Prieto v. Dretke (386 F. Supp. 2d 767, 2005)

MEMORANDUM OPINION AND ORDER DENYING RELIEF

GARCIA, District Judge.

Petitioner Arnold Prieto filed this federal habeas corpus action pursuant to Title 28 U.S.C. Section 2254 challenging his March, 1995, Bexar County capital murder conviction and sentence of death. For the reasons set forth below, petitioner is not entitled to federal habeas corpus relief but is entitled to a Certificate of Appealability on a pair of legal issues.

I. Statement of the Case

A. The Offense and Aftermath

1. The Crime Scene

There is no genuine dispute as to the operative facts concerning petitioner’s offense. On Sunday afternoon, September 12, 1993, Maria Luisa Rodriguez visited the home of her mother-in-law and father-in-law, Virginia and Rodolfo Rodriguez, where she discovered the bloody, lifeless, bodies of both her elderly in-laws, along with the body of their houseguest, ninety-year-old Paula “Lupita” Moran. Autopsies revealed that each victim had been stabbed numerous times and had received multiple, potentially fatal, injuries. Examination of the crime scene yielded no sign of forced entry but clear indications that a padlock on a front bedroom closet door had been opened by force.

2. The Intervieiv of Jesse Hernandez

Acting in response to a series of anonymous tips from a female Crime Stoppers caller in the months following the murders, on March 3, 1994, law enforcement officers interviewed Jesse Hernandez, the great-nephew of Virginia Hernandez, in Carroll-ton, Texas. Based on information they obtained during that interview, law enforcement officers obtained warrants for the arrest of petitioner and Jesse Hernandez’s older brother Guadalupe.

3. Petitioner’s Arrest and Confession

Petitioner was arrested during the early morning hours of March 4, 1995. After being warned of his Miranda rights both orally and in writing, petitioner agreed to be interviewed by law enforcement officers in connection with the murders;

At the conclusion of his interview, petitioner executed a five-page voluntary statement in which he admitted, in pertinent part, that (1) in the weeks prior to the murders, Guadalupe “Lupe” Hernandez, who often furnished petitioner with cocaine, had made several comments to petitioner that he had an uncle in San Antonio who kept a large sum of money in a closet and that he (Lupe Hernandez) wanted to “get the money”; (2) on the night in question, he, Lupe Hernandez, and Lupe’s brother, Jesse Hernandez, left Carrollton, Texas for San Antonio; (3) petitioner agreed to go along initially because Lupe was furnishing him with cocaine and drove his own vehicle from, Carrollton to Waco, at which point, Lupe took over driving; (4) Lupe parked the car along the curb at his uncle’s house and crudely ordered petitioner to get out of the car; (5) Lupe knocked on the door and, when a female voice asked who it was, Lupe responded in Spanish “It’s me aunt”; (6) a lady in her nightgown opened the door and let them in; (7) the lady offered them food and then prepared them breakfast; (8) after petitioner ate, Jesse called him into a bedroom where Lupe’s uncle was sitting on the bed; (9) petitioner sat on the bed next to the uncle and then heard the lady who had cooked them breakfast scream; (10) petitioner looked into the kitchen and saw Lupe stabbing his aunt with some long object that looked like a screwdriver; (11) the lady fell to the floor between the refrigerator and table; (12) when the uncle attempted to get up, petitioner pushed and held him down; (13) Jesse then handed petitioner a screwdriver and petitioner stabbed the man “a lot of times”; (14) after petitioner stopped stabbing him, the man was the bed face down; (15) Lupe told petitioner to “move”; (16) petitioner went into the kitchen and observed the aunt laying between the kitchen and another room while Jesse entered the living room; (17) petitioner then heard a loud “pop” come from the living room; (18) petitioner then observed an old lady in a nightgown in the living room with her head propped against a wall; (19) petitioner stood in the doorway and observed as Jesse pried open a closet door with his hands, began ransacking the closet, and repeatedly yelled profanities; (20) petitioner told Jesse “let’s go” and ran past the old lady in the living room, who moved; (21) petitioner then saw Jesse stab the old woman a lot of times; (22) when petitioner approached Jesse, he was cut on the hand; (23) petitioner then observed Lupe exit the bedroom where petitioner had stabbed the old man; (24) Lupe was carrying a colored purse and screwdriver; (25) during their drive to San Antonio, Lupe directed the others to put socks on their hands so as to avoid leaving fingerprints; (26) Lupe then drove then back to Carrollton while petitioner threw up and continued to use cocaine; (27) when they arrived back in Car-rollton, they divided up the money and jewelry they had obtained; (28) petitioner received about a hundred dollars cash and a gold nugget ring containing a coin which bore the image of a deer on top and a gold chain with a crucifix; (29) months later, petitioner gave the gold nugget ring to a friend named Andy Nunez; (30) petitioner gave the gold chain to Andy’s stepson; and (31) a few days after the murders, petitioner asked Lupe for money and Lupe gave petitioner several pieces of jewelry which petitioner pawned.

4. Recovery of the Ring

Law enforcement officer later obtained a gold nugget-Kruggerand ring from Andy Nunez, which was admitted into evidence at trial as State Exhibit no. 81 and identified by members of the victims’ family as belonging to Rodolfo Rodriguez. Nunez advised law enforcement officers that petitioner had given him the ring in question.

B. Indictment

On January 26, 1995, a Bexar County grand jury indicted petitioner in cause no. 95-CR-0425B in a one-Count, three-paragraph, indictment charging petitioner with having (1) intentionally and knowingly caused the deaths of both Rodolfo Rodriguez and Paula Moran during the same criminal transaction by cutting and stabbing them with a knife, screwdriver, or a weapon unknown, (2) intentionally and knowingly caused the deaths of both Rodolfo Rodriguez and Victoria Rodriguez during the same criminal transaction by cutting and stabbing them with a knife, screwdriver, or a weapon unknown, and (3) intentionally and knowingly caused the death of Rodolfo Rodriguez while in the course of committing and attempting to commit the robbery of Rodolfo Rodriguez by cutting and stabbing him with a knife, screwdriver, or a weapon unknown.

C. Guilh-Innocence Phase of Trial

The guilt-innocence phase of petitioner’s trial commenced on March 20,1995. After the prosecution presented the evidence outlined above, petitioner called only one witness, who testified to having seen two men whom he could not identify in a gray-primer pickup truck stop at, and enter, the Rodriguez residence shortly before midnight the night of the murders and then hurriedly leave the neighborhood about fifteen-to-twenty minutes later. On March 27, 1995, after deliberating less than four hours, the jury returned its verdict, finding the petitioner guilty of capital murder.

D. Punishment Phase of Trial

The punishment phase of petitioner’s capital murder trial commenced on March 28, 1995.

1. Prosecution’s Evidence

The prosecution presented several witnesses who testified that petitioner had been involved with several other persons in a theft of more than $670,000 worth of laptop computers from the warehouse of his employer in January, 1994. A classification officer from the Bexar County Adult Detention Center (“BCADC”) testified that (1) petitioner had incurred ten disciplinary infractions during petitioner’s period of pretrial detention at that facility, from March, 1994 until March, 1995, (2) petitioner’s disciplinary infractions included multiple instances of possession of contraband (a torn tee shirt sleeve and food), multiple instances of refusing to obey oral orders (going upstairs when directed not to do so, conversing with others on the opposite side of the POD) and multiple instances of failing to comply with posted rules (repeatedly placing items over the light fixture in his cell, engaging in loud or boisterous behavior, entering the day room in only his under garments), (3) none of petitioner’s disciplinary infractions involved violent conduct or threats of violence and all were considered minor infractions, (4) upon his admission to the BCADC, petitioner admitted to weekly cocaine use but declined to participate in a substance abuse program, (5) petitioner denied any gang affiliation, (6) the only reason petitioner was listed as a “high security” inmate was the charge against him, (7) petitioner had agreed to most of the disciplinary sanctions imposed upon him for his disciplinary infractions, and (8) petitioner had not engaged in any assaul-tive behavior during detention.

However, a BCADC guard did testify about an incident on January 7, 1995 in which (1) the guard entered petitioner’s cell to remove contraband, i.e., milk cartons and oranges, (2) petitioner confronted the guard as he was attempting to exit petitioner’s cell and seized one of the oranges from the guard’s hand, (3) petitioner then went into the day room and ate the orange, declaring to other inmates and the guard that no disciplinary case would be brought against him without the orange as evidence, and (4) the guard felt threatened by petitioner’s confrontational conduct and did not directly challenge petitioner’s behavior at the time petitioner seized the orange from him because he deemed it unsafe to do so under the circumstances.

A trio of City of Carrollton law enforcement officer testified about an incident on August 20, 1990 in which (1) petitioner and other persons were observed riding around very late at night, (2) shortly thereafter, police received a call was received from the same area concerning the burglary of a motor vehicle, (3) petitioner and another person were observed running from the scene of the burglarized vehicle and refused orders from officers to halt, (4) petitioner and the other youth were subsequently found hiding behind a church, (5) following his arrest, petitioner gave police two written statements in which he admitted to having participated in a series of motor vehicle burglaries on that night and a previous night, and (6) petitioner was indicted, plead guilty, and received deferred adjudication probation for those offenses. The state trial court also admitted a certified copy of the judgment in petitioner’s prior criminal case.

2. Petitioner’s Evidence

Petitioner’s mother testified that (1) her difficult marriage to petitioner’s father ended in divorce in 1986, (2) petitioner was the oldest of four children, (3) petitioner’s father physically abused both her and petitioner, (4) petitioner witnessed her being abused by her husband, (5) on several occasions, when petitioner was as young as two years old, his father threw petitioner outside at night and locked the door, (6) petitioner’s father also struck petitioner and kicked petitioner when petitioner was five years old, (7) petitioner’s father did not push petitioner to attend school but did punish petitioner when he brought home poor grades, (8) before her divorce, her children lived in fear of their father, (9)following her divorce, she received no child support from petitioner’s father, (10) beginning when he was fifteen, petitioner often went with her and assisted her doing janitorial work at night, (11) petitioner did not finish high school, (12) on a trip to Juarez, Mexico, petitioner wept when he saw people begging for food money, (13) petitioner wept when a neighbor poisoned an injured bird petitioner had nursed back to health, (14) petitioner often took care of his younger siblings when she was working, (15) petitioner is married and has a baby boy, age one year, four months, (16) petitioner’s father would not allow the family to celebrate Christmas during their marriage, (17) petitioner was very friendly and had many friends, and (18) after dropping out of school, petitioner worked off and on.

Petitioner’s sister testified that (1) she was 18 years old and had borne Jesse Hernandez a daughter even though they had never married, (2) petitioner often took care of his younger siblings and also helped their mother care for an elderly neighbor, (3) petitioner sometimes went downstairs to protect a married neighbor from assaults by her abusive husband, (4) their father was mean to petitioner, often hitting petitioner with his hand or a belt or belt buckle, (5) when they were children, their father once locked both her and petitioner in the unlit basement all night because they would not be quiet and go to sleep, (6) on another occasion, their father locked petitioner outside at night, (7) she and petitioner prepared food for their younger siblings, (8) petitioner supervised the other children in their family, (9) she and petitioner were the closest of friends until petitioner married and moved out, (10) petitioner had never fought anyone, (11) prior to their parents’ divorce, when their father assaulted petitioner, their mother would attempt to intervene but their father would push her aside and continue assaulting petitioner, (12) petitioner never told her what happened in San Antonio on the night of the murders, and (13) she was unaware that petitioner had ever ingested cocaine.

Petitioner’s aunt testified that (1) she frequently saw petitioner while he was growing up in New Mexico and Hereford, Texas, (2) petitioner and his siblings were very close, (3) prior to his parents’ divorce, petitioner and his siblings could not celebrate Christmas, (4) following them parents’ divorce, petitioner became a role model for his younger siblings, (5) she was unaware that petitioner had been indicted and convicted for burglary of a motor vehicle at age 17, (6) she did not know petitioner used cocaine, (7) she was unaware that petitioner was then under indictment in connection with the theft of over $200,000 in computers, and (8) petitioner’s conviction for capital murder did not change her opinion of his character.

Petitioner’s 15-year-old brother testified that (1) he was close to petitioner, (2) petitioner had many friends, (3) petitioner had encouraged him to stay away from gangs and drugs, (4) petitioner supervised him when their mother was away and was never violent toward him, and (5) he was unaware that petitioner had done drugs.

3. The Verdict

After deliberating for more than twelve hours, and sending out several notes indicating the jurors were deadlocked, during the early morning hours of March 30,1995, petitioner’s jury returned its verdict at the punishment phase of trial, finding (1) beyond a reasonable doubt that there was a probability petitioner would commit criminal acts of violence that would constitute a continuing threat to society, (2) beyond a reasonable doubt that petitioner either actually caused the death of the decedents on the occasion in question or, if he did not actually cause their deaths, that he intended to kill the decedents or another, or anticipated that a human life would be taken, and (3) taking into consideration all the evidence, including the circumstances of the offense, the petitioner’s character and background, and petitioner’s personal moral culpability, there were insufficient mitigating circumstances to warrant a life sentence.

E. Motion for New Trial

On April 27, 1995, petitioner filed a motion for new trial complaining that (1) the trial court had failed to send a copy of petitioner’s written statement back into the jury room during the punishment phase deliberations and (2) after retiring to deliberate, the jury received “additional evidence” regarding petitioner’s parole eligibility which impacted the outcome at least one juror’s deliberations.

On May 23, 1995, the state trial court held an evidentiary hearing on petitioner’s motion for new trial, during which three jurors testified regarding the punishment phase deliberations at petitioner’s trial. Juror Marjorie Egloff testified that (1) during deliberations, one member of the jury professed to know that good conduct time credits could reduce the length of time the petitioner would have to serve to only 15-to-20 years, (2) until that time, she had been “going for life” but thereafter decided to change her vote, (3) at one point, the vote on the third special issue was nine “yes,” two “no,” and one undecided, with her being the undecided vote, (4) she had executed an affidavit for the District Attorney’s office in which she denied any outside influence had impacted the jury’s deliberations but had not discussed the jury’s deliberations over parole eligibility with the District Attorney’s office before she executed that affidavit, (5) the other juror did not profess to know the law but did say he was familiar with a “similar case,” (6) the jury charge at the punishment phase advised the jury that petitioner would not be eligible for parole for at least 40 years, (7) the other juror or jurors who mentioned good conduct time credits did not say that they knew the law as it applied to petitioner, and (8) she had been confused by the jury charge’s language which read that a prisoner convicted of capital felony serving a life sentence would not be eligible for release on parole “until actual calendar time a prisoner has served without consideration of good conduct time equals 40 years.”

The foreman of petitioner’s jury testified that (1) when them discussions turned to the question of good time credits and parole, he advised the jury they could not discuss it and several other jurors admonished the group that they could not consider parole or good time credits, (2) he reread the portion of the court’s punishment phase jury charge addressing those subjects many times during their deliberations, (3) no juror professed to possess personal knowledge regarding the law but one or more jurors did claim to have a family member who had received good time credit and gotten out in 15-to-20 years, and (4) the jury charge was read and passed freely around the room during their deliberations.

Another juror testified that (1) the jury charge was reviewed many times during the punishment phase deliberations, (2) one juror shared that he had a family member serving a life term who would be out in 12-to-15 years or something, (3) that juror did not profess to know the law but, rather, only observed that he expected his relative serving a life sentence to be out in ten or twelve or fifteen years, (4) other jurors responded by saying “this is not what we are supposed to discuss” and encouraged the jury to re-read the jury charge, but (5) there was nonetheless some confusion among the jury as to the meaning of the phrase “without consideration of good conduct time” near the middle of their deliberations.

The trial court denied petitioner’s motion for new trial.

F. Direct Appeal

Petitioner appealed both his conviction and sentence. In his appellant’s brief, filed February 29, 1996, petitioner presented forty-seven points of error complaining about a plethora of alleged violations of his state and federal rights. In an unpublished opinion issued December 16, 1998, the Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence. Petitioner did not thereafter seek further review of his conviction on direct appeal by filing a certiorari application with the United States Supreme Court.

G. State Habeas Corpus Proceeding

On October 8, 1999, petitioner filed an application for state habeas corpus relief in which he asserted sixty-six grounds for relief.

The state trial court held an evidentiary hearing in petitioner’s state habeas corpus proceeding on May 31 and June 9, 2000. During that hearing, petitioner’s former second chair co-counsel at trial testified that (1) she had urged petitioner to accept a plea bargain offered by the prosecution under which petitioner would have received a pair of thirty-year terms in exchange for petitioner’s testimony against Guadalupe Hernandez but, after vacillating, petitioner declined the plea offer, (2) she and petitioner’s lead trial counsel con-suited with a neuropsychologist (Dr. Eu-banks) who evaluated petitioner but chose not to call that expert to testify at petitioner’s trial for reasons she could not recall, (3) she and petitioner’s lead trial counsel consulted with an expert on future dangerousness (Dr. Dickerson) but chose not to call that expert to testify at petitioner’s trial because to do so would have opened the door to rebuttal testimony from the prosecution’s toxicologist, (4) she and petitioner’s lead trial counsel also consulted with a pharmacologist (Dr. Blum) regarding the effects of cocaine ingestion and addiction but chose not to call that expert to testify, either, (5) she learned only after trial that the jury had not had petitioner’s confession with them during their punishment phase deliberations, (6) petitioner did not have a violent past but did admit to drug abuse in his written statement, which was corroborated by the physical evidence at the crime scene, (7) the principal trial strategy for the guilt-innocence phase of trial was to seek to exclude petitioner’s confession and, failing that, the fall-back strategy was to emphasize petitioner’s drug use on the night of the murders, (8) she never had any problems communicating with petitioner and there was never any issue regarding petitioner’s competence to stand trial, (9) the testimony at trial established that petitioner had been indicted in connection with the theft of laptop computers in Carroll-ton, (10) at the punishment phase of trial, she and petitioner’s lead trial counsel elicited testimony from petitioner’s family members showing that petitioner’s father had abused petitioner, petitioner had not graduated from high school but, instead, had dropped out to help his family financially, and (11) she and petitioner’s lead trial counsel simply “forgot” to re-offer petitioner’s school records at the punishment phase of trial. Neither party called petitioner’s lead trial counsel, attorney Michael Bernard, to testify at petitioner’s state habeas corpus hearing.

Petitioner’s mother testified, in much the same manner as she had at trial, that (1) she had divorced petitioner’s father in 1986, (2) petitioner’s father was a strict disciplinarian who often kicked and beat petitioner violently, especially when the children made noise, (3) petitioner tried to stop his father’s assaults upon his mother, (4) as a child, petitioner once ran into the bumper of a car and was knocked unconscious but, for financial reasons, his father would not allow petitioner to be taken to the hospital, (5) on another occasion, however, petitioner was run over by a car and spent a night in the hospital, after which petitioner suffered memory loss for about two weeks, (6) petitioner was a good student who made poor grades because he often helped her at her work at night, (7) she was unaware of petitioner’s drug use and noticed no chance in his emotional state after petitioner allegedly began using drugs, (8) she was unaware that petitioner had turned down a plea bargain offer, and (9) while petitioner had never admitted to her that he had killed anyone, he had expressed remorse to her through his tears on one occasion.

Petitioner’s sister testified, again in much the same manner as she had at trial, that (1) her daughter by Jesse Hernandez was then six years old, (2) Jesse Hernandez had received a life sentence for his role in the murders and she no longer had any contact with him, (3) she still had some contact with the Hernandez family and was worried what Guadalupe Hernandez, who remained free, would do when he learned she was testifying for her brother, (4) she once asked Guadalupe Hernandez what had happened the night of the murders but he became upset and refused to tell her, (5) she was unaware the petitioner had turned down a plea bargain, (6) their father had been abusive toward petitioner, beating him with a belt, (7) she had never seen petitioner use cocaine but knew Guadalupe Hernandez used cocaine daily, (8) she was unaware that petitioner has confessed to his wife that he had killed someone, and (9) petitioner had always denied doing anything.

The former Assistant Bexar County District Attorney who served as lead prosecutor at petitioner’s trial testified that (1) Jesse Hernandez was certified as an adult and received a life sentence for his role in the murders, (2) she attempted to negotiate a plea bargain with petitioner, (3) at one point, she believed petitioner had agreed to a plea offer under which petitioner would have received a life sentence but petitioner then recanted his confession and claimed that he had not stabbed anyone on the night of the murders, (4) petitioner had told his wife that he had killed someone, (5) the prosecution maintained an open file policy in petitioner’s case, (6) despite that fact, she would not have disclosed the May 13, 1994 report indicating petitioner had been “cleared” in connection with the computer theft in Carrollton because she considered that memorandum to be work product and, by January, 1995, that report was factually inaccurate, as petitioner had been indicted for his role in that offense, (7) petitioner’s indictment in Dallas was made known to petitioner’s trial counsel, (8) evidence of a defendant’s drug use is double-edged in nature, (9) she did not believe that petitioner’s auditory learning difficulties were relevant to any issue during his trial, (10) the pending charge against Guadalupe Hernandez was dismissed after she left the Bexar County District Attorney’s office, and (11) she could have called a psychiatric expert to testify at petitioner’s trial even if that expert had not personally examined petitioner.

Petitioner called a board-certified child psychiatrist who testified that (1) he had evaluated petitioner and reviewed petitioner’s confession, as well as police records regarding the offense, (2) petitioner gave a history of inhalant abuse beginning in middle school, when his grades began to drop, (3) petitioner had also suffered numerous head injuries and a history of physical abuse, (4) the day of the crime, petitioner reported continuous cocaine abuse, (5) petitioner’s cocaine abuse, combined with a pre-existing head injury, could cause mild brain impairment contributing to impairment of impulse control and aggressive behavior, (6) cocaine use has been linked to aggressive behavior, as well as depression and irritability, (7) Dr. Eubanks tested petitioner and found no significant memory impairment but did find indications of impairment of executive functioning, i.e., the ability to think reflectively and to monitor appearance and behavior in social settings, as well as an affect or mood disorder, (8) petitioner had no history of aggressive behavior as a child or teenager, (9) petitioner’s cocaine use could have negatively affected his impulse control and led to excessively aggressive behavior, (10) nonetheless, there was no evidence petitioner suffered from mental retardation, delusions, suicidal or homicidal ideation, or any form of thought disorder, (11) there was no indication petitioner suffered from a major mental illness or defect, (12) the level of petitioner’s impulse control at the time of his offense was uncertain, (13) the risk petitioner would engage in aggressive behavior increased once petitioner began ingesting cocaine, (14) petitioner was more vulnerable to peer pressure to engage in aggressive acts when using cocaine, and (15) at the time of his offense, petitioner possessed the cognitive ability to understand the wrongfulness of his conduct but lacked impulse control.

On July 23, 2001, the state trial court issued an Order containing its findings of fact, conclusions of law, and recommendation that petitioner’s state habeas corpus application be denied. The Texas Court of Criminal Appeals denied petitioner’s state habeas corpus application in an unpublished Order issued November 28, 2001.

H. Proceedings in this Court

On December 13, 2001, petitioner filed a motion requesting that this court appoint counsel to represent him in a federal habe-as corpus action challenging his conviction and death sentence. On December 17, 2001, petitioner filed a document styled “exhibits” which included, among other things, a copy of petitioner’s state habeas corpus application. On December 27, 2001, this Court appointed counsel to represent petitioner herein and set a deadline of May 3, 2002 for the filing of petitioner’s federal habeas corpus petition. On April 16, 2002, petitioner filed a motion requesting that he be granted an extension of time, until September 6, 2002, within which to file his initial federal habeas corpus petition. The following date, this Court granted that requested extension of time. On August 2, 2002, petitioner filed his initial federal habeas corpus petition. On September 24, 2002, petitioner filed an amended federal habeas corpus petition, the operative pleading in this cause. On November 20, 2002, respondent filed a motion to dismiss petitioner’s federal habeas corpus petition as untimely and an answer and motion for summary judgment. This Court subsequently permitted the parties considerable time within which to file additional briefs and to supplement the record.

II. AEDPA Standard of Review

Because petitioner filed his federal habe-as 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, 1918, 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, 1519, 146 L.Ed.2d 389 (2000); and 28 U.S.C. § 2254(d).

The Supreme Court has concluded the “contrary to” and “unreasonable application” clauses of Title 28 U.S.C. Section 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 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, 10, 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 failure to cite governing Supreme Court authority does not, per se 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.’ ” Mitchell v. Esparza, 540 U.S. at 16, 124 S.Ct. at 10.

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, 2534-35, 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.” Wiggins v. Smith, 539 U.S. at 520-21, 123 S.Ct. at 2535. The focus of this inquiry is on whether the state court’s application of clearly established federal law was objectively unreasonable; an “unreasonable” application is different from a merely “incorrect” one. Wiggins v. Smith, 539 U.S. at 520, 123 S.Ct. at 2535; Price v. Vincent, 538 U.S. 634, 641, 123 S.Ct. 1848, 1853, 155 L.Ed.2d 877 (2003) (“it is the habeas applicant’s burden to show that the state court applied that case 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.’ ”); Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003).

The AEDPA also 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. See Morrow v. Dretke, 367 F.3d 309, 315 (5th Cir.2004), cert. denied, — U.S. -, 125 S.Ct. 421, 160 L.Ed.2d 325 (2004)(“The AEDPA requires that we presume correct the state court’s findings of fact unless the petitioner ‘rebuts the presumption of correctness by clear and convincing evidence.’ ”); Pondexter v. Dretke, 346 F.3d 142, 146 & 149 (5th Cir.2003), cert. denied, 541 U.S. 1045, 124 S.Ct. 2160, 158 L.Ed.2d 736 (2004)(holding that, pursuant to § 2254(e)(1), state court findings of fact are presumed correct and the petitioner has the burden of rebutting that presumption by clear and convincing evidence); Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir.2003), cert. denied, 540 U.S. 1163, 124 S.Ct. 1170, 157 L.Ed.2d 1208 (2004), (holding the same); 28 U.S.C. § 2254(e)(1).

Finally, in this Circuit, a federal habeas court reviewing a state court’s rejection on the merits of a claim for relief pursuant to the AEDPA must focus exclusively on the propriety of the ultimate decision reached by the state court and not evaluate the quality, or lack thereof, of the state court’s written opinion supporting its decision. See Pondexter v. Dretke, 346 F.3d at 148 (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 is 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), cert. denied, 537 U.S. 1104, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003), (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).

III. Limitations Issue

Respondent has moved to dismiss petitioner’s initial substantive pleading, filed August 2, 2002, as untimely.

A. The AEDPA’s Statute of Limitations

The AEDPA imposes a one-year limitations period on the filing of federal habeas corpus petition. Pace v. DiGuglielmo, — U.S. -, -, 125 S.Ct. 1807, 1809, 161 L.Ed.2d 669 (2005); Emerson v. Johnson, 243 F.3d 931, 932 (5th Cir.2001); 28 U.S.C. § 2244(d)(1). Under the AEDPA’s one-year limitations provision, a convicted criminal defendant must file a Section 2254 petition within one year of the date his conviction becomes final generally or within one year of the AED-PA’s effective date, i.e., April 24, 1996, if the defendant’s conviction became final prior to that date. Emerson v. Johnson, 243 F.3d at 932; Ybanez v. Johnson, 204 F.3d 645, 646 (5th Cir.2000), cert. denied, 531 U.S. 881, 121 S.Ct. 193, 148 L.Ed.2d 134 (2000); Felder v. Johnson, 204 F.3d 168, 169 (5th Cir.2000), cert. denied, 531 U.S. 1035, 121 S.Ct. 622, 148 L.Ed.2d 532 (2000); Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir.1999), cert. denied, 529 U.S. 1057, 120 S.Ct. 1564, 146 L.Ed.2d 467 (2000); Turner v. Johnson, 177 F.3d 390, 391 (5th Cir.1999), cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 389 (1999); Fisher v. Johnson, 174 F.3d 710, 712 (5th Cir.1999), cert. denied, 531 U.S. 1164, 121 S.Ct. 1124, 148 L.Ed.2d 991 (2001); and Flanagan v. Johnson, 154 F.3d 196, 199-201 (5th Cir.1998). The AEDPA’s one-year limitations period serves the well-recognized interest in the finality of state court judgments by restricting the time a prospective federal habeas petitioner has in which to seek federal habeas review. See Rhines v. Weber, — U.S. -, 125 S.Ct. 1528, 1534-35, 161 L.Ed.2d 440 (2005) (recognizing that stay and abeyance is available in some cases as a means of avoiding the harsh impact of the total exhaustion requirement combined with the absence of any statutory tolling of the AEDPA’s limitations period arising from the filing of a federal habeas petition that is subsequently dismissed for lack of exhaustion); Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 1401, 155 L.Ed.2d 363 (2003)(“Congress enacted the AEDPA to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases, and ‘to further the principles of comity, finality, and federalism.’ ”).

B. Finality of Petitioner’s Conviction and Sentence

The Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence on December 16, 1998. Petitioner’s conviction became final for purposes of the AEDPA’s one-year statute of limitations not later than March 17, 1999, i.e., the ninety-first day after the date the Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence and the date the deadline for the filing of a certio-rari petition with the United States Supreme Court expired. See Foreman v. Dretke, 383 F.3d 336, 340 (5th Cir.2004)(holding a Texas prisoner’s conviction became final for AEDPA purposes 90 days after the Texas Court of Criminal Appeals denied petition for discretionary review where prisoner did not thereafter file a petition for certiorari with the United States Supreme Court); Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir.2003)(holding that a conviction becomes final at the conclusion of direct review, i.e., when either (1) the United States Supreme Court rejects a certiorari petition or rules on the merits or (2) time for seeking such review expires); 28 U.S.C. § 2244(d)(1)(A).

C. Statutory Tolling

The AEDPA and the opinions construing same recognize two sources of authority for tolling the one-year statute of limitations. The first is found in the terms of the statute itself. More specifically, the AEDPA provides that its limitations period is tolled while a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending. Pace v. DiGuglielmo, — U.S. at -, 125 S.Ct. at 1809; 28 U.S.C. § 2244(d)(2). Petitioner filed his application for state habeas corpus relief on October 8, 1999, 215 days after the AEDPA’s 365-day statute of limitation commenced to run. The Texas Court of Criminal Appeals denied petitioner’s state habeas corpus application on November 28, 2001. The statutory tolling of the AEDPA’s limitations period terminated the following date, when only 150 days of the AEDPA’s 365-day limitations period remained unexpired. Petitioner nonetheless filed his initial federal habeas corpus petition in this Court on August 2, 2002, some 248 days after the statutory tolling of the AEDPA’s one-year limitations period ended and 98 days after the AEDPA’s statute of limitations expired. Thus, even with full benefit of the AEDPA’s statutory tolling provision, petitioner’s federal habe-as corpus petition was untimely.

D. Equitable Tolling

Both the Supreme Court and Fifth Circuit have recognized, however, that the doctrine of equitable tolling applies to the AEDPA’s statute of limitations. See Pace v. DiGuglielmo, — U.S. at -, 125 S.Ct. at 1814 (holding a federal habeas petitioner seeking equitable tolling bears the burden of establishing both (1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances stood in his way); Larry v. Dretke, 361 F.3d 890, 896-97 (5th Cir.2004), cert. denied, — U.S. -, 125 S.Ct. 141, 160 L.Ed.2d 157 (2004), (recognizing the doctrine of equitable tolling preserves a petitioner’s claims when strict application of the AEDPA’s statute of limitations would be inequitable but that this doctrine applies only in “rare and exceptional circumstances” which do not exist absent a showing the petitioner exercised diligence in his pursuit of his rights); Salinas v. Dretke, 354 F.3d 425, 431 (5th Cir.2004), cert. denied, 541 U.S. 1032, 124 S.Ct. 2099, 158 L.Ed.2d 714 (2004), (holding the AEDPA’s statute of limitations may be equitably tolled in “rare and exceptional circumstances”); Cousin v. Lensing, 310 F.3d 843, 848-49 (5th Cir.2002), cert. denied, 539 U.S. 918, 123 S.Ct. 2277, 156 L.Ed.2d 136 (2003), (holding equitable tolling is available to federal habeas petitioners seeking relief from the AEDPA’s statute of limitations but only in “rare and exceptional circumstances,” such as where the petitioner has been actively misled by an opposing party or a court and rejecting the argument that neglect or error by the petitioner’s own attorney may warrant equitable tolling); Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir.2002), (holding the petitioner bears the burden of proof concerning equitable tolling and that the doctrine does not apply when the petitioner failed to diligently pursue federal habeas corpus relief); Lookingbill v. Cockrell, 293 F.3d 256, 263-64 (5th Cir.2002), cert. denied, 537 U.S. 1116, 123 S.Ct. 878, 154 L.Ed.2d 793 (2003), (recognizing that equitable tolling applies to the AEDPA’s limitations period but holding that a garden variety claim of excusable neglect does not support same).

Application of the doctrine of equitable tolling requires a highly fact-intensive inquiry into the diligence exercised by the petitioner, as well as the circumstances which the petitioner claims impeded his efforts to timely file his federal habeas corpus petition. See Pace v. DiGuglielmo, — U.S. at -, 125 S.Ct. at 1814 (holding the federal habeas petitioner bears the burden of establishing both that he has diligently pursued his rights and that “some extraordinary circumstance” hindered his efforts to do so); Alexander v. Cockrell, 294 F.3d at 629 (“Courts must consider the individual facts and circumstances of each case in determining whether equitable tolling is appropriate.”).

Petitioner presents several arguments in support of his contention that he is entitled to equitable tolling in this case. However, none of the facts petitioner has alleged in support of these arguments support a finding that petitioner exercised diligence in pursuit of his federal habeas remedies. For instance, petitioner points out that, on March 17, 1997, the Texas Court of Criminal Appeals appointed an attorney for the purpose of investigating and filing an application on petitioner’s behalf for state habeas corpus relief and directed said counsel to file such an application within 180 days. The attorney in question apparently did absolutely nothing in response to her appointment or the court’s directive. Despite the expiration of the deadline for filing a state habeas application on petitioner’s behalf, the Texas Court of Criminal Appeals made no effort to investigate the status of petitioner’s case until almost two years had passed. Finally, on January 14, 1999, that court appointed a new attorney to prepare and file a state habeas corpus application on petitioner’s behalf. Petitioner’s state habeas application was filed on October 8, 1999 and petitioner contends that he should not be held responsible for that portion of the AEDPA’s limitations period (215 days) which ran from the date his conviction became final, i.e., on March 17, 1999, until that latter date.

The initial problem with petitioner’s reliance on his first state habeas counsel’s apparent neglect during the two years between her appointment and the date the Texas Court of Criminal Appeals appointed a substitute state habeas counsel for petitioner is that it is well-settled in this Circuit that simple attorney neglect ordinarily does not justify application of the equitable tolling doctrine. See Salinas v. Dretke, 354 F.3d at 431-32 (holding equitable tolling is warranted only when the petitioner was actively misled by the opposing party or otherwise prevented in some extraordinary way from asserting his rights); Cousin v. Lensing, 310 F.3d at 849 (mere attorney error or neglect is not an extraordinary circumstance such that equitable tolling is justified); Lookingbill v. Cockrell, 293 F.3d at 264 (declining to apply equitable tolling just because petitioner’s federal habeas counsel was busy).

The other problem with petitioner’s argument is that petitioner has offered no fact-specific allegations showing that he ever exercised any diligence, from the date his conviction became final until the date his state habeas corpus application was filed, to pursue either state or federal ha-beas relief. In fact, the record now before this Court is bereft of any allegation, much less any evidence, establishing that petitioner has ever personally undertaken any effort to preserve or assert any of his federal constitutional rights from the date his conviction and sentence became final.

Petitioner likewise alleges no facts showing that he ever relied on any representation by any state agency or state court regarding his initial state habeas counsel’s appointment in choosing not to proceed pro se to litigate his federal claims in either state or federal court. Thus, this is not a case in which petitioner claims that he was actively misled by any misrepresentation made by any state agency, state court, or any federal court. Petitioner does not allege that he was unaware of the AEDPA’s limitations period or otherwise precluded from timely filing a pro se pleading sufficient to preserve his federal claims herein.

Moreover, none of the documents presented to this Court to date establish that petitioner’s initial state habeas counsel ever notified any state agency or state court, before or during the time she was appointed to represent petitioner in connection with his state habeas corpus proceeding, that she was then suffering from an incapacitating illness, medical condition, or other impairment. Likewise, there is no fact-specific allegation now before this Court establishing that petitioner’s initial state habeas counsel was actually incapacitated by her illness during the time she was appointed to represent petitioner. As respondent correctly points out, the affidavits and other documents submitted to this court by petitioner establish only that petitioner’s initial state habeas counsel began battling cancer sometime in April, 1994 and, shortly thereafter underwent a bilateral mastectomy and aggressive chemotherapy. Those documents also establish that, in June, 2000, her stomach was removed due to the spread of her cancer. Nonetheless, petitioner offers this Court no fact-specific allegations, much less any evidence, establishing the status of his initial state habeas counsel’s health during the period from March 17, 1997 until January 14, 1999, when she was appointed to represent petitioner. Nor does petitioner allege any facts showing that his initial state habeas counsel ever informed, advised, or notified any responsible state agency or court regarding her medical problems prior to July, 2000.

More significantly, this is not a case in which the neglect of a petitioner’s state habeas counsel extended throughout the entire duration of the AEDPA’s limitations period. When the Texas Court of Criminal Appeals denied petitioner’s state habe-as corpus application on November 28, 2001, 150 days of the AEDPA’s one-year statute of limitations remained unexpired. Petitioner filed his motion for appointment of counsel in this Court on December 13, 2001. As of the date this Court appointed counsel for petitioner in this cause, i.e., on December 27, 2001, at least 121 days remained unexpired on the AEDPA’s limitations period. This Court initially set a deadline of May 3, 2002 for the filing of petitioner’s federal habeas corpus petition. Assuming that petitioner is entitled to equitable tolling for the duration of the two-week period his motion for appointment of counsel was pending before this Court, this Court’s initial deadline for the filing of petitioner’s federal habeas corpus petition was within the applicable AEDPA limitations period. It was petitioner who, on April 16, 2002, chose to seek an extension on his filing deadline until September 6, 2002. Petitioner’s federal habeas counsel had sufficient tile to file a federal habeas petition within the limits established by the AEDPA but did not do so.

As of the date he sought to extend his filing deadline, petitioner had several options available to him to preserve his federal claims against a challenge to their timeliness, including the filing of a skeletal petition accompanied by a motion for leave to amend. Petitioner did not avail himself of those options but sought only an extension on the deadline for the filing of his petition, which this Court promptly granted.

Petitioner’s stated reason for seeking an extension on this Court’s initial filing deadline was that his federal habeas counsel was busy representing other clients. It is clear in this Circuit that a federal habeas counsel’s busy schedule does not mandate application of equitable tolling. See Lookingbill v. Cockrell, 293 F.3d at 264 (“we decline to apply equitable tolling just because a lawyer is busy”). Petitioner’s federal habeas counsel aggressively sought appointment in this and other federal habeas corpus actions pending before this Court and was given ample opportunity to file a federal habeas corpus petition on petitioner’s behalf within the AEDPA’s limitations period (including more than four months from the date this Court appointed said counsel to represent petitioner herein). Petitioner’s federal habeas counsel’s “busy schedule” does not warrant application of equitable tolling in this cause.

Insofar as petitioner argues that the document petitioner filed in this Court on December 17, 2001 somehow tolled the running of the AEDPA’s limitations period, respondent correctly points out that argument is foreclosed by the Supreme Court’s holding in Woodford v. Garceau that a federal habeas action brought under the AEDPA begins with the filing of a pleading that seeks affirmative relief on the merits and not a mere request for appointment of counsel or for stay of execution. See Woodford v. Garceau, 538 U.S. at 207-08, 123 S.Ct. at 1402 (holding that a federal habeas action begins with the filing of an application for habeas corpus relief); Fierro v. Cockrell, 294 F.3d 674, 680 (5th Cir.2002), cert. denied, 538 U.S. 947, 123 S.Ct. 1621, 155 L.Ed.2d 489 (2003), (holding that the filing of a motion for authorization to file a successive petition is not itself an application for a writ of habeas corpus and does not satisfy the AEDPA’s one-year statute of limitations); Williams v. Cain, 125 F.3d 269, 273-74 (5th Cir.1997), cert. denied, 525 U.S. 859, 119 S.Ct. 144, 142 L.Ed.2d 116 (1998), (holding that the filing of motions for stay of execution, appointment of counsel, and to proceed informa pauperis did not constitute the filing of a petition for federal habeas relief under the AEDPA).

Petitioner filed his motion for appointment of counsel in this Court on December 13, 2001. Four days later, petitioner filed a voluminous document which he styled “EXHIBITS” and requested that the Court “attach the following exhibits to the Motion for Appointment of Counsel” he had previously filed. Nothing in either of these two documents indicated that petitioner was therein seeking an affirmative ruling on the merits of any identified or identifiable claim. The happenstance that petitioner included a copy of his state habeas corpus application among the many documents included in the latter submission does not excuse petitioner from his duty to present this Court with an application or petition for federal habeas relief “on the merits” within the AEDPA’s limitations period.

Nothing in this Court’s subsequent Orders, including this court’s Orders granting petitioner’s motion for appointment of counsel, could reasonably have misled petitioner regarding his continuing obligation to timely comply with the AEDPA’s limitations period. Under such circumstances, the filing of petitioner’s motion for appointment of counsel and the exhibits belatedly accompanying same does not entitle petitioner to equitable tolling in this cause.

E. Conclusion

Even when petitioner is credited with all the statutory tolling mandated by the AEDPA, his federal habeas corpus petition filed August 2, 2002 was untimely. Equitable tolling does not apply in this cause to excuse petitioner’s untimely filing and his federal habeas corpus petition must be dismissed as untimely.

IV. Ineffective Assistance Claims

A. The Claims

In his first five claims for federal habeas relief, petitioner argues that his trial counsel rendered ineffective assistance during the punishment phase of petitioner’s trial by failing to (1) present mitigating evh dence, (2) introduce petitioner’s school records, (3) present expert testimony regarding petitioner’s drug abuse and addiction and the effects of same on petitioner’s behavior, (4) ensure that petitioner’s written confession was physically sent back to the jury room during its punishment-phase deliberations, or (5) object to the prosecution’s comments on petitioner’s failure to testify.

B. 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, 2064, 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., 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, 2535, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 1511, 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 v. Washington, 466 U.S. at 687-91, 104 S.Ct. at 2064-66. Courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. See Wiggins v. Smith, 539 U.S. at 523, 123 S.Ct. at 2536 (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 which 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 v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066.

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 v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542; Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id. In evaluating prejudice, a federal habe-as court must re-weigh the evidence in aggravation against the totality of available mitigating evidence. Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542.

In evaluating petitioner’s complaints about the performance of his 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 trial counsel’s performance failed to satisfy either prong of the Strickland analysis. Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir.2003), cert. denied, 540 U.S. 1154, 124 S.Ct. 1156, 157 L.Ed.2d 1050 (2004). In making this determination, this Court must consider the underlying Strickland standard. Id. In those instances in which the state courts failed to adjudicate either prong of the Strickland test, this Court’s review of the un-adjudicated prong is de novo. See Rompilla v. Beard, — U.S. -, -, 125 S.Ct. 2456, 2467-68, 162 L.Ed.2d 360 (2005) (holding that de novo review of the prejudice prong of Strickland was required where the state courts rested their rejection of an ineffec-five assistance claim on the deficient performance prong and never addressed the issue of prejudice); Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542 (holding the same).

C. Failure to Present Mitigating Evidence

1. Clarifying the Issues

In neither his state habeas pleadings nor in this Court has petitioner complained that his trial counsel failed to adequately investigate or discover available mitigating evidence. Instead, petitioner’s complaints focus exclusively on the failure of his trial counsel to present the jury with potentially mitigating evidence during the punishment phase of trial. Thus, this is not a case, like Rompilla v. Beard or Wiggins v. Smith, in which there is an allegation that petitioner’s trial counsel failed to fulfill their duty to adequately investigate available sources of information regarding the petitioner’s background in search of mitigating evidence. Simply put, petitioner presented the state habeas court with no evidence showing that his trial counsel were unaware of the existence of specific mitigating evidence; rather, petitioner’s complaint lies solely with the decision of his trial counsel not to present certain mitigating evidence.

2. State Court Disposition

The state habeas trial court concluded that petitioner’s complaints regarding his trial counsel’s failures to either (1) present petitioner’s school records, (2) present expert testimony regarding drug use and addiction, (3) ensure petitioner’s writt