Full opinion text
MEMORANDUM OPINION AND ORDER RODRIGUEZ, District Judge. Petitioner Jose Angel Moreno filed this federal habeas corpus action pursuant to 28 U.S.C. section 2254 challenging his 1987 Bexar County conviction for capital murder and sentence of death. For the reasons set forth herein, petitioner is entitled to neither habeas corpus relief nor a certificate of appealability from this Court. I. Statement of the Case A. The Crime and Aftermath Shortly after his arrest on February 7, 1986, petitioner Jose Angel Moreno gave law enforcement officers a written statement in which he confessed to having kid-naped, fatally shot, and buried John Manuel Cruz in a shallow grave. On April 2, 1986, a Bexar County grand jury indicted petitioner in cause no. 86-CR-1042 on a charge of capital murder, to wit, petitioner’s murder of Cruz in the course of committing and attempting to commit Cruz’s kidnaping. B. Petitioner’s Motions to Suppress Petitioner’s trial counsel filed three motions seeking to suppress petitioner’s confession as well as the murder weapon, which was recovered from beneath the mattress in petitioner’s bedroom during a search of petitioner’s residence on February 7, 1986. Beginning July 14, 1986, the state trial court held a three-day hearing on petitioner’s motions to suppress, during which it heard extensive testimony from the law enforcement officers who investigated Cruz’s kidnaping and murder, as well as the magistrate who issued the search/arrest warrant in question. On August 5, 1986, the state trial court heard oral argument on petitioner’s motions to suppress. Finally, on August 28, 1986, the state trial court denied all three motions to suppress. C. Guilt-Innocence Phase of Trial The guilt-innocence phase of petitioner’s capital murder trial began on November 17, 1986. In addition to petitioner’s confession and testimony concerning the circumstances surrounding the discovery of Cruz’s body, petitioner’s jury heard extensive testimony corroborating petitioner’s confession, including (1) the medical examiner’s findings that Cruz sustained three relatively close range gunshot wounds to the back of the head, two of which penetrated the skull and either of which would have proved fatal, (2) the findings of a ballistics expert that the bullet recovered from Cruz’s body during autopsy had been fired from the handgun found under petitioner’s mattress during a search of petitioner’s residence, (8) testimony from Cruz’s neighbors and others that they observed large rocks positioned across their street on several evenings immediately pri- or to Cruz’s abduction, (4) testimony from Cruz’s neighbors that they received a telephone call during the early morning hours of January 22,1986 from someone claiming to have Cruz and asking for the telephone number of Cruz’s parents, and (5) testimony from several different persons, including petitioner’s aunt, identifying petitioner as the person whose voice could be heard on a police tape-recording of a ransom, demand telephone call placed to Cruz’s parents on January 22,1986. Following an extended continuance caused by the illness of a juror and a stroke suffered by the trial judge’s spouse, petitioner’s trial resumed on January 5, 1987. The jury rendered its verdict on January 7, 1987, finding petitioner guilty of capital murder. D. Punishment Phase of Trial The following day, the punishment phase of petitioner’s trial began. During that phase of trial, the jury heard extensive testimony detailing (1) the discovery of numerous weapons in petitioner’s cell or on petitioner’s person during his pretrial detention, (2) numerous instances of violent conduct by petitioner during his pretrial detention and trial, (3) numerous instances of petitioner unlocking his handcuffs or those of other inmates, (4) an escape attempt petitioner made less than two months after his arrest, (5) multiple instances in which petitioner jammed the door to his cell, preventing the door from closing and locking properly, (6) threats petitioner made to guards and an acquaintance during his pretrial detention, (7) an incident in which petitioner faked a suicide attempt, and (8) an incident during trial in which petitioner successfully posed as an another inmate and obtained access to a less-secure portion of the jail. The jury also heard testimony from petitioner’s family and friends to the effect that they believed petitioner was not a violent person and could be rehabilitated. On January 13, 1987, the jury returned its verdict at the punishment phase of trial, finding that (1) petitioner had deliberately caused Cruz’s death and (2) there was a probability that petitioner would commit criminal acts of violence that would constitute a continuing threat to society. E. Petitioner’s Motion for New Trial On February 19, 1987, the state trial court held an evidentiary hearing on petitioner’s motion for new trial and denied it. F. Direct Appeal Petitioner appealed his conviction and sentence. In an opinion issued April 7, 1993, the Texas Court of Criminal Appeals affirmed both. Moreno v. State, 858 S.W.2d 453 (Tex.Crim.App.1993). On November 8, 1993, the United States Supreme Court denied petitioner’s petition for writ of certiorari. Moreno v. Texas, 510 U.S. 966, 114 S.Ct. 445, 126 L.Ed.2d 378 (1993). G. First Federal Habeas Proceeding Petitioner filed a federal habeas corpus action in this Court collaterally attacking his capital murder conviction and sentence of death. That action was docketed as cause no. SA-94-CA-31-HG. In an Order issued December 1, 1994, this Court, per the late Judge H.F. Garcia, granted petitioner’s motion for leave to dismiss that proceeding without prejudice so that petitioner could return to the state courts and exhaust available state habeas corpus remedies. H. First State Habeas Proceeding On January 12, 1996, petitioner filed his first application for state habeas corpus relief. On April 14, 1997, the state trial court held an evidentiary hearing. On May 24, 2000, the state habeas trial court issued its findings of fact, conclusions of law, and recommendation that petitioner’s state habeas application be denied. In an unpublished Order issued September 13, 2000, the Texas Court of Criminal Appeals denied petitioner state habeas corpus relief. I.The Current Federal Habeas Proceeding On September 25, 2000, petitioner filed a motion for appointment of counsel in this Court. In an Order issued September 28, 2000, this Court appointed counsel for petitioner and set deadlines for the filing of petitioner’s federal habeas corpus petition. Petitioner filed his initial petition for federal habeas corpus relief on June 29, 2001. Respondent filed an answer and motion for summary judgment on November 29, 2001. Petitioner responded thereto on March 8, 2002. On September 30, 2002, this Court granted petitioner’s motion to hold this cause in abeyance pending petitioner’s return to state court to exhaust state remedies on petitioner’s claim that he is mentally retarded and, pursuant to the Supreme Court’s opinion in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), exempt from the death penalty. J. Second State Habeas Corpus Proceeding In an unpublished per curiam Order issued September 10, 2003, the Texas Court of Criminal Appeals dismissed petitioner’s Atkins claim based on state writ-abuse principles, yet also specifically held that petitioner had failed to make a prima facie showing sufficient to support an Atkins claim. K. Return to This Court Following the dismissal of petitioner’s second state habeas corpus application, petitioner returned to this Court and sought leave to amend his pleadings. This Court granted petitioner’s request and, on September 10, 2003, petitioner filed his first amended federal habeas corpus petition. Petitioner filed his second amended federal habeas corpus petition on May 14, 2004, arguing therein that (1) petitioner’s execution is barred by the Supreme Court’s holding in Atkins because petitioner is mentally retarded, (2) his appellate counsel rendered ineffective assistance by failing to (a) ensure that the search/arrest warrant affidavit was included in the state appellate record, (b) investigate and present evidence in the course of petitioner’s motion for new trial regarding the jury’s improper discussion of parole eligibility during its deliberations, (c) raise points of error regarding the erroneous definitions of the culpable mental states included in the guilt-innocence phase jury instructions, (3) the state trial court erred in failing to grant petitioner’s motions to suppress, (4) prosecution witness Celestino Pardo committed perjury during petitioner’s trial, and (5) the state trial court constructively denied petitioner effective assistance of counsel when it failed to appoint a new investigator for petitioner’s defense team mid-trial. On August 31, 2004, respondent filed his answer and motion for summary judgment. On January 14, 2005, petitioner filed his response thereto. On February 7, 2005, petitioner filed an amended reply to respondent’s motion for summary judgment. II. Analysis and Authorities A. AEDPA Standard of Review Because petitioner filed his federal habeas corpus action after the effective date of the AEDPA, this Court’s review of petitioner’s claims for federal habeas corpus relief is governed by the AEDPA. Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause in connection with 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. Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); 28 U.S.C. § 2254(d). The Supreme Court has concluded that the “contrary to” and “unreasonable application” clauses of section 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). 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 on a set of materially indistinguishable facts. Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003)(“A state court’s decision is ‘contrary to’ our clearly established law if it ‘applies a rule that contradicts the governing law set forth in our cases’ or it ‘confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.’ ”). A state court’s mere failure to cite governing Supreme Court authority does not establish that the state court’s decision is “contrary to” clearly established federal law: “the state court need not even be aware of our precedents; ‘so long as neither the reasoning nor the result of the state-court decisions contradicts them.’ ” Id. at 16, 124 S.Ct. 7. 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. Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). A federal court making the “unreasonable application” inquiry should ask whether the state court’s application of clearly established federal law was “objectively unreasonable.” Id. at 520-21, 123 S.Ct. 2527. The focus of this inquiry is on whether the state court’s application of clearly established federal law is objectively unreasonable, and an “unreasonable” application is different from a merely incorrect one. Id. at 520, 123 S.Ct. 2527; Price v. Vincent, 538 U.S. 634, 641, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003)(“[I]t is the habeas applicant’s burden to show that the state court applied [that ease] to the facts of his case in an objectively unreasonable manner.”). Legal principles are “clearly established” for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions as of the time of the relevant state-court decision establish those principles. Yarborough v. Alvarado, 541 U.S. 652, 124 S.Ct. 2140, 2147, 158 L.Ed.2d 938 (2004)(“We look for ‘the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.’ ”). The AEDPA also significantly restricts the scope of federal habeas review of state court fact findings, requiring that a petitioner challenging state court fact findings establish by clear and convincing evidence that the state court’s findings were erroneous. See Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.2000) (holding state court fact findings are presumed correct and the petitioner has the burden of rebutting the presumption by clear and convincing evidence); Hicks v. Johnson, 186 F.3d 634, 637 (5th Cir.1999) (holding the AEDPA requires federal habeas courts to accept as correct state court factual determinations unless the petitioner rebuts them by clear and convincing evidence); Hernandez v. Johnson, 108 F.3d 554, 558 & n. 4 (5th Cir.1997) (holding that under the AEDPA, the proper forum for the making of all factual determinations in habeas cases will shift to the state courts “where it belongs” and recognizing that the AEDPA clearly places the burden on the federal habeas petitioner “to raise and litigate as fully as possible his potential federal claims in state court”); 28 U.S.C. § 2254(e)(1). B. Atkins v. Virginia /Mental Retardation Claim 1. The Claim Petitioner’s initial claim for relief in his second amended petition argues that his execution would violate the principle the Supreme Court announced in Atkins v. Virginia because petitioner is mentally retarded. 2. Clearly Established Federal Law The Supreme Court’s Eighth Amendment analysis in Atkins focused initially on current trends among state legislatures regarding, the imposition of the death sentence on mentally retarded murderers. See Atkins, 536 U.S. at 311-17, 122 S.Ct. 2242 (holding that the Eighth Amendment draws its meaning from the evolving standards of decency that mark the progress of a maturing society and that the clearest and most reliable objective evidence of contemporary values is the legislation enacted by state legislatures). The Court then shifted its focus to the dual penological purposes served by the death penalty: retribution and deterrence of capital crimes by prospective offenders. Id. at 318-21, 122 S.Ct. 2242. With regard to retribution, the Court held that an exclusion from the death penalty for mentally retarded murderers, who have lesser culpability than the average murderer, was warranted given its prior conclusion that the culpability of the average murderer does not merit the death sentence. Id. at 319, 122 S.Ct. 2242. The Court then held, in pertinent part, as follows: With respect to deterrence — the interest in preventing capital crimes by prospective offenders — “it seems likely that ‘capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation.’ ” Exempting the mentally retarded from that punishment will not affect the “cold calculus that precedes the decision” of other potential murderers. Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded offenders. The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable — for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses — that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Id. at 319-20, 122 S.Ct. 2242 (citations omitted). The Supreme Court ultimately concluded that execution of mentally retarded criminals would not measurably advance the deterrent or retributive purposes underlying the death penalty and, therefore, the Eighth Amendment prohibits such punishment. Id. at 321, 122 S.Ct. 2242. 3. State Court Disposition Petitioner fairly presented his Atkins claim to the state courts in his second state habeas corpus proceeding. In support of his claim to be mentally retarded, however, petitioner presented the state habeas court with only a report dated June 13, 2003 of a psychological evaluation performed on petitioner that concluded that (1) petitioner had a full scale score of 64 on an IQ evaluation; (2) this score might not be valid and may “somewhat underestimate his true level of intellectual functioning” because petitioner appeared to be poorly motivated and may have exaggerated his deficits; (3) he was a poor personal historian, refusing to furnish any information regarding his offense, and indicating that he received some special education services while in school but failing to furnish any details regarding the specific classes he attended; (4) his motor behavior, level of responsiveness, facial expressions, eye contact, and affect were all within normal limits; (5) his speech was free of articulation errors and he expressed himself appropriately with adequate command of language; (6) his cognitive processing speed was unremarkable; (7) he was oriented to time, place, person, and situation; (8) he displayed no deficits in remote, recent, or intermediate memory; (9) he appeared to have no difficulty concentrating or maintaining a cognitive set; (10) he displayed no indication of organic brain impairment; and (11) he completed only the eighth grade but later earned his GED. In its Order dismissing petitioner’s second state habeas corpus application as an abuse of the writ, the Texas Court of Criminal Appeals held that, to avoid the barrier imposed by state writ-abuse principles, a successive state habeas corpus application asserting an Atkins claim must do more than make a naked assertion of mental retardation; it must allege sufficient specific facts to establish a prima facie case supporting such a claim. Ex parte Jose Angel Moreno, No. 25,897-02 (Tex.Crim.App. September 10, 2003) at 3-4. The Court of Criminal Appeals went on to explain that such a prima facie case may be satisfied through either (1) evidence of at least one IQ test before age 18 from which a reasonable trier of fact could conclude the applicant is mentally retarded under the definitions identified in Atkins coupled with supporting affidavits from qualified experts or laymen possessing personal knowledge that raise an issue as to the applicant’s lack of adaptive skills and then onset of mental retardation before age 18 or (2) “other materials supporting a conclusion of ‘significant subav-erage intellectual functioning.’ ” Id. at 4 & n. 3. The Texas Court of Criminal Appeals noted (1) the absence of any fact-specific allegations, much less any evidence, regarding previous IQ testing performed on petitioner, (2) the fact that one of petitioner’s former employers had testified at trial that petitioner was “very intelligent, super intelligent,” (3) the concerns expressed by the expert who tested petitioner that petitioner’s low IQ test score might have been more symptomatic of intentional malingering rather than indicative of true intellectual deficit, and (4) the absence of any allegations or evidence establishing that petitioner suffered from any limitations in adaptive skill areas or adaptive functioning prior to age 18. Id. at 4-6. Based on those considerations, the Court of Criminal Appeals concluded that petitioner had failed to allege specific facts establishing a prima facie case in support of an Atkins claim, and dismissed petitioner’s second state habeas corpus application as an abuse of the writ. Id. at 5-6. 4. AEDPA Review While purporting to dispose of petitioner’s Atkins claim strictly on state procedural grounds, the Court of Criminal Appeals’ Order dismissing petitioner’s second state habeas corpus application as an abuse of the writ clearly demonstrates that court made an adjudication “on the merits” of petitioner’s Atkins claim for purposes of the AEDPA’s deferential standard of review. Ordinarily, a ruling that a party has failed to establish a prima facie case in support of its claim is considered a ruling “on the merits.” See, e.g., Young v. City of Houston, 906 F.2d 177, 180 (5th Cir.1990)(recognizing that dismissal of a claim for failure to present a prima facie case was an adjudication on the merits); Lewis v. Brown & Root, 711 F.2d 1287, 1290 n. 3 (5th Cir.1983)(recognizing that dismissal for failure to state a prima facie case is a dismissal on the merits). “In the context of federal habeas corpus proceedings, adjudication ‘on the merits’ is a term of art that refers to whether a court’s disposition of the case was substantive as opposed to procedural.” Neal v. Puckett, 286 F.3d 230, 235 (5th Cir.2002)(en banc), cert. denied, 537 U.S. 1104, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003). “In making that determination, we consider three factors: ‘(1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state courts’ opinions suggest reliance upon procedural grounds rather than a determination on the merits.’ ” Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir.2003). The Court of Criminal Appeals’ resolution of petitioner’s Atkins claim was clearly a ruling on the merits of that claim, was an integral part of that court’s “abuse of the writ” analysis, and may not be rationally characterized as a procedural ruling. Thus, the question before this Court is whether the Court of Criminal Appeals’ summary rejection on the merits of petitioner’s Atkins claim resulted from either (1) an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States, or (2) an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Williams, 529 U.S. at 404-05, 120 S.Ct. 1495. As the Supreme Court noted in Atkins, “[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.” Atkins, 536 U.S. at 317, 122 S.Ct. 2242. Moreover, the Supreme Court went on to point out in Atkins that the clinical definitions of mental retardation “require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that become manifest before age 18.” Id. at 318, 122 S.Ct. 2242 (emphasis added). Thus, it is clearly established under Supreme Court precedent that an Atkins claim must be supported by a showing that the defendant suffered “significant limitations in adaptive skills” before age 18. The Texas Court of Criminal Appeals reasonably determined from the evidence before it that petitioner had presented no fact-specific allegations, much less any evidence, showing that petitioner had ever tested as mentally retarded on any IQ test prior to reaching age 18. Likewise, that court also reasonably determined from the evidence before it that there were no fact-specific allegations, much less any evidence, establishing that petitioner suffered from any significant limitations in adaptive skills. Petitioner’s conclusory assertions that he received unspecified “special education services,” had little substantial work experience, and had a long history of drug and alcohol abuse do not even begin to satisfy the standard for establishing that petitioner suffered from “significant limitations in adaptive skills” before age 18. As the Court of Criminal Appeals pointed out, one of petitioner’s former employers testified at trial that petitioner was “super intelligent” and illustrated this point with an anecdote about petitioner’s ability to repair a complex copier using only a paper clip. Likewise, petitioner’s former baby-sitter and life-long friend testified at trial that petitioner was “very smart.” Petitioner told his psychological interviewer in 2003 that he had successfully earned a GED. Petitioner presented the state habeas court with no educational, medical, or psychological records casting any doubt on petitioner’s intellectual ability prior to age 18. Nor did petitioner present the state habeas court with any affidavits from any person who knew petitioner prior to age 18 that cast any doubt on petitioner’s intellectual functioning or ability to engage in adaptive skills. Finally, the circumstances of petitioner’s crime belie any assertion that petitioner suffered from any deficit in intellectual ability or adaptive skills. Petitioner admitted that he carefully planned and executed a complex scheme in which he (1) convinced two unsuspecting friends to help him dig Cruz’s grave, (2) obtained a difficult-to-find Central Catholic High School directory to help him identify his prey, (3) plotted Cruz’s route home from work and repeatedly used large rocks to block Cruz’s vehicle’s entry into his neighborhood, (4) handcuffed and blind-folded Cruz at gunpoint before driving Cruz to the isolated location where Cruz’s shallow grave awaited him, (5) executed Cruz and buried his body after removing Cruz’s handcuffs, (6) left Cruz’s vehicle at a location where he had previously stashed another vehicle, (8) made his ransom demands, but (9) when he drove past Cruz’s residence and observed an unmarked police vehicle parked there, abandoned further efforts to contact Cruz’s family or to obtain the ransom. In short, petitioner displayed precisely the sort of “cold calculus that precedes the decision” the Supreme Court held in Atkins to be “at the opposite end of the spectrum from [the] behavior of mentally retarded offenders.” Atkins, 536 U.S. at 319-20, 122 S.Ct. 2242. If there were any doubt regarding petitioner’s capabilities, his near-escape from the Bexar County Adult Detention Center in April 1986, his successful efforts to disable his cell door, and his repeatedly successful efforts to remove his handcuffs and to conceal homemade lock picks from law enforcement officers who search him, all of which were detailed during the punishment phase of his trial, support the Court of Criminal Appeals’ determination that petitioner failed to make a prima facie showing that he is mentally retarded. Given the limited nature of the allegations petitioner presented to the Court of Criminal Appeals in his second state ha-beas corpus proceeding and the ample evidence of petitioner’s demonstrated capabilities to engage in the planning and execution of complex schemes contained in the record from both phases of petitioner’s trial, that court’s rejection on the merits of petitioner’s Atkins claim was neither an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in petitioner’s second state habeas proceeding. In fact, the legal standard applied by the Court of Criminal Appeals to reject petitioner’s Atkins claim was virtually identical to the standard employed by the Fifth Circuit to evaluate similar requests for permission to file successive federal habe-as corpus petitions asserting Atkins claims made to that court. See In re Morris, 328 F.3d 739, 740 (5th Cir.2003)(holding that a prima facie case sufficient to warrant permission to file a successive federal habeas petition asserting an Atkins claim includes a showing that the petitioner “should be categorized as ‘mentally retarded’ ” as defined in Atkins); In re Hearn, 376 F.3d 447, 455 (5th Cir.2004)(holding that a prisoner’s motion for counsel to investigate and prepare a successive Atkins claim required a “colorable showing of mental retardation” that was satisfied by (1) school records showing the petitioner failed first grade, despite regular attendance, and scored in the mild mentally retarded range in an IQ test administered during his school years, and (2) trial testimony from a family member demonstrating the petitioner’s “compromised social skills”). Simply put, petitioner failed to allege any specific facts sufficient to make a colorable showing of mental retardation. 5. De Novo Review The Fifth Circuit has held that when it is not clear whether a claim has been adjudicated on the merits in state court, the AEDPA’s deferential standard of review does not apply. See, e.g., Solis v. Cockrell, 342 F.3d 392, 394 n. 2 (5th Cir.2003); Henderson, 333 F.3d at 598. Therefore, out of an abundance of caution, this Court will undertake a true de novo review of petitioner’s Atkins claim. In the event that the Court of Criminal Appeals’ rejection of petitioner’s Atkins claim is not entitled to deference under the AEDPA, for the reasons set forth in Section II.B.4. above, petitioner is still not entitled to federal habeas corpus relief herein. Petitioner has failed to allege any specific facts, much less furnish any evidence, establishing that he is, in fact, “mentally retarded” within the meaning of that term as utilized in Atkins. The Supreme Court made clear in Atkins that such a showing requires more than a low IQ score. Petitioner has alleged no specific facts showing that he ever suffered from any significant limitations on his ability to engage in adaptive skills prior to age 18. On the contrary, petitioner’s confession and the evidence corroborating it introduced at his trial evidence a degree of cold, calculating behavior on his part that lies “at the opposite end of the spectrum from the behavior of mentally retarded offenders.” Atkins, 536 U.S. at 319-20, 122 S.Ct. 2242. Petitioner’s Atkins claim lacks even arguable merit even when examined under a de novo standard of review. C. Fourth Amendment Claim 1. The Claim Petitioner’s third claim in his second amended petition complains that the state trial court erroneously denied his motions to suppress his confession and the murder weapon. 2. State Court Disposition On direct appeal, petitioner argued in three related points of error that the state trial court had erroneously denied his motions to suppress because the affidavit used to secure the search and arrest warrant executed on February 7, 1986 did not support the magistrate’s finding of probable cause for the arrest and search. The Texas Court of Criminal Appeals held that (1) petitioner fought the admission of the affidavit in question during his Jackson v. Denno hearing and petitioner failed to secure a ruling on the record regarding the admission of the affidavit from the state trial court, (2) petitioner thereby failed to carry his burden of ensuring the affidavit was part of the appellate record, and (3) petitioner thereby procedurally defaulted on his complaints about the denial of his motions to suppress. Moreno, 858 S.W.2d at 461-62. 3. Stone v. Powell Preclusion Respondent correctly argues that federal habeas review of petitioner’s Fourth Amendment claim is precluded by the Supreme Court’s holding in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). In Stone, the Supreme Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id. at 494, 96 S.Ct. 3037. The Fifth Circuit has consistently adhered to the holding in Stone v. Powell. See, e.g., Busby v. Dretke, 359 F.3d 708, 722 (5th Cir.2004) (holding a state prisoner’s Fourth Amendment claims are not cognizable in a federal habeas corpus proceeding); Jones v. Johnson, 171 F.3d 270, 278 (5th Cir.1999) (same). Petitioner argues that he was denied a “full and fair opportunity” to litigate his Fourth Amendment claim in the Texas Court of Criminal Appeals by virtue of that court’s rebanee on state procedural default principles to summarily dismiss petitioner’s three points of error raising that claim. However, the Fifth Circuit has rejected similar arguments See United States v. Ishmael, 343 F.3d 741, 742 (5th Cir.2003) (holding that a subsequent change in the law by the Supreme Court that arguably overruled the Fifth Circuit’s prior rejection of a federal prisoner’s Fourth Amendment claim did not render the prisoner’s prior proceedings any less “full and fair” for purposes of Stone); Janecka v. Cockrell, 301 F.3d 316, 320-21 (5th Cir.2002) (holding that Stone preclusion requires only that the defendant was afforded a full and fair opportunity to litigate his Fourth Amendment claim in the state trial and appellate courts and that neither the defendant’s failure to take advantage of that opportunity nor even a mistake by the state appellate court in its ruling on the Fourth Amendment claim renders Stone inapplicable). Petitioner had a full and fair opportunity to litigate his Fourth Amendment claim during his pretrial Jackson v. Denno hearing and did so. Petitioner likewise had a full and fair opportunity to litigate his Fourth Amendment claim on direct appeal. That his trial or appellate counsel, or both, may have failed to take the steps necessary to properly preserve that claim for state appellate review does not render the Stone bar inapplicable. Id. 4. Procedural Default Insofar as respondent argues that the Texas Court of Criminal Appeals’ determination of state procedural default bars federal habeas review of petitioner’s Fourth Amendment claim, independent of the Stone rule, respondent is also correct. Procedural default exists where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, or (2) the petitioner fails to exhaust all available state remedies, and the state court to which he would be required to petition would now find the claims proeedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In either instance, the petitioner is deemed to have forfeited his federal habeas claim. O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). However, such procedural defaults only bar federal habeas review when the state procedural rule that forms the basis for the procedural default was “firmly established and regularly followed” by the time it was applied to preclude state judicial review of the merits of a federal constitutional claim. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935, (1991); Busby, 359 F.3d at 718. When it disposed of petitioner’s Fourth Amendment claim based on state procedural default principles, the Texas Court of Criminal Appeals expressly relied on a long line of opinions holding that a defendant who wishes to contest the validity of a search or arrest warrant and the supporting affidavit that has been presented to the state trial court for evaluation must see that the warrant and affidavit are included in the appellate record. See Moreno v. State, 858 S.W.2d at 461, citing Miller v. State, 736 S.W.2d 643, 647-48 (Tex.Crim.App.1987), in turn citing Rumsey v. State, 675 S.W.2d 517, 519-20 (Tex.Crim.App.1984)(“the burden is on the defendant to include a contested affidavit supporting an arrest warrant in the record”), in turn citing Dusek v. State, 467 S.W.2d 270, 272 (Tex.Crim.App.1971)(“If the appellant desired to attack the legality of his arrest and subsequent search upon that basis, it was incumbent upon him to see that the affidavits were properly in the appellate record.”). Thus, the state procedural rule that led to the summary dismissal of petitioner’s Fourth Amendment claim on direct appeal was firmly established and regularly applied long before the date of petitioner’s Jackson v. Denno hearing. Petitioner’s procedural default bars federal habeas review of his Fourth Amendment claim. 5. De Novo Merits Review Nevertheless, because petitioner’s Fourth Amendment claim furnishes the foundation for petitioner’s first assertion of ineffective assistance by his appellate counsel, this Court must examine the merits, or lack thereof, of this claim. a.“Totality of the Circumstances” is the Test Insofar as petitioner premises his Fourth Amendment claim on the two-pronged test derived from the Supreme Court’s holdings in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), that reliance is misplaced. The Supreme Court expressly rejected the Aguilar-Spinelli approach to probable cause determinations in Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)(“[W]e conclude that it is wiser to abandon the ‘two-pronged’ test established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations.”). b.Good-Faith Exception to Exclusionary Rule Moreover, because the arrest and search were executed pursuant to a facially valid warrant in petitioner’s case, the appropriate federal constitutional standard for evaluating petitioner’s challenge to the legality of his arrest and the search of his residence on February 7, 1986 is set forth in the Supreme Court’s opinion in United States v. Leon, 468 U.S. 897, 918-20, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)(holding that evidence obtained by an officer acting with objective good faith who has obtained a search warrant from a magistrate and acted within its scope will not be suppressed even if the warrant is subsequently determined to be deficient). This “good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Id. at 922 n. 23, 104 S.Ct. 3405. Under this standard, suppression is ordinarily appropriate in only four situations: (1) where the issuing judicial officer was misled by information in an affidavit that the affiant knew was false or would have known was false but for his reckless disregard of the truth; (2) where the issuing judicial officer wholly abandoned his judicial role; (3) the warrant is based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; and (4) where the warrant is so facially deficient, i.e., failing to particularize the place to be searched or the things to be seized, that the executing officers cannot reasonably presume it to be valid. Id. at 923, 104 S.Ct. 3405. c.Applying the Goodr-Faith Exception The Fifth Circuit employs a two-step approach to rulings on motions to suppress where a search warrant is involved, inquiring first whether the good-faith exception of Leon outlined above applies; and, if it does, the Fourth Amendment inquiry ends. See, e.g., United States v. Froman, 355 F.3d 882, 888 (5th Cir.2004); United States v. Hinojosa, 349 F.3d 200, 203 (5th Cir.2003). The primary focus of the testimony during petitioner’s Jackson v. Denno hearing was on the circumstances surrounding the creation and execution of petitioner’s written confession. Nevertheless, other testimony from that same hearing furnishes a plethora of evidence establishing the good faith of the law enforcement officers who executed the petitioner’s arrest and search warrant on February 7, 1986, as well as the officer who executed the affidavit used to secure that warrant. More specifically, San Antonio Police Officer Salvador A. Gonzales testified at petitioner’s Jackson v. Denno hearing that (1) while investigating a series of burglaries unrelated to the Cruz murder, on February 3, 1986, he was informed by a pair of confidential informants that Jose Angel Moreno had possession of a handgun, (2) while neither of the two confidential informants had ever before furnished Gonzales with information relating to any criminal activity, Gonzales had personally known one of the informants for over fifteen years and knew him to be a reliable and credible person, (3) Gonzales had known the other confidential informant for only a few months but knew him to be a relative of the other informant and likewise reliable, (4) both the confidential informants were “respected people in the community,” (5) two days later, on February 5, 1986, the confidential informants reported to Gonzales that the weapon in petitioner’s possession was a .44 caliber handgun, (6) later that date, Gonzales contacted Bexar County Deputy Sheriff Salvador Marin, the law enforcement officer heading the Cruz murder investigation, and learned from Marin that a Bexar County ballistics expert had determined the weapon used to murder Cruz was a .44 Charter Arms Bulldog revolver, (7) the ballistics expert’s conclusion regarding the caliber of the Cruz murder weapon was not public knowledge at that time, (8) on February 6, 1986, the confidential informants reported to Gonzales that, the day before, they had personally observed petitioner carrying a .44 caliber Charter Arms Bulldog revolver in his waistband and storing the gun between the mattress and box springs of petitioner’s bed at his residence at 133 Sexauer, (9) that same date, the confidential informants also furnished Gonzales with the serial number of the handgun in question, (10) later on February 6, 1986, Gonzales transmitted the foregoing information to both Deputy Marin and San Antonio Police Homicide Lieutenant Jack Summey, (11) on February 7, 1986, Gonzales obtained a copy of the audiotape recording of the ransom demand telephone call recorded at Cruz’s residence on January 22, 1986 from Lt. Summey, (12) that same date, Gonzales played the tape recording for his confidential informants and both of them identified the voice making the ransom demand on the recording as petitioner’s, and (13) Gonzales immediately communicated his confidential informants’ identifications of petitioner’s voice to Lt. Summey. Bexar County Sheriffs Investigator Salvador Marin testified at petitioner’s Jackson v. Denno hearing that (1) all of the information regarding the statements of a confidential informant referenced in his search/arrest warrant affidavit came to him either directly from Officer Gonzales or from Officer Gonzales through Lt. Sum-mey, (2) he had no personal knowledge regarding the identity of the confidential informant until May 3, 1986, (3) on February 5, 1986, Officer Gonzales called him to inquire as to the caliber of the weapon used in the Cruz murder, (4) he informed Gonzales that the ballistics expert had identified the murder weapon as a .44 caliber Charter Arms Bulldog revolver, (5) Marin had obtained this information directly from Bexar County ballistics expert Richard Stengel and, as of that date, this information had been communicated only among the law enforcement officers investigating the Cruz murder, (6) Gonzales reported to Marin that his confidential informant had informed Gonzales the petitioner was in possession of a .44 caliber handgun and ammunition, which the confidential informant had personally observed at petitioner’s residence, (7) Gonzales gave Marin petitioner’s name, age, and address, (8) this was the first time petitioner’s name had come up in the investigation of the Cruz kidnaping and murder, (9) on February 6, 1986, Gonzales reported further to Marin that Gonzales’ confidential informant had informed Gonzales that the serial number of petitioner’s handgun was 808496, he had observed petitioner carrying the weapon in his waistband and storing it between a mattress and box springs at petitioner’s residence at 133 Sexauer, and two of petitioner’s close friends, named Armando and Celestino, had disappeared from the neighborhood, (10) while Marin was not present when Gonzales played the ransom-demand tape recording for the confidential informant, Gonzales told Marin on February 7, 1986 that the confidential informant had listened to the tape and identified petitioner’s voice, (11) on February 7, 1986, Gonzales reported to Marin that his confidential informant did not have a criminal record, had never been in trouble with the law, and was gainfully employed in San Antonio, (12) Gonzales also told Marin that he had personally known the informant his whole life and knew the informant to be credible and reliable, (13) nonetheless, Marin directed Gonzales to re-check the informant’s arrest record, and (14) thereupon, Gonzales walked across the room, checked the confidential informant’s criminal background on a computer in Marin’s presence, and reported once again that the confidential informant had no arrest record. At the time Deputy Marin applied for a warrant for petitioner’s arrest and to search petitioner’s residence at 133 Sex-auer for a .44 caliber Charter Arms Bulldog revolver, Deputy Marin had information, albeit hearsay information, in his possession that established that (1) a confidential informant had related to Officer Gonzales highly fact-specific information that, on February 5, 1986, the informant had personally seen a .44 caliber handgun, with a specific serial number, matching the make and model of the murder weapon used in the Cruz case, in a precise location within petitioner’s residence, (2) Gonzales had known the confidential informant for many years and believed the informant to be credible and reliable, (3) the informant had no criminal record and was an established, respected, gainfully employed member of the community, and (4) Gonzales’s informant had also listened to the tape recording of the ransom demand telephone call and had identified petitioner’s voice as the one demanding a ransom for Cruz’s release on that recording. Petitioner has failed to identify any information furnished by either of Officer Gonzales’s confidential informants that proved to be factually erroneous. On the contrary, the search of petitioner’s residence on February 7, 1986 revealed that the .44 caliber Charter Arms Bulldog revolver identified by Officer Gonzales’s confidential informants was in the precise location the informants had advised Officer Gonzales they had seen it. The confidential informants also furnished law enforcement officers with a serial number for that handgun that later proved to be accurate. Likewise, petitioner’s written confession and the testimony at petitioner’s trial established beyond any doubt that petitioner’s voice was the one recorded by the San Antonio Police Department just after noon on January 22, 1986 making a telephonic demand for ransom in exchange for Cruz’s release and warning “you killed him.” Petitioner argues that several statements contained in Marin’s arrest/search warrant affidavit were either false or made with reckless disregard for the truth, thus depriving the State of the benefits of the good-faith exception to the Fourth Amendment’s exclusionary rule. Petitioner’s hypercritical reading of Marin’s affidavit ignores the unassailable fact that all the information furnished to law enforcement officers by Officer Gonzales’s confidential informant(s) reflected in Marin’s affidavit proved to be fully accurate. Petitioner’s other complaints about the accuracy of Marin’s affidavit suffer from this same fundamental defect. For instance, petitioner complains that Marin’s affidavit erroneously identifies himself as the law enforcement officer to whom the confidential informants) identified petitioner’s voice as that of the ransom-demanding caller recorded by police. However, the identity of the law enforcement officer to whom the informant(s) made that identification was irrelevant to the issue of whether probable cause existed to believe petitioner was involved in Cruz’s kidnaping and murder. More importantly, petitioner presents no allegation, much less any evidence, showing that the informant’s identification of petitioner’s voice was inaccurate. Likewise, petitioner complains that Marin’s affidavit identifies himself as the law enforcement officer who checked Bexar County records to ascertain that the confidential informant had never been arrested. However, petitioner does not allege any facts, much less furnish any evidence, suggesting that either of Officer Gonzales’s confidential informants had been arrested prior to February 7, 1986. Marin’s admissions that Officer Gonzales, rather than Deputy Marin, was the law enforcement officer who dealt directly with the confidential informants did not dimmish the accuracy of the information related to law enforcement officials by the informants. Petitioner also complains that Marin’s affidavit did not set forth detailed facts establishing the credibility and reliability of the confidential informant. Whatever the efficacy of such an argument under the Aguilar-Spinelli test for evaluating probable cause, the Supreme Court has rejected such an approach to probable cause determinations. See Gates, 462 U.S. at 233-34, 103 S.Ct. 2317 (“[I]f an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him to criminal liability — we have found rigorous scrutiny of the basis for his knowledge unnecessary.”). Additionally, the highly fact-specific nature of the confidential informant’s reports on the make, model, and location of petitioner’s handgun furnish support for a probable cause finding under the totality of the circumstances standard. Id. at 234, 103 S.Ct. 2317 (“[E]ven if we entertain some doubt as to an informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles him to greater weight than might otherwise be the case.”). The Fourth Amendment demands a “truthful showing” of probable cause. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). However, this does not mean that every fact recited in a search or arrest warrant affidavit must be accurate, for probable cause may be founded upon hearsay, information received from informants, and information within the affiant’s personal knowledge gathered hastily. Id. at 165, 98 S.Ct. 2674. A probable cause affidavit is “truthful” if the information put forth therein is believed or appropriately accepted by the affiant as true. Id. Deputy Marin testified at petitioner’s Jackson v. Denno hearing that he believed all the factual information contained in his affidavit was accurate, including the statements therein reflecting information furnished by Officer Gonzales’s confidential informant. Having independently reviewed the record from petitioner’s Jackson v. Denno hearing, this Court finds that Deputy Marin’s belief was objectively reasonable given the information then at his disposal. Thus, Deputy Marin acted in an objectively reasonable manner for purposes of the rule in United States v. Leon when he relied upon the state magistrate’s issuance of a warrant for petitioner’s arrest and the search of 133 Sexauer for a .44 caliber Charter Arms Bulldog handgun. Petitioner’s Fourth Amendment claim is, therefore, foreclosed by the good-faith rule announced in Leon more than two years before petitioner’s trial. D. Ineffective Assistance by Appellate Counsel 1. The Claims In his second claim for relief in his second amended petition, petitioner argues that his appellate counsel rendered ineffective assistance by failing to (1) include the necessary elements, i.e., Deputy Marin’s affidavit, in the appellate record, (2) investigate, discover, and raise in petitioner’s motion for new trial complaints that the jury improperly discussed parole during its deliberations, and (3) raise a point of error challenging the erroneous definitions of the culpable mental states contained in the guilt-innocence phase jury instructions. 2. Clearly Established Federal Law The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of trial counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. To satisfy the first prong of Strickland, i.e., to establish that his counsel’s performance was constitutionally deficient, a convicted defendant must show that counsel’s representation “fell below an objective standard of reasonableness.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In so doing, a convicted defendant must carry the burden of proof and overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance. Strickland, 466 U.S. at 687-91, 104 S.Ct. 2052. Courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. See Wiggins, 539 U.S. at 523, 123 S.Ct. 2527 (holding that the proper analysis under the first prong of Strickland is an objective review of the reasonableness of counsel’s performance under prevailing professional norms that includes a context-dependent consideration of the challenged conduct as seen from the perspective of said counsel at the time). It is strongly presumed that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. To satisfy the “prejudice” prong, a convicted defendant must establish a reasonable probability that, but for the objectively unreasonable misconduct of his counsel, the result of the proceeding would have been different. Wiggins, 539 U.S. at 534, 123 S.Ct. 2527; Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id. The same standard applies to complaints about the performance of counsel on appeal. See Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (holding that a petitioner arguing ineffective assistance by his appellate counsel must establish both that (1) his appellate counsel’s performance was objectively unreasonable and (2) there is a reasonable probability that, but for appellate counsel’s objectively unreasonable conduct, the petitioner would have prevailed on appeal). 3. AEDPA Review a. The Standard of Review Petitioner correctly points out that the state habeas trial court’s written Order applied the wrong federal constitutional standard in rejecting petitioner’s complaints of ineffective assistance by petitioner’s appellate counsel. However, this does not, standing alone, entitle petitioner to federal habeas relief. Under the AEDPA, the duty of this Court in a federal habeas corpus proceeding is not to evaluate or critique the state court’s written opinion but, rather, to ascertain whether its ultimate disposition of a claim, i.e., its “decision,” constituted an unreasonable application of clearly established federal law or an unreasonable determination of the facts from the evidence then before that court. See Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir.2003) (holding that the precise question before a federal habeas court in reviewing a state court’s rejection on the merits of an ineffective assistance claim was whether the state court’s ultimate conclusion was objectively reasonable); Anderson v. Johnson, 338 F.3d 382, 390 (5th Cir.2003)(holding a federal habeas court reviews only a state court’s decision and not the opinion explaining that decision); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc) (holding that a federal court is authorized by § 2254(d) to review only a state court’s decision and not the written opinion explaining that decision). Thus, in evaluating petitioner’s complaints about the performance of his appellate counsel under the AEDPA, the issue before this Court is whether the Texas Court of Criminal Appeals could reasonably have concluded that petitioner’s complaints about his appellate counsel’s performance failed to satisfy either prong of the Strickland analysis. Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir.2003). In making this determination, this Court must consider the underlying Strickland standard. Id. b. Failure to Include Affidavit (1) No Deficient Performance This Court has independently reviewed the entire record from petitioner’s Jackson v. Denno hearing, trial, post-trial hearings, and direct appeal. While the Texas Court of Criminal Appeals did dismiss petitioner’s fifth, sixth, and seventh points of error on direct appeal because the appellate record did not include Deputy Marin’s affidavit, this Court finds no basis for concluding that petitioner’s appellate counsel was responsible for this procedural default. On the contrary, the Texas Court of Criminal Appeals’ opinion on direct appeal identified the failure of petitioner to “secure a ruling by the trial court” on the admissibility of the contested affidavit as the reason why that document was not included in the appellate record. Moreno, 858 S.W.2d at 462. In so doing, the state appellate court implicitly laid the blame for this procedural default squarely at the feet of petitioner’s trial counsel, not his appellate counsel. Thus, the state habeas court could reasonably have concluded that petitioner’s state appellate counsel could not be held responsible for the absence of Marin’s affidavit from the state appellate record. (2) No Prejudice Even assuming that the fault for petitioner’s procedural default can be assigned to petitioner’s appellate counsel, the state habeas court could reasonably have concluded that petitioner’s first assertion of ineffective assistance failed to satisfy the prejudice prong of Strickland. For the reasons set forth at length above in Section H.C.5.C., • petitioner’s Fourth Amendment claim lacks even arguable merit under the federal constitutional standards applicable at the time of petitioner’s direct appeal. In fact, petitioner’s fifth, sixth, and seventh points of error on direct appeal were legally frivolous. The discussion of those points of error included in petitioner’s appellant’s brief, filed January 19, 1989, constituted little more than a thinly-veiled attempt to resurrect the two-pronged Aguilar-Spinelli test the Supreme Co