Full opinion text
MEMORANDUM OPINION AND ORDER DENYING RELIEF ORLANDO L. GARCIA, District Judge. Petitioner Jeffery Lee Wood filed this federal habeas corpus action pursuant to Title 28 U.S.C. Section 2254 challenging his March, 1998, Bandera County conviction for capital murder and sentence of death. For the reasons set forth at length hereinafter, petitioner is not entitled to federal habeas corpus relief from this Court but is entitled to a Certificate of Appealability on some of his claims herein. I. Statement of the Case A. Factual Background There is no genuine dispute as to the operative facts regarding petitioner’s offense. Shortly after 6:00 a.m. on January 2, 1996, while petitioner remained outside in a vehicle that petitioner had borrowed from his brother, Danny Reneau entered a Texaco station located near IH-10 in Kerrvile, Texas and fatally shot store clerk Kriss Keeran with a .22 caliber pistol. Reneau and petitioner then removed the store’s safe, cash box, and the videotape recorder connected to the store’s security camera. They proceeded directly to the home of petitioner’s parents in Devine, Texas, disposing of the murder weapon along the way. Upon their arrival at the Wood residence, Reneau and petitioner unsuccessfully attempted to open the safe before they settled for withdrawing a portion of the money inside the safe through a slot in the bottom. When their efforts to sledge-hammer open the safe woke petitioner’s younger brother, Jonathan, they played the videotape showing Reneau’s fatal shooting of Keeran for Jonathan before directing him to destroy the tape with a blow torch. Petitioner and Reneau were both arrested late on the evening of January 2, 1996. Petitioner gave police two statements concerning his involvement in Keeran’s murder. In his first statement, which petitioner gave during the early morning hours of January 3, 1996, petitioner attempted to downplay his advance knowledge of Re-neau’s plan to rob the store and insisted that Keeran was his good friend. Approximately twelve hours later, however, petitioner gave a second statement to law enforcement officers, in which he admitted that (1) he knew Reneau was going to rob the store, (2) he and Reneau returned to their residence at one point in the hours before the robbery to trade one gun for another that Reneau felt would not be as loud when it fired, and (3) he anticipated that Reneau would shoot Keeran if Keeran refused to cooperate with the robbery. B. The Indictment On January 22, 1996, petitioner was indicted on a charge of capital murder, to wit, intentionally causing the death of Keeran by shooting Keeran with a firearm in the course of committing and attempting to commit robbery. C. Petitioner’s Competency Hearings Petitioner’s competence to stand trial was fully litigated prior to the start of his capital trial. At the conclusion of petitioner’s first competency hearing, held May 6-7. 1997, the jury (1) found by a preponderance of the evidence that petitioner was not then competent to stand trial but (2) also found there was a substantial probability petitioner would attain competency in the foreseeable future. Thereafter, petitioner was committed to a state psychiatric facility. On July 3, 1997, the state trial court received a formal report stating that petitioner was deemed competent to stand trial by the staff at the state psychiatric facility. A second competency hearing was held on October 8-9, 1997, at the conclusion of which a different jury found beyond a reasonable doubt that petitioner was competent to stand trial. D.Guilt-Innocence Phase of Trial The guilt-innocence phase of petitioner’s capital murder trial began on February 23, 1998. In addition to the evidence and testimony outlined above, the jury watched a videotape of the crime scene taken minutes after the discovery of Keeran’s body. The jury also heard testimony from another employee of the gas station that, in the weeks prior to Keeran’s fatal shooting, the petitioner and Reneau had often discussed with him the possibility of robbing the store with his cooperation but that he had always considered such discussions to be a joke. After the State rested, petitioner’s trial counsel called petitioner’s girlfriend, who testified that (1) Reneau and her sister were living with her and petitioner at the time of the murder, (2) she was aware that petitioner and Reneau planned to rob the gas station, (3) Reneau insisted that he carry a gun during the robbery, (4) the plan was for Reneau and petitioner to rob the store before the banks opened on January 2 because they had learned from store employees that a large sum of cash would be in the safe at that time, (5) Reneau and petitioner went to the store the afternoon before the robbery to talk with Keeran and learned that Keeran would not cooperate with their planned robbery, and (6) when Reneau and petitioner left their home at approximately 5:30 a.m. on January 2, 1996, she believed they were headed to Devine. On the morning of February 25, 1998, after deliberating less than ninety minutes, the jury returned its verdict, finding petitioner guilty of capital murder. E. Petitioner’s Requests to Discharge Counsel and Proceed Pro Se Immediately after the trial judge excused the jury for the remainder of the day, the petitioner requested to address the court. At that point, the following exchange occurred: THE COURT: Let me — before you address the Court, if you say something, you know, I suppose it’s possible that it could be used against you. I would advise you, you know, to not say anything until you have first talked to counsel first and they know what you’re going to say and they have told you they think it’s in your best interest to say it. Did you talk to your counsel about what you’re going to say? THE DEFENDANT: Yes, sir. THE COURT: And after consulting them, you still want to make a statement? THE DEFENDANT: Yes, sir. THE COURT: All right, go ahead, Mr. Wood. THE DEFENDANT: I want to fire both of my lawyers right now. THE COURT: You want to represent yourself in punishment phase of the trial? THE DEFENDANT: Yes, sir. THE COURT: Can you tell me why you want to do that? THE DEFENDANT: They have done their job. I just — I ain’t going forty years for something I didn’t do. THE COURT: I know that you understand this, but I need to say it on the record, that the big issue is the death penalty. THE DEFENDANT: That’s true. THE COURT: And the State is going to call an expert witness and based on your background and your experience, I don’t think that you have the capability of examining — cross-examining an expert witness. THE DEFENDANT: I ain’t going to cross-examine nobody. I’m just going to let them do what they want. They can call anybody they want. I’m not going to ask them any questions. THE COURT: Why is it that you do not want your attorneys to be with you when you take this position? THE DEFENDANT: I just — like I said, I’ve got my mind set and it’s set. I don’t want them to sit there and represent me and not sit there and not say nothing on my behalf, because, I mean, I don’t think they would do it, anyway. THE COURT: Mr. Wood, you control your defense. You know, attorneys ultimately are going to have to follow your lead as to what you want to do. They can’t overrule you. Have you talked to your attorneys about doing what you want to do? THE DEFENDANT: Yes, sir. THE COURT: And have they said they can’t do that? Well, I don’t want to put you in the position of saying that. I’m going to be a lot more comfortable if you have them with you doing what you want to do as opposed to you being by yourself doing what you want to do. THE DEFENDANT: I would prefer not to. I don’t want to put them on the burden where they feel like thirteen years down the road or twelve years down the road if they ever try to hang me, to put then on the burden where they didn’t try something for me. THE COURT: I’m going to deny your request to represent yourself in the second phase. The issue, especially the death penalty issue, is so intense from both an emotional standpoint and a legal standpoint, that I don’t feel comfortable with you understanding all the concepts of what’s going on and not having legal counsel that you can rely on. THE DEFENDANT: I do. THE COURT: But I’m going — I’m going to tell you that once again that you need to direct your attorneys on how you want them to prepare your defense or how you want them to react to evidence and then rely on them expertise in doing what you want to do, but I’m going to deny your request to fire your attorneys. Is there anything else, Mr. Monroe? MR. MONROE: Well, yes, Your Honor, there is. I certainly understand the Court’s ruling. Now, Mr. Whitlow and I are in a very untenable position due to instructions that the Court has made and instructions that Mr. Wood has given us in other areas, because they’re conflicting and we are in a very awkward spot. I really don’t even know how to address it. Can I confer with Mr. Whitlow for just a second? THE COURT: Yes. (At which time defense counsel conferred off the record.) MR. MONROE: Mr. Wood advised us he does not wish to cross-examine any of the State’s witnesses, not does he wish to call any witnesses on his behalf in punishment. He has instructed us to discharge Dr. Coons and make no attempt to prepare for cross-examination of Dr. Grigson. I mean, I respect the court stating that we’re still of record as his attorney, but I’m now on the horns of a dilemma as do I follow the Defendant’s instructions in that respect or not that is coming of Monday. I advised the defendant that I did not want to sit here and participate, if that was his decision, but that I would, if that what it was— if that’s the way it was, but the Court can understand the dilemma Mr. Whitlow and I are in now. THE COURT: Right. MR. MONROE: So we almost need to have those instructions made of record. THE COURT: Well, if you want to do that with your client, that’s fine. If you want to do it in open court, that’s fine, or if you want to do it outside of the open court back in chambers, you can do that. I do think that it’s probably fortuitous that we’re going Monday, because you and Mr. Whitlow may want to look at some case law and authority in situations where the defendants have wanted to enter pleas of guilty or not fight certain punishment issues and what counsel is supposed to do when they receive those kind of directions from their client, and you may want to take a look at that, and it’s your client and your call whether or nor you want to bring Dr. Coons or cross-examine anybody. I can’t tell you to do or not to do it. MR. MONROE: Well, our desire, Mr. Whitlow’s and I’s [sic] desire for punishment in this case and Mr. Wood’s are diametrically opposed and therein is the dilemma. What we would do to defend someone to try to save their life, we have been instructed not to do. That puts us in a very difficult situation. I did not want to get into a situation where we started researching the law to assist us in covering ourselves in Mr. Wood’s decision and I hoped to avoid that. Of course, if the Court tells us to do, then that’s what we will do. Like I said, it’s a very difficult position to be in and Mr. Whitlow and I have discussed this at considerable length and we were advised of the possibility quite sometime ago. This is not a knee-jerk reaction on the part of this Defendant under any circumstances. I don’t know what else to tell you, Judge, other than we’re just in a very difficult position. THE COURT: It’s a real sensitive issue because you have your relationship with your client. MR. MONROE: Yes. THE COURT: That you don’t want to jeopardize any client/attorney privilege that you have. You know, if the Defendant would have wanted to do his own defense and had theories about how he wanted to conduct his own defense, I think I would have to go through a very slow process of determining whether or not he had voluntarily decided to waive his right to counsel and had the ability to go ahead and present his own defenses, but it appears, kind of reading through the lines, that Mr. Wood wants to not put — to not defend himself. MR. MONROE: That’s correct. THE COURT: And if he doesn’t want to defend himself, I want him to have counsel to tell him what that means and to explain to him what his options are if he doesn’t want to examine a witness, what that means by not cross-examining or calling a witness, and so I want him to have attorneys there telling him what everything means, every step when you’re making this decision, and I want to offer to you that as we go through this at any time that you need to put anything on the record, you can just stop and tell me we need to go back in chambers with just our client and talk about something and put it on the record, and I understand that and you can do that at any time. I’m going to stay with my prior ruling of not allowing Mr. Wood to represent himself and keeping you and Mr. Whit-low on the case, but I would welcome you to take a look at this issue and see if you can find any precedent for it in the next two to three days. We’re going to be here tomorrow doing criminal pretrials in case you need to come back over and see the Court and Mr. Wood needs to stay here in Bandera until Monday, and so I’ll be here tomorrow. Friday I’ll be in Austin. I have a court administration meeting, but if it’s an emergency, well, we’ll get back together if I have to come back. Otherwise, I plan on seeing everybody Monday morning at 9:00 o’clock. We’ll start the punishment phase. That same date, petitioner and his trial counsel conferred in chambers with the court reporter present. During the first of those conferences, which occurred while the jury was still deliberating at the guilt-innocence phase of petitioner’s capital murder trial, petitioner made it very clear that (1) he did not want his trial counsel to do anything that might result in petitioner receiving a life sentence, (2) he wished to be instructed in the procedures to be followed in order to have his trial counsel discharged, (3) he understood that firing his attorneys would not improve the posture of his appeal in the event he were convicted of capital murder, (4) he understood that both his trial counsel were morally opposed to serving as mere “standby counsel” if petitioner chose not to defend himself at the punishment phase of trial, (5) he did not wish his trial counsel to call Dr. Richard Coons to testify on petitioner’s behalf at the punishment phase of trial, (6) he did not wish his trial counsel to cross-examine the prosecution’s expected expert witness, Dr. Grigson, and (7) he did not wish to reconsider his decision not to mount a defense at the punishment phase of trial because he did not wish to serve forty years in prison “for something I didn’t do.” During the second such conference, which occurred shortly after the jury had returned its guilty verdict and the trial court denied petitioner’s first request to discharge his trial counsel in the exchange quoted above, petitioner once more instructed his trial counsel that (1) he wished his trial counsel to discharge Dr. Coons and not call any expert witnesses to testify during the punishment phase of petitioner’s capital murder trial, (2) he understood his rights with regard to whether he would submit to an interview by Dr. Grigson, (3) he did not wish his trial counsel to cross-examine Dr. Grigson, (4) he did not wish his trial counsel to call any of his family members or any other witnesses to testify on petitioner’s behalf at the punishment phase of trial, and (5) he understood there was an extremely high likelihood that the jury would impose a death sentence if petitioner persisted in his decision not to offer a defense at the punishment phase of trial. The following day, February 26, 1998, petitioner filed a type-written, pro se motion waiving his right to counsel and requesting to proceed pro se during the punishment phase of his trial. On March 2, 1998, immediately before the state of the punishment phase of petitioner’s capital murder trial, petitioner again met with his trial counsel in chambers and (1) instructed his trial that counsel that they were not to object to any evidence proffered by the prosecution and were to stand silent with regard to any and all prosecution evidence, (2) stated that he understood that such a strategy would waive any objection to inadmissible evidence offered by the prosecution, (3) instructed his trial counsel not to cross-examine any prosecution witnesses, (4) instructed his trial counsel not to call any witnesses on petitioner’s behalf, including Dr. Coons, (5) instructed his trial counsel not to offer any mitigating evidence at the punishment phase of trial, (6) instructed his trial counsel not to do anything that might result in petitioner receiving a life sentence, (7) informed his trial counsel that he did not wish to reside in prison for forty years, (8) stated that he believed he was competent to make such a choice, (9) advised his trial counsel that they could file objections to the punishment phase jury charge, (10) stated that he understood his trial counsel could present evidence that might result in petitioner receiving a life sentence, (11) stated that he understood the likelihood of him prevailing on appeal was not good, (12) stated that he understood that, if he were sentenced to death row, he would likely be executed, (13) stated that he understood the jury might not impose the death sentence regardless of what strategy his trial counsel employed at the punishment phase of trial, and (14) stated that he was satisfied with his trial counsel’s performance. Shortly thereafter, before the jury was brought into the courtroom, the following exchange occurred in open court: THE COURT: This is a hearing outside the presence of the jury and Mr. Wood filed a Waiver of Right to Counsel and request to proceed pro Se. It looks like it was last Friday. THE DEFENDANT: Yes, sir. THE COURT: Is that your request, Mr. Wood. THE DEFENDANT: Yes, sir. THE COURT: Why do you want to proceed pro se? THE DEFENDANT: I just feel like it’s a personal reason I can’t get into. I would prefer to have a death penalty instead of life in prison. THE COURT: Do you think your attorneys are hindering you in getting whatever result you want? THE DEFENDANT: What is that? THE COURT: Are they making it hard for you to present what you want to present or not present what you want to present? THE DEFENDANT: No, they said it’s my opinion and, I mean, they would prefer it the other way, but, I mean, they agree with what I have to do. THE COURT: They’re cooperating with you? THE DEFENDANT: Yes, in every way. THE COURT: Based on the testimony I’ve heard about your educational background and your experience with the criminal justice system, I’m of the opinion that you still need to have counsel with you that you could ask questions of and make sure that you know what’s going on and that you’re not taken advantage of by this proceeding, so I note that you have requested to represent yourself and I’m going to deny that request and continue these gentlemen as your counsel and you have the advantage of calling on them whenever you want to call them during this punishment phase of trial. THE DEFENDANT: All right. THE COURT: Thank you, Mr. Wood. MR. MONROE: Can Mr. Whitlow and I just say something for the record, too, not necessarily with respect to this? We have been shown case law that indicates, Your Honor, that the failure of Mr. Whitlow and I to abide by a client’s instructions in this case, Mr. Wood’s, unless those instructions are illegal, the failure to abide by them is unethical. We take exception to that. * * * THE COURT: All right, go ahead, Mr. Monroe. MR. MONROE: We take exception to that. We feel like in spite of the case law, that it is unethical for us to — not necessarily unethical. It’s — it goes against our morals to assist Mr. Wood in basically what we consider to be a gesture of suicide. We understand what the case law says and we will do as the case law has instructed us and as the Court has instructed us, but we want the court to understand that we do no condone this and just wanted to state that for the record. F. Punishment Phase of Trial At the punishment phase of petitioner’s capital murder trial, the prosecution presented evidence, including petitioner’s hand-written confession, implicating petitioner and Reneau in the armed robbery of a grocery store in Kerrville on November 30, 1995, slightly more than a month before Keeran’s murder. The prosecution called the Kerr County Sheriff, the administrator of the Kerr County Jail, and a jailer at that facility to testify regarding (1) an incident on December 29, 1996 in which petitioner and Re-neau were observed standing on the sinks in their respective cells talking to each other through an air vent about a possible car-jacking should they successfully escape from the jail, (2) an incident on February 29, 1996 in which petitioner (a) reacted violently to a denial (pursuant to jail policy) of his request that jail officials transfer funds from his inmate account into Re-neau’s account, (b) insisted on pressing the emergency buzzer in his cell and refused to cease doing so when directed to stop by jail personnel, (c) even more violently resisted the efforts of jail employees to move him to a detoxification cell, (d) assaulted one of the guards who moved petitioner on that date, and (e) threatened to kill several of the jail employees who finally did manage to move him, and (3) a letter petitioner wrote to Reneau while they were both inmates at the Kerr County Jail in which petitioner bragged about filing charges against the guards who had moved him and indicated that he planned to “go places” once he was released on bond. Finally, the prosecution called Dr. James P. Grigson, who testified that, in his opinion (1) the petitioner would most certainly commit future acts of violence and did represent a threat to society, (2) petitioner’s attention deficit disorder did not cause petitioner’s criminal behavior, and (3) petitioner had experienced difficulty controlling his anger throughout his years in school. Petitioner’s trial counsel did not cross-examine any of the prosecution’s punishment-phase witnesses and offered no evidence on petitioner’s behalf. During yet another in-chambers conference held immediately after both parties closed at the punishment phase of trial, petitioner (1) stated that his trial counsel had done precisely as he had directed them at the punishment phase of trial and (2) directed his trial counsel not to present any argument on petitioner’s behalf. After the prosecution made its closing argument, the jury deliberated slightly more than an hour before it returned its verdict at the punishment phase of trial, finding (1) beyond a reasonable doubt there was a probability the petitioner would commit criminal acts of violence that would constitute a continuing threat to society, (2) petitioner either actually caused Kriss Keeran’s death or intended to kill Keeran or another or anticipated that a human life would be taken, and (3) beyond a reasonable doubt there were insufficient mitigating circumstances to warrant a life sentence. Based on the jury’s findings, that same date, the trial court imposed a sentence of death. G. Direct Appeal Petitioner appealed his conviction and sentence but, in an opinion issued May 24, 2000, the Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence. Petitioner did not thereafter seek review of that decision by the United States Supreme Court via petition for cer-tiorari. H. State Habeas Corpus Proceeding On March 27, 2000, while his direct appeal was still pending, petitioner filed an application for state habeas corpus relief in which he presented twenty-nine claims for relief. In an Order issued October 2, 2000, the state habeas trial court made its findings of fact, conclusions of law, and recommendation that petitioner’s state habeas corpus application be denied. In pertinent part, the state habeas trial court concluded that (1) petitioner’s trial counsel rendered effective assistance in view of petitioner’s specific directives regarding the manner in which petitioner wanted his defense conducted during the punishment phase of trial, (2) the objective standard of reasonable firmness contained in the statutory definition of the affirmative defense of “duress” did not offend equal protection principles, (3) petitioner’s request to represent himself was untimely and the trial court properly denied same, (4) Article 37.071, § 2(f)(4) does not limit the definition of “mitigating evidence” to only that evidence which diminishes the defendant’s moral blameworthiness, and (5) petitioner failed to allege any facts showing that he was prejudiced by the statutory definition of “mitigating evidence” included in his punishment-phase jury instructions. In an unpublished Order issued May 9, 2001, the Texas Court of Criminal Appeals adopted the trial court’s findings and conclusions and denied state habeas corpus relief. I. Federal Court Proceedings Petitioner filed his initial federal habeas corpus petition in this Court on January 31, 2002, arguing therein that (1) his trial counsel rendered ineffective assistance by following petitioner’s directives and not mounting a defense at the punishment phase of trial, (2) the trial court erred in failing to sufficiently determine whether petitioner could represent himself, (3) the Texas capital murder statute’s definition of “mitigating evidence” unconstitutionally narrows that term to include only evidence reducing the defendant’s moral blameworthiness, (4) the trial court erred when it failed to specifically determine whether the petitioner was competent to instruct his trial counsel not to present mitigating evidence, and (5) the objective standard of reasonable firmness included in the Texas statutory definition of the affirmative defense of “duress” is unconstitutional. On April 8, 2002, respondent filed an answer and motion for summary judgment, arguing, in pertinent part, that (1) petitioner’s ineffective assistance complaint herein is substantially dissimilar from the analogous complaint petitioner presented to the state habeas court to be unexhaust-ed and, therefore, procedurally defaulted, (2) petitioner’s requests to proceed pro se were untimely, (3) all of the mitigating evidence presented by petitioner was within the scope of the jury’s consideration under the submitted capital sentencing special issues, (4) petitioner failed to exhaust state remedies and, thereby procedurally defaulted, on his complaint regarding the trial court’s failure to ascertain petitioner’s competence to direct his trial counsel to sit on their hands during the punishment phase of trial, and (5) the Texas statutory definition of mitigating evidence is constitutional. Subsequently, petitioner filed a response to respondent’s motion for summary judgment and a supplemental brief on the “duress” issue. 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 is objectively unreasonable and 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). III. Ineffective Assistance Claim A. The Claim In his first claim herein, petitioner argues that (1) petitioner’s trial counsel rendered ineffective assistance by (a) failing to present mitigating at the punishment phase of trial, (b) relying on petitioner’s directives and inapplicable state and federal case law, and (c) failing to obtain on-the-record determinations of petitioner’s competence to waive his right to present a defense at the punishment phase of trial, as well as the voluntary, intelligent, and knowing nature of such waiver, and (2) petitioner is entitled to a presumption of prejudice based on his trial counsel’s de facto abandonment of petitioner at the punishment phase of trial. In response, respondent argues that (1) petitioner’s initial claim herein is significantly different from the ineffective assistance claim petitioner presented during his state habeas corpus proceeding and, thus, unexhausted, (2) petitioner thereby procedurally defaulted on this new ineffective assistance claim, and (3) petitioner’s complaints about his trial counsel’s performance fail to satisfy either prong of the Strickland v. Washington standard for proving ineffective assistance. B. The Constitutional Standard 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. C. Failure to Exhaust Results in Procedural Default 1.Failure to Exhatist Neiv Legal and Factual Theories Respondent correctly points out that the ineffective assistance claim petitioner presents to this Court is substantially and significantly different from the analogous claim petitioner included in his state habe-as corpus application as his first ground for state habeas corpus relief. In his state habeas application, petitioner argued that his trial counsel’s failure to present mitigating evidence constituted ineffective assistance under the dual prongs oí-Strick-land because' said counsel’s reliance on both state and federal case law suggesting that a trial counsel must follow the directions of his or her client on such issues as whether to present mitigating evidence was objectively unreasonable and prejudiced petitioner. In contrast, petitioner’s first claim for federal habeas corpus relief herein includes arguments that (1) before complying with petitioner’s directives that no mitigating evidence and no defense be offered at the punishment phase of petitioner’s trial, petitioner’s trial counsel were obligated to ensure that petitioner was competent to give such directives and obtain an on-the-record determination from the trial court that petitioner’s waiver of the right to present a defense at the punishment phase of trial was voluntary, intelligent, and knowing, and (2) petitioner’s trial counsel’s failure to do so constituted an abandonment of petitioner warranting a presumption of prejudice. Petitioner presented none of these arguments to his state habeas court. By urging in this Court for the first time his (1) his “presumption of prejudice” theory, (2) complaint about his trial counsel’s failure to obtain a trial court ruling regarding petitioner’s competence to waive presentation of a defense at the punishment phase of trial, and (3) complaint that his trial counsel failed to obtain an on-the-record determination that such waiver was voluntary, intelligent, and knowing, petitioner has presented this Court with substantially different legal and factual theories underlying his complaint regarding his trial counsel’s failure to present mitigating evidence than the legal and factual theories that underlay his analogous state habeas claim. Thus, the ineffective assistance claim petitioner presents to this Court is substantially and significantly different from the ineffective assistance claim petitioner “fairly presented” to his state habeas court. 2. Procedural Default May Arise from . a Failure to Exhaust ■ Procedural default occurs 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 procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 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, 1734, 144 L.Ed.2d 1 (1999). 3. The Nature of the Exhaustion Requirement Before seeking federal habeas corpus relief, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1 (1999); Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); 28 U.S.C. § 2254(b)(1). To provide the State with this necessary “opportunity,” the prisoner must “fairly present” his claim to the appropriate state court in a manner that alerts that court to the federal nature of the claim. See Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. at 1349-51 (rejecting the argument that a petitioner “fairly presents” a federal claim, despite failing to give any indication in his appellate brief of the federal nature of the claim through reference to any federal source of law, when the state appellate court could have discerned the federal nature of the claim through review of the lower state court opinion); O’Sullivan v. Boerckel, 526 U.S. at 844-45, 119 S.Ct. at 1732-33 (holding comity requires that a state prisoner present the state courts with the first opportunity to review a federal claim by invoking one complete round of that State’s established appellate review process); Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 2081, 135 L.Ed.2d 457 (1996) (holding that, for purposes of exhausting state remedies, a claim for federal relief must include reference to a specific constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief and rejecting the contention that the exhaustion requirement is satisfied by presenting the state courts only with the facts necessary to state a claim for relief)- The exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts and, thereby, to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings. Carey v. Sajfold, 536 U.S. 214, 220, 122 S.Ct. 2134, 2138, 153 L.Ed.2d 260 (2002); Duncan v. Walker, 533 U.S. 167, 179, 121 S.Ct. 2120, 2128, 150 L.Ed.2d 251 (2001); O’Sullivan v. Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732; Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 1203, 71 L.Edüd 379 (1982). Under the AEDPA, federal courts lack the power to grant habeas corpus relief on unexhausted claims. Kunkle v. Dretke, 352 F.3d 980, 988 (5th Cir.2003), cert. denied, — U.S. -, 125 S.Ct. 250, 160 L.Ed.2d 56 (2004), (“28 U.S.C. § 2254(b)(1) requires that federal habeas petitioners fully exhaust remedies available in state court before proceeding in federal court.”); Riley v. Cockrell, 339 F.3d 308, 318 (5th Cir.2003); Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir.2003); Henry v. Cockrell, 327 F.3d 429, 432 (5th Cir.2003), cert. denied, 540 U.S. 956, 124 S.Ct. 408,157 L.Ed.2d 293 (2003), (“Absent special circumstances, a federal habeas petitioner must exhaust his state remedies by pressing his claims in state court before he may seek federal habeas relief.”); Mercadel v. Cain, 179 F.3d 271, 276-77 (5th Cir.1999); Alexander v. Johnson, 163 F.3d 906, 908 (5th Cir.1998); and Jones v. Jones, 163 F.3d 285, 299 (5th Cir.1998), cert. denied, 528 U.S. 895, 120 S.Ct. 224, 145 L.Ed.2d 188 (1999). However, Title 28 U.S.C. § 2254(b)(2) empowers a federal habeas court to deny an exhausted claim on the merits. Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir.2002), cert. dism’d, 541 U.S. 913, 124 S.Ct. 1652, 158 L.Ed.2d 263 (2004); Daniel v. Cockrell, 283 F.3d 697, 701-02 (5th Cir.2002), cert. denied, 537 U.S. 874, 123 S.Ct. 286, 154 L.Ed.2d 126 (2002). The exhaustion of all federal claims in state court is a fundamental prerequisite to requesting federal collateral relief under Title 28 U.S.C. Section 2254. Wilder v. Cockrell, 2ÜA F.3d 255, 259 (5th Cir.2001); Sterling v. Scott, 57 F.3d 451, 453 (5th Cir.1995), cert. denied, 516 U.S. 1050, 116 S.Ct. 715, 133 L.Ed.2d 669 (1996); and 28 U.S.C. § 2254(b)(1)(A). In order to “exhaust” available state remedies, a petitioner must “fairly present” all of his claims to the state courts. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. at 270, 275-76, 92 S.Ct. 509, at 512-13, 30 L.Ed.2d 438 (1971); Kunkle v. Dretke, 352 F.3d at 988; Riley v. Cockrell, 339 F.3d at 318; Anderson v. Johnson, 338 F.3d at 386; Jones v. Jones, 163 F.3d at 296; and Shute v. State of Texas, 117 F.3d at 237: “a habeas petitioner ‘must fairly apprize [sic] the highest court of his state of the federal rights which were allegedly violated.’ ” In Texas, the highest state court with jurisdiction to review the validity of a state criminal conviction is the Texas Court of Criminal Appeals. See Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir.1985). More simply, the exhaustion doctrine requires that the petitioner present his federal claim in a manner reasonably designed to afford the State courts a meaningful opportunity to address same. The Supreme Court has succinctly explained the rationale behind the exhaustion requirement: Exhaustion means more than notice. In requiring exhaustion of a federal claim in state court, Congress meant that exhaustion be serious and meaningful. The purpose of exhaustion is not to create a procedural hurdle on the path to federal habeas court, but to channel claims into an appropriate forum, where meritorious claims may be vindicated and unfounded litigation obviated before resort to federal court. Comity concerns dictate that the requirement of exhaustion is not satisfied by the mere statement of a federal claim in state court. Just as the State must afford the petitioner a full and fair hearing on his federal claim, so must the petitioner afford the State a full and fair opportunity to address and resolve the claim on the merits. Keeney v. Tamayo-Reyes, 504 U.S. 1, 10, 112 S.Ct. 1715, 1720, 118 L.Ed.2d 318 (1992). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been “fairly presented” to the highest state court, i.e., the petitioner presents his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. at 1349-51 (holding a petitioner failed to “fairly present” a claim of ineffective assistance by his state appellate counsel merely by labeling the performance of said counsel “ineffective,” without accompanying that label with either a reference to federal law or a citation to an opinion applying federal law to such a claim); Moore v. Cain, 298 F.3d 361, 364 (5th Cir.2002), cert. denied, 537 U.S. 1236, 123 S.Ct. 1360, 155 L.Ed.2d 202 (2003); and Mercadel v. Cain, 179 F.3d at 275. However, the petitioner need not spell out each syllable of the claim before the state court for the claim to have been “fairly presented” and thereby fulfill the exhaustion requirement. Riley v. Cockrell, 339 F.3d at 318; Fisher v. Texas, 169 F.3d 295, 303 (5th Cir.1999). The presentation of claims for the first time on discretionary review to the state’s highest court does not constitute “fair presentation” for exhaustion purposes. Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989); Satterwhite v. Lynaugh, 886 F.2d at 92. Full exhaustion of all claims presented is required before federal habeas corpus relief is available. Rose v. Lundy, 455 U.S. 509, 518-22, 102 S.Ct. 1198, 1203-05, 71 L.Ed.2d 379 (1982); and Thomas v. Collins, 919 F.2d at 334. Significantly for purposes of this cause, the exhaustion requirement is not met if the petitioner presents new legal theories or factual claims in his federal habeas petition. Anderson v. Harless, 459 U.S. 4, 6-7, 103 S.Ct. 276, 277-78, 74 L.Ed.2d 3 (1982); Riley v. Cockrell, 339 F.3d at 318 (“It is not enough that the facts applicable to the federal claims were all before the State court, or that the petitioner made a similar state-law based claim. The federal claim must be the ‘substantial equivalent’ of the claim brought before the State court.”); Wilder v. Cockrell, 274 F.3d at 259, (“where petitioner advances in federal court an argument based on a legal theory distinct from that relied upon in the state court, he fails to satisfy the exhaustion requirement”); and Finley v. Johnson, 243 F.3d 215, 219 (5th Cir.2001). Likewise, to have “fairly presented” his federal claim, the petitioner must have reasonably alerted the state courts to the federal nature of his claim. Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. at 1349-51 (holding a petitioner failed to “fairly present” a claim of ineffective assistance by his state appellate counsel merely by labeling the performance of said counsel “ineffective,” without accompanying that label with either a reference to federal law or a citation to an opinion applying federal law to such a claim); Wilder v. Cockrell, 274 F.3d at 260: “A fleeting reference to the federal constitution, tacked onto the end of a lengthy, purely state-law evidentiary argument, does not sufficiently alert and afford a state court the opportunity to address an alleged violation of federal rights.” 4. Procedural Default on Petitioner’s Unexhausted Claim Petitioner’s first claim herein presents a plethora of new legal and factual theories which petitioner never presented to the state courts in either his direct appeal or in his state habeas corpus proceeding. More specifically, petitioner argues before this Court that he is entitled to a presumption of prejudice under the Supreme Court’s opinions in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), and Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). This is an entirely new legal theory which petitioner failed to “fairly present” to the state habeas court. Likewise, insofar as petitioner argues that his trial counsel’s failure to present mitigating evidence was objectively unreasonable because petitioner’s trial counsel failed to obtain trial court determinations that petitioner was competent to waive his right to present a defense and that such waiver was voluntary, intelligent, and knowing, those mixed factual and legal theories were not included in any form in petitioner’s state habeas corpus application. Instead, petitioner’s state habeas application focused exclusively on the objective reasonableness of his trial counsel’s decision not to present mitigating evidence in light of then-existing state and federal case law. Nothing in petitioner’s state habeas pleadings “fairly presented” the state habeas court with any argument suggesting that petitioner’s trial counsel were required to obtain such determinations before they could comply with petitioner’s suicidal directives. No external impediment prevented petitioner from urging any of his new legal or factual theories for relief during his state habeas corpus proceeding. The Supreme Court’s holdings in Cronic and Cuyler both predated the filing of petitioner’s state ha-beas application by many years and, thus, were “available” to petitioner at the time he filed his state habeas corpus application. With the exception of the Fifth Circuit’s opinion in Burdine v. Johnson, 262 F.3d 336 (5th Cir.2001), cert. denied, 535 U.S. 1120, 122 S.Ct. 2347, 153 L.Ed.2d 174 (2002), all of the opinions petitioner relies on in support of his “presumption of prejudice” legal theory were available at the time petitioner filed his state habeas application. The Fifth Circuit made clear in Burdine, however, that the presumption of prejudice it applied in that case was not a “new rule” but based on long-established legal principles. See Burdine v. Johnson, 262 F.3d at 347-48 (rejecting the contention that the Teague non-retroactivity doctrine barred application of a presumption of prejudice arising from trial counsel’s alleged sleeping during a critical juncture during trial). Likewise, the case law petitioner relies on in support of his contentions that his trial counsel were required to obtain judicial determinations of petitioner’s competence to waive the presentation of a defense at the punishment phase of trial and the voluntary, intelligent, and knowing nature of such a waiver before complying with same were all available to petitioner at the time he filed his state habeas corpus application. Petitioner failed to “fairly present” the state habeas court with the same legal and factual theories in support of his ineffective assistance claim that he has presented to this Court. Texas law prohibits the filing of a successive state habeas corpus application except in rare circumstances inapplicable to any of petitioner’s claims herein. See Bagwell v. Dretke, 372 F.3d 748, 756 (5th Cir.2004), cert. denied, — U.S. -, 125 S.Ct. 498, 160 L.Ed.2d 374 (2004), (holding that Texas law, specifically Section 5 of Article 11.071, Texas Code of Criminal Procedure, bars successive state habeas applications except where (1) the claim could not have been presented in the initial state habeas application because the factual or legal basis of the claim was unavailable at the time, and either (2) the petitioner shows by a preponderance of the evidence that, but for the constitutional violation, he would not have been convicted, or (3) the petitioner shows by clear and convincing evidence that, but for the constitutional violation, no rational jury would have answered in the state’s favor on one or more of the capital sentencing special issues); Article 11.071, § 5(a), Tex.Code Crim. Proc. Ann. (Vernon Supp.2004). The Fifth Circuit has consistently held that federal habeas review of unexhausted claims presented by a convicted Texas capital murder defendant is barred under the procedural default doctrine. See, e.g., Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir.2004), cert. denied, — U.S. -, 125 S.Ct. 1067, 160 L.Ed.2d 1074 (2005), (holding that violation of the Texas writ-abuse rule ordinarily furnishes an adequate and independent procedural ground which bars federal habeas review of a claim); Bagwell v. Dretke, 372 F.3d at 755-56 (holding that a petitioner procedurally defaulted by failing to “fairly present” a claim to the state courts in his state habeas corpus application); Cotton v. Cockrell, 343 F.3d 746, 755 (5th Cir.2003), cert. denied, 540 U.S. 1186, 124 S.Ct. 1417, 158 L.Ed.2d 92 (2001), (holding the Texas writ-abuse doctrine is an adequate and independent barrier to federal habeas review of unexhausted claims). Because petitioner failed to exhaust available state habeas remedies with regard to the legal and factual theories underlying his ineffective assistance claim herein, and because Texas law prohibits petitioner from returning to state court to seek state habeas relief on the unexhaust-ed legal and factual theories underlying his initial claim herein, petitioner has procedurally defaulted on his first claim for federal habeas relief herein. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640. For the foregoing reasons, petitioner has procedurally defaulted on his unex-hausted, but otherwise compelling, argument that the complete failure of petitioner’s trial counsel to cross-examine prosecution witnesses, object to prosecution evidence, argue on petitioner’s behalf, or present any mitigating evidence at the punishment phase of petitioner’s capital murder trial warrants application of a presumption of prejudice under Cronic and Cuyler. The Supreme Court made clear in Strickland that a criminal defense counsel owes his client “the overarching duty to advocate the defendant’s cause,” as well as “the duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2065 (emphasis added). In fact, in Strickland the Supreme Court emphasized “the crucial role” played by criminal defense counsel to ensure a fair trial “in which evidence subject to adversarial testing is presented” and in which the defendant is afforded “ample opportunity to meet the case of the prosecution,” in an adversarial context. Id., 466 U.S. at 685, 104 S.Ct. at 2063. “[C]ounsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.” Id., 466 U.S. at 690, 104 S.Ct. at 2066. Petitioner’s trial counsel made no effort whatsoever at the punishment phase of petitioner’s trial to fulfill the function of trial counsel as envisioned by the Supreme Court in Strickland. Both literally and figuratively, petitioner’s capital murder trial ceased to be an adversarial proceeding once the jury returned its guilty verdict. By completely and totally failing to ensure adversarial testing of the prosecution’s case at the punishment phase of petitioner’s trial, either through challenge to the prosecution’s evidence, proper objection to obvious hearsay testimony, cross-examination of prosecution witnesses, presentation of rebuttal evidence, such as that which Dr. Coons was prepared to offer, or making argument on petitioner’s behalf, petitioner’s trial counsel abandoned their “overarching duty” to ensure that petitioner received a fair trial and turned the punishment phase of petitioner’s trial into something that was as far from the “adversarial testing” proceeding envisioned by the Supreme Court in Strickland as is imaginable. In Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 1851, 152 L.Ed.2d 914 (2002), the Supreme Court reiterated its holding in Cronic that there are only three situations in which a presumption of prejudice is warranted: first, when there was complete denial of counsel at a critical stage; second, when counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing; and finally, when counsel suffers from an actual conflict of interest. In every sense of the term, at the punishment phase of trial, petitioner’s counsel failed to subject the prosecution’s case to “meaningful adversarial testing.” The Fifth Circuit has consistently recognized that the decision to present or not present mitigating evidence during the punishment phase of a capital trial ordinarily falls within the broad parameters of a trial counsel’s strategic or tactical decision-making authority. See, e.g., Riley v. Cockrell, 339 F.3d at 316-17 (holding trial counsel were not per se deficient in failing to present mitigating evidence); Hopkins v. Cockrell, 325 F.3d 579, 586 (5th Cir.2003), cert. denied, 540 U.S. 968, 124 S.Ct. 430, 157 L.Ed.2d 314 (2003), (recognizing that the decision to present double-edged mitigating evidence lies within trial counsel’s broad tactical or strategic discretion); Smith v. Cockrell, 311 F.3d at 669 (holding the failure to investigate, develop, and present mitigating evidence is not ineffective per se); Moore v. Johnson, 194 F.3d 586, 615 (5th Cir.1999) (holding the failure to present mitigating evidence is not per se deficient performance); Crane v. Johnson, 178 F.3d 309, 314 (5th Cir.1999), cert. denied, 528 U.S. 947, 120 S.Ct. 369, 145 L.Ed.2d 285 (1999), (holding the same); Rector v. Johnson, 120 F.3d 551, 564 (5th Cir.1997), cert. denied, 522 U.S. 1120, 118 S.Ct. 1061, 140 L.Ed.2d 122 (1998), (holding the same); Turner v. Johnson, 106 F.3d 1178, 1188 (5th Cir.1997) (holding the failure to present mitigating evidence, if based on an informed and reasoned practical judgment, is well within the range of practical choices not to be second-guessed). Petitioner’s trial counsel’s failures went considerably farther than a mere failure to present available mitigating evidence or to argue for a life sentence, however. Petitioner’s trial counsel failed to cross-examine any prosecution witnesses and failed to present available rebuttal evidence, in addition to failing to present mitigating evidence or make any argument on petitioner’s behalf. Petitioner’s trial counsel essentially sat mute throughout the punishment phase of petitioner’s trial. Petitioner’s trial counsel made no effort to engage in any “adversarial testing” of the prosecution’s evidence or argument at the punishment phase of petitione