Full opinion text
MEMORANDUM OPINION & ORDER BRIONES, District Judge. Before the Court is Petitioner Ricardo Ortiz’s (“Ortiz”) federal petition for habeas corpus relief, filed through counsel on February 9, 2004. Therein, Ortiz attacks his state conviction and death sentence for the capital murder of Gerardo Garcia (“Garcia”), pursuant to Texas Penal Code § 19.03(a)(2). After carefully considering the record below and the Parties’ pleadings, the Court finds that Ground One of Ortiz’s Petition is partially barred from a federal merits review. As to the portion of Ground One and Ortiz’s six remaining grounds of error that are properly before the Court, the Court concludes that Ortiz has not established that he is entitled to relief under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”). Although the Court will grant Ortiz a Certificate of Appealability regarding Ground Five of his federal petition (i.e., the trial court’s alleged violation of the Ex Post Facto Clause), it will decline to certify his remaining issues for appeal. 1. Facts & Procedural History Garcia was found dead in the El Paso County Jail on August 19, 1997. A sheriffs detective found a syringe in the section of the jail where Garcia had been confined. On September 17, 1998, the state Grand Jury sitting in El Paso County, Texas, returned a one-count Indictment against Ortiz, charging him with Garcia’s murder. Trial on the merits began on June 14,1999. A. Guilt-Innocence Phase — the State’s Case-in Chief The State presented the following evidence in support of its case. 1. Testimony of Juan Contin, M.D. Juan Contin, M.D. (“Contin”), Chief Medical Examiner for El Paso County, autopsied Garcia’s body on August 20, 1997. Contin later testified at trial regarding his findings. Contin explained to the jury that, when heroin is injected into or otherwise enters the bloodstream, the body quickly metabolizes it into various other substances, primarily morphine. Contin further related that, in his professional experience, morphine in its pure state was not available on the streets of El Paso, whereas heroin was readily obtainable. Given the high levels of morphine he found in Garcia’s blood and the street-level unavailability of pure morphine, Contin concluded that Garcia died of acute narcotism, specifically, a heroin overdose. Contin recounted that the morphine levels in Garcia’s body were unusually elevated, even for an overdose case. Contin told the jury that his office had investigated seventy-six deaths from acute narco-tism from January 1995 to September 1997. At a concentration of 523 nano-grams per milliliter (ngs/ml), Contin explained, the amount of morphine in Garcia’s blood was three times greater than that encountered in the average overdose victim (i.e., 170 ng/ml). Contin stated that, upon examining Garcia’s body, he found a single fresh needle mark on Garcia’s left arm, in the fold between the upper arm and forearm. Contin, however, did not observe any needle track marks. Contin informed the jury that he worked part-time in a methadone center and thereby had encountered hundreds of individuals addicted to heroin. In Contin’s opinion, the absence of needle track marks on Garcia’s body suggested that Garcia was not a heroin addict. 2. Testimony of Mario Hernandez Mario Hernandez (“Hernandez”) was housed in the same section of the El Paso County Jail as Garcia when Garcia died. Hernandez testified that this particular section of the jail was known as the “Texas Syndicate Tank” because individuals confined there were associated with the Texas Syndicate gang. Hernandez explained that he did not belong to the gang, but-was placed in the tank because of his cousin’s affiliation with the organization. Hernandez stated that he knew neither Ortiz nor Garcia before encountering them at the jail. Upon arrival, Ortiz took control of the tank. As “tank boss,” Ortiz dictated what other inmates in the tank could request from the jail commissary and dealt with the jail guards on béhalf of the other inmates. Ortiz took up residence in cell number three within the tank. Jail guards placed Garcia in the tank about two weeks after Ortiz arrived. Garcia lived in cell number five, along with an inmate named Mike Crenshaw (“Crenshaw”). Hernandez recalled that, when the guards brought Garcia into the tank, he saw Ortiz “freak” and immediately summon Garcia into cell number three. Another inmate, Hector Hernandez, joined Ortiz and Garcia. Mario Hernandez subsequently overheard Ortiz and Garcia engage in a heated exchange. Ortiz expressed great concern that Garcia had been apprehended for certain bank robberies, and the men argued about whether Garcia’s arrest resulted from his being incriminated by Garcia’s girlfriend or Ortiz’s wife. Hernandez testified that, to his knowledge, there were no narcotics in the tank before Ortiz was placed there. After Ortiz arrived, Ortiz commented daily that he wanted to bring heroin into the jail. Ortiz asked Hernandez once if he knew where Ortiz could “score” (ie., obtain drugs), but Hernandez did not have a telephone number. Hernandez also overheard Ortiz make more than ten telephone calls, trying to sell a trailer in order to generate funds with which to purchase heroin. On the evening of the murder, during visiting hours, Ortiz succeeded in obtaining heroin. Hernandez knew this because Paul Walker (‘“Walker”), the inmate who had accompanied Ortiz to visitation, told Hernandez that he and Ortiz had scored. In addition, Mario, a heroin user himself, knew the signs of someone high on heroin. He stated that Ortiz and Walker were visibly under the drug’s influence when they returned from the visitors booth. Upon Ortiz and Walker’s return from visitation, Walker entered cell number five, the cell which Crenshaw and Garcia shared. Garcia was not in his cell, but was playing cards at a table in the tank’s common area Ortiz returned to his own cell for a minute or two, and afterward went to Garcia and Crenshaw’s cell. By that time, two additional inmates had joined Walker in cell number five. The heroin had been brought to the cell as well. The men called for Garcia to join them in the cell. Hernandez sat at a table in the tank’s day room. The table was about five feet away from the doorway to cell number five and Hernandez could see inside. Hernandez recalled that Garcia was sitting on a bunk bed within the cell, surrounded by the four men. Ortiz handed another inmate some black tar heroin to “cook” and the inmate dissolved the drug in water and drew the substance into a syringe. The inmate handed the syringe to Ortiz. Ortiz looked at Garcia. He took Garcia’s arm. Garcia turned away. To Hernandez, it seemed that Garcia did not want to be injected. Despite Garcia’s posture, Ortiz nonetheless inserted the needle and emptied the syringe’s contents into Garcia’s arm. Garcia immediately went into spasms as if he were overdosing. Hernandez’s cellmate, identified only as “Davalos,” noticed that Hernandez was closely watching the events inside cell number five and suggested that they return to their own cell. While Hernandez and Davalos were heading back to their bunks, Hernandez witnessed Ortiz and another inmate lift Garcia, place him on the bottom bunk of the cell, and cover him with a blanket. When Ortiz realized that Hernandez was watching his actions, Ortiz extinguished the lights in Garcia’s cell. Ortiz, who normally did not associate with them, then invited Hernandez and Davalos to his cell and offered them heroin, which they accepted. Ortiz stated that Garcia had overdosed and directed Hernandez and Davalos not to alert anyone. Instead, Ortiz told them that they should just let the guards find the body. If, after the body was discovered, anyone asked them what had happened, Ortiz suggested that Hernandez and Davalos say only that Garcia had brought the heroin into the jail with him, been stingy with it, and injected it all himself. When the guards came the next morning to release the inmates from the tank for breakfast, Ortiz told them that Garcia was asleep and did not want to eat. The guards left without checking on Garcia. When the guards came to release the inmates for the next meal, Ortiz again told them that Garcia was sleeping. The third time the guards came by, they entered Garcia’s cell and discovered him dead. 3. Testimony of Hector Hernandez Hector Hernandez (“Hector”) resided in the same tank as Ortiz and Garcia when the murder occurred. Hector stated that he was not a Texas Syndicate member, but rather a prospect whom Ortiz was considering bringing into the organization. Hector testified that, before the events in question, he had met Ortiz through his girlfriend’s mother, Diane Najera, whose husband belonged to the gang. While on probation for burglary of a habitation, Hector was caught attempting to bring heroin into the jail for Ortiz. The authorities subsequently charged Hector with possession of heroin and the State of Texas (“the State”) moved to revoke his probation. Ortiz arranged for Hector to be placed in the Texas Syndicate tank and the two men bunked together in cell number five. Hector already knew Garcia well, due to having been incarcerated with him previously. Garcia was in the tank when Hector arrived. Hector had never seen Garcia use heroin. During the period in question, Ortiz returned from a meeting with law enforcement authorities believing that Garcia and Garcia’s girlfriend had implicated him in certain bank robberies that he and Garcia had committed together. Ortiz said that Garcia therefore must die. According to Hector, Ortiz first planned to stab Garcia to death with a sharpened screwdriver.However, Ortiz later opted to force Garcia to take an overdose of “3 dimes” worth of heroin, so that the death would look like a suicide. After Garcia’s death, Ortiz told Hector to lie to the police about what happened. On cross-examination, Hector acknowledged that the State had dismissed the pending possession of heroin charge against him and had also agreed not to revoke his probation. Although Hector gave conflicting statements regarding whether he had a deal with the State, he ultimately said he did not. 4. Testimony of Detective Louie Car-reon Louie Carreon (“Carreon”) stated that he was employed as a detective with the El Paso Police Department at all times relevant to this cause. On August 6, 1997, Carreon was assigned to the Repeat Offender Program, which monitors individuals on parole and executes arrest warrants on individuals who have been accused of violating the terms of their release. Officers in the Repeat Offender Program wear plainclothes and drive unmarked vehicles. On August 7, 1997, Carreon executed an arrest warrant for Ricardo Ortiz. Officers placed Ortiz in the back of a marked police car which had been called to the scene to transport Ortiz to jail. Ortiz knew Carreon from earlier interactions. As Carreon walked by the squad car, Ortiz called out that he wanted to talk to him. Carreon, who was busy preparing his arrest report, told Ortiz that he could not talk right then, but would talk with him later. After they arrived at the station and Carreon finished his report, he met with Ortiz in an interview room. Ortiz said that he would trade information about a bank robbery if the police would help him with his parole warrant. Car-reon relayed Ortiz’s comments to an officer assigned to investigate robberies. 5. Testimony of FBI Special Agent Thomas Lott Special Agent Thomas Lott (“Lott”) testified that, at the time of the events relevant to this cause, he was assigned to the Federal Bureau of Investigation’s Violent Crime Squad, which among its other duties, investigates bank robberies. Specifically, Lott acted as the Violent Crime Squad’s bank robbery coordinator. Lott’s duties included working with agents assigned to investigate bank robberies within his division and insuring that the information gleaned from their investigations was disseminated to Violent Crime Squads in other FBI divisions. Lott stated that he and his squad were responsible for investigating three bank robberies committed in El Paso, Texas on July 25, 1997, July 30, 1997, and August 1, 1997. From witnesses’ accounts, Lott’s team had reason to believe that the same Hispanic male had perpetrated all three robberies, while an accomplice waited outside in the get-away vehicle, a gray Mercury Cougar. On or about Wednesday, August 6, 1997, Lott received a telephone call from an El Paso Police Department sergeant. The officer informed Lott that Ortiz, upon being arrested, had stated that he possessed information regarding an unspecified bank robbery. Since Ortiz did not mention a particular bank robbery, Lott noted the call but did not immediately interview Ortiz. Lott and his squad instead spent the next few days and weekend pursuing other leads. They interviewed Garcia’s ex-girlfriend, who said she believed Garcia was involved in the bank robberies. She told them that Garcia had owned a gray Mercury Cougar, but had recently sold it to Ortiz. She additionally recalled having seen Garcia, Ortiz, and Ortiz’s wife counting money in Garcia’s living room. Based on the information provided by Garcia’s ex-girlfriend, Lott identified Garcia as a possible suspect. After witnesses to ‘ the robberies selected Garcia from a photo lineup, Garcia became an official suspect. Although Garcia’s ex-girlfriend also implicated Ortiz in the robberies, after the interview with her, Lott felt that he still did not have enough evidence against Ortiz to charge him. Lott therefore concocted a scheme, described below, to encourage Ortiz to talk to authorities. Garcia was already in custody at the jail for an unrelated matter. Lott arranged for officers to bring Ortiz to the same holding area. Lott hoped that when Ortiz and Garcia saw each other ostensibly talking to police officers, each man would assume that his accomplice was cooperating with the investigation, implicating the other in the robberies. Lott said that this was a routine and often effective tactic for securing statements and confessions. Lott had officers take Ortiz back and forth past Garcia a couple of times, to ensure that the two men made eye contact, which they did. Lott and his team later prepared a criminal complaint charging Garcia with bank robbery. Attached to the complaint was a probable cause statement, which specifically, but falsely, mentioned Ortiz as one of the individuals implicating Garcia in the robberies. Lott and his investigators subsequently visited Ortiz at the jail to show him the documents. Lott advised Ortiz that they were about to formally charge Garcia with bank robbery, and when they did so, Garcia would learn that Ortiz had “snitched him off.” Lott wanted to plant the thought in Ortiz’s mind that Garcia would likely retaliate by implicating Ortiz. Lott hoped that this realization would induce Ortiz to cooperate with the investigation. B. ChrilP-Innocence Phase — Ortiz’s Case-in Chief The defense rested without presenting evidence in Ortiz’s defense. Ortiz did not testify. C. Punishment Phase — The State’s Case-in-Chief The jury found Ortiz guilty of capital murder on June 16, 1999. The punishment phase commenced directly thereafter. The State presented evidence of several extraneous bad acts committed by Ortiz, which are set forth below. The State also presented testimony which familiarized the jury with the Texas Syndicate’s structure and practices and illustrated the considerable influence a highly-placed member of the organization such as Ortiz could wield from prison. 1. Testimony of Officer Enrique Vene-gas As discussed in Section I.A.4, supra, of this Opinion, Detective Louie Carreon executed a warrant for Ortiz’s arrest on August 7, 1997. Enrique Venegas, Jr. (“Venegas”), an El Paso County Police Department officer, testified that he assisted Carreon in executing the warrant. Venegas recalled that he and his partner were conducting surveillance in an area plagued by significant illegal drug activity when Carreon alerted them that Ortiz had been spotted nearby. Carreon, who, like Venegas and his partner, was driving an unmarked unit, requested a marked unit to assist with Ortiz’s apprehension. Car-reon, Venegas, and Venegas’s partner followed Ortiz in their unmarked units until Ortiz stopped his car at a red traffic light. The officers then blocked Ortiz on all four sides. Venegas’s vehicle was positioned' at an angle behind Ortiz’s car. The officers began to leave their vehicles, showing their badges and identifying themselves as police officers. As Venegas was getting out of his car, he observed Ortiz look over his shoulder. To Venegas, it seemed that Ortiz was trying to see if he could escape by backing his car up. Ortiz, still looking backward, subsequently put his car in reverse gear and attempted to drive it through a small space between the two police vehicles behind him. As he backed up, Ortiz’s car hit the driver’s side door of Venegas’s vehicle and pinned Venegas between the door and the side of the passenger compartment. Ortiz saw that he had pinned Venegas, but did not stop his vehicle until other officers pointed their weapons at him and demanded that he surrender. Venegas testified that he experienced pain in his shoulder and thigh as a result of Ortiz’s conduct, but did not receive medical attention for his injuries. 2. Testimony of Onessimo Parra Onessimo Parra (“Parra”) testified that, from 1985 until 1990, he was a Texas Syndicate member. Parra identified Ortiz and stated that in 1990, Ortiz invited him and three other Texas Syndicate members, Anthony Acosta (“Acosta”), Jimmy Rangel (“Rangel”) and Martin Cardenas (“Cardenas”), to a cookout at Ortiz’s house. At some point, all five men left the party and drove in two cars to a small park in the desert surrounding El Paso, near Fabens, Texas. They stayed there, drinking, for about fifteen minutes. Ortiz took two hand guns from underneath the seat of his car and gave one to Cardenas. Ortiz and Cardenas invited the three other men to go with them to kill rabbits and they all started walking into the desert. When Acosta pulled a little ahead of Ortiz, Ortiz shot him two to three times in the back. Acosta turned to face Ortiz, whereupon Ortiz shot him another two or three times in the stomach. Ortiz left Acosta where he fell. Meanwhile, Cardenas had shot Rangel twice in the back of the head. The bodies had been “shot to pieces.” Ortiz asked Cardenas for the guns so that he could hide them. Parra and Cardenas left together and returned to Ortiz’s house. Ortiz put the guns back in his car and took a different route. Parra stated he knew beforehand that Acosta and Rangel were going to be murdered, and that their deaths were related to Texas Syndicate business. Parra had no doubt, when he left, that Acosta and Ran-gel were dead. 3. Testimony of Anthony Chavez Anthony Chavez (“Chavez”) testified that he became a Texas Syndicate member in 1989, while serving the end of a 12-year state prison sentence for robbery at the Texas Department of Criminal Justice’s Darrington Unit (“Darrington Unit”). Chavez explained that prospects are recruited by active members and then investigated. The active member of the organization invites a prospect to join and becomes the recruit’s “padrino.” Chavez said there were several advantages to membership, including greater access to drugs and the outside world in general, as well as more control over one’s immediate environment. Chavez was introduced to other organization members confined in the Darrington Unit, including Ortiz, who held the rank of “lieutenant.” Chavez recalled that Ortiz submitted requests for legal interviews with Chavez so that the two could talk privately in the same cell, ostensibly to discuss legal matters. Instead, they discussed activities within the prison and goals that Texas Syndicate members wanted to accomplish. Chavez stated that Ortiz was engaged in a power struggle with another Texas Syndicate lieutenant housed within the Darrington Unit. Prison administrators had recently revoked certain of Ortiz’s privileges, and Ortiz believed that the other lieutenant was responsible. During their sessions, Ortiz schemed with Chavez to find a way to retaliate against his rival. Chavez and Ortiz were released from the Darrington Unit on the same day in 1990 and returned to San Angelo and El Paso, respectively. Chavez was taken into custody again almost immediately upon his return to San Angelo, and thereafter communicated with Ortiz from jail by telephone. The two had a telephone conversation during the summer of 1990, in which Ortiz ordered Chavez to kill an individual named Felix Benevides. Ortiz promised to “take care” of Acosta. Chavez understood Ortiz to mean that Ortiz would either kill Acosta himself or arrange for someone else to do it. After Chavez’s release from jail, he called Ortiz again, only to be told by Ortiz’s father that Ortiz was in jail for capital murder. Chavez stated that he left the Texas Syndicate in 1992 or 1993, after the following incident. While Chavez was incarcerated in the county jail, he received a telephone call from Ortiz. Ortiz told him that Frank Gora (“Gora”), another active Texas Syndicate member, was also in the jail. Gora was facing a number of charges and wanted to escape. Ortiz instructed Chavez to treat Gora with respect and like a brother because Gora was a Texas Syndicate member. Chavez complied and assisted Gora in his escape ■attempt.. For his aid, Chavez received a 45-year sentence for attempted capital murder. Upon commencing his sentence in the Texas Department of Justice, McConnell Unit (“McConnell Unit”), Chavez learned that Gora was not a Texas Syndicate member after all, but a member of a rival gang, the Mexican Mafia. Chavez was then subject to the displeasure of other Texas Syndicate members in the McConnell Unit, who criticized him for helping a member of a rival organization. As an' additional reason for leaving the organization, Chavez related that, while on release from jail, he had been ordered to kill someone but had not done so. When he returned to jail, the organization therefore assigned him to kill someone else. Chavez foresaw “a big old wreck” coming and decided to leave the gang. Chavez encountered Ortiz again in 1995, when Ortiz was also placed in the McConnell Unit. Ortiz threatened Chavez, calling him a “snitch.” Ortiz warned Chavez that if Chavez said anything about Acosta (ie., one of the men Ortiz allegedly-murdered in the desert near Fabens, Texas) or anything else implicating Ortiz in criminal behavior, Ortiz “would catch up to” him. Ortiz reminded Chavez that he knew where Chavez’s family lived and emphasized that Chavez should remember that fact. Chavez told the jury that gang members who inform on other members — particularly, higher ranking members — are killed. 3. Testimony of Enrique Franco Enrique Franco (“Franco”), Security Threat Groups Coordinator for Region III of the Texas Department of Criminal Justice, Institutional Division, testified as an expert in the field of gang intelligence. Franco explained that the Texas Syndicate is a prison-based inmate gang, existing throughout the Texas state prison system and on the streets of many states, including Texas. He further informed the jury that the Texas Syndicate is considered the most highly-structured, aggressive, and violent prison gang. The gang is organized by rank into the categories of president, vice president, lieutenants, captains, majors, sergeants, and soldiers. Its members are known for their extremely strong loyalty to the organization and readiness to follow, to the letter, any order given by higher ranking members. To kill someone outside of prison, a Texas Syndicate member would merely have to contact his members on the street and order them to carry out the murder. Franco told the jury that Ortiz held the third-highest rank of lieutenant and was known as a very violent person. 4. Evidence of Ortiz’s Prior Adjudicated Offenses In addition to testimonial evidence of Ortiz’s extraneous bad acts, the States submitted his “pen packet” or record of prior adjudicated offenses into evidence.. The evidence was offered to show the jury that Ortiz had been previously convicted of aggravated robbery, possession of a deadly weapon in a penal institution, burglary of a vehicle, and simple robbery. It additionally showed numerous disciplinary infractions committed by Ortiz while incarcerated. C. Punishment Phase — Ortiz’s Casein-Chief The State rested its punishment case-in-chief late on June 16, 1999. Ortiz’s lead counsel, Jaime Gandara, thereafter requested a short recess in which to confer with his client. When the proceedings reconvened and the court asked Gandara to call his first witness, Gandara announced that the defense would rest. The next day, outside the presence of the jury and before charging it, the trial judge addressed Ortiz, asking whether it had been his decision not to testify at the guilt-innocence or punishment phases of the trial. Ortiz replied that it was his decision not to testify. The trial judge also noted that Gandara, after consulting with his client at the close of the State’s case, had abandoned his apparent plan to present witnesses at the punishment phase to testify on Ortiz’s behalf. The trial judge asked Gandara to articulate for the record whether his decision was part of his trial strategy. Gandara stated: Your Honor, we had witnesses for the punishment phase. And after consultation with Mr. Ortiz, we made a decision that for various reasons, including trial tactics, that it would be best not to put up any witnesses. And there were some strong reasons for it besides trial tactics, some strong personal reasons on Mr. Ortiz’s part. But all those things were taken into consideration, and that was .done after consultation with my client, and Mr. Munoz [co-counsel], of course. Ortiz confirmed Gandara’s account of the facts surrounding the decision not to call witnesses and told the court that he was satisfied with Gandara’s representation. On June 17,1999, the jury returned with its answers to the special questions required under Texas law. It found beyond a reasonable doubt that: (1) Ortiz would probably commit criminal acts of violence in the future and constitute a continuing threat to society; and (2) there were no sufficiently mitigating circumstances to warrant life imprisonment rather than a death sentence. Accordingly, the trial court sentenced Ortiz to death. D. Subsequent Procedural History Ortiz was convicted and sentenced to death for the capital murder of Garcia in the 243rd Judicial District Court of El Paso County, Texas, the Honorable David C. Guaderrama presiding. Ortiz filed a Motion for New Trial, which was denied after a hearing convened on September 3, 1999. Ortiz’s capital murder conviction was automatically appealed to the Texas Court of Criminal Appeals (“Court of Criminal Appeals”), which affirmed his conviction and sentence in a published opinion issued on September 25, 2002. The Supreme Court of the United States denied Ortiz’s petition for a writ of certiorari in an order dated April 28, 2003. Ortiz filed a state application for writ of habeas corpus with the trial court on March 8, 2002. On November 25, 2002, the trial court entered findings of fact and conclusions of law, recommending that the Court of Criminal Appeals deny relief. The Court of Criminal Appeals adopted the trial court’s findings of fact and conclusions of law and denied Ortiz’s state application in an order dated January 22, 2003. Ortiz filed his “Petition for a Writ of Habeas Corpus By a Person in State Custody (28 U.S.C. § 2254)” (“Petition”) and “Brief in Support of Petition for a Writ of Habeas Corpus By a Person in State Custody (28 U.S.C. § 2254)” (“Brief’) on February 9, 2004. Respondent’s “Answer and Motion for Summary Judgment With Brief in Support” (“Answer”) followed on May 14, 2004. Ortiz did not file a Reply. E. Ortiz’s Claims for Federal Habeas Corpus Relief In his Petition, Ortiz asserts seven claims for relief, which the Court summarizes. First, Ortiz argues that the trial court improperly excluded qualified veniremembers from jury service because they objected to or voiced conscientious scruples against capital punishment (“Ground One”). Second, Ortiz contends that lead counsel Gandara rendered ineffective assistance when he failed to prevent the exclusion of the aforementioned veniremembers (“Ground Two”). Third, Ortiz charges that Gandara rendered ineffective assistance because he failed to adequately investigate and did not present any evidence in mitigation of his client’s punishment (“Ground Three”). Fourth, Ortiz alleges that the State failed to disclose evidence suggesting that prosecution witness Hector Hernandez testified against Ortiz in exchange for the State’s promise to treat Hernandez leniently in a collateral criminal matter (“Ground Four”). Fifth, Ortiz avers that the State violated the Ex Post Facto Clause of the federal constitution by prosecuting him under a version of Texas’s retaliation statute that was not enacted until after the date on which Ortiz murdered Garcia (“Ground Five”). Sixth, Ortiz alleges that he was denied a jury finding beyond a reasonable doubt that there were no mitigating circumstances sufficient to warrant the imposition of a life sentence rather than the death penalty, in violation of Ring and Apprendi (“Ground Six”). Lastly, Ortiz attacks Texas’s capital sentencing scheme, arguing that it precluded the jury from considering evidence of his character in mitigation of punishment (“Ground Seven”). This Court may not reach the merits of any claims that Ortiz has procedurally forfeited. Here, Respondent contends that Ortiz has forfeited his allegations raised under Ground One as to all prospective .jurors except Anna Doporto. Accordingly, the Court first discusses the standard for procedural default and examines whether any portion of Ground One falls victim to the procedural bar. After such analysis, the Court will consider the merits of any of Ortiz’s claims that are properly before it. II. Procedural Default In his Ground One of his Petition, Ortiz argues that the trial court excluded the following nineteen members of the venire panel from jury service, in violation of the' Sixth and Fourteenth Amendments to the federal constitution: (1) Andy 0. Reid (“Reid”); (2) Elizabeth Bonilla (“Bonilla”); (3) Ana Maria Ramirez (“Ramirez”); (4) ■Chris Berlit (“Berlit”); (5) Diana Reta (“Reta”); (6) Yvonne Lopez (“Lopez”); (7) Jeffrey Herrick (“Herrick”); (8) Ann Marie Parra (“Parra”); (9) Roberta Jane Vera (‘Vera”); (10) Robert Escamilla (“Escamilla”); (11) Dolores Cortinas (“Cortinas”); (12) Andre Estala (“Estala”); (13) Jorge Portillo (“Portillo”); (14) Rose Gallegos (“Gallegos”); (15) Rosa M. Palo-mo (“Palomo”); (16) . Lydia Santoscoy (“Santoscoy”); (17) Manuel Ruiz (“Ruiz”); (18) Anna Doporto (“Doporto”); and (19) Adriana Caballero (“Caballero”). As noted previously, Respondent contends that Ortiz has procedurally. defaulted Ground One as to all prospective jurors except Anna Doporto. After due consideration, the Court agrees. Procedural default occurs in two contexts, which are set forth below. In either circumstance, the petitioner is considered to have forfeited his federal habeas claim. A. Procedural Default Due to Failure to Exhaust Available State Court Remedies Under 28 U.S.C. § 2254(b)(1)(A), a court shall not grant habeas relief unless “the applicant has exhausted the remedies available in the courts of the State.” The requirements of the exhaustion concept are simple: An applicant must fairly apprise the highest court of his state of the federal rights which were allegedly violated. Further, the applicant must present his claims in a proeedurally correct manner. If, for whatever reason, an applicant bypasses the appellate processes of his state — whether through procedural default or otherwise — he will not be deemed to have met the exhaustion requirement absent a showing of one of two particulars. He must either demonstrate cause and prejudice or show that the failure to consider his claims will result in a fundamental miscarriage of justice. Thus, Ortiz will have satisfied the exhaustion requirement only if he “fairly presented]” his issues to Texas courts. To have fairly presented his claim to state courts, a petitioner seeking federal habeas corpus relief must have referred to a specific federal constitutional guarantee in his arguments before the state courts and provided them with a specific state- ment of the facts entitling him to relief. “It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made.” [0]rdinarily a state prisoner does not ‘fairly present’ a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so. Here, therefore, Ortiz will have failed to exhaust his claims if he presents new legal theories or factual claims in his federal habeas petition which he failed to present in his state court appeals. B. Procedural Default on an Adequate and Independent State Law Ground Because the exhaustion requirement “refers only to remedies still available at the time of the federal petition,” the requirement is satisfied “if it is clear that [the habeas petitioner’s] claims are now procedurally barred under [state] law.” However, the procedural bar that gives rise to exhaustion also provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim unless the petitioner can demonstrate cause and prejudice for failing to present the claim to the state courts. “The existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” “Objective factors that constitute ‘cause’ include interference by officials that makes compliance with the State’s procedural rule impracticable, and a showing that the factual or legal basis for a claim was not reasonably available to counsel.” To satisfy the “independent” and “adequate” requirement referenced above, the state court’s dismissal of the petitioner’s claim must “clearly and expressly” indicate that it rests on state grounds which bar relief. The state courts must follow the bar strictly and regularly and apply it to a majority of similar claims. The rule applies to both state court judgments rendered on substantive bases and to those rendered on procedural grounds. Where there has been one reasoned state judgment rejecting a petitioner’s federal claim and it is' followed by summary state court orders upholding that judgment or rejecting the same federal claim, a federal reviewing court presumes that the subsequent state court rulings rest upon the same ground. With the foregoing principles in mind, the Court considers whether Ortiz has procedurally defaulted Ground One of his Petition. C. By Failing to Preserve Error at Trial, Ortiz Procedurally Defaulted Ground One Under State Law as to Prospective Jurors Berlit, Reta, Lopez, Herrick, Parra, Escamilla, Cortinas, Estala, Portillo, Gallegos, Palermo, Caballero, Redi, and Bon-illa. On direct appeal, Ortiz challenged the exclusion of the following fifteen prospective jurors: Berlit, Reta, Lopez, Herrick, Parra, Escamilla, Cortinas, Estala, Portillo, Gallegos, Palermo, Caballero, Redi, Bonilla, and Doporto. The Court of Criminal Appeals determined that, with the exception of Doporto, Ortiz had failed to object at trial to the exclusion of any of these individuals from jury service. It reasoned that Ortiz’s failure to lodge a contemporaneous objection, a prerequisite under state law for appellate review, thus also failed to preserve error and waived the claim as to all prospective jurors except Doporto. This Court may not review Ortiz’s federal habeas claim on the merits if the Court of Criminal Appeals expressly and unambiguously based its denial of relief on Ortiz’s procedural default under state law. Here, the Court of Criminal Appeals stated that “because Ortiz failed to object [to the exclusion of prospective jurors Berlit, Reta, Lopez, Herrick, Parra, Escamilla, Cortinas, Estala, Portillo, Gallegos, Palermo, Caballero, Redi, and Bonilla], his complaints were not preserved with respect to [any of the excluded prospective jurors] except for the complaint regarding [Dopor-to].” The Court concludes that the Court of Criminal Appeals’ decision set forth with requisite clarity that its denial of relief rested on state law grounds, specifically, Ortiz’s failure to lodge a contemporaneous objection to the exclusion of any juror except Doporto. As the procedural bar to review rests on independent and adequate state law grounds and Ortiz has failed to show that some factor external to the defense interfered with his ability to object at trial, the Court finds that Ortiz is not entitled to federal review of Ground One, inasmuch as he alleges that Berlit, Reta, Lopez, Herrick, Parra, Escamilla, Cortinas, Estala, Portillo, Gallegos, Palermo, Caballero, Redi, and Bonilla were unconstitutionally excluded from jury service. D. Under State Law, Ortiz Procedurally Defaulted His Claims Regarding Prospective Jurors Ramirez, Vera, Santoscoy, and Ruiz by Failing to Challenge Their Exclusion in His Direct Appeal. In his direct appeal, Ortiz did not challenge the exclusion of prospective jurors Ramirez, Vera, Santoscoy, and Ruiz. Rather, he raised claims concerning the exclusion of these four prospective jurors for the first time in his state habeas application. The Court of Criminal Appeals was the last state court to consider the claim. In a brief per curiam order, that court merely stated that it adopted the trial judge’s findings of fact and conclusions of law. This Court has therefore “looked through” the Court of Criminal Appeals’ summary dismissal to find the last state court to enter a reasoned opinion on the issue. Here, that is the state habeas court, which issued detailed findings of fact and conclusions of law regarding Ortiz’s state application for habeas corpus relief. The state habeas court determined that, although Ortiz lodged a contemporaneous objection to Santoscoy’s exclusion, he failed to obtain a ruling from the trial court. The state habeas court additionally found that Ortiz did not object to Ramirez’s, Vera’s, or Ruiz’s exclusion. The state habeas court further ascertained that Ortiz could have raised his claim concerning these four prospective jurors on direct appeal, but did not. It concluded that Ortiz’s claims regarding these jurors were therefore barred by the state law requirement precluding collateral review of all claims that could have been raised on direct appeal, but were not. The Court finds that the state habeas court clearly and expressly indicated that its conclusions and concomitant recommendation that the Court of Criminal Appeals deny relief on Ortiz’s claim rested on independent and adequate state law grounds. The Court moreover finds that Ortiz has failed to show cause sufficient to overcome the procedural bar to federal review. The factual and legal bases for Ortiz’s claims regarding Ramirez’s, Vera’s, Santoscoy’s, and Ruiz’s exclusion were manifestly available at the time of Ortiz’s trial and direct appeal, and he has failed to show that any factor external to the defense impeded his ability to raise them at the appropriate point in the proceedings. Having determined that Ortiz is not entitled to federal review of Ground One to the extent he alleges that prospective jurors Reid, Bonilla, Ramirez, Berlit, Reta, Lopez, Herrick, Parra, Vera, Escamilla, Cortinas, Estala, Portillo, Gallegos, Palo-mo, Santoscoy, Ruiz, and Caballero were improperly excluded from jury service due to their views regarding capital punishment, the Court now turns to the legal standard governing its merits review of Ortiz’s claims that are properly before the Court. III. Applicability of the Antiterrorism and Effective Death Penalty Act of 1996 Because Ortiz filed his federal habeas corpus action after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), insofar as the state courts adjudicated his present claims on the merits, the AEDPA governs the Court’s review. Under the applicable standard of review, the Court cannot grant Ortiz federal habe-as corpus relief in this cause concerning any claim that was adjudicated on the merits in state court proceedings unless the adjudication of that claim either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The “contrary to” and “unreasonable application” clauses of 28 U.S.C. § 2254(d)(1) carry independent meanings. Under the “contrary to” clause, a federal habeas court may grant relief only if: (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or (2) the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. A state court’s failure to cite governing Supreme Court authority does not, by itself, establish that the state court’s decision runs contrary to clearly established federal law. A state court need not even be aware of governing federal precedent, so long as neither the state court’s reasoning nor the result it reaches contradicts that authority. Under the “unreasonable application” clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts of the petitioner’s case. A federal court making the “unreasonable application” inquiry should ask whether the state court’s application of clearly established federal law was “objectively unreasonable,” as opposed to merely incorrect. A legal principle is “clearly established” for purposes of AEDPA review if, when the state court reached its result on a point of law, a Supreme Court decision’s holding established the principle at issue. It is the petitioner’s burden to show that the state court applied clearly established federal law to the facts of his case in ah objectively unreasonable manner. Moreover, the AEDPA significantly restricts the scope of federal habeas review of state court factual findings, requiring a petitioner who challenges a state court’s factual findings to establish by clear and convincing evidence that the state court’s findings were erroneous. The Seventh Circuit Court of Appeals has provided a helpful explication of this standard: How then should federal courts distinguish between reasonably and unreasonably erroneous applications of clearly established Supreme Court precedent? The standard favors conventionalism over formalism. Which is to say, it takes for granted that for a given set of facts, there exists the possibility of several equally plausible outcomes. Our task is to uphold those outcomes that comport with recognized conventions of legal reasoning and set aside those which do not. Unreasonableness also serves as the touchstone against which state court decisions based on determinations of fact in light of the evidence presented are evaluated. As is the case under § 2254(d)(1), a petitioner’s challenge to a decision based on a factual determination will not succeed if the petitioner merely evidences that the state court committed error. Instead, he must further establish that the state court committed unreasonable error. And § 2254(e)(1) provides a mechanism by which the petitioner can prove that unreasonableness. If the petitioner can show that the state court determined the underlying factual issue against the clear and convincing weight of the evidence, the petitioner has not only established that the court committed error in reaching a decision based on that faulty factual premise, but has also gone a long way towards proving that it committed unreasonable error. A state court decision that rests upon a determination of fact that lies against the clear weight of the evidence is, by definition, a decision “so inadequately supported by the record” as to be arbitrary and therefore objectively unreasonable. With the foregoing principles in mind, the Court turns to the merits of Ortiz’s remaining claims for federal habeas corpus relief. IV. Claim One: The Trial Court Improperly Excluded Prospective Juror Anna Doporto from Jury Service Due to Her Views on Capital Punishment Ortiz contends that the trial court improperly excluded prospective juror Do-porto from jury service. On direct appeal, the Court of Criminals Appeals determined that Ortiz had not demonstrated a violation under Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). For the reasons discussed below, the Court finds that Ortiz has failed to show that he is entitled to relief under the AEDPA. A. Background The Honorable Sam Callan presided over voir dire. Judge Callan reviewed a detailed questionnaire with the venire-members. When he came to the portion of the questionnaire concerning the venire-members’ attitudes towards capital punishment, Judge Callan enumerated the eight capital crimes provided for by Texas law and explained what must happen for a criminal defendant to receive the death penalty, rather than life in prison. That is, if a jury finds that a defendant is guilty of capital murder, it must then answer two “special questions.” First, the jury must determine whether the defendant would likely commit criminal acts of violence in the future, such that he would represent a continuing threat to society. Second, the jury must ascertain whether, in light of all the evidence, including the circumstances of the offense and the defendant’s character, background, and personal moral culpability, there are sufficient mitigating circumstances to warrant his receiving a life sentence rather than the death penalty. Judge Callan informed the prospective jurors that, if the jury answered both of these questions in the affirmative, the trial judge would be required to sentence the defendant to death. Judge Callan then advised the jury pool: I am now going to ask you some questions about your convictions regarding the death penalty. Be assured that I am not now assuming that you will find the defendant guilty of capital murder or of any other crime in this case. Nevertheless, it is necessary to learn your state of mind about capital punishment in general, to determine whether you have an open mind as regards what might be a just and proper sentence in a capital case if the defendant in that case is found guilty as charged. So I am asking about your state of mind regarding capital murder in general. I am not asking in this next question what you think would be a just penalty in this or any particular case. I’m not at this time even asking you about your opinion as regards the death penalty in a retaliation capital murder case. And I am most especially not asking what you might think would be a just verdict in this ease — in this particular case. I am asking, rather, whether for religious or philosophical or any other reason you believe that the death penalty should never be inflicted in any case, regardless of what the evidence might be. In answering this next question, keep in mind that the circumstances and motives for the commission of crimes, including capital murder, are unlimited. Place a check mark by your answer, yes or no. Do you have conscientious scruples in regard to the infliction of death for a person convicted of capital murder? Yes or no? If you answered the preceding question yes, come up to the bench now. Doporto was one of several venire-members who self-selected themselves as having significant enough scruples against the infliction of capital punishment that they believed it should never be imposed under any circumstances. After Dopor-to announced her name and juror number to the Court, the following exchange ensued: MS. DOPORTO: Number 88, Anna Do-porto. I have seen other murder cases and have agreed with the death penalty, but I don’t feel I could bring a death penalty for somebody, to put that pressure on me. THE COURT: Ma’am, it’s not a question right now of how you feel about your serving as a juror. Right now, are you opposed to the death penalty in all cases? MS. DOPORTO: No, sir. THE COURT: Could you ever, sitting as a juror, no matter- — -no matter what the evidence showed, vote to inflict the death penalty? MS. DOPORTO: No, sir. THE COURT: Anybody want to ask a further question[?] MR. ROSALES: No, Your Honor. MR. LOCKE: No. THE COURT: You may take your seat. MR. ROSALES: State will challenge, Your Honor. THE COURT: Granted. MR. GANDARA: Defense would object to the challenge for cause. B. Legal Standard — The Selection of Jurors in Capital Cases The Witherspoon Court established the outer constitutional boundaries governing the selection of jurors in capital eases. Illinois law then authorized the exclusion for cause of any potential juror who expressed opposition to capital punishment or conscientious scruples against its infliction. On such statutory basis, the prosecution successfully eliminated forty-seven members of the venire in a capital case by challenging any prospective juror who expressed qualms about the death penalty. The challenges were not accompanied by an inquiry to determine whether the juror could nonetheless subordinate his personal views to his duty to abide by his oath as a juror and follow the law. Observing that a jury “culled of all who harbor doubts about the wisdom of capital punishment — of all who would be reluctant to pronounce the extreme penalty — ” would not be impartial, as constitutionally required, but rather would be inordinately predisposed to return a death sentence, the Witherspoon Court held that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” The Court revisited its holding and crafted a distinct test in Adams v. Texas. , In that case, the petitioner challenged a provision of the Texas Penal Code which required the trial court to disqualify any prospective juror who, after being informed of the mandatory penalties under state law for a capital offense (i.e., death or life in prison) was unable or unwilling to take an oath affirming that the knowledge of the prescribed penalties would not affect his deliberations on any issue of fact. This oath was administered against the backdrop of Texas’ bifurcated capital prosecution scheme, in which the trial is separated into guilt-innocence and punishment phases. If and when the jury returns a guilty verdict after the trial on guilt-innocence, it must then answer three “special questions.” If the jury answers these questions in the affirmative, the trial court must sentence the defendant to death. The Adams Court determined that the state penal code provision at issue violated the holding of Witherspoon because its “touchstone of inquiry” did not turn on whether potential jurors “could and would follow their instructions and answer the posited [special] questions in the affirmative if they honestly believed the evidence warranted it beyond a reasonable doubt.” Rather, it observed, the test imposed under the penal code provision impermissibly operated to exclude those prospective jurors who merely “stated that they would be 'affected’ by the possibility of the death penalty, but who apparently meant only that the potentially lethal consequences of their decision would invest their deliberations with greater seriousness and gravity or would involve them emotionally.” While emphasizing that the State could have no legitimate interest in “such a broad-based rule of exclusion,” the Adams Court nonetheless acknowledged that the states retain a valid interest in empaneling jurors who can follow the trial court’s instructions and obey their oaths to impartially consider the evidence of guilt. The Adams Court therefore approved: the general proposition that a juror may not be excluded for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court. In Wainwright v. Witt, the Court further clarified that the constitutional test set forth in Adams, rather than in Wither-spoon, represents the proper standard by which to judge whether a juror has been properly excluded from jury service in a capital case. The Witt Court moreover emphasized that it is not necessary for a juror to make it “unmistakably clear” that he would automatically vote against the death penalty in order for that juror to be constitutionally excluded from service: The proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. We note that ... this standard ... does not require that a juror’s bias be proved with unmistakable clarity. This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made unmistakably clear; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the, printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.... [Tjhis is why deference must be paid to the trial judge who sees and hears the juror. Witt makes abundantly clear that whether a particular member of the jury pool is or is not biased and therefore properly seated on the jury is a question of fact based on the trial judge’s on-the-spot assessment of credibility and demeanor. As a determination of fact, a trial judge’s finding of bias during voir dire is subject to a presumption of correctness on collateral review. The petitioner bears the burden of rebutting the determinations by clear and convincing evidence to the contrary. C. Discussion Because Ortiz’s claim regarding Doporto was adjudicated on the merits in state court, this Court may not grant relief unless, in determining that Judge Callan did not violate Witt in granting the State’s challenge for cause, the Court of Criminal Appeals arrived at a decision on direct appeal that 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 (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. After review, the Court finds that the Court of Criminal Appeals clearly and correctly identified Witt as the Supreme Court precedent governing Ortiz’s claim that Doporto was improperly excluded from jury service due to her views on capital punishment. The Court also determines that the Court of Criminal Appeals did not unreasonably apply the governing precedent. The Court of Criminal Appeals found that the record before it, in its totality, was sufficient to support a finding that Doporto was 'unalterably opposed to the imposition of the death penalty under any circumstances, and as instructed by Witt, properly deferred to the fact-finder’s evaluations of Doporto’s credibility and demeanor. The Court further finds that Ortiz has not defeated the presumption, as it is his burden to do, that Judge Callan’s factual determinations regarding Doporto’s attitude towards the death penalty and its application were correct. Under such circumstances, the Court the Court of Criminal Appeals’ rejection of Ortiz’s claim on the merits was neither contrary to, nor an unreasonable application of, clearly established federal law, as established by the Supreme Court of the United States. Similarly, the Court of Criminal Appeals’ decision did not represent an unreasonable determination of the facts in light of the evidence before it. Thus, the Court cannot grant relief regarding this claim. V. Ground Two-. Gándara Rendered Ineffective Assistance When He Failed to Prevent the Improper Exclusion Of Otherwise Qualified Prospective Jurors Due to Their Views Regarding Capital Punishment. In his Petition, Ortiz argues that Gán-dara rendered ineffective assistance because he failed to prevent the exclusion of prospective jurors Doporto, Reid, Bonilla, Ramirez, Berlit, Reta, Lopez, Herrick, Parra, Vera, Escamilla, Cortinas, Estala, Portillo, Gallegos, Palomo, Santoscoy, Ruiz, and Caballero, because these jurors merely voiced opposition to capital punishment. The Court of Criminal Appeals adopted the findings of fact and conclusions of law entered by the state habeas court and rejected Ortiz’s claim on the merits. For the reasons set forth below, the Court finds that Ortiz has not shown that he is entitled to relief under the AED-PA. A. Legal Standard — Ineffective Assistance of Counsel Claims An ineffective assistance of counsel claim has two components. First, the petitioner must show that counsel performed deficiently. To establish deficient performance, a petitioner must demonstrate that counsel’s representation “fell below an objective standard of reasonableness.” The Supreme Court has “declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that ‘the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.’ ” To establish that counsel’s representation fell below an objective standard of reasonableness, a petitioner must overcome a strong presumption that his attorney’s conduct fell within a wide range of reasonable professional assistance. Reviewing courts are extremely deferential in scrutinizing counsel’s performance, making every effort to eliminate the distorting effects of hindsight. It is strongly presumed that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. An attorney’s strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law, are virtually unchallengeable. Counsel is neither required to advance every non-frivolous argument, nor to investigate every conceivable matter, nor to assert patently frivolous arguments. Defense counsel is similarly not required to exercise clairvoyance during the course of a criminal t