the claim would now be proeedurally barred in state court. It further concludes that Ford has not shown cause or prejudice to overcome the procedural default. Accordingly, Ford is not entitled to federal habeas review of his eleventh claim of error.

Having determined that Ford exhausted his first ineffective assistance of counsel claim but failed to exhaust his Brady claim or claim of juror taint in state court, the Court now turns to the merits of Ford’s remaining claims.

III. Applicability of the Antiterrorism and Effective Death Penalty Act of 1996

A The AEDPA Standard of Review

Because Ford filed his federal habeas corpus action after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), insofar as the state courts adjudicated his claims herein on the merits, the AEDPA governs this Court’s review of those claims.

Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause concerning any claim that was adjudicated on the merits in state court proceedings unless the adjudication of that claim either: (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.

The Supreme Court has concluded the “contrary to” and “unreasonable application” clauses of Title 28 U.S.C. § 2254(d)(1) have independent meanings. Under the “contrary to” clause, a federal habeas court may grant relief if: (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or (2) the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant relief 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 petitioner’s case. A federal court making the “unreasonable application” inquiry should ask whether the state court’s application of clearly established federal law was “objectively unreasonable.” The focus of this inquiry is whether the state court’s application of clearly established federal law is objectively unreasonable, rather than merely incorrect.

The AEDPA significantly restricts the scope of federal habeas review of state court fact findings, requiring that a petitioner challenging state court factual findings establish by clear and convincing evidence that the state court’s findings were erroneous.

With the foregoing principles in mind, this Court turns to the merits of Ford’s claims for federal habeas corpus relief.

IV. The Merits of Ford’s Remaining claims

A. Claim One: Trial Counsel Provided Ineffective Assistance in Pursuing the Defense Motion for Appointment of a Defense Eyewitness Identification Expert.

1. Legal Standard — Constitutionally Ineffective Assistance of Counsel

The Supreme Court established the legal principles that govern ineffective assistance of counsel claims in Strickland v. Washington, In Wiggins v. Smith, the Supreme Court reiterated that:

An ineffective assistance of counsel claim has two components: A petitioner must show that counsel’s performance was deficient, and that the deficiency-prejudiced the defense. To establish deficient performance, a petitioner must demonstrate that counsel’s representation “fell below an objective standard of reasonableness.” We have declined to articulate specific guidelines for appropriate attorney conduct and instead have emphasized that “the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.”

To establish that counsel’s representation fell below an objective standard of reasonableness, a convicted defendant must overcome a strong presumption that his trial counsel’s conduct fell within a wide range of reasonable professional assistance. Reviewing courts are extremely deferential in scrutinizing counsel’s performance, making every effort to eliminate the distorting effects of hindsight. It is strongly presumed that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. An attorney’s strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law, are virtually unchallengeable. Counsel is required neither to advance every non-frivolous argument, nor to investigate every conceivable matter, nor to assert patently frivolous arguments. A criminal defense counsel is not required to exercise clairvoyance during the course of a criminal trial.

However, even if counsel’s performance falls below an objective standard of reasonableness, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Accordingly, “any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” To establish that he has sustained prejudice, the convicted defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” The Court must consider not merely whether the outcome of the defendant’s case would have been different, but also whether counsel’s deficient performance caused the outcome to be unreliable or the proceeding to be fundamentally unfair.

Because a convicted defendant must satisfy both prongs of the Strickland test, his failure to establish either deficient performance or prejudice under that test makes it unnecessary to examine the other prong. Therefore, a convicted defendant’s failure to establish that his counsel’s performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice. Similarly, it is also unnecessary to consider whether counsel’s performance was deficient where there is an insufficient showing of prejudice. Moreover, mere conclu-sory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue.

2. The Parties’ Contentions

Ford contends that identity was a strongly disputed issue at trial. He argues that the prosecution’s case rested entirely on Murillo sisters’ identification of him as one of the two men who broke into their mother’s house and, more significantly, as the individual who gave the orders and actually shot their brother Armando. Ford’s defense throughout the trial on guilt-innocence (and persisting into the punishment phase) was that he was never inside the Murillos’ house and that it was Victor Belton who broke into the house with his brother, Van Belton. Ford insisted that the Murillo sisters mistakenly identified him, because it was Victor Bel-ton who was inside the house with Van, and Victor who shot Armando Murillo. Ford testified that he stayed outside in the vehicle and that the only thing he did wrong was loaning his coat to Victor. According to Ford, Victor asked for Ford’s coat because he wanted use it to conceal a gun.

Ford argues that “[hjelping the jury understand that the Murillo’s [sic ] identifications of [him] were mistaken was the key to defending [him]” and that his “[trial] counsel knew that an eyewitness expert was critical to helping the jury understand the unreliability of the Murillo’s [sic ] identifications.” Accordingly, in a pre-trial motion, trial counsel attempted to persuade the trial judge to appoint an eyewitness identification expert by showing of the defense’s need for this expert. The prosecution opposed the motion, arguing that counsel had not made an adequate showing that the expert’s ultimate testimony would be admissible under Texas law. Counsel responded that he might need to develop more of a record to show the court how important an eyewitness identification expert would be to Ford’s defense. Counsel also conceded that he did not then know of any law requiring the trial judge to appoint such an expert. Counsel re-urged his motion for an eyewitness identification expert at a later pre-trial hearing. The trial judge gave counsel two weeks in which to provide supporting authority and reargue the motion or it would be overruled. Counsel did not provide additional authority, and the court accordingly entered a written order denying the motion.

It is in failing to provide the legal authority, Ford argues, which existed and could easily have countered the prosecution’s opposition, that his trial counsel was ineffective. Ford acknowledges that it was a strategic decision for counsel to decide whether to seek the appointment of an eyewitness identification expert, and that counsel would not have been ineffective if he had decided not to seek appointment of an expert. But once counsel made the decision to seek the appointment and took active steps to obtain the appointment by filing his motion with the court, Ford argues, counsel was ineffective for failing to properly research the applicable law to support his motion and present his findings to the trial court. Ford asserts that he was prejudiced as a result, by not having an expert explain to the jury that eyewitness identifications are often unreliable. By implication, Ford argues that the expert’s testimony would have cast sufficient doubt in the jurors’ minds about the reliability of the Murillo sisters’ identifícation that it would have changed the trial’s outcome.

Respondent argues that Ford’s claims should be rejected on the merits because he fails to meet either prong of the Strickland test for ineffective assistance of counsel. First, Respondent asserts that the Fifth Circuit rejected as “specious” exactly Ford’s argument in Cantu v. Collins, 967 F.2d 1006, 1016 (5th Cir.1992). In Cantu, a Texas death row inmate alleged that his trial counsel was ineffective for failing to secure the services of an expert witness to contest the testimony of an eyewitness. The Fifth Circuit rejected Cantu’s argument as “specious,” stating that:

While petitioner is correct that the admission of expert testimony regarding eyewitness identifications is proper, he cites no authority to support the theory that his trial counsel was required to call an expert witness to challenge [the eyewitness’] testimony. Indeed, Cantu’s trial counsel testified at the evidentiary hearing that he considered seeking the services of an expert witness on the issue of eye-witness identification but decided against it based on his belief that his cross-examination of [the eyewitness] would be sufficient to refute the accuracy of the identification.

Respondent argues that since Ford’s counsel clearly considered and sought the appointment of an expert, counsel went a step further than the representation provided by Cantu’s trial counsel that the Fifth Circuit found constitutionally adequate. Therefore, if counsel’s performance in Cantu was not deficient, then counsel’s performance in Ford’s case cannot be deficient.

Respondent further argues that, even assuming that counsel’s performance was deficient, Ford cannot prevail on his ineffective assistance of counsel claim because he cannot show that he was prejudiced by the purported error. Respondent notes that even if counsel had made the most persuasive argument and made the greatest effort possible to ensure that the eyewitness expert was appointed, it was still, as a matter of Texas law (and contrary to Ford’s assertion), entirely within the trial judge’s discretion whether to admit the expert’s testimony. There is simply no guarantee, argues Respondent, that the trial judge would have admitted Malpass’ testimony.

Furthermore, even if the trial judge had admitted the testimony, Respondent argues that it is “inconceivable” that the jury would have rendered a different verdict. Respondent observes that, in United States v. Jackson, 50 F.3d 1335 (5th Cir.1995), the Fifth Circuit rejected the defendant’s claim that his counsel’s failure to obtain an identification witness’ services— in fact, the very same expert, Rex Mal-pass, whose services were at issue in Ford’s trial — prejudiced him. The Fifth Circuit found that because Jackson, like Ford, was placed at the scene of the crime by evidence other than eyewitness testimony, “it is most improbable, to say the least, that Dr. Malpass’ generalized testimony about the supposed unreliability of expert witness identifications would have established reasonable doubt as to the identity of the robber.”

Respondent argues that the same circumstances exist in Ford’s case. The eyewitness identifications by the Murillo sisters were not the only evidence implicating Ford in the murder. By his own testimony, Ford placed himself at the murder scene, albeit, outside the house as the murder was occurring. Fibers consistent with the sweater that Armando Murillo was wearing, as was a small amount of blood, were found on the coat Ford was wearing when he was arrested. It was for the jury to determine whether Ford was wearing the coat when the fiber evidence and blood came to be there — in other words, whether Ford was inside the house, wearing the coat, while he shot Armando Murillo in the back of the head. Moreover, it is as unlikely in Ford’s case as it was in Jackson, Respondent argues, that Malpass’ generalized testimony about the reliability of eyewitness identifications would have been particularly helpful to the jury in assessing the credibility of the sisters against that of Ford himself.

S. Discussion

The Court notes the following facts. In his prayer for relief, state habeas counsel made a generalized request to conduct discovery (including authorization to take depositions and subpoena witnesses) and for the trial court to hold an evidentiary hearing. The state habeas court, which was the same court that presided over Ford’s trial, declined to hold an evidentia-ry hearing because it concluded that all previously unresolved factual issues material to Ford’s confinement could be and had been determined from the parties’ pleadings, exhibits, and the record on direct appeal.

Although the state habeas court did not hold an evidentiary hearing, the State was nonetheless able to obtain trial counsel’s affidavit and present it to the state habeas court with its Answer. In the affidavit, trial counsel addressed his reasons for certain actions and omissions at trial, specifically: (1) Ford’s decision to testify; (2) why counsel did not question the jury panel on party liability; (3) why counsel did not question the jury panel on racial bias; and (4) why counsel did not call a psychiatric expert to testify about Ford’s future dangerousness. Ford, on the other hand, did not come forward with an affidavit from trial counsel stating why he did not pursue his motion to have an eyewitness identification expert appointed, in an attempt to show that some factual basis existed to support his ineffective assistance claim. Nor did he attempt to show that trial counsel refused to cooperate with state habeas counsel.

The state habeas court found that defense counsel timely filed and presented a motion for an eyewitness identification expert, but did not provide evidence or affidavits to support it. It did not directly address the question of deficient performance, focusing instead on the prejudice prong of the Strickland test. It concluded that Ford could not show prejudice, given: (1) Ford’s admission of party liability at trial and in his state writ; (2) the fact that the fibers from Ford’s coat (which he was wearing when he was arrested the day after the offense) matched fibers found on Armando Murillo’s body; (3) its finding that Myra Murillo’s identification of Ford in the photo line up was not the product of police misconduct; and (4) its finding that Myra Murillo did not misidentify Ford or identify anyone other than Ford.

Because the state habeas court did not make a specific finding of deficient performance, the Court will consider the question de novo, keeping in mind that “[judicial scrutiny of a counsel’s performance must be highly deferential” and “every effort must be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and evaluate the conduct from counsel’s perspective at the time.” In all circumstances, the defendant must overcome the strong presumption that under the circumstances, the challenged action might be considered sound trial strategy.

After considering the matter, the Court concludes that Ford has not carried his burden. First, Ford has not demonstrated that, as of the date of his trial, there was a United States Supreme Court or Texas Court of Criminal Appeals opinion clearly establishing a right to have an eyewitness identification expert appointed on demand. Absent some legal authority establishing that he had a right to have such an expert appointed, the burden was on Ford to show that his trial counsel acted in an objectively unreasonable manner in not pursuing the motion for an appointment of an eyewitness expert. Although counsel’s failure to pursue the motion for appointment of an eyewitness expert gives the Court momentary pause, it is only momentary. Counsel’s failure to pursue the motion is not so clearly objectively unreasonable that it defeats the strong presumption of adequate assistance, particularly when Ford has simply presented no evidence to overcome the such presumption.

Although the Court concludes that Ford has not met the first prong of the Strickland test, in an abundance of caution it will review the state habeas court’s conclusion that Ford failed to show prejudice. It concludes that Ford has likewise failed to show prejudice from attorney error, if any.

By Ford’s own account, counsel persistently attempted to cast the reliability of the identifications in doubt. Counsel introduced a booking photo taken of Victor Belton immediately after the murder and introduced Victor’s booking sheets, which included Victor’s height and weight. Comparing Victor’s physical characteristics with Ford’s, counsel noted that Victor and Ford were the same height and very close in weight and age. In counsel’s closing argument at the guilt-innocence phase, he emphasized that the stress of the crime would have made it difficult for the Murillo sisters to remember precisely what the intruders looked like. He emphasized to the jury that the stress associated with the crime and the similarity of appearance and stature between Victor and Ford made a mistaken identification much more likely. He compared photos of the two men, pointing out the similarity in the shape of the head and ears, their skin color, haircuts, age, height, and weight. In sum, counsel repeatedly emphasized the factors that Malpass’ testimony would have conveyed to the jury: (1) stressful circumstances can reduce the accuracy of an eyewitness identification; (2) Tony Ford and Victor Belton had similar physical characteristics; and (3) given the stressful circumstances of the crime and the physical similarities between Ford and Victor, it was possible that the Murillo sisters misidentified Ford as the man who shot their brother. The Court concludes that Mal-pass’ proposed testimony would not have added significantly to the points that the jury heard from counsel himself.

Moreover, although the Murillos’ identification of Ford was undoubtedly an important part of the State’s case, Ford’s repeated admission that he was at the scene of the crime and physical evidence also linked him to the murder. It is unlikely that Malpass’ testimony, which in large part would have conveyed the same information that the jury heard from counsel, by itself would have changed the outcome of the trial. Finally, there is no guarantee that the trial judge would have allowed Malpass to testify.

For these reasons, this Court independently concludes that Ford’s complaints about this aspect of counsel’s performance satisfies neither of Strickland’s two prongs. Therefore, the state habeas court’s rejection on the merits of this aspect of Ford’s multifaceted ineffective assistance claim was neither contrary to, nor an unreasonable application of, clearly established federal law concerning ineffective assistance, nor based on an unreasonable determination of the facts from the evidence before it. Accordingly, the Court concludes that Ford’s first claim of error lacks merit under the AEDPA.

B. Claim Two: The trial court denied Ford’s due process right to the assistance of an eyewitness identiñcation expert.

Ford contends that the trial judge violated his right to due process by denying his motion for an identification expert. After careful consideration, the Court concludes that Ford has not shown that he is entitled to relief under 28 U.S.C. § 2254(d).

1. Legal Standard

A federal court may grant relief based on trial error only when that error resulted in actual prejudice. To show actual prejudice, the petitioner must demonstrate that the purported error, if any, had substantial and injurious effect or influence in determining the jury’s verdict.

In Ake v. Oklahoma, the Supreme Court held that an indigent criminal defendant is entitled to the appointment of a psychiatric expert witness if the expert would be necessary to provide the basic tools to present a defense. In light of Ake, the Fifth Circuit has held that non-psychiatric experts should be provided only if the evidence is both critical to the conviction and subject to varying expert opinion.

[A] defendant cannot expect the state to provide him a most-sophisticated defense; rather, he is entitled to “access to the raw materials integral to the building of an effective defense.” Most of those raw materials come to the defendant in the form of his court-appointed lawyer—in his expert knowledge about how to negotiate the rules of court, how to mount an effective defense, and so forth. Other materials come from lay witnesses, such as evidence necessary to the defendant to establish his defense.

To be entitled to the appointment of a non-psychiatric expert witness, an indigent defendant must demonstrate something more than a mere possibility of assistance from the requested expert. In determining whether a defendant is entitled to have an expert appointed, a court must examine three factors: (1) the private interest that will be affected by the action of the state; (2) the governmental interest that would be affected if the safeguard is to be provided; and (3) the probable value of additional or substitute safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.

“The private interest in the accuracy of a criminal proceeding that places an individual’s life or liberty at risk is almost uniquely compelling.... The interest of the individual in the outcome of the State’s effort to overcome the presumption of innocence is obvious....” “The State’s interest in prevailing at trial is ... necessarily tempered by its interest in a fair and accurate adjudication of criminal cases.” The Court’s conclusion, therefore, hinges on the last factor.

2. Discussion

In determining whether the trial court erred in denying Ford’s motion for appointment of an eyewitness identification expert, this Court’s task is to quantify the probable value of Malpass’ expert testimony regarding the reliability of eyewitness identifications and the risk that the jury reached an erroneous conclusion because it did not have the benefit of Malpass’ expertise.

The state habeas court made a factual determination that there was no misidenti-fication or identification of anyone other than Ford. Although Ford has speculated that the Murillo sisters mistook Victor Bel-ton for Ford, after reviewing the entire record and the parties’ briefs, the Court concludes that he has not rebutted the presumptive correctness of the state court’s factual finding by the required standard of clear and convincing evidence, for the reasons discussed below.

Ford’s efforts to refute the trial court’s factual determination focus on two studies conducted by Malpass. The first is Mal-pass’ evaluation of the line up Ford participated in. Lisa and Myra Murillo each independently chose Ford from this lineup. After discussing his methodology, Malpass concludes that “[i]t is likely that some systematic process is occurring to direct choices to Mr. Ford. The photo spread is biased towards Mr. Ford, and this preference for Mr. Ford’s photograph violates the principle that the suspect should not stand out from the other persons (fillers) in a lineup.” The second study is a comparison of similarities between the photographs of Ford and Victor Belton. In this regard, Malpass concludes that “of all the face photo pairs in this study, the Ford and Belton pair is rated as the most similar and significantly more similar than the next most similar pair. [Victor] Belton is more similar to Ford than any of the fillers used in the Ford lineup, in some cases by a considerable margin.”

This Court’s initial inquiry under 28 U.S.C. § 2254(e)(1) is solely whether Ford has shown by clear and convincing evidence that the trial court’s factual determinations — that Ford was not mistakenly identified by the eyewitnesses and that there was no impropriety in the way the line up was conducted — were incorrect. After careful consideration, the Court concludes that Ford has not carried his burden. Even if this Court were prepared to accept Malpass’ conclusions at face value, setting aside serious questions about his methodology and the statistical signifi-canee of his data, the Court concludes that they assert nothing more than that: (1) the lineup from which the eyewitnesses chose Ford may have been suggestive; and (2) Victor Belton looked more like Ford than any other person in the lineup. These conclusions do not show by clear and convincing evidence that the trial judge’s determination of the ultimate question was incorrect. There is simply no persuasive evidence that Lisa and Myra Murillo actually identified the wrong man.

Further, if this Court were to review the trial court’s finding de novo, it would not conclude that the trial judge abused his discretion. Ford has not demonstrated that, at the time of Ford’s trial, there was clearly established Supreme Court case law holding that a criminal defendant is entitled to the appointment of an eyewitness identification expert as a matter of course in every case in which there is an eyewitness identification. Moreover, at the pre-trial hearing on Ford’s motion to suppress the Murillos’ identification of Ford, the trial court had an opportunity to observe the witnesses’ demeanor and to gauge their credibility under cross-examination. Factual determinations based on trial court’s observation of credibility and demeanor are entitled to special deference. Further, the conditions forming the basis for the identifications were not in dispute. Although it is not clear exactly how long the Murillos’ assailants were in the house, it was certainly for a longer period of time than mere moments. The assailants were not wearing masks or otherwise attempting to conceal or distort their physical characteristics. There were no allegations that poor lighting or other conditions made it difficult to view the assailants’ faces clearly. It was not unreasonable in light of these circumstances and after observing the eyewitnesses’ demean- or at the hearing for the trial judge to determine that there was no misidentification of Ford or identification of anyone other than Ford. Accordingly, in the absence of any clear and convincing evidence to the contrary, the Court concludes that it must accept the trial court’s factual determination as correct and defer to it.

Because the trial court determined that there was no misidentification of Ford, it was therefore not unreasonable for the trial judge to determine that an expert’s services would not be particularly relevant or helpful on the issue of identity. If there was no misidentification, then testimony regarding the reliability of eyewitness identifications would hold little, if any, relevance.

Moreover, as discussed regarding Ford’s first claim of error, ultimately Malpass’ testimony would have duplicated the points that Ford’s counsel ably emphasized to the jury. Because the information that Mal-pass would have conveyed to the jury was actually communicated by Ford’s counsel, the Court concludes that there was no risk that the jury reached the wrong result merely because it did not hear Malpass testify.

Furthermore, as one Texas court has recently observed, the purpose of appointing an expert is to level the playing field between the State and criminal defendant. A defendant’s access to expert assistance becomes particularly important when that expert will rebut expert testimony presented by the prosecution. Here, the State did not present expert testimony regarding the reliability of its eyewitnesses’ identifications. Rather, the record indicates that State stood prepared to defend the reliability of its witnesses’ identifications in the time-honored way— through direct examination and then rehabilitation if the witnesses’ reliability was undermined during the defense’s cross-examination.

Lastly, as Respondent observes, if the Court adopts Ford’s premise that trial counsel was ineffective for failing to present sufficient legal authority for granting the motion, the trial court could not have erred in denying the motion. The state habeas court found that trial counsel did not present evidence or affidavits to support the motion, a point which Ford does not dispute, much less rebut by clear and convincing evidence. Without a showing of error, Ford cannot demonstrate that he was subsequently prejudiced by that error. The Court concludes that the state habeas court’s rejection of Ford’s due process claim was not inconsistent with, nor an unreasonable application of, clearly established federal law concerning due process, nor based on an unreasonable determination of the facts from the evidence before it. Accordingly, the Court concludes that Ford’s second claim of error lacks merit under the AEDPA.

C. Claim Three: Ford’s claim that appellate counsel provided ineffective assistance in failing to raise the Ake claim on direct appeal.

Ford contends that his appellate counsel was ineffective because he did not raise and brief a claim that he was denied due process under the Supreme Court’s holding in Ake v. Oklahoma. More specifically, Ford faults appellate counsel for not arguing that the trial court denied him due process when it denied his motion for appointment of an eyewitness identification expert.' Because the Court has concluded that the trial judge did not deny Ford due process and that counsel’s performance was not constitutionally deficient or prejudicial, it also concludes that appellate counsel was not ineffective. An attorney’s failure to raise a meritless argument cannot give rise to an ineffective assistance of counsel claim because such performance is not deficient and the result of the proceeding would not have been different had the issue been raised. The Court concludes that the state habeas court’s rejection of this aspect of Ford’s ineffective assistance claim was not inconsistent with, nor. an unreasonable application of, clearly established federal law concerning effective representation, nor based on an unreasonable determination of the facts from the evidence before it. Accordingly, the Court concludes that Ford’s third claim of error lacks merit under the AEDPA.

D. Claim Four: Ford was denied due process by the use of a suggestive identiñcation process, designed to produce an identiñcation of him rather than Victor Belton.

The state habeas court made a factual determination that the procedure used to identify Ford was not unconstitutionally suggestive. For the reasons discussed regarding Ford’s second claim of error, the Court concludes that he has not overcome the presumptive correctness of the state court’s factual determination. Under 28 U.S.C. § 2254(e)(1), this Court is bound by that factual determination, absent clear and convincing evidence to the contrary. Because the identification process was not suggestive, the Court concludes that Ford was not denied due process. Accordingly, the Court concludes that Ford’s fourth claim of error lacks merit under the AEDPA.

E. Claim Five: Trial Counsel Provided Ineffective Assistan