Full opinion text
MEMORANDUM OPINION AND ORDER ORLANDO L. GARCIA, District Judge. Petitioner Reginald W. Blanton filed this federal habeas corpus action pursuant to Title 28, United States Code, section 2254, collaterally attacking his otherwise final, August, 2001, Bexar County conviction for capital murder and sentence of death. For the reasons set forth in detail below, petitioner is not entitled to federal habeas corpus relief from this Court but is entitled to a Certificate of Appealability limited to one aspect of his multi-faceted claim of ineffective assistance by his trial counsel and one complaint of ineffective assistance by his appellate counsel. I. Statement of the Case A. Factual Background Late on the afternoon of April 9, 2000, a resident of the Stepping Stone Apartments in San Antonio, Texas climbed the stairs to the apartment of Carlos Garza, observed the door to Garza’s apartment apparently had been kicked in, and also observed the interior of Garza’s apartment appeared to have been ransacked. Police were summoned to Garza’s apartment. They discovered Garza, bereft of the gold jewelry he had worn only hours before, lying mortally wounded in the hallway of his apartment. An autopsy later revealed Garza sustained two gunshot wounds to the head: a non-fatal wound which entered Garza’s left cheek and exited the back of his neck and a fatal, close-range, wound which entered Garza’s left temple, transected his brain, and exited his right cheek. Garza’s neighbor one floor below Garza’s apartment reported being awakened from a nap on the afternoon of April 9, 2000 by the sound of someone tripping or falling to the floor directing above his apartment. Within minutes of Garza’s murder, petitioner pawned several pieces of gold jewelry identified by witnesses who were familiar with same as belonging to Garza. Two days later, on April 11, 2000, San Antonio police officers responded to what they believed was an unrelated domestic disturbance involving Latoya Mayberry and Robert Blanton. While refereeing the domestic dispute, police discovered through a routine warrant check that May-berry, who initially furnished them with a false name, had active warrants outstanding for her arrest. After violently resisting arrest, Mayberry volunteered to one of her arresting officers that she had information regarding a murder only days before at the Stepping Stone Apartments. After Mayberry spoke with a police detective, she was transported to the office of the San Antonio Police homicide unit, where she gave a detailed written statement identifying petitioner as the person who fatally shot and robbed Garza. Later that same date, Mayberry convinced petitioner’s fraternal twin brother Robert to speak with police. Robert Blanton gave police a written statement which was substantially less inculpatory of his brother than Mayberry’s statement but which nonetheless placed petitioner inside Garza’s apartment at the time the shots were fired. On April 13, 2000, police arrested petitioner without incident. At the time of his arrest, petitioner was wearing a distinctive gold, lion’s head ring with ruby eyes and a diamond in its mouth and a gold nugget bracelet identified by others as similar to those owned and worn by Garza just prior to his murder. B. Indictment On June 29, 2000, a Bexar County grand jury indicted petitioner in cause no. 2000-CR-3452 in a one-count, two-paragraph, indictment alleging petitioner fatally shot Carlos Garza while in the course of corn-mitting and attempting to commit the predicate felonies of burglary and robbery. C. Guilt-Innocence Phase of Trial 1. The Prosecution’s Evidence Testimony during the guilt-innocence phase of petitioner’s trial commenced on August 13, 2001 with the prosecution calling as its first witness Latoya Mayberry Blanton, who less than a week earlier had become the wife of petitioner’s brother Robert. During her trial testimony recounting the events of April 9, 2000, Latoya attempted to recant a number of the most inculpatory aspects of her written statement to police, particularly her detailed account of petitioner’s oral recitation of the events surrounding his fatal shooting of Carlos Garza. However, she continued to assert that (1) she, Robert, and the petitioner twice visited Carlos’ apartment complex on the afternoon of the fatal shooting; (2) when the three of them went to Carlos’ third floor apartment on their first visit and knocked, there was no answer, and she returned to their vehicle; (3) shortly thereafter, she heard a pair of loud noises and, after a brief pause, another pair of loud noises, the nature of which she could not identify; (4) Robert and petitioner returned to their vehicle shortly thereafter; (5) they drove a short distance away, only to return to Carlos’ apartment complex not long thereafter; (6) on their second visit, petitioner left her and Robert in their vehicle while he returned to Carlos’ apartment; and (7) after the petitioner returned to their vehicle laughing, they proceeded to a pawn shop in east San Antonio where petitioner pawned several items of gold jewelry. The prosecution then called Robert Blanton, who also attempted to recant the most inculpatory aspects of his previous written statement. However, Robert still insisted (1) he had driven petitioner and Latoya Mayberry to Carlos Garza’s apartment complex twice on the afternoon of Carlos’ murder, (2) on their first visit, he, petitioner, and Latoya went up to Carlos’ apartment and knocked on the door, (3) they subsequently left the complex but returned to the apartment complex adjacent to Carlos’ complex shortly thereafter the same afternoon, (4) petitioner left their vehicle but returned five minutes later, (5) they then proceeded to an eastside pawn shop because petitioner wanted to sell some jewelry, (6) petitioner sold some jewelry at the pawn shop, and (7) petitioner likes to wear gold jewelry. The prosecution also introduced the evidence outlined above which linked both the gold jewelry the petitioner pawned within minutes of Carlos Garza’s fatal shooting and the gold jewelry the petitioner was wearing at the time of his arrest to jewelry missing from Garza’s person and apartment shortly after the murder. A resident of the Stepping Stone Apartments testified she saw the petitioner angrily banging on Carlos Garza’s apartment door a few weeks before Carlos’ murder. Another Stepping Stone Apartment resident testified about an incident a few weeks before Carlos’ murder in which Carlos pulled out and flaunted a roll of cash and petitioner responded by admonishing Carlos “somebody’s going to take it from you.” Petitioner’s girlfriend testified that, when petitioner returned to their home on the evening of April 9, 2000, he was wearing several pieces of gold jewelry she had never seen before, including an animal ring with rubies and a gold nugget bracelet. A San Antonio Police officer and a civilian police evidence technician each testified and presented crime scene photographs and a videotape recording showing (1) footprints on the broken door of Carlos Garza’s apartment, (2) a bullet recovered from inside a closet in Carlos Garza’s apartment adjacent to the hallway where his body was found, (3) holes in a mirror and the wall separating the hallway where the body was found from the closet where the bullet was recovered, and (4) a pair of spent shell casings found inside the apartment, including one recovered next to Carlos’ body. A firearms examiner testified both the shell casings found inside Carlos Garza’s apartment had been fired from the same weapon and each matched the .380 caliber bullet recovered from the closet. Finally, the prosecution presented testimony from petitioner’s acquaintance and fellow Bexar County Adult Detention Center (“BCADC”) inmate Frank Trujillo that (1) he met petitioner while Trujillo was working at a local hotel, (2) a few days before Trujillo’s arrest on April 13, 2000, petitioner asked Trujillo if he wanted to buy a gun and explained “I had to smoke a nigger,” (3) on April 13, 2000, after his arrest, Trujillo saw petitioner at the magistrate’s office and later spent time in the same holding cell with petitioner, (4) petitioner told Trujillo he had been arrested for capital murder in connection with a shooting next door to the Westwind Apartments, (5) later Trujillo and petitioner were housed in the same unit of the BCADC, and (6) during their detention, petitioner told Trujillo (a) he, his brother Robert, and Latoya Mayberry “went to some guy’s house to jack him for some dope, coke,” (b) he knocked on the door but no one answered, (c) he knew the guy was home so he kicked the door open, (d) he shot the guy as he jacked him and was going to shot the guy again but his gun jammed, so he re-cocked it and shot the guy a second time as the guy was moaning, and (e) he took some jewelry and pawned some of it while “on camera.” 2. The Defense’s Evidence The defense called Carlos Garza’s estranged wife who testified (1) she found photographs while cleaning Carlos’ apartment showing the petitioner wearing a bracelet similar to the one she had purchased for Carlos but (2) she had never known Carlos to loan his jewelry to others and Carlos was wearing the jewelry she had bought for him the last time she saw him, about a week before his murder. The defense also called an acquaintance of petitioner who testified (1) a series of four photographs showing Carlos Garza and others which were taken about two and half months before Carlos’ murder depicted Garza and others wearing various items of Carlos’ gold jewelry, (2) Carlos and the petitioner were friends, (3) he did not recall ever seeing Carlos wearing a lion’s head ring but did remember seeing Carlos wearing a gold nugget bracelet and a “Jesus” pendant on a gold chain, (4) it was uncommon for Carlos to wear others’ jewelry and for others to wear Carlos’ jewelry, (5) Carlos gave petitioner the Jesus pendant and chain because the chain was broken, (6) Carlos and the petitioner sometimes traded gold jewelry, (7) Carlos did not wear a gold lion’s head ring or a Jesus pendant to the Poteet Strawberry festival the day before Carlos’ murder, and (8) he had never known petitioner to pawn his own jewelry. 3. The Verdict On August 20, 2001, the jury returned its verdict, finding petitioner guilty of capital murder. D. Punishment Phase of Trial 1. The Prosecution’s Evidence The prosecution presented numerous witnesses who testified regarding instances of criminal or violent conduct by petitioner. A former department store employee testified about stopping petitioner and another youth as they attempted to walk out of a store wearing new tennis shoes without paying for same on April 29, 1996. A pair of San Antonio Police officers testified about an incident on May 23, 1996 in which petitioner and several other youths led police on a chase, both on foot and in a vehicle which contained an assault rifle. A Bexar County Deputy Sheriff and a former member of the same street gang as petitioner, i.e., the Crips, each testified about an incident on July 10, 1996 in which petitioner, petitioner’s brother Robert, and a third Crips member attempted to burglarize the home of their former fellow gang member but were arrested while still inside the garage. A Comal County Sheriffs Deputy testified about an incident on December 18, 1997, in which he detected the aroma of marijuana and arrested petitioner for unlawfully carrying a handgun after a routine traffic stop. A Windcrest Police officer testified about an incident on December 20, 1997 in which she cited petitioner for possession of drug paraphernalia after another officer stopped petitioner’s vehicle after detecting the aroma of marijuana. Another Bexar County Sheriffs Deputy testified about an incident on March 2, 1998 in which petitioner drove a vehicle he was stealing at a high rate of speed through a residential neighborhood, crashed through a brick mailbox, sending bricks flying a considerable distance in many directions, thereby damaging the vehicle he was attempting to steal as well as four other vehicles parked nearby and a nearby home’s garage, and injured his brother Robert, who was a passenger in the stolen vehicle. An off-duty Bexar County Adult Detention Center (“BCADC”) detention officer testified about an incident on April 2, 1998 in which he witnessed petitioner smoking marijuana, reported his observations to the police, watched police arrest petitioner, and then led police to the location where petitioner had attempted to conceal several bags of marijuana beneath a bush. A pair of juvenile probation officers testified about petitioner’s (1) violations of the terms and conditions of his probated juvenile sentences, (2) high intelligence, (3) refusal to take responsibility for his criminal conduct, (4) family difficulties following his parents’ divorce in 1993, (5) long history of abusing marijuana and alcohol, (6) failure to cooperate or progress during his stays at Texas Youth Commission (“TYC”) facilities, (7) multiple disruptive outbursts, both verbal and physical, while in TYC custody, and (8) violations of the terms of his parole when released from TYC custody. A pair of San Antonio Police Detectives who participated in petitioner’s arrest on April 13, 2000 testified petitioner had four bags of marijuana in his possession when arrested and had stored a shotgun in his girlfriend’s apartment without her knowledge. A pair of BCADC detention officers testified about an incident on May 17, 2001, while petitioner was awaiting trial for capital murder, in which petitioner assaulted and seriously injured another inmate whom petitioner claimed had testified falsely against a friend of petitioner’s in an unrelated capital murder proceeding. 2. The Defense’s Evidence Petitioner’s trial counsel presented testimony from a pastor who had known petitioner and petitioner’s family for eight years and who opined petitioner is a “God-fearing person” who knows right from wrong, petitioner’s relationship with God was “stable,” and petitioner had found comfort in God. A “mitigation specialist” retained by petitioner’s trial counsel testified (1) petitioner’s mother had been pushed down a flight of stairs while pregnant with petitioner and his brother, (2) petitioner was 11 years old when his parents divorced, (3) petitioner was not adequately supervised during his adolescence, began smoking marijuana at age 11, and was exposed to violence both going to and coming from school on a daily basis, (4) petitioner’s drug abuse was a way of escaping from his life situation, (5) about the same time, petitioner was befriended by gang members who furnished petitioner with the safety and protection his family could not, (6) petitioner is “very intelligent” and earned his GED while in TYC custody, (7) petitioner’s participation in gang activities included violent and unlawful behavior, (8) petitioner’s drug addiction was not adequately diagnosed or treated during his periods of detention, (9) prior to his arrest for capital murder, petitioner had attempted to inquire into joining the military and attending college, and (10) petitioner would likely do well in a structured environment. Petitioner’s former civil attorney testified regarding an incident during petitioner’s juvenile detention in which petitioner was assaulted by guards at a juvenile detention facility, as a result of which petitioner later obtained a settlement from Bexar County. Finally, petitioner’s mother testified (1) she had a difficult pregnancy with petitioner and Robert, (2) her father-in-law once kicked her in the stomach while she was pregnant with petitioner and Robert, (3) her husband drank a lot and once screamed at her while she was pregnant, (4) petitioner was a breech birth, petitioner swallowed fluid and was blue when born, but Robert was the twin who was deprived of nutrition, (5) petitioner has always been smart but couldn’t sit still, had trouble concentrating, and was “fidgety,” as a child, (6) as a result, she allowed the school to put petitioner on Ritalin, a decision she now regrets, (7) her children saw her husband abuse her physically and assault petitioner’s older sister, (8) petitioner began having problems at school after she divorced, (9) all of her children blamed her for the divorce, (10) she did not understand the degree of petitioner’s drug involvement until petitioner was arrested, (11) after petitioner’s first arrest, she sent him and Robert to live with her former husband, another decision she now regrets, (12) while she worked hard to support her family, in hindsight, she was too strict with petitioner, (13) the military should have done more to treat her husband’s alcoholism, (14) petitioner’s juvenile probation officer failed to get petitioner into the Gary Job Corps or the military, which would have furnished petitioner with the discipline he needed, (15) petitioner was severely burned as a child, (16) the petitioner’s father never took him to baseball games, (17) the petitioner had a lot of anger when he left his father’s home, (18) the petitioner was living with his father at the time of his initial arrests, and (19) she learned of petitioner’s initial arrests only much later on. 3. The Verdict On August 24, 2001, petitioner’s jury returned its verdict, finding (1) there was a probability the petitioner would commit criminal acts of violence that would constitute a continuing threat to society and (2) taking into consideration all of the evidence, including the circumstances of the offense and the petitioner’s character, background, and personal moral culpability, there were insufficient mitigating circumstances to warrant a life sentence for petitioner. E. Direct Appeal Petitioner appealed his conviction and sentence. In an unpublished opinion issued June 30, 2004, the Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence. Blanton v. State, No. 74214, 2004 WL 3093219 (Tex.Crim.App. June 30, 2004). Petitioner did not thereafter seek certiorari review from the United States Supreme Court. F. State Habeas Proceeding On November 17, 2003, petitioner filed an application for state habeas corpus relief. The state habeas trial court held an evidentiary hearing thereon on November 9, 2004 and heard testimony from petitioner’s former lead trial counsel, the lead prosecuting attorney at petitioner’s trial, and a pair of mental health experts. On February 4, 2005, the state habeas trial court issued its findings of fact, conclusions of law, and recommendation that petitioner’s state habeas corpus application be denied. On June 22, 2005, the Texas Court of Criminal Appeals denied petitioner’s state habeas corpus application in an unpublished order adopting the findings, conclusions, and recommendation of the state habeas trial court. Ex parte Blanton, WR-61,443-01 (Tex.Crim.App. June 22, 2005). G. Federal Court Procedural History Petitioner filed his federal habeas corpus petition in this court on June 16, 2006, urging twenty claims for relief. Docket entry no. 22. Respondent filed his original answer on October 20, 2006. Docket entry no. 30. Petitioner replied thereto on January 22, 2007. Docket entry no. 86. II. AEDPA Standard of Review Because petitioner filed his federal habe-as corpus action after the effective date of the AEDPA, this Court’s review of petitioner’s claims for federal habeas corpus relief is governed by the AEDPA. Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 1438, 161 L.Ed.2d 334 (2005); Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000); 28 U.S.C. § 2254(d). The Supreme Court has concluded the “contrary to” and “unreasonable application” clauses of Title 28 U.S.C. Section 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). Under the “contrary to” clause, a federal habeas court may grant relief if (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Brown v. Payton, 544 U.S. at 141, 125 S.Ct. at 1438; Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003) (“A state court’s decision is ‘contrary to’ our clearly established law if it ‘applies a rule that contradicts the governing law set forth in our cases’ or it ‘confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.’ ”). A state court’s failure to cite governing Supreme Court authority does not, per se, establish the state court’s decision is “contrary to” clearly established federal law: “the state court need not even be aware of our precedents, ‘so long as neither the reasoning nor the result of the state-court decisions contradicts them.’ ” Mitchell v. Esparza, 540 U.S. at 16, 124 S.Ct. at 10. Under the “unreasonable application” clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts of the petitioner’s case. Brown v. Payton, 544 U.S. at 141, 125 S.Ct. at 1439; Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003). A federal court making the “unreasonable application” inquiry should ask whether the state court’s application of clearly established federal law was “objectively unreasonable.” Wiggins v. Smith, 539 U.S. at 520-21, 123 S.Ct. at 2535. The focus of this inquiry is on whether the state court’s application of clearly established federal law was objectively unreasonable; an “unreasonable” application is different from a merely “incorrect” one. Schriro v. Landrigan, — U.S. -, -, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007)(“The question under the AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.”); Wiggins v. Smith, 539 U.S. at 520, 123 S.Ct. at 2535; Price v. Vincent, 538 U.S. 634, 641, 123 S.Ct. 1848, 1853, 155 L.Ed.2d 877 (2003)(“it is the habeas applicant’s burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner”). Legal principles are “clearly established” for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions as of the time of the relevant state-court decision establish those principles. Yarborough v. Alvarado, 541 U.S. 652, 660-61, 124 S.Ct. 2140, 2147, 158 L.Ed.2d 938 (2004) (“We look for ‘the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.’ ”); Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003). The AEDPA also significantly restricts the scope of federal habeas review of state court fact findings. A petitioner challenging state court factual findings must establish by clear and convincing evidence that the state court’s findings were erroneous. Schriro v. Landrigan, — U.S. at -, 127 S.Ct. at 1939-40 (“AEDPA also requires federal habeas courts to presume the correctness of state courts’ factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.’ ”); Rice v. Collins, 546 U.S. 333, -, 126 S.Ct. 969, 974, 163 L.Ed.2d 824 (2006)(“State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’ ”); Miller-El v. Dretke. 545 U.S. 231, 240, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005)(“we presume the Texas court’s factual findings to be sound unless Miller-El rebuts the ‘presumption of correctness by clear and convincing evidence.’ ”); 28 U.S.C. § 2254(e)(1). However, the deference to which state-court factual findings are entitled under the AEDPA does not imply an abandonment or abdication of federal judicial review. See Miller-El v. Dretke, 545 U.S. at 240, 125 S.Ct. at 2325 (the standard is “demanding but not insatiable”); Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 1041, 154 L.Ed.2d 931 (2003)(“Even in the context of federal ha-beas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.”). Finally, in this Circuit, a federal habeas court reviewing a state court’s rejection on the merits of a claim for relief pursuant to the AEDPA must focus exclusively on the propriety of the ultimate decision reached by the state court and not evaluate the quality, or lack thereof, of the state court’s written opinion supporting its decision. See St. Aubin v. Quarterman, 470 F.3d 1096, 1100 (5th Cir.2006)(holding Section 2254(d) permits a federal habeas court to review only a state court’s decision and not the written opinion explaining that decision), cert. denied, — U.S. —, 127 S.Ct. 2133, 167 L.Ed.2d 869 (2007); Amador v. Quarterman, 458 F.3d 397, 410 (5th Cir.2006)(holding the same), cert. denied, — U.S. -, 127 S.Ct. 2129, 167 L.Ed.2d 866 (2007); Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir.2003)(holding the precise question before a federal habe-as court in reviewing a state court’s rejection on the merits of an ineffective assistance claim is whether the state court’s ultimate conclusion was objectively reasonable), cert. denied, 541 U.S. 1045, 124 S.Ct. 2160, 158 L.Ed.2d 736 (2004); Anderson v. Johnson, 338 F.3d 382, 390 (5th Cir.2003)(holding a federal habeas court reviews only a state court’s decision and not the opinion explaining that decision); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002)(en banc)(holding that a federal court is authorized by § 2254(d) to review only a state court’s decision and not the written opinion explaining that decision), cert. denied, 537 U.S. 1104, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003). III. Insufficient Evidence Claim A. The Claim In his tenth claim for federal habeas relief, petitioner argues the evidence at petitioner’s trial was legally insufficient to support the jury’s guilty verdict because the trial testimony of Robert Blanton and Latoya Mayberry Blanton was so full of inconsistencies as to be incredible and the trial testimony of Frank Trujillo was incredible because Trujillo was a “jail house snitch.” B. State CouH Disposition The Texas Court of Criminal Appeals rejected petitioner’s insufficient evidence point of error on the merits in the course of petitioner’s direct appeal, concluding that, when viewed in the light most favorable to the verdict, the evidence established petitioner killed Garza while in the course of entering Garza’s apartment without Garza’s consent and with the intent to commit theft. Blanton v. State, 2004 WL 3093219, *8-*9. C. AEDPA Review The standard for testing the sufficiency of evidence in a federal habeas review of a state court conviction is whether, after viewing the evidence in the light most favorable to the jury’s verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Aguilar v. Dretke, 428 F.3d 526, 534 (5th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 2059, 164 L.Ed.2d 793 (2006). The Texas Court of Criminal Appeals’ rejection on the merits of petitioner’s insufficient evidence point of error constituted an eminently reasonable application of the Jackson v. Virginia standard. The evidence before the jury at the guilt-innocence phase of petitioner’s capital trial included not only Frank Trujillo’s testimony regarding petitioner’s jailhouse confession but also the written statements of Robert Blanton and Latoya Mayberry Blanton, which, when viewed in the light most favorable to the jury’s verdict, established (1) petitioner directed Robert to drive to Garza’s apartment because petitioner wanted to rob Garza, (2) petitioner kicked in Garza’s door, (3) petitioner fatally shot Garza after they argued, (4) after petitioner returned to Garza’s apartment a second time the same afternoon, petitioner directed Robert to drive to a pawn shop where petitioner pawned several items of jewelry which were identical to those once owned by Garza, and (5) upon returning to his girlfriend’s apartment later that same night, petitioner’s girlfriend observed petitioner wearing items of gold jewelry which were identified by knowledgeable persons as identical to those worn by Garza immediately before his death. Furthermore, there was other testimony which, when viewed in the light most favorable to the jury’s verdict, established (1) petitioner pawned several items of jewelry which were identical to those worn by Garza shortly before his murder and (2) at the time of his arrest, petitioner was wearing two items of jewelry identical to those missing from Garza’s person and apartment immediately after the murder which petitioner’s girlfriend had never seen petitioner wear until the night of Garza’s murder. The petitioner’s jury was entitled to draw all reasonable inferences from this evidence supporting a finding of petitioner’s guilt. Thus, there was more than sufficient evidence establishing petitioner’s guilt on the charge of capital murder. Petitioner’s arguments that the jewelry he pawned did not contain Garza’s DNA or other identifying marks, as well as his assaults upon the credibility of the prosecution’s three key witnesses, i.e., Trujillo, petitioner’s brother, and petitioner’s sister-in-law, all ignore the Supreme Court’s holding in Jackson v. Virginia which mandates evidentiary sufficiency review be undertaken of all evidence “in the light most favorable to the jury’s verdict.” Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789. As a result, challenges to the credibility of prosecution witnesses are virtually non sequitur in the context of federal ha-beas review of evidentiary sufficiency claims. See United States v. Cuellar, 478 F.3d 282, 287 (5th Cir.2007)(“In assessing the sufficiency of the evidence, the court does not evaluate the weight of the evidence or the credibility of witnesses but views the evidence in the light most favorable to the verdict, drawing all reasonable inferences to support the verdict.”); United States v. Harris, 477 F.3d 241, 244 (5th Cir.2007)(holding the same), cert. denied, — U.S. -, 127 S.Ct. 2117, 167 L.Ed.2d 828 (2007); United States v. Lewis, 476 F.3d 369, 377 (5th Cir.2007)(holding the same), cert. denied sub nom. Thompson v. United States, — U.S. -, 127 S.Ct. 2893, 167 L.Ed.2d 1164, 2007 WL 1222585 (May 29, 2007); United States v. Delgado, 256 F.3d 264, 273-74 (5th Cir.2001)(holding the same). The Texas Court of Criminal Appeals’ rejection on the merits of petitioner’s insufficient evidence point of error was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based on an unreasonable determination of the facts in light of the evidence presented to the state courts in the petitioner’s state trial court proceedings and direct appeal. IV. Absence of a “Hung Jury” Instruction at Punishment Phase A. The Claim In his eighth claim for relief herein, petitioner argues the Texas capital sentencing scheme’s failure to inform the jury regarding the effect of a single hold-out juror during punishment-phase deliberations, i.e., an automatic life sentence, violated petitioner’s rights under the Eighth Amendment. B. State Court Disposition The state habeas trial court concluded petitioner’s trial counsel’s timely objections properly preserved petitioner’s complaint regarding the absence of a “hung jury” instruction but nonetheless determined petitioner’s challenge to the absence of a punishment-phase jury instruction addressing the consequences of a hung jury did not warrant state habeas relief. C.AEDPA Review The Supreme Court implicitly rejected petitioner’s arguments underlying this claim when it explained in Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999), the Eighth Amendment does not require a capital sentencing jury be instructed as to the effect of a “breakdown in the deliberative process,” because (1) the refusal to give such an instruction does not affirmatively mislead the jury regarding the effect of its verdict and (2) such an instruction might well undermine the strong governmental interest in having the jury express the conscience of the community on the ultimate question of life or death. Jones v. United States, 527 U.S. at 382, 119 S.Ct. at 2099. On numerous occasions, both this Court and the Fifth Circuit have expressly rejected the legal premise underlying petitioner’s seventh and eighth claims herein, i.e., the argument that a Texas capital murder defendant is constitutionally entitled to have his punishment-phase jury instructed regarding the consequences of a hung jury or a single holdout juror. See Hughes v. Dretke, 412 F.3d 582, 593-94 (5th Cir.2005)(holding same arguments underlying petitioner’s eighth claim herein were so legally insubstantial as to be unworthy of a certificate of appealability), cert. denied, — U.S. -, 126 S.Ct. 1347, 164 L.Ed.2d 60 (2006); Alexander v. Johnson, 211 F.3d 895, 897-98 (5th Cir.2000)(holding the Teague v. Lane non-retroactivity doctrine precluded applying such a rule in a federal habeas context); Davis v. Scott, 51 F.Sd 457, 466-67 (5th Cir.1995)(holding the same), cert. denied, 516 U.S. 992, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995); Jacobs v. Scott, 31 F.3d 1319, 1328-29 (5th Cir.1994)(rejecting application of the Supreme Court’s holding in Mills v. Maryland[, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988)] to a Texas capital sentencing proceeding), cert. denied, 513 U.S. 1067, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995); Martinez v. Dretke, 426 F.Supp.2d 403, 534-36 (W.D.Tex.2006)(relying on the Supreme Court’s holding in Jones v. United States to reject the same arguments raised by petitioner herein premised on the Supreme Court’s holdings in Mills v. Maryland and Caldwell v. Mississippi[, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)]); Kimmel v. Dretke, 2005 WL 1959074, *19-*21 (W.D.Tex. August 16, 2005)(holding the same), CoA denied, 199 Fed.Appx. 338 (5th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 2034, 167 L.Ed.2d 773 (2007); Amador v. Dretke, 2005 WL 827092, *23-*24 (W.D.Tex. April 11, 2005)(holding the same), affirmed, 458 F.3d 397 (5th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 2129, 167 L.Ed.2d 866 (2007); Brown v. Dretke, 2004 WL 2793266, *13-*14 (W.D.Tex. December 3, 2004)(holding the same), CoA denied, 419 F.3d 365 (5th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1434, 164 L.Ed.2d 137 (2006); Hinojosa v. Dretke, 2004 WL 2434353, *24 (W.D.Tex. September 30, 2004)(holding the same), CoA denied, 141 Fed.Appx. 395 (5th Cir.2005), cert. denied, 547 U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006). Simply put, no federal court has ever held a Texas capital defendant has a constitutional right to a punishment-phase jury instruction advising his capital sentencing jury of the effect of hung jury or a single hold-out juror. Accordingly, the Texas Court of Criminal Appeals’ rejection on the merits of petitioner complaint about the absence of such an instruction from his punishment-phase jury instructions was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based on an unreasonable determination of the facts in light of the evidence presented to the state courts in the petitioner’s state trial court proceedings, direct appeal, and state habe-as corpus proceeding. V. “Vague” Special Issues and the Presumption of Innocence A. The Claim In his eighteenth claim herein, petitioner argues the first Texas capital sentencing special issue, i.e., the inquiry into the defendant’s future dangerousness, violates the “fundamental tenet of the constitution and of criminal justice: that all persons are presumed innocent and may not be convicted except on proof beyond a reasonable doubt of each and every element of the offense.” B. Failure to Exhaust Available State Remedies Resulted in Procedural Default Respondent correctly points out petitioner failed to fairly present this same argument to the Texas Court of Criminal Appeals, either as a point of error on direct appeal or as a claim for relief during the course of petitioner’s state habeas corpus proceeding. Respondent also correctly notes that this failure constitutes a form of procedural default because the Texas writ-abuse statute effectively precludes petitioner from returning to state court at this juncture to obtain a ruling on the merits of this new argument. 1. Procedural Default Generally Procedural default occurs where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, or (2) the petitioner fails to exhaust all available state remedies, and the state court to which he would be required to petition would now find the claims procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991). In either instance, the petitioner is deemed to have forfeited his federal habeas claim. O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999). Procedural defaults only bar federal habeas review when the state procedural rule which forms the basis for the procedural default was “firmly established and regularly followed” by the time it was applied to preclude state judicial review of the merits of a federal constitutional claim. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991). 2. Failure to Exhaust Can Produce Procedural Default Before seeking federal habeas corpus relief, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1 (1999); Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); 28 U.S.C. § 2254(b)(1). To provide the State with this necessary “opportunity,” the prisoner must “fairly present” his claim to the appropriate state court in a manner that alerts that court to the federal nature of the claim. See Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. at 1349-51 (rejecting the argument that a petitioner “fairly presents” a federal claim, despite failing to give any indication in his appellate brief of the federal nature of the claim through reference to any federal source of law, when the state appellate court could have discerned the federal nature of the claim through review of the lower state court opinion); O’Sullivan v. Boerckel, 526 U.S. at 844-45, 119 S.Ct. at 1732-33 (holding comity requires that a state prisoner present the state courts with the first opportunity to review a federal claim by invoking one complete round of that State’s established appellate review process); Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 2081, 135 L.Ed.2d 457 (1996) (holding that, for purposes of exhausting state remedies, a claim for federal relief must include reference to a specific constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief and rejecting the contention that the exhaustion requirement is satisfied by presenting the state courts only with the facts necessary to state a claim for relief). The exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts and, thereby, to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings. Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 2138, 153 L.Ed.2d 260 (2002); Duncan v. Walker, 533 U.S. 167, 179, 121 S.Ct. 2120, 2128, 150 L.Ed.2d 251 (2001); O’Sullivan v. Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732; Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982). Under the AEDPA, federal courts lack the power to grant habeas corpus relief on unexhausted claims. Kunkle v. Dretke, 352 F.3d 980, 988 (5th Cir.2003)(“28 U.S.C. § 2243(b)(1) requires that federal habeas petitioners fully exhaust remedies available in state court before proceeding in federal court.”), cert. denied, 543 U.S. 835, 125 S.Ct. 250, 160 L.Ed.2d 56 (2004); Riley v. Cockrell, 339 F.3d 308, 318 (5th Cir.2003); Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir.2003); Henry v. Cockrell, 327 F.3d 429, 432 (5th Cir.2003) (“Absent special circumstances, a federal habeas petitioner must exhaust his state remedies by pressing his claims in state court before he may seek federal habeas relief.”), cert. denied, 540 U.S. 956, 124 S.Ct. 408, 157 L.Ed.2d 293 (2003); Mercadel v. Cain, 179 F.3d 271, 276-77 (5th Cir.1999); Alexander v. Johnson, 163 F.3d 906, 908 (5th Cir.1998); Jones v. Jones, 163 F.3d 285, 299 (5th Cir.1998), cert. denied, 528 U.S. 895, 120 S.Ct. 224, 145 L.Ed.2d 188 (1999). However, Title 28 U.S.C. § 2254(b)(2) empowers a federal habeas court to deny an exhausted claim on the merits. Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir.2002), cert dism’d, 541 U.S. 913, 124 S.Ct. 1652, 158 L.Ed.2d 263 (2004); Daniel v. Cockrell, 283 F.3d 697, 701-02 (5th Cir.2002), cert. denied, 537 U.S. 874, 123 S.Ct. 286, 154 L.Ed.2d 126 (2002). The exhaustion of all federal claims in state court is a fundamental prerequisite to requesting federal collateral relief under Title 28 U.S.C. Section 2254. Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.2001); Sterling v. Scott, 57 F.3d 451, 453 (5th Cir.1995), cert. denied, 516 U.S. 1050, 116 S.Ct. 715, 133 L.Ed.2d 669 (1996); 28 U.S.C. § 2254(b)(1)(A). In order to “exhaust” available state remedies, a petitioner must “fairly present” all of his claims to the state courts. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. at 270, 275-76, 92 S.Ct. 509, at 512-13, 30 L.Ed.2d 438 (1971); Kunkle v. Dretke, 352 F.3d at 988; Riley v. Cockrell, 339 F.3d at 318; Anderson v. Johnson, 338 F.3d at 386; Jones v. Jones, 163 F.3d at 296; Shute v. State of Texas, 117 F.3d at 237 (“a habeas petitioner ‘must fairly apprize [sic] the highest court of his state of the federal rights which were allegedly violated.’ ”). In Texas, the highest state court with jurisdiction to review the validity of a state criminal conviction is the Texas Court of Criminal Appeals. Richardson v. Procurer, 762 F.2d 429, 431-32 (5th Cir.1985). More simply, the exhaustion doctrine requires that the petitioner present his federal claim in a manner reasonably designed to afford the State courts a meaningful opportunity to address same. The Supreme Court has succinctly explained the rationale behind the exhaustion requirement: Exhaustion means more than notice. In requiring exhaustion of a federal claim in state court, Congress meant that exhaustion be serious and meaningful. The purpose of exhaustion is not to create a procedural hurdle on the path to federal habeas court, but to channel claims into an appropriate forum, where meritorious claims may be vindicated and unfounded litigation obviated before resort to federal court. Comity concerns dictate that the requirement of exhaustion is not satisfied by the mere statement of a federal claim in state court. Just as the State must afford the petitioner a full and fair hearing on his federal claim, so must the petitioner afford the State a full and fair opportunity to address and resolve the claim on the merits. Keeney v. Tamayo-Reyes, 504 U.S. 1, 10, 112 S.Ct. 1715, 1720, 118 L.Ed.2d 318 (1992). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been “fairly presented” to the highest state court, i.e., the petitioner presents his claims before the state courts in a proeedurally proper manner according to the rules of the state courts. Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. at 1349-51 (holding a petitioner failed to “fairly present” a claim of ineffective assistance by his state appellate counsel merely by labeling the performance of said counsel “ineffective,” without accompanying that label with either a reference to federal law or a citation to an opinion applying federal law to such a claim); Moore v. Cain, 298 F.3d 361, 364 (5th Cir.2002), cert. denied, 537 U.S. 1236, 123 S.Ct. 1360, 155 L.Ed.2d 202 (2003); Mercadel v. Cain, 179 F.3d at 275. However, the petitioner need not spell out each syllable of the claim before the state court for the claim to have been “fairly presented” and thereby fulfill the exhaustion requirement. Riley v. Cockrell, 339 F.3d at 318; Fisher v. Texas, 169 F.3d 295, 303 (5th Cir.1999). The presentation of claims for the first time on discretionary review to the state’s highest court does not constitute “fair presentation” for exhaustion purposes. Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989); Satterwhite v. Lynaugh, 886 F.2d at 92. Full exhaustion of all claims presented is required before federal habeas corpus relief is available. Rose v. Lundy, 455 U.S. 509, 518-22, 102 S.Ct. 1198, 1203-05, 71 L.Ed.2d 379 (1982); Thomas v. Collins, 919 F.2d at 334. The exhaustion requirement is not met if the petitioner presents new legal theories or factual claims in his federal habeas petition. Anderson v. Harless, 459 U.S. 4, 6-7, 103 S.Ct. 276, 277-78, 74 L.Ed.2d 3 (1982); Riley v. Cockrell, 339 F.3d at 318 (“It is not enough that the facts applicable to the federal claims were all before the State court, or that the petitioner made a similar state-law based claim. The federal claim must be the ‘substantial equivalent’ of the claim brought before the State court.”); Wilder v. Cockrell, 274 F.3d at 259 (“where petitioner advances in federal court an argument based on a legal theory distinct from that relied upon in the state court, he fails to satisfy the exhaustion requirement”); Finley v. Johnson, 243 F.3d 215, 219 (5th Cir.2001). Likewise, to have “fairly presented” his federal claim, the petitioner must have reasonably alerted the state courts to the federal nature of his claim. Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. at 1349-51 (holding a petitioner failed to “fairly present” a claim of ineffective assistance by his state appellate counsel merely by labeling the performance of said counsel “ineffective,” without accompanying that label with either a reference to federal law or a citation to an opinion applying federal law to such a claim); Wilder v. Cockrell, 274 F.3d at 260 (“A fleeting reference to the federal constitution, tacked onto the end of a lengthy, purely state-law evidentiary argument, does not sufficiently alert and afford a state court the opportunity to address an alleged violation of federal rights.”). The Fifth Circuit has consistently held that federal habeas review on unexhausted claims presented by a convicted Texas criminal defendant is barred under the procedural default doctrine. See Aguilar v. Dretke, 428 F.3d at 533 (holding the Texas abuse of the writ rule ordinarily is an adequate and independent procedural ground on which to base a procedural default ruling); Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir.2004)(holding the violation of the Texas writ-abuse rule ordinarily furnishes an adequate and independent procedural ground which bars federal ha-beas review of a claim), cert. denied, 543 U.S. 1124, 125 S.Ct. 1067, 160 L.Ed.2d 1074 (2005); Bagwell v. Dretke, 372 F.3d 748, 755-56 (5th Cir.2004)(holding a petitioner procedurally defaulted by failing to “fairly present” a claim to the state courts in his state habeas corpus application), cert. denied, 543 U.S. 989, 125 S.Ct. 498, 160 L.Ed.2d 374 (2004); Cotton v. Cockrell, 343 F.3d 746, 755 (5th Cir.2003)(holding the Texas writ abuse doctrine is an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 540 U.S. 1186, 124 S.Ct. 1417, 158 L.Ed.2d 92 (2004); Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir.2003)(recognizing the Texas writ-abuse doctrine has been strictly and regularly applied since before August, 1997), cert. denied, 540 U.S. 1163, 124 S.Ct. 1170, 157 L.Ed.2d 1208 (2004); Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir.2002)(holding unexhausted claims were procedurally barred), cert. dism’d, 541 U.S. 913, 124 S.Ct. 1652, 158 L.Ed.2d 263 (2004); Jones v. Johnson, 171 F.3d 270, 276-77 (5th Cir.1999) (holding unexhausted ineffective assistance claim procedurally barred from federal habeas review), cert. denied, 527 U.S. 1059, 120 S.Ct. 29, 144 L.Ed.2d 832 (1999); Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir.1998)(holding unexhausted claims procedurally barred), cert. denied, 523 U.S. 1113, 118 S.Ct. 1793, 140 L.Ed.2d 933 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir.1997) (holding the Texas writ-abuse rule an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). Section 5 of Article 11.071 of the Texas Code of Criminal procedure prohibits a successive state habeas corpus application except in limited circumstances which do not apply to petitioner’s complaint about the violation of the presumption of innocence arising from the alleged vagueness of the first Texas capital sentencing special issue. See Art. 11.071, § 5, Tex.Code Crim. Proc. Ann. (Vernon Supp.2006)(barring consideration on the merits of new claims contained in a subsequent state habeas corpus application unless either (1) the new claims could not have been presented in a previous application because the legal or factual basis for the new claims were unavailable at the time the previous application was filed; (2) by a preponderance of the evidence, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt; or (3) by clear and convincing evidence, but for a violation of the United States Constitution, no rational juror would have answered in the state’s favor one or more of the capital sentencing special issues). Absolutely nothing prevented petitioner from asserting this same complaint in the course of his direct appeal or state habeas corpus proceeding. Likewise, petitioner alleges no facts in this Court and presented the state habeas court with no evidence which satisfies either of the final two exceptions to the Texas writ-abuse barrier erected by Section 5 of Article 11.071. On the contrary, the evidence of petitioner’s guilt was overwhelming, as was the evidence supporting the jury’s answers to the petitioner’s capital sentencing special issues. Nothing in petitioner’s appellant’s brief or state habeas corpus application “fairly presented” the Texas Court of Criminal Appeals with the same legal and factual arguments contained in petitioner’s eighteenth claim for relief before this Court. If petitioner were to attempt at this juncture to return to state court and assert his eighteenth claim herein in a successive state habeas application, the applicable provisions of the Texas writ-abuse statute would preclude him from doing so. Thus, petitioner failed to exhaust available state remedies on his eighteenth claim herein and, thereby, procedurally defaulted on same. See Hughes v. Dretke, 412 F.3d 582, 594-95 (5th Cir.2005)(holding petitioner procedurally defaulted on a jury misconduct claim by presenting the state courts with purely state-law arguments supporting same and waiting until he reached federal court to first urge federal constitutional arguments), cert. denied, 546 U.S. 1177, 126 S.Ct. 1347, 164 L.Ed.2d 60 (2006); Beazley v. Johnson, 242 F.3d 248, 264-68 (5th Cir.2001)(holding petitioner procedurally defaulted on a claim by failing to present same to the Texas Court of criminal Appeals either on direct appeal or in a state habeas corpus application where claim was readily available at the time petitioner filed his state habeas application), cert. denied, 534 U.S. 945, 122 S.Ct. 329, 151 L.Ed.2d 243 (2001); Hicks v. Johnson, 186 F.3d 634, 637-38 (5th Cir.1999) (petitioner procedurally defaulted on an unexhausted claim for relief), cert. denied, 528 U.S. 1132, 120 S.Ct. 976, 145 L.Ed.2d 844 (2000). 3. Exceptions Inapplicable The Supreme Court has recognized exceptions to the doctrine of procedural default where a federal habeas corpus petitioner can show “cause and actual prejudice” for his default or that failure to address the merits of his procedurally defaulted claim will work a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565; Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). To establish “cause,” a petitioner must show either that some objective external factor impeded the defense counsel’s ability to comply with the state’s procedural rules or that petitioner’s trial or appellate counsel rendered ineffective assistance. Coleman v. Thompson, 501 U.S. at 753, 111 S.Ct. at 2566; Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (holding that proof of ineffective assistance by counsel satisfies the “cause” prong of the exception to the procedural default doctrine). While a showing of ineffective assistance can satisfy the “cause” prong of the “cause and actual prejudice” exception to the procedural default doctrine, petitioner does not argue or allege any specific facts suggesting his trial counsel’s failure to object to petitioner’s punishment-phase jury instructions as a violation of the “presumption of innocence” rendered said counsel’s performance ineffective under the standard of Strickland v. Washington. In order to satisfy the “miscarriage of justice” test, the petitioner must supplement his constitutional claim with a color-able showing of factual innocence. Sawyer v. Whitley, 505 U.S. 333, 335-36, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992). In the context of the punishment phase of a capital trial, the Supreme Court has held that a showing of “actual innocence” is made when a petitioner shows by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found petitioner eligible for the death penalty under applicable state law. Sawyer v. Whitley, 505 U.S. at 346-48, 112 S.Ct. at 2523. The Supreme Court explained in Sawyer v. Whitley this “actual innocence” requirement focuses on those elements which render a defendant eligible for the death penalty and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error. Sawyer v. Whitley, 505 U.S. at 347, 112 S.Ct. at 2523. Petitioner has alleged no specific facts satisfying this “factual innocence” standard. Because petitioner has failed to satisfy the “actual innocence” test, he is not entitled to relief from his procedural defaults under the fundamental miscarriage of justice exception to the procedural default doctrine. C. Teague Foreclosure Furthermore, the rule urged by petitioner in his eighteenth claim herein is foreclosed by the non-retroactivity doctrine announced by the Supreme Court in Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989). Under the holding in Teague, federal courts are generally barred from applying new constitutional rules of criminal procedure retroactively on collateral review. Caspari v. Bohlen, 510 U.S. 383, 389-90, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). A “new rule” for Teague purposes is one which was not dictated by precedent existing at the time the defendant’s conviction became final. See O’Dell v. Netherland, 521 U.S. 151, 156, 117 S.Ct. 1969, 1973, 138 L.Ed.2d 351 (1997)(holding a “new rule” either “breaks new ground,” “imposes a new obligation on the States or the Federal Government,” or was not “dictated by precedent existing at the time the defendant’s conviction became final”). Under this doctrine, unless reasonable jurists hearing the defendant’s claim at the time his conviction became final would have felt compelled by existing precedent to rule in his favor, a federal habeas court is barred from doing so on collateral review. Id. The holding in Teague is applied in three steps: first, the court must determine when the petitioner’s conviction became final; second, the court must survey the legal landscape as it then existed and determine whether a state court considering the petitioner’s claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution; and third, if the rule advocated by the petitioner is a new rule, the court must determine whether the rule falls within one of the two narrow exceptions to the non-retroactivity principle. Caspari v. Bohlen, 510 U.S. at 390, 114 S.Ct. at 953. The only two exceptions to the Teague non-retroactivity doctrine are reserved for (1) new rules forbidding criminal punishment of certain primary conduct and rules prohibiting a certain category of punishment for a class of defendants because of their status or offense and (2) “watershed” rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding, i.e., a small core of rules requiring observance of those procedures that are implicit in the concept of ordered liberty. O’Dell v. Netherland, 521 U.S. at 157, 117 S.Ct. at 1973. A conviction becomes final for Teag-ue purposes when either the United States Supreme Court denies a certiorari petition on the defendant’s direct appeal or the time period for filing a certiorari petition expires. Caspari v. Bohlen, 510 U.S. at 390, 114 S.Ct. at 953. Petitioner’s conviction became final for Teague purposes not later than September 29, 2004, i.e., the ninety-first day after the Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence on direct appeal and the date the deadline for the filing of petitioner’s petition for writ of certiorari with the United States Supreme Court expired. Beard v. Banks, 542 U.S. 406, 411-12, 124 S.Ct. 2504, 2510, 159 L.Ed.2d 494 (2004) (recognizing a state criminal conviction ordinarily becomes final for Teague purposes when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for writ of certiorari has elapsed or a timely filed petition for certiorari has been denied); Caspari v. Bohlen, 510 U.S