Tenny v. Cockrell (420 F. Supp. 2d 617, 2004)

ORDER

SPARKS, District Judge.

Before this Court are Petitioner James B. Tenny’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254[# 1], and the Report and Recommendation of the United States Magistrate Judge [# 42]. All matters in this case were referred to the Honorable Stephen H. Capelle, United States Magistrate Judge, for Report and Recommendation pursuant to 28 U.S.C. § 636(b), and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges, as amended, effective December 1, 2002. On August 8, 2003, the Magistrate Judge issued his Report and Recommendation that Tenny’s Petition for Writ of Habeas Corpus be granted, and that Ten-ny be released unless the State provides Tenny with a new trial within 60 days of the final judgment in this case. Tenny filed written objections to the Magistrate’s Report and Recommendation on September 16, 2003[#45]. On September 16, 2003, Respondent filed written objections to the Magistrate’s Report and Recommendation [# 47], Having considered the petition, the case file as a whole, the state court records, and the applicable law, the Court enters the following opinion and orders.

Procedural Background

According to Respondent, the Director has lawful and valid custody of Tenny pursuant to a judgment and sentence of the 33rd Judicial District Court of Blanco County, Texas, styled The State of Texas v. James Bernard Tenny. On July 30, 1997, Tenny was indicted on one count of murder with a deadly weapon. Tenny pleaded not guilty to the charge and on May 14, 1999, he was convicted by a jury and sentenced to 65 years imprisonment.

Tenny appealed his conviction, alleging through appellate counsel, that a shower scrubber had been improperly admitted into evidence. Tenny also sent a pro se supplemental brief to the appellate court, alleging his counsel at trial and on appeal rendered ineffective assistance, the evidence was insufficient to support his conviction, and the prosecutor made improper, prejudicial arguments to the jury. The court of appeals received Tenny’s brief but did not file it. On August 31, 2000, the court of appeals affirmed Tenny’s conviction in an unpublished opinion. Tenny did not file a petition for discretionary review.

On December 18, 2000, Tenny filed a pro se state application for habeas corpus relief, raising the same claims raised in his unfiled supplemental appellate brief. Ex parte Tenny, Appl. No. 48,704-01, at 3-38. On April 11, 2001, the Texas Court of Criminal Appeals denied Tenny’s application — without an opinion and without a hearing, the opportunity to conduct discovery, or otherwise expand the record by the state district court. Id. at cover.

Although it is not clear from the record, the trial court apparently ordered the State to file affidavits in response to Ten-ny’s state application for habeas corpus relief. Id. The affidavits relied upon by the state court were from Sam Oatman, District Attorney for the 33rd Judicial District of Texas, and Tom Cloudt, First Assistant District Attorney for that district. 'Id. at 99-102. The only issue discussed in the affidavits was whether Tenny’s trial counsel, John Bennett, had a conflict of interest at the time of trial as he was hired by the Blanco County District Attorney’s Office shortly after Tenny’s trial concluded. Id. The only finding made by the trial court was no offer of employment or prospective employment nor any conversation inducing any hope of employment, were made to Bennett prior to the conclusion of the trial. Id. at 104. The trial court concluded Tenny’s allegation of a conflict did not form the basis for a claim of ineffective assistance of counsel, for unexplained reasons, and thereafter ignored the remainder of Tenny’s claims. On June 22, 2001, Tenny filed a pro se petition for a federal writ of habeas corpus with this Court. After reviewing the petition and the State’s answer, the Magistrate Judge concluded, on February 27, 2002, that an evidentiary hearing, regarding the issues of ineffective assistance of counsel at trial and sentencing, should be held and Tenny was indigent. The Magistrate Judge appointed counsel to represent Tenny and the evidentiary hearing was held on November 13, 2002.

Trial Testimony

On the night of her death, May 12, 1997, Joyce Mulvey and Jim Tenny had an argument over Tenny moving out of their house so he could have his son come live with him. May 10-14, 1999 Trial Transcript (“Tr. Trans.”), vol. 6, p. 53, In. 16 — p. 55, In. 23. Tenny testified he left the room to allow things to “cool down” and upon returning to the kitchen, Mulvey attacked him with a gas can. Tr. Trans., vol. 6, p. 56, In. 13 — p. 59, In. 9. Mulvey sloshed gasoline into Tenny’s eyes and all over his body. Tr. Trans., vol. 6, p. 59, In. 17-24. Tenny further testified he could hear the clicking of a lighter and saw Mulvey approaching with a lighter. Tr. Trans., vol. 6, p. 60, In. 2-21. The fight escalated from there with Tenny punching Mulvey to keep her away. Tr. Trans., vol. 6, p. 62, In. 13-23.

Tenny called 911 at 9:28 p.m. requesting help because “[his] old lady [wa]s trying, trying to burn down the house.” Tr. Trans., vol. 6, p. 64, In. 8-10. According to Tenny, Mulvey then smashed a. platter over his head, thereby ending the emergency call. Tr. Trans., vol. 6, p. 64, In. 13-25. Mulvey continued her attack on Ten-ny with a butcher knife and they engaged in a violent struggle for the knife in which Tenny sustained several injuries, including a stab wound to his chest, which collapsed his lung. Tr. Trans., vol. 6, p. 67, In. 2-25. Tenny then stabbed Mulvey believing it necessary to defend his own life and caused the death of Mulvey. Tr. Trans., vol. 6, p. 103, In. 14-21.

There was no independent eyewitness to the fight that night and the physical evidence presented by the State and by Bennett did not establish, and at best was inconclusive, as to the identity of the initial aggressor. Tr. Trans., vol. 5, p. 109, In. 11-21; p. 159, In. 13-19. Therefore, evidence establishing Mulvey was the initial aggressor and Tenny possessed a reasonable apprehension of imminent death or serious bodily injury is the only evidence which could have persuaded the jury to accept Tenny’s defense of self-defense, and to persuade the sentencing judge to accept Tenny’s defense of sudden passion. November 13, 2002, Hearing Transcript (“Hearing Trans.”), p. 55, In. 11-17; Tr. Trans., vol. 5, p. 109, In. 11-21; p. 159, In. 13-19.

Testimony Not Presented

In the days immediately preceding Mul-vey’s death, from May 9 to May 12, 1997, Mulvey’s behavior spiraled out of control. Mulvey repeatedly told a number of different persons she intended to kill, or otherwise harm, Tenny. June 29, 2000, Dr. William Penn Affidavit (“Dr. Penn Aff.”) at 2; June 17, 2000, Florence Dente Parker Affidavit (“Parker Aff.”) at 2; June 17, 2000, Father Benedict Affidavit, (“Father Benedict Aff.”) at 3; July 10, 2000, Father Jeremiah Affidavit (“Father Jeremiah Aff.”) at 3. Mulvey repeatedly threatened to burn down their house. Parker Aff. at 2; Father Jeremiah Aff. at 3; June 19, 2000, Joseph Swift Affidavit (“Swift Aff.”) at 1. Mulvey also threatened to burn down the Christ of the Hills Monastery where she worked. June 17, 2000, Mother Sera-phima Affidavit (“Mother Seraphima Aff.”) at 2; Father Jeremiah Aff. at 3. Mulvey was distraught over her financial circumstances, yet she quit her job, her only source of income, on Monday, May 12th, the day of her death. Father Jeremiah Aff. at 2-4. On the day of her death, Mulvey approached a virtual stranger requesting he co-sign a $100,000 loan on her behalf. Swift Aff. at 1.

Tenny was aware Mulvey’s behavior was becoming increasingly irrational and violent. Three days prior to Mulvey’s death, Mulvey threw a chair at Tenny, poked him in the chest with a knife, and continued her violent behavior by destroying their property. Dr. Penn Aff. at 2; Father Benedict Aff. at 3. On the evening of Mul-vey’s death, while Tenny was packing his belongings to move out, Tenny received two specific warnings to leave the house from concerned friends, because Mulvey had told them that day, she was going to kill Tenny, burn down the house, and then bury Tenny in the yard. Father Benedict Aff. at 4-5; Father Jeremiah Aff. at 4. Tenny was also aware Mulvey bragged that she had stabbed her previous husband. Tenny argues none of this evidence was ever presented to the jury, who found Tenny guilty of murder, or to the trial court that eventually sentenced Tenny to 65 years in prison.

Analysis

I. Grounds for Relief

In his habeas petition, Tenny presents the following grounds for relief:

(1) His counsel at trial was ineffective for failing to explore a valid defense, giving erroneous advice at sentencing, failing to make proper objections, and having a conflict of interest;

(2) The evidence was insufficient to support his conviction;

(3) The prosecutor at trial made an improper, highly prejudicial argument to the jury; and

(4) His appellate counsel rendered inefl fective assistance because she failed to raise his grounds for error on appeal.

II. Exhaustion

Respondent does not argue Tenny has not exhausted his state court remedies regarding the claims brought in this application. A review of the state court records submitted by Respondent shows Tenny has properly raised these claims in previous state court proceedings. However, during the November 13, 2002 evidentiary hearing, Tenny introduced several affidavits of potential witnesses that had not been presented to the state court during the state habeas proceedings. Respondent argues these affidavits should not be considered by this Court because the state habeas court did not have an opportunity to consider them.

The Fifth Circuit has repeatedly made clear a state prisoner must present his claims to a state tribunal, and thereby exhaust his state remedies, before filing a habeas petition in federal court. Ogan v. Cockrell, 297 F.3d 349, 356 (5th Cir.2002). A habeas petitioner has failed to exhaust his state court remedies when he presents his claims to the federal court “in a significantly different and stronger evidentiary posture than [they were] before the state courts.” Dowthitt v. Johnson, 230 F.3d 733, 746 (5th Cir.2000) (internal quotation marks omitted).

The Fifth Circuit’s case law suggests Tenny has failed to exhaust his state court remedies. In Brown v. Estelle, 701 F.2d 494 (5th Cir.1983), the Fifth Circuit considered a situation very similar to the instant case. The petitioner in Brown based both his state and federal habeas petitions on claims of ineffective assistance of counsel, contending trial counsel should have been on notice of facts sufficient to support an insanity defense. In state court, the petitioner detailed facts in his petition showing he had exhibited “extremely bizarre and violent behavior” while in jail awaiting trial. As a result, he was committed to a mental hospital where he had been diagnosed as schizophrenic. Upon returning to jail, he received substantial doses of anti-psychotic drugs. In his subsequently filed federal habeas petition, the petitioner asserted the same general theory for his ineffective assistance claim, but added three affidavits of individuals who had observed petitioner’s behavior. Because the claim of ineffective assistance was “significantly different and stronger” than that presented to the state court, the Fifth Circuit held his claim was not exhausted and that his claim required further proceedings in state court. Id. at 496.

In support of this petition, Tenny offers the declarations of Rebecca Silvernail, Edwin Tenny, Wallace Brown, Loren Marshall, and Steven Becker. This evidence was never presented to the Texas state courts for consideration.

Rebecca Silvernail (“Silvernail”), a former employer of Mulvey, had many occasions to observe Mulvey’s behavior and personality. November 13, 2002, Declaration of Rebecca Silvernail (“Silvernail Dec.”) at 1. Silvernail described Mulvey as aggressive and prone to losing “her temper quickly and many times over little things.” Silvernail Dec. at 1. Silvernail found Mulvey to be irrational at times and believed Mulvey “took pride in being confrontational.” Silvernail Dec. at 1-2. Mulvey bragged to Silvernail that she “took the bull by the horns and stabbed him” when her previous husband angered her. Silvernail Dec. at 2. Silvernail declares Denny’s counsel never contacted her.

Initially, Bennett denied having any knowledge of the probative nature of Sil-vernail’s testimony. Hearing Trans., p. 67, In. 1-5. However, his notes included Sil-vernail’s underlined name with the notations “good friends” and “previously stabbed husband in California,” and contact information. Hearing Trans., p. 67, In. 1 — p. 68, In. 2. Bennett admitted his only effort to locate Silvernail was an unsuccessful phone call. Hearing Trans., p. 69, In. 5-19. In addition, Bennett admitted he failed to assign his private investigator the task of locating Silvernail. Hearing Trans., p. 126, In. 4-13. Nonetheless, Bennett acknowledged:

Q. [Sheppard] Do you think it would be important evidence in a self-defense case where self-defense is that she attacked him with a knife, that she had bragged about stabbing her previous husband -

A. [Bennett] Oh, absolutely, yes.

Hearing Trans., p. 69, In. 15-19. Contrary to Respondent’s post-hearing brief, Bennett never testified that Tenny asked counsel to discontinue looking for Silvernail.

Edwin Tenny, Petitioner’s father, attested to the fact that Mulvey called him at his son Patrick’s house in Missouri the day before her death. Edwin Tenny asserted he had met Mulvey before, but he had never received a phone call from her. According to Edwin Tenny, the phone call lasted 45 minutes. Edwin Tenny described Mulvey as extremely agitated and distraught. Edwin Tenny stated Mulvey was upset with Petitioner because he wanted his son to move in with them and Mulvey was convinced she would have to raise Tenny’s four boys. According to Edwin Tenny, Mulvey threatened to have her son in California come and beat Tenny up if Tenny tried to get custody of any of his kids. Although Edwin Tenny attempted to calm Mulvey, he was unsuccessful. Mulvey ended the conversation abruptly, still distraught, angry, and disoriented. Edwin Tenny asserts he informed Bennett of his conversation with Mulvey and expressed his willingness to testify at trial. Bennett did not call Edwin Tenny as a witness during the guilt/innoeence phase of the trial before the jury. Instead, he called Edwin Tenny during the sentencing phase before the judge. Edwin Tenny states Bennett did not ask him any questions about his telephone conversation with Mulvey.

Wallace Brown (“Brown”) attests in his affidavit that he resides in St. Anna’s Elder Haus located at the Monastery where Mulvey worked. November 12, 2002, Declaration of Wallace Brown (“Brown Dec.”) at 1. Brown knew Mulvey to possess great physical strength. Brown Dec. at 1. In addition, Brown believed Mulvey to be “insane” and “nuts”, often exhibiting irrational behavior. Brown Dec. at 2. According to Brown, he saw Mulvey the day of her death. Brown states he remembers she was in a bad mood and worked up over something. Brown also asserts he was never contacted by Bennett.

Loren Marshall (“Marshall”) indicated he had given his statement to the Blanco County Sheriffs Office. According to Marshall, on the day of Mulvey’s death, Mulvey came to the bank where Marshall worked, complaining Tenny wanted to move his four boys into their home. Marshall indicated Mulvey stated she had already raised her family and she did not want to raise another due to her age (60 years). Mulvey allegedly informed Marshall that Tenny had given her an ultimatum, to move or to give him $3,000 for his share of the equity in the double-wide trailer in which they lived. Marshall asserts Mulvey claimed to have no money or place to go. According to Marshall, he suggested to Mulvey that she seek legal advice from Dean Myane, a female attorney in town. Marshall asserts he was under the impression Mulvey was going to see Myane after leaving the bank. Despite giving his statement to the Blanco County Sheriffs Office, Marshall asserts Bennett never contacted him.

Steven Becker (“Becker”), owner of a restaurant Mulvey visited on the day of her death, attests Mulvey had a drink and made two or three phone calls from the restaurant. Becker described Mulvey’s behavior as spooky and weird, and her mannerisms as impatient and distraught. According to Becker, he gave a statement to the Blanco County Sheriffs Office shortly after Mulvey’s death. Despite the statement, Bennett never contacted Becker.

Clearly, the evidence presented to this Court constitutes stronger evidence than the evidence Tenny offered to the state court. For example, Tenny raises for the first time the alleged conversation Mulvey had with Tenny’s father the day before the murder, regarding Tenny’s children, and Mulvey’s spooky and weird demeanor in a restaurant prior to her death. As a result, Tenny’s claims are presented to this Court in a “significantly different and stronger evidentiary posture” than in the state court. Therefore, this Court agrees with the Magistrate Judge’s conclusion that Tenny’s claims relying on the new affidavits are unexhausted.

If a petitioner’s unexhausted claims would be procedurally barred under state law, a federal court must dismiss those claims with prejudice. Fuller v. Johnson, 158 F.3d 903, 905-06 (5th Cir.1998). Tenny is prevented from raising his unexhausted claims in a subsequent state habeas petition by Texas’s abuse of the writ doctrine. This doctrine “prohibits a second habeas petition, absent a showing of cause, if the applicant urges grounds therein that could have been, but were not, raised in his first habeas petition.” Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir.1997) (citing Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App.1994)); see Tex. Crim. Proc. Code Ann. art. 11.071 § 5(a).

Because the Texas abuse of the writ doctrine prevents Tenny from presenting the unexhausted claims in any subsequent state habeas petition, those claims are procedurally defaulted for purposes of federal habeas review. Finley v. Johnson, 243 F.3d 215, 220 (5th Cir.2001). Therefore, unless Tenny qualifies for an exception to the procedural default rules, those claims cannot provide a basis for federal habeas relief herein. See Ogan, 297 F.3d at 356. A petitioner can overcome a procedural default only if he can (1) demonstrate cause for the default and (2) demonstrate actual prejudice resulting from the alleged violation of federal law. Id.

Tenny argues the procedural default of these claims is the result of the state habeas court’s failure to conduct an evidentiary hearing or provide for other discovery mechanisms. Tenny compares his case to Strickler v. Greene, 527 U.S. 263, 283, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), a case in which the petitioner alleged a Brady violation. However, in Striekler the petitioner had difficulty in discovering the factual basis of his claim because the exculpatory evidence was allegedly concealed from him by the prosecution, not the trial court. Moreover, the necessity of an evidentiary hearing was an initial decision to be made by the state convicting court in the exercise of its sound discretion. Ross v. Estelle, 694 F.2d 1008, 1012 n. 2 (5th Cir.1983) (citing Tex. Code Crim. Pro. art. 11.07 § 2(d); Ex Parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967)). As the Magistrate Judge noted, Tenny cannot argue he could not have obtained his father’s affidavit without the help of the trial court nor has he shown he was prevented from alleging in his state application Mulvey told Silvernail that she had stabbed her previous husband. Accordingly, the lack of an evidentiary hearing or other formal discovery at the state court does not constitute cause for Tenny’s failure to specifically present the factual basis of his claims to the state habeas court.

In the further alternative, Tenny asserts he is exonerated from procedural default under the “miscarriage of justice” exception. The miscarriage of justice exception to the procedural default doctrine requires “ ‘factual innocence and not mere legal insufficiency.’ ” United States v. Jones, 172 F.3d 381, 384 (5th Cir.1999) (quoting Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)). To establish the requisite probability he was actually innocent, Ten-ny must support his allegations with new, reliable evidence that was not presented at trial and must show it was “more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Examples of new, reliable evidence that may establish factual innocence include exculpatory scientific evidence, credible declarations of guilt by another, trustworthy eyewitness accounts, and certain physical evidence. See id. at 324, 115 S.Ct. 851. A showing of facts which are highly probative of an affirmative defense, which if accepted by a jury would result in the defendant’s acquittal, constitutes a sufficient showing of “actual innocence” to exempt a claim from the bar of procedural default. Finley v. Johnson, 243 F.3d 215 (5th Cir.2001).

Tenny’s new evidence consists of the five new affidavits discussed above. While these affidavits are probative of Tenny’s claim of self-defense, the Magistrate Judge correctly noted the State has not had the opportunity to dispute the information contained in these affidavits and no court has made any credibility determinations with regard to these witnesses. Under these circumstances, the Court must hold Tenny had not made a sufficient showing of “actual innocence” to satisfy the fundamental miscarriage of justice exception. Accordingly, the Court will not consider the declarations of Silvernail, Edwin Tenny, Brown, Marshall, and Becker.

III. Standard for Review under AED-PA

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), a federal court may grant a state prisoner’s federal habeas petition as to any claim addressed by the state courts on the merits only if the state court’s decision was (1) “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” or was (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see also Brown v. Cain, 104 F.3d 744, 749 (5th Cir.1997), cert. denied, 520 U.S. 1195, 117 S.Ct. 1489, 137 L.Ed.2d 699 (1997). The state court’s application of clearly established federal law must be “unreasonable,” not merely erroneous or incorrect. Williams v. Taylor, 529 U.S. 362, 389, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

With respect to fact findings made by state courts, this Court must presume the state court’s determination of a factual issue is correct unless the petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Where the petitioner has failed to develop the factual basis .of a claim in state court, the petitioner may not present additional factual evidence on that issue unless his claim falls within the narrow exceptions of 28 U.S.C. § 2254(e)(2):

(A) the claim relies on -

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable;

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.

See, e.g., Hernandez v. Johnson, 108 F.3d 554 (5th Cir.1997), cert. denied, 522 U.S. 984, 118 S.Ct. 447, 139 L.Ed.2d 383 (1997).

IV. Ineffective Assistance of Trial Counsel

Tenny argues he was denied effective assistance of trial counsel. Specifically, Tenny claims his counsel was ineffective for failing to explore a valid defense, giving erroneous advice at sentencing, failing to make proper objections, and having a conflict of interest. Tenny raised these same issues in his supplemental appellate brief and his state application for habeas corpus relief. Tenny’s ineffective assistance argument was rejected by the state habeas court. Thus, this Court may only grant Tenny federal habeas relief if Tenny establishes by clear and convincing evidence the state habeas court’s decision was either: (1) “contrary to, or involved an unreasonable application of, clearly established federal law” at the time; or was (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C. § 2254(d); see also Brown v. Cain, 104 F.3d 744, 749 (5th Cir.1997), cert. denied, 520 U.S. 1195, 117 S.Ct. 1489, 137 L.Ed.2d 699 (1997).

To establish a cognizable ineffective assistance of counsel claim, a petitioner must meet both prongs of the well-settled Strickland v. Washington test. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Tenny must prove (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced his defense. See, e.g., Boyle v. Johnson, 93 F.3d 180 (5th Cir.1996). To meet the first prong, Tenny must show counsel’s conduct fell beneath an objective standard of reasonable professional assistance that effectively denied petitioner effective counsel as required by the Sixth Amendment. United States v. Haese, 162 F.3d 359 (5th Cir.1998), cert. denied, 526 U.S. 1138, 119 S.Ct. 1795, 143 L.Ed.2d 1022 (1999). For the second prong, Tenny must show, but for counsel’s deficient conduct, the result of the proceeding would have been different. Id. at 364. Of course, the Court must make a fair assessment of counsel’s performance, and not let its analysis be prejudiced by unreasonable second-guessing or hindsight.

Respondent contends Bennett’s actions were the product of trial strategy. When evaluating ineffective assistance of counsel claims, courts must defer to attorneys’ strategic decisions: “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. In other words, attorneys have a duty to conduct a reasonable investigation into mitigating evidence, and the court must determine “whether the investigation supporting counsel’s decision not to introduce mitigating evidence of [the defendant’s] background was itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2536, 156 L.Ed.2d 471 (2003) (emphasis in original). If the investigation into mitigating evidence was reasonable under prevailing professional norms, the strategy developed from the results of the investigation deserves deference.

A. Self-Defense Claim

Tenny argues his trial counsel abdicated his role as defense counsel when he failed to investigate and call highly relevant and known witnesses, and failed to develop the relevant and critical testimony of witnesses he did call. The state habeas court did not order Bennett to provide an affidavit explaining his failures. As explained supra, the Magistrate Judge held an evidentiary hearing on this matter on November 13, 2002, at which Bennett testified. At the hearing, Bennett admitted self-defense was the only complete defense available to Tenny:

Q. [Sheppard] Now, is there any doubt in your mind that the only viable defensive strategy in this case was one of self-defense?

A. [Bennett] That’s the only one that Mr. Tenny wanted to pursue.

Q. Did you, as an attorney, see any other viable strategy of defense other than self-defense?

A. I think aggravated assault was a viable strategy of defense if self-defense were to fall by the wayside.

Hearing Trans., p. 55, In. 11-17. Other than self-defense, Bennett’s only concept of a defense was aggravated assault, a lesser included offense with a serious penalty. Essentially, Bennett thus conceded self-defense was Tenny’s only defense. Yet, astoundingly, Bennett failed to elicit any critical testimony supporting Tenny’s sole defense.

In support of this claim, Tenny presents the affidavits of Father Jeremiah, Father Benedict, Dr. William Penn, Joseph Swift, Florence Parker, and Mother Seraphima. These affidavits were presented to the state court and may, therefore, be considered here.

1. Specific Examples of Bennett’s Failure to Investigate

Bennett failed to investigate, or otherwise assess the probative value of testimony offered by Florence Parker and Mother Seraphima. Florence Parker, a resident at the Elder Haus, was in almost daily contact with, and had ample opportunity to observe, Mulvey both prior to and on the day of her death. Parker would have testified Mulvey possessed surprising physical strength, was unreasonably critical and engaged in child-like antics when her care-giving was questioned. Parker Aff. at 1-2. Significantly, on the day of Mulvey’s death, Mulvey told Parker “[s]he would kill Jim and burn the house down before she would have any of his kids come stay or live there, or his change the status quo in any way.” Parker Aff. at 2. This information was communicated to Bennett prior to trial. Parker Aff. at 2; Hearing Trans., p. 59, In. 8-19. Despite the potential value of Parker’s testimony, Bennett testified:

Q. [Sheppard] So you had not interviewed [Parker] at all or made, really, any attempt to interview her?

A. [Bennett] No, I had not.

Q. Or obtain her testimony?

A. No.

Hearing Trans., p. 59, In. 20-24. Parker was expressly identified by police records as a person having relevant knowledge.

Bennett claimed he did not interview Parker because he believed she was incompetent. Hearing Trans., p. 58. However, having never interviewed Parker, Bennett was in no position to abandon such a highly relevant witness whose testimony was crucial to Tenny’s claim of self-defense. Furthermore, Bennett’s notes and related testimony specifically state Parker was competent:

Q. [Sheppard] If you would, sir, please turn to page 21, the middle of the page, and you see, in fairly large handwriting, underlined the words “Florence Parker”?

A. [Bennett] I do.

Q. And the notes read ... ’70’s, dash, fully competent, dash and then, again aunt, and then, something about taped the windows with newspaper?

A. Exactly.

Q. All right. So in your notes, you have that you were told, ... [by] some source of information that while she was in her ’70’s, she was fully competent. Is that what your notes say?

A. Yeah ...

Q. This is well before the trial?

A. This is, like, I want to say, August or September of 1997.

Q. So at that time, when you had almost two years to interview her, you had information ... [contrary to what you said earlier, your notes indicate that you were told she was fully competent and that you did not interview her at any time?

A. That’s right, yes.

Hearing Trans., p. 62, In. 24 — p. 63, In. 25; Bennett Notes at 21. Accordingly, the explanation provided by Bennett for ignoring Parker and her testimony is not credible.

Mother Seraphima would have also testified to Mulvey’s strength. Mother Sera-phima attributed Mulvey’s strength to her experiences restraining mental patients. Mother Seraphima Aff. at 1-2. Mother Seraphima believed Mulvey could throw almost any grown man to the ground. Mother Seraphima would also have testified she spoke with and observed Mulvey hours before her death, and found her to be “absolutely out of control” and “in a rage.” Mother Seraphima Aff. at 2. That same day Mother Seraphima saw Mulvey assault Father Jeremiah and overheard her threaten to “burn the Monastery down” as well as “do even more than that ... she was going to do something that would hurt us for the rest of our lives.” Mother Seraphima Aff. at 2.

Bennett claims he did not interview Mother Seraphima because he simply did not know she had any significant information to offer. Yet, when questioned about the purpose of interviewing witnesses, Bennett agreed it is true the purpose of interviewing witnesses is to determine what they know. Hearing Trans., p. 66, In. 2-4. Therefore, Bennett’s decision not to interview Mother Seraphima and assess the value of her testimony was not reasonable.

2. Specific Examples of Bennett’s Failure to Call Witnesses or Elicit Testimony from Witnesses Possessing Highly Critical Factual Evidence

Bennett also failed to call or elicit material testimony from Father Jeremiah, Father Benedict, Dr. William Penn, Joseph Swift, and Tenny himself. Father Jeremiah was Mulvey’s supervisor at the Elder Haus. He avers he would have testified Mulvey was prone to “fly into insane rages” and had demonstrated violent tendencies. Father Jeremiah Aff. at 2-3. Father Jeremiah further states two days prior to her death, Mulvey threatened Tenny by stating “I’m gonna kill that son of a bitch, bury him in the yard and burn the house down.” Father Jeremiah Aff. at 3. According to Father Jeremiah, Mulvey stated, “I’m damn near 60 years old. I’ve raised my kids. I’m through raising kids. He thinks he can just bull me over and bring home one of his kids — just like that?! I’m not going to take it.” Father Jeremiah Aff. at 2. Father Jeremiah would have testified Mulvey was belligerent, illogical, and threatening to commit acts of arson on the day of her death. Father Jeremiah Aff. at 4. Father Jeremiah believed Mulvey was in dire need of professional psychiatric assistance. Father Jeremiah Aff. at 4.

Father Benedict would have testified Mulvey had a paranoid personality and was generally concerned “someone might be trying to ‘get to her,” ’ Father Benedict Aff. at 2. Father Benedict was aware of the mounting instability within the Tenny household. He knew Mulvey had threatened to physically harm Tenny, had stabbed Tenny the Friday before her death, that Tenny believed Mulvey was “out of her mind,” and Tenny was “frightened by the threat of violence.” Father Benedict Aff. at 3. Father Benedict also had the opportunity to assess Mulvey’s behavior on the day of her death and found her to be agitated, argumentative, and threatening. Father Benedict Aff. at 4. Indeed, on the night of Mulvey’s death, Father Benedict warned Tenny of Mul-vey’s threats to kill him, and advised Ten-ny to leave their home. Father Benedict Aff. at 5.

Dr. William Penn, who testified at the trial, was prepared to testify to further facts. Specifically, Dr. Penn avers he was aware of the growing conflict between Mulvey and Tenny arising from Tenny’s need to bring his son into their home. Dr. Penn Aff. at 1. Dr. Penn had agreed to provide a place on his ranch for Tenny’s trailer so Tenny and his son could reside together. Dr. Penn Aff. at 1-2. Further, Dr. Penn would have testified Mulvey had threatened Tenny with a knife. Dr. Penn Aff. at 1-2. After visiting Tenny in the hospital following the incident, Dr. Penn described Tenny’s condition:

[Tenny] looked like he had been run over by a threshing machine. His right eye was black and blue, his right ear cut, and there was a tube coming out of his chest emptying blood from a punctured lung into a bag on the floor. It was clear that there had been a violent struggle in which [Tenny] had nearly lost his life.

Dr. Penn Aff. at 2. Dr. Penn would also have testified Tenny’s account of the incident was consistent with the injuries he observed. Dr. Penn Aff. at 2.

Joseph Swift (“Swift”) did testify that the morning of Mulvey’s death, Mulvey had called in requesting a loan. However, additional information was left unsolicited by Bennett, including the fact that the loan amount was $100,000, the loan was necessary because Mulvey was ending her relationship with Tenny and she wanted to purchase the mobile homes as well as the property where the mobile homes were located. Swift Aff. at 1. Swift would have also testified Mulvey threatened “ ‘she would rather see all of it burned to the ground’ before she would ... let the creditors or Mr. Tenny have it.” Swift Aff. at 1.

Tenny, himself, took the stand and testified regarding the events that occurred on May 12, 1997. Yet, Bennett failed to develop these critical facts from Tenny:

• On Friday, May 9, 1997, Mulvey became hysterical, threatened Tenny with violence, and poked him in the chest with a knife — the very same knife Mulvey later stabbed Tenny with on the night of her death.

• Tenny told both Dr. Penn and Father Benedict about the Friday, May 9, 1997 incident and showed them the knife marks on his chest.

• Tenny was aware Mulvey was making threats against his life and was behaving irrationally and erratically, thereby establishing his reasonable apprehension.

• Tenny knew Mulvey had stabbed her previous husband, further establishing his reasonable apprehension.

This testimony was clearly relevant to establish Tenny’s entitlement to self-defense and Bennett admitted he had no reason for failing to seek this testimony:

Q. [Sheppard] Well, I tell you that in your opening statement there is no mention of it. And in Jim Tenny’s testimony, cross, direct, redirect, recross, there is no mention by Jim Tenny or [by] you in opening or closing or anywhere in this trial, of that incident on Friday night where Joyce went out of control, broke furniture, broke the window, and threatened him with a knife. Also, there’s no testimony about Jim telling anybody about that later. What was your calculated trial strategy to justify leaving that evidence out?

A. [Bennett] I don’t know.

Hearing Trans., p. 81, In. 2-12.

3. Bennett’s Failures Were Not Based Upon Sound Trial Strategy

i. Bennett’s Desire to Avoid Rebuttal State of Mind Testimony

Bennett explained he abandoned self-defense because he believed in bringing up Tenny’s state of mind, he would open the door for the prosecution to bring in Mul-vey’s state of mind (that Mulvey was afraid Tenny was going to kill her). However, Mulvey’s state of mind was already an issue because Tenny claimed Mulvey was the initial aggressor. Tate v. State, 981 S.W.2d 189, 192-93 (Tex.Crim.App.1998) (in self-defense cases, evidence of the victim’s state of mind is admissible as long as it has relevance apart from character conformity). Furthermore, the State did bring in Mulvey’s state of mind. See, e.g., Tr. Trans., vol. 4, p. 132, In. 7-12.

To make matters worse, when Bennett was questioned regarding the identity and availability of possible State witnesses to Mulvey’s state of mind, Bennett could only identify two, Tonya Abers and Mulvey’s unnamed sister. Hearing Trans., p. 118, In. 18 — p. 119, In. 8. Incredibly, Bennett did not interview these possible State witnesses or otherwise investigate what admissible testimony they could provide. Hearing Trans., p. 119, In. 18-19; p. 120, In. 8-9. Neither Tonya Abers nor Mul-vey’s unnamed sister testified at Tenny’s trial.

ii. Bennett’s Desire to Avoid the Monastery “Taint”

Additionally, Bennett claims his fear of bringing the Monastery “taint” into the trial justified his inaction. After Mulvey’s death, Father Jeremiah and Father Benedict were indicted for what Bennett described as multiple counts of indecency with a child. Hearing Trans., p. 92. Overall, Bennett described the Monastery as having a poor reputation in the community. Hearing Trans., p. 92. However, Bennett maintained, in a motion for continuance filed on January 4, 1999, Father Benedict’s testimony was important because:

[he was] a crucial fact witness.

Father Benedict would testify ... [that Mulvey] made threats to Father Jeremiah that she planned to burn the defendant with gasoline, stab him, and bury him in the backyard, and he in turn told defendant of these threats.

******

Father Benedict would also testify that he spoke to Joyce Mulvey on the date of her death, and, in his opinion, she was distraught and disoriented.

In a later motion for continuance filed on April 30, 1999, only two weeks prior to trial, Bennett explained:

[Father Benedict’s] and [Father Jeremiah’s] testimony is absolutely essential to the defense.

******

It’s no secret that our defense is justification.

******

[Father Jeremiah] will testify that on the day of Joyce Mulvey’s death ... Joyce Mulvey told him that she was going to kill Defendant, burn the house down and bury him in the yard.

* * * * * *

[Father Benedict] will testify that he told defendant of Mulvey’s threats.

******

[Father Benedict] will also testify that he spoke with Joyce Mulvey on the date of her death, and, in his opinion, she was distraught and disoriented, which is consistent with what the Defendant told the investigating officers at the hospital.

* * * * * *

Clearly, [Father Jeremiah’s] and [Father Benedict’s] testimony is probative as to the relevant facts and circumstances surrounding the killing, as well as the condition of the defendant’s mind ... and to the crucial punishment issue of sudden passion arising from adequate cause — an issue in which the defendant is required to prove by a preponderance of the evidence.

* * * * * *

Should the Court deny this motion, the defendant ... will be forced to proceed to trial without the testimony of a crucial witness, thereby denying him his right to due course and due process of law, as well as his right to procure testimony on his behalf.

After Father Jeremiah and Father Benedict had been indicted, Bennett chose not to call them as witnesses. In doing so, Bennett failed to consider or take advantage of the numerous mechanisms available for overcoming such prejudices. For example, moving for a change of venue, conducting voir dire of potential jurors to ascertain their knowledge and potential bias, or apprising himself of the rules of evidence available to prohibit the State’s attempts to introduce this type of character evidence. Bennett admitted at the evidentiary hearing the worse-case scenario in calling Father Jeremiah and Father Benedict to testify was the jury would not believe their testimony. Hearing Trans., p. 74, In. 9-15.

In sum, Bennett had no legitimate reason for withholding the testimony of Father Jeremiah, Father Benedict, Dr. Penn, Joseph Swift, Florence Parker, and Mother Seraphima. Bennett’s actions cannot be justified as reasoned or sound trial strategy because he failed to apprise himself of the law and the facts of Tenny’s defense. Moore v. Johnson, 194 F.3d 586, 615 (5th Cir.1999) (court should defer to counsel’s decision not to present mitigating evidence or not to present certain line of mitigating evidence when that decision is both fully informed and strategic, in sense that it is expected, on basis of sound legal reasoning, to yield some benefit or avoid some harm to the defense; however, a court need not defer to decisions that are not informed by adequate investigation into controlling facts and law).

4. Bennett’s Ineffectiveness Prejudiced Tenny

Bennett’s many failures during the guilt/innocence phase of Tenny’s trial clearly prejudiced Tenny’s case. This Court’s analysis reveals a reasonable probability, absent Bennett’s obvious incompetence, the jury would have been presented with substantial and critical evidence supporting Tenny’s claim to self-defense, and the jury could well have had a reasonable doubt of guilt. Accordingly, this Court finds Tenny was prejudiced.

Finally, this Court must determine whether the state habeas court’s denial of Tenny’s application was not only wrong, but unreasonable. It bears repeating the Texas Court of Criminal Appeals denied Tenny’s application without written order based on the irrelevant skeletal findings of the trial court without a hearing. In the state habeas court, there were no explicit factual findings regarding whether Bennett’s performance was deficient and/or whether the performance prejudiced Ten-ny. While this Court must assume, pursuant to Fifth Circuit authority, the state habeas court made implied findings Bennett was not ineffective or that he was ineffective but his conduct was not prejudicial, this Court has independently reviewed the record and pertinent federal law and is persuaded the state habeas court’s result was based on an unreasonable determination of the facts in light of the evidence and unreasonably applied clearly established federal law regarding Tenny’s claim of ineffective assistance of counsel for all of the reasons stated supra. The state habeas court’s denial of Tenny’s application is, quite simply, wrong and unreasonable in light of the clear and convincing evidence in this record that Bennett was constitutionally ineffective and prejudiced Tenny’s right to competent counsel.

Respondent argues in his objections to the Magistrate Judge’s Report and Recommendation the Magistrate Judge failed to properly apply the principles of the AEDPA in reaching the conclusion that Tenny’s petition should be granted. However, under Respondent’s strained interpretation of Schaetzle v. Cockrell, no federal district court, circuit court, nor even the United States Supreme Court would ever be able to grant a habeas petition when a state court denied habeas relief regarding ineffective assistance of counsel. 343 F.3d 440 (5th Cir.2003). The decision whether to grant federal habeas relief on an ineffective assistance of counsel claim must be dependent on the particular facts of each case.

In this case, even assuming the state court applied clearly established federal law, the facts presented by Tenny in his pro se petition and at the evidentiary hearing before the Magistrate Judge, provide no basis for a conclusion that the state court’s ultimate decision was reasonable. Bennett knew, or should have known, the testimony available to him at trial was persuasive and critical to the defense of self-defense. Instead, Bennett left unin-vestigated numerous witnesses and failed to present evidence from at least a half dozen witnesses, possessing critical testimony.

Further, Respondent complains the state court could have found Bennett’s decisions were not deficient but rather were sound strategic choices. The Magistrate Judge and this Court have already specifically addressed and rejected this proposition. A state habeas court could not reasonably find Bennett’s decisions not to investigate and present critical evidence and testimony were strategic.

Finally, Respondent contends because Tenny and counsel agreed together to the exclusion of witnesses, such a decision was sound trial strategy. This argument, however, is unsupported by evidence. Moreover, the fact Tenny may have agreed to what he believed was sound legal advice from a competent attorney appointed by the court is not controlling. Bennett, being either non-informed or ill-informed on both the facts and the law in Tenny’s case, was never in a position to advise Tenny on any reasoned trial strategy.

B. Sudden Passion

Tenny argues Bennett’s representation of him at sentencing was likewise deficient resulting in him being denied the right of effective assistance of counsel. Tenny explains counsel advised him to waive his right to a jury at sentencing to avoid a harsh sentence. However, Tenny asserts counsel failed to advise him of the issue of sudden passion as a mitigating circumstance. Tenny similarly argues counsel failed to object to the court’s charge for failure to include the elements of sudden passion. Tenny also faults counsel for failing to present evidence during sentencing before the judge to raise the issue of sudden passion.

Respondent insists Tenny’s claim is without merit because trial counsel did argue sudden passion at sentencing. See Respondent’s Brief at 10-12. However, merely uttering the words “sudden passion” does not advance the theory or make necessary proof materialize. Bennett re-offered the evidence presented during the guilt/innoeence phase at sentencing. Hearing Trans., p. 127, In. 2-11 and 15-24. Yet, the evidence offered at trial did not mention the earlier attack of Tenny by Mulvey or Mulvey’s repeated threats of arson and murder against Tenny:

Q. [Sheppard] On that last point, Mr. Bennett, you have the — you re-urged the evidence that you were presented at guilt or innocence, but again, none of that evidence included any of these witnesses’ testimony?

A. [Bennett] I think that’s right.

Q. And, in fact, omitted Jim Tenny’s potential testimony about the attack on him by Joyce the Friday night before?

A. Yes, it did.

Q. The judge never heard anything?

A. No, it wasn’t presented; he didn’t hear it.

Hearing Trans., p. 127, In. 15-24. Despite the critical nature of this evidence, Bennett never presented clearly mitigating evidence, and thus, abandoned Tenny’s sudden passion contention.

The sentencing of Tenny was by a visiting judge, as opposed to the jury. Tr. Trans., ,vol. 7, p. 72-74. Bennett had no trial strategy in deciding not to call witnesses and not to introduce evidence during the sentencing phase of Tenny’s trial. Bennett’s fears of Monastery taint were neither applicable nor reasonable at sentencing in light of the fact that the sentencing was done by a visiting judge. As Bennett admits, the judge acted as an impartial arbiter of the facts at sentencing and would not be swayed by community sentiment toward the Monastery:

Q. [Sheppard] Now, you’ve talked about, also, that your strategy was you were so concerned about the community sentiment concerning all these many witnesses for the defense who were from the monastery that you just backed off and didn’t present them at all at the guilt or innocence stage. But then, you didn’t present any of those witnesses at the punishment stage either, did you?

A. [Bennett] No, I did not.

Q. Was it your thinking that the judge would have the same kind of prejudice and attitude about the monastery where he could not remove that from his mind and evaluate their testimony?

A. No, not at all.

Hearing Trans., p. 126, In. 14 — p. 127, In. 1.

It is clear from the record Bennett was ineffective as counsel at sentencing for not actively advancing the theory of sudden passion and, instead, withholding relevant testimony available to Tenny — probative facts regarding both Tenny’s and Mul-vey’s states of mind. Bennett’s actions were unreasonable and unsound. See Jones v. Thigpen, 788 F.2d 1101, 1103 (5th Cir.1986) (failure to present mitigating evidence at sentencing was professionally unreasonable). Accordingly, as the Magistrate Judge concluded, there was no strategy in Bennett’s decisions, much less any reasoned strategy.

Bennett’s deficient performance at sentencing served to prejudice Tenny as the mitigating evidence available to be presented would have in reasonable probability resulted in a significantly less harsh sentence. Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir.1993). Therefore, this Court finds the state court could not have reasonably held that Tenny had constitutionally effective counsel.

C. Failure to Object

Additionally, Tenny argues he was denied due process rights guaranteed by the Sixth and Fourteenth Amendments because Bennett was constitutionally ineffective in failing to object to the prosecution’s improper arguments (see Section VI, infra ) and move for a mistrial as a result of such improper comments. Having conducted a full review of the record in this case, this Court finds Tenny has not shown, but for his counsel’s failure to object, the outcome of his case would have been different. Accordingly, the Court declines to find any basis for habeas on this issue.

D. Conflict of Interest

Tenny contends he received ineffective assistance because his trial counsel was operating under a conflict of interest. Specifically, Tenny asserts his attorney accepted a job from the Blanco County District Attorney’s Office soon after Tenny’s conviction. According to Tenny, his counsel was hired as a special prosecutor to prosecute two of Tenny’s main witnesses, Father Benedict and Father Jeremiah on unrelated charges. Tenny raised this claim in his application for state writ of habeas corpus, and the Texas Court of Criminal Appeals denied relief on this claim. Ex parte Tenny, Appl. No. 48,704-01, at 30. The state court based its decision on two affidavits prepared by prosecutors in the Tenny case, rebutting any claim of conflict of interest. Ex parte Tenny, Appl. No. 48,704-01, at 98-102. In District Attorney Sam Oatman’s affidavit, the prosecutor states “[n]o offer of employment, or even interest in possibly employing Mr. Bennett, was communicated, discussed, or considered until after the conclusion of Mr. Tenny’s trial.” Ex parte Tenny, Appl. No. 48,704-01, at 99-100. First Assistant District Attorney Tom Cloudt similarly avers Bennett was not hired until after Tenny’s trial, and at no time prior to the conviction was any consideration given to employing Bennett. Ex parte Tenny, Appl. No. 48,704-01, at 108. After consideration of the affidavits, the state habeas court found no offer of employment or prospective employment, nor any conversation inducing any hope of employment, was made to Bennett, prior to conclusion of the trial. Ex parte Tenny, Appl. No. 48,704-01, at 104. Because Ten-ny has not produced any evidence otherwise, and the state court found the affidavits credible, this Court agrees with the Magistrate Judge’s determination the state court was not unreasonable in its application of clearly established federal law or in its determination of the facts in light of the evidence.

V. Insufficient Evidence

Tenny contends his conviction is not supported by sufficient evidence because the evidence presented at trial proves he killed his common law wife, Mulvey, in self-defense. Tenny argues the evidentia-ry and testimonial evidence fully supports his claim of self-defense. Tenny raised this claim in his application for state writ of habeas corpus, and the Texas Court of Criminal Appeals denied relief on the claim. Ex parte Tenny, Appl. No. 48,704-01, at 11-14.

When deciding a federal habeas claim based on insufficient evidence, the Court decides whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence need not exclude every reasonable hypothesis of innocence or be completely inconsistent with every conclusion except guilt so long as a reasonable trier of fact could find the evidence establishes guilt beyond a reasonable doubt. See United States v. Leahy, 82 F.3d 624, 633 (5th Cir.1996).

In this case, Tenny was charged with murder, which required the State to prove beyond a reasonable doubt Tenny committed assault and (1) intentionally or knowingly caused the death of an individual; (2) intended to cause serious bodily injury and committed an act clearly dangerous to human life.that caused the death of an individual; or (3) committed or attempted to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he committed or attempted to commit an act clearly dangerous to human life that caused the death of an individual. Tex. Penal Code Ann. § 19.02(b). Self-defense is an affirmative defense to murder. In Texas, a person is justified in using force against another when, and to the degree he reasonably believes, the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force. Tex. Pen. Code Ann. § 9.31(a).

Tenny testified on his own behalf. On cross examination, the following exchange took place:

Q. [Prosecutor] You are James Bernard Tenny?

A. [Tenny] Yes.

Q. And you did intentionally and knowingly cause the death?

A. Yes, I did.

Q. Of Joyce Mulvey?

A. Yes, I did.

Q. By stabbing her in the chest and abdomen with a knife?

A. Yes, I did.

Tr. Trans., vol. 6, p. 94.

Tenny later explained further:

A. I, I may have had, gave you the wrong impression. When I shoved that knife into her, I shoved it into her with every bit of strength and every bit of power I had. She went down on the chair. I fell on top of her, basically pulling the knife to the side and I could feel it twisting inside of her as I was pushing it and my weight was going down on it, it was going sideways but it was in as far as it could go.

Tr. Trans., vol. 6, p. 96-97. After restating earlier testimony from the doctor who examined Mulvey’s body, the prosecutor continued the questioning:

Q. [Prosecutor] Now, how did you — so you pulled it out of her at that time?

A. [Tenny] Yes.

Q. And you stabbed her again?

A. Yes.

Q. And you stabbed her again?

A. uYes.

Q. And you stabbed her again?

A. Yeah.

Tr. Trans., vol. 6, p. 96-97.

After viewing the evidence, as it stands in the record and in the light most favorable to the prosecution, this Court agrees with the Magistrate Judge and holds the evidence presented at trial was sufficient to permit a rationale finder of fact to find Tenny guilty of murder beyond a reasonable doubt, and therefore, Tenny is not entitled to habeas relief.

VI. Prosecutorial Misconduct During Jury Argument

Tenny maintains the prosecutor made a number of improper remarks to the jury and he is therefore entitled to federal habeas relief. Specifically, Tenny argues the prosecutor stated in closing argument Tenny, after the incident, was “sloshing gas everywhere.” Tr. Trans., vol. 6, p. 155. Tenny argues “[t]his baseless statement, combined with the prosecution’s contention that the petitioner had over an hour to concoct his story and plant supporting evidence, prevented a fair trial. See Trial Trans., vol. 6, p. 159 (arguing ‘[a]fter an hour and eighteen minutes, [the petitioner] comes up with this.’).” Petitioner’s Objections at 10. Tenny notes, contrary to the prosecution’s argument, the police arrived at the scene within seventeen minutes. Petitioner’s Objections at 10. In addition, Tenny complains the prosecutor told the jury Tenny made several calls to 911 and it was during this period of time Tenny seized the opportunity to lay the groundwork for his defense. Tr. Trans., vol. 6, p. 151-54. Tenny also accuses the prosecutor of misstating the law contrary to the trial court’s charge where the prosecutor told the jury, “whether it was justified or not, it’s not your call” and “[i]f [Tenny] was in a rage, he’s not entitle[d] to self-defense.” Tr. Trans., vol. 6, p. 165-166 (emphasis added). The prosecution commenting on the jury charge, further instructed the jury:

[t]here is not one single paragraph, word, or any issue of law in here that gives James Tenny the right to kill that woman because he was in a rage ... If he did that, then he is not in control of his faculties, that’s for sure, but that he’s not in the throws of self-defense. He’s raging and killing someone because he can’t control himself and that’s murder ...

Tr. Trans., vol. 6, p. 163. Tenny argues the cumulative impact of these misstatements of the law by the prosecution, as well as the prosecution’s factually inaccurate account of the events, so contaminated the trial and the jury’s understanding of the law and facts that an unjust, and constitutionally unfair conviction was the result. As such, Tenny maintains the prosecutor’s misstatements of fact and law were an egregious display of prosecutorial misconduct. The Texas Court of Criminal