Full opinion text
MEMORANDUM OPINION AND ORDER MONTALVO, District Judge. Petitioner Rigoberto Avila, Jr. filed this federal habeas corpus action pursuant to Title 28, United States Code, section 2254, collaterally attacking his otherwise final, May, 2001, El Paso County conviction for capital murder and sentence of death. For the reasons set forth in detail below, petitioner is entitled to partial federal ha-beas corpus relief regarding his sentencing but not entitled to federal habeas corpus relief regarding his conviction. Moreover, petitioner is entitled to a Certificate of Appealability on two of his claims. TABLE OF CONTENTS TABLE OF CONTENTS I.Statement of the Case.720 A. Factual Background .720 1. The Events of February 29, 2000 .721 2. Surgical Efforts to Save Nicolas.722 3. The Severity of Nicolas’ Injuries.722 4. Petitioner’s First Police Interview.722 5. Petitioner’s Second Police Interview.722 B. Indictment.722 C. Guilt-Innocence Phase of Trial.722 1. The Prosecution’s Case.722 2. The Defense’s Evidence.723 3. The Verdict.725 D. Punishment Phase of Trial.725 1. The Prosecution’s Evidence .725 2. The Defense’s Evidence.725 3. Verdict. -43 to 05 E. Direct Appeal. -43 to Ci F. State Habeas Corpus Proceeding -43 to G. Procedural History in this Court -43 to -4] II.AEDPA Standard of Review . -43 to -43 III. Evidence of Good Character in the Texas Capital Sentencing Scheme.729 A. The Claim.729 B. State Court Disposition.729 C. AEDPA Review.729 1. Clearly Established Federal Law.729 2. The Punishment Phase of Petitioner’s Trial.730 3. Synthesis.730 4. Conclusion.732 IV. Ring v. Arizona and Apprendi v. New Jersey Claim.732 A. The Claim.732 B. State Court Disposition.733 C. AEDPA Review.733 1. Clearly Established Federal Law.733 2. Punishment Phase of Petitioner’s Trial.734 3. Synthesis.734 4. Conclusion.739 V. Brady Claim. —739 A. The Claim. -739 B. State Court Disposition. 739 1. Pretrial Proceedings. —739 2. Petitioner’s Trial.739 3. Petitioner’s State Habeas Proceeding —740 C. AEDPA Review. -743 Clearly Established Federal Law —743 2. State Habeas Court’s Faulty Factual Findings and Erroneous Legal Conclusions Regarding the Suppression and Favorable Nature of Dr. Wilson’s Opinions. 744 a. Dr. Wilson Actually Assisted the Prosecution . 745 b. Prosecutors’ Personal Knowledge Irrelevant. 748 e. Prosecutors’ Good Faith Irrelevant. -~4 ^ 00 d. Petitioner Had No Notice of Dr. Wilson’s Opinions. 7^ ^ to (1) Dr. Wilson Had Not Yet Concluded Anything Regarding the Cause of Nicolas’ Death at the Time of the Second Autopsy. -4 ZD (2) Dr. Wilson’s Opinions Were Neither Cumulative nor Duplicative of Dr. Rodriguez’s Opinions. *4J Or (3) Nothing in Dr. Wilson’s Surgical Report Alerted the Defense to Any of Dr. Wilson’s Opinions Regarding the Cause of Nicolas’ Death or Dr. Wilson’s Other Opinions -43 OI to 3. Synthesis.......754 a. Dr. Wilson’s Suppressed Opinions were Favorable to the Defense. -43 cn i£¡>. b. Materiality. -4J or ^ (1) The Issues before this Court . -41 or £>• (2) Guilb-Innocence Phase of Trial ür cn (3) Punishment Phase of Trial ... Cn -43 4. Conclusions. Ur *D VI. Ineffective Assistance by Trial Counsel. CS IO t- A. The Claim. G7> IO o B. State Court Disposition. OTi IO £- C. AEDPA Review.760 1. The Federal Constitutional Standard of Review.760 2. Synthesis.761 a. The Issues Before this Court .761 b. GuilUnnocence Phase of Trial.761 (1) Arguably No Prejudice.761 (2) No Deficient Performance.762 c. Punishment Phase of Trial.763 (1) Prejudice Established.763 (2) Arguably No Deficient Performance.763 3. Conclusions .765 VII. Ineffective Assistance by Appellate Counsel .765 A. The Claim.765 B. State Court Disposition.765 C. AEDPA Review.766 1. The Federal Constitutional Standard of Review.766 2. Synthesis.767 a. No Prejudice .767 b. No Deficient Performance.767 3. Conclusion.768 VIII.Request for Evidentiary Hearing.768 IX. Certifícate of Appealability .770 X. Orders .774 I. Statement of the Case A. Factual Background 1. The Events of February 29, 2000 The relevant facts surrounding petitioner’s offense are not in genuine dispute. Around six p.m. on the evening of February 29, 2000, Marcelina Macias left her four-year-old son Dylan and her 19-month-old son Nicolas in the care of the petitioner. Around 6:50 p.m., petitioner paged Marcelina. At 7:02 p.m., petitioner placed a 911 call and advised the operator who answered that Nicolas was not breathing. Paramedics arrived at the Macias home minutes later and found petitioner, still talking on the phone, kneeling over Nicolas. The petitioner advised them Nicolas had stopped breathing within fifteen-to-twenty minutes of their arrival and that the older child had placed his hand over Nicolas’ mouth while they were playing. The paramedics quickly observed Nicolas was unconscious and unresponsive, not breathing, and had no pulse. They began efforts to resuscitate Nicolas, injecting epinephrine, inserting an oral airway, and beginning chest compressions. Two of the paramedics testified at trial that petitioner appeared unusually calm. After they removed Nicolas’ clothing, the paramedics observed a prominent bruise on his abdomen which resembled a footprint. Petitioner disavowed any knowledge of the source of the bruise. As the paramedics attempted to leave to take Nicolas to the nearest hospital, Marcelina returned and was briefly restrained. She then rode with Nicolas to the hospital while petitioner took Dylan to the hospital. Meanwhile, the bruising on Nicolas’ abdomen grew progressively more prominent. 2. Surgical Efforts to Save Nicolas Hospital personnel observed Nicolas was non-responsive, was not breathing spontaneously, and exhibited a distended abdomen with bruising on the anterior lateral right side beneath the rib cage. The surgeon who treated Nicolas testified at trial that Nicolas’ injuries appeared inconsistent with the history given: Nicolas had no blood pressure; his enlarged abdomen suggested trauma, not suffocation; and x-rays showed air was not confined to the intestines. When he arrived at the hospital, Nicolas’ body temperature was only 90 degrees Fahrenheit, what his doctor described as “ice cold,” and Nicolas’ blood pH was 6.62, significantly below the normal 7.4, which his doctor described as “rarely survivable.” Despite the fact Nicolas’ likelihood of survival was “very minimal,” he was taken to the operating room and given large amounts of fluids, along with epinephrine and dopamine, to help raise his blood pressure. Once his abdominal cavity was opened, blood was observed pooling on both sides of the interior of the abdomen and his physicians discovered (1) Nicolas’ duodenum was split in two locations against the midline of the body along his spine, (2) Nicolas’ transverse (upper) colon had been torn from its blood supply, (3) Nicolas’ mesentery or intestinal shroud was sheared off, and (4) Nicolas’ pancreas was split into two parts. Nicolas’ surgeon testified these types of internal injuries were consistent with high speed impact accidents in which the abdomen receives high velocity trauma from a blunt object, causing the internal organs to compress against the spine. Despite the infusion of blood and fluids and the surgical removal of a section of Nicolas’ pancreas, the placement of a tube in his stomach to drain away blood, and efforts of his surgeon to stop his internal bleeding, Nicolas expired. 3. The Seventy of Nicolas’ Injuries Nicolas’ surgeon testified further the magnitude of Nicolas’ injury made it unlikely Nicolas’ fatal injuries were accidental; this was a very painful, immediately incapacitating, injury which would necessarily have resulted in shock as a result of diminished blood pressure from internal bleeding and loss of consciousness within fifteen-to-twenty minutes of injury. He equated Nicolas’ injuries (which he described as resulting from a force striking Nicolas from the right side in a slightly upward direction moving toward the center of Nicolas’ body) with those which would likely be sustained in a 60-mile-per-hour car crash or from a drop of twenty feet. 4. Petitioner’s First Police Interview Late on the evening of Nicolas’ injury, petitioner agreed to accompany police to their office and to be interviewed. Just after two a.m., petitioner executed a voluntary statements in which he denied having struck Nicolas and stated he first became aware Nicolas was injured around 6:45 p.m. when Dylan informed him Nicolas was not breathing. 5.Petitioner’s Second Police Interview After police later confronted him with a photograph of Nicolas’ bruises, petitioner gave a second voluntary statement in which petitioner admitted he had “stamped on” Nicolas with his right foot as Nicolas lay on the floor. B. Indictment On March 16, 2000, an El Paso County grand jury indicted petitioner on a single Count of capital murder, to wit, intentionally and knowingly causing the death of Nicolas Macias, an individual younger than six years of age, by striking Nicolas with petitioner’s foot. C. Guilt-Innocence Phase of Trial Jury selection in petitioner’s trial commenced March 26, 2001. The guilt-innocence phase of petitioner’s trial began April 30, 2001. 1. The Prosecution’s Case In addition to the testimony and other evidence summarized above, petitioner’s jury also heard Nicolas’ five-year-old brother Dylan testify, on the night in question, he had seen the petitioner step on Nicolas. The medical examiner who performed the initial autopsy on Nicolas, Dr. Juan Contin, testified in pertinent part his examination of Nicolas’ body revealed Nicolas had three bruises to the abdominal area: (1) a large, oval-shaped, bruise consistent with a shoe which resulted from blunt force trauma sufficient to crush and transect Nicolas’ internal organs, detach Nicolas’ intestines from the spine, detach Nicolas’ duodenum from the stomach, cut Nicolas’ pancreas in two, and detach the large bowel from the spine; (2) a smaller bruise to the left side of the abdomen; and (3) a third bruise to the upper lumbar region in the center of the back near the kidneys. Dr. Contin testified further that, in his opinion, the three bruises to Nicolas’ abdomen did not result from a single blow to Nicolas’ body and he could not tell whether they were created at the same or different times. Dr. Contin also opined (1) Nicolas’ abdominal injuries had been produced by the application of “considerable force,” (2) the nature of Nicolas’ injuries made it likely he was laying partly on his left side when force was applied to Nicolas’ abdomen, crushing his internal organs against his spine, (3) only an object traveling at a very high rate of speed at impact could cause these types of injuries, (4) Nicolas’ injuries were caused by the amount of force typically seen in automobile accidents, (5) he did not believe Nicolas’ injuries were accidental in nature, (6) if Nicolas’ injuries had been caused by a shoe, the extent of Nicolas’ injury made it unlikely you would see a clear outline of a shoe print, (7) Nicolas’ abdominal injuries were fresh and were likely sustained within fífteen-to-twenty minutes of the arrival of the ambulance at petitioner’s home and within an hour of Nicolas’ arrival at the hospital, (8) immediately after receiving such injuries, a child would be in shock, unable to move around or play, and noticeably in distress, and (9) Nicolas’ internal bleeding began the instant he sustained his injury, after which he would have been cold, clammy, and pale. Dr. Contin also testified extensively regarding a series of bruises to Nicolas’ forehead which (1) he observed only during internal examination of Nicolas’ body, (2) he believed were too large and numerous to have been accidental in nature, but (3) he believed were at least several days old because of their yellow hue. 2. The Defense’s Evidence A Texas Department of Public Safety expert in footwear comparison called by the defense testified he could not match the shoes worn by petitioner on the date of Nicolas’ death to the abdominal bruises photographed on Nicolas’ body because the tread pattern he observed on photographs of Nicolas’ body did not match the petitioner’s shoe soles. On cross-examination, however, this same expert admitted (1) he had no knowledge or training regarding the composition of the skin and tissues beneath it or the effects of the impact of footwear on the human body, (2) he had no knowledge regarding the internal damage to Nicolas’ body, and (3) the direction of impact was irrelevant to his analysis because his only basis for comparison was an attempt to compare a flat photograph of Nicolas’ bruises with the shape and tread pattern he observed on petitioner’s shoe soles. A pathologist who had performed a second autopsy on Nicolas’ body, Dr. Fausto Rodriguez, testified for the defense that (1) he believed all of the blunt-force trauma injuries to Nicolas’ abdomen could be explained by a single traumatic event, (2) he found only one bruise to Nicolas’ abdominal area, (3) he could not determine whether Nicolas’ injuries had been accidental or non-accidental in nature, (4) Nicolas’ injuries could have resulted from an adult falling on top of Nicolas, and (5) it was not possible for a pathological examination to determine the intent of the person who struck Nicolas. On cross-examination, Dr. Rodriguez admitted (1) he could not dispute Dr. Contin’s findings regarding Nicolas’ head injuries because, by the time Dr. Rodriguez performed the second autopsy, Nicolas’ head was in an advanced state of decomposition and (2) there appeared to be a “footprint” on Nicolas’ body. However, when pressed by the prosecutor about Nicolas’ abdominal injuries, Dr. Rodriguez insisted (1) Nicolas’ abdomen was very well-preserved at the time of the second autopsy, (2) he observed only a single, large, bruise to Nicolas’ abdominal area, (3) he believed the smaller bruise Dr. Contin reported observing on the left side of Nicolas’ abdomen was the product of lividity, i.e., the pooling of blood, on that side of Nicolas’ abdomen, and (4) he did not observe the bruise to Nicolas’ back Dr. Contin had reported finding, which led him to conclude that “bruise” was also likely the product of lividity rather than a separate injury to petitioner’s abdominal area. A number of friends and relatives of petitioner testified to petitioner’s good reputation for being peaceful and non-violent toward children. Petitioner then took the stand and testified (1) he was watching television around seven p.m. when Dylan informed him Nicolas was not breathing, (2) he carried Nicolas, who was not breathing, into the living room and called 911, (3) he tried to perform CPR on Nicolas but had never done so before, (4) he paged Nicolas’ mother, (5) he took Dylan to the hospital while Nicolas’ mother rode with the paramedics and Nicolas in the ambulance, (6) he gave Detective Tabullo a detailed written statement concerning the events of that evening, (7) while he initialed each paragraph and signed his first statement he never read it before doing so, (8) he grew tired as Tabullo questioned him, (9) he later signed but did not read or initial a second statement because Tabullo indicated he could leave if he signed same, (10) neither of the written statements he signed accurately reflect the events on the evening in question, (11) he initialed and signed the first statement without reading same because the detective told him to do so, (12) he signed the second statement without reading same, and (13) he did not cause Nicolas’ death. On cross-examination, petitioner admitted Nicolas was ambulatory and not in pain when Marcelina left that evening and Nicolas was wearing a Onesie over a diaper. 3. The Verdict On May 3, 2001, the jury returned its verdict, finding petitioner guilty of capital murder. D. Punishment Phase of Trial The punishment phase of petitioner’s capital murder trial commenced on May 4, 2001, 1. The Prosecution’s Evidence Nicolas’ five-year-old brother Dylan Salinas testified, on the evening of Nicolas’ injury, petitioner directed Dylan to step on Nicolas before petitioner did so and denied ever saying he had put his hand over Nicolas’ mouth. The jury heard the audiotape recording of petitioner’s 911 call on the evening of Nicolas’ murder, which had been received at 7:02 p.m. A family friend testified (1) since Nicolas’ death, his siblings had exhibited sleeplessness, fear, crying spells, and clinging to their mother and (2) when she was informed of Nicolas’ death, Marcelina Macias wept and fainted. Nicolas’ mother testified (1) when she left their home on the evening of Nicolas’ murder, Nicolas and Dylan were chasing each other around the apartment as she kissed them goodbye, (2) petitioner paged her around 6:50 p.m. that evening, (3) when she arrived back at her home, she observed EMS personnel working on Nicolas and she became hysterical, (4) when Dylan and petitioner arrived at the hospital, Dylan was scared and clingy toward her, (5) prior to the evening in question, petitioner had never struck or even disciplined any of her children, (6) she had been dating petitioner for about four months before Nicolas’ death, (7) petitioner first began babysitting her children at the beginning of February, 2000, about a month before Nicolas’ death, (8) she never saw petitioner get angry with her children, but (9) she was aware petitioner was jealous of her seeing other men. 2. The Defense’s Evidence The defense presented a number of friends and relatives who all described petitioner as a kind, caring, soft-spoken, non violent person and a loving, supportive, father to his own son. 3. Verdict On May 7, 2001, the jury returned its verdict at the punishment phase of petitioner’s capital trial, finding (1) beyond a reasonable doubt there was a probability the petitioner would commit criminal acts of violence that would constitute a continuing threat to society and (2) taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the defendant’s personal moral culpability, there were insufficient mitigating circumstances to warrant a sentence of life imprisonment for the defendant. The trial court immediately sentenced petitioner. E. Direct Appeal Petitioner appealed his conviction and sentence. In an unpublished opinion issued July 2, 2003, the Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence. Avila v. State, 2003 WL 21513440 (Tex.Crim.App. July 2, 2003), cert. denied, 541 U.S. 935, 124 S.Ct. 1656, 158 L.Ed.2d 355 (2004). The United States Supreme Court denied petitioner’s certiorari petition on March 22, 2004. Avila v. Texas, 541 U.S. 935, 124 S.Ct. 1656, 158 L.Ed.2d 355 (2004). F. State Habeas Corpus Proceeding On May 19, 2003, petitioner filed his application for state habeas corpus relief. Without holding an evidentiary hearing, in an Order issued June 28, 2004, the state trial court issued its findings of fact, conclusions of law, and recommendation that petitioner’s application for state habeas relief be denied. In an unpublished Order issued September 29, 2004, the Texas Court of Criminal Appeals adopted the state habeas trial court’s findings of fact, conclusions of law, and denied petitioner’s application for state habeas corpus relief. Ex parte Rigoberto Avila, App. No. 59,662-01 (Tex.Crim.App. September 29, 2004). G. Procedural History in this Court On September 19, 2005, petitioner filed his petition for federal habeas corpus relief in this Court. Docket entry no, 16. On February 1, 2006, respondent filed his original answer. Docket entry no. 2E On April 11, 2006, petitioner filed his reply to respondent’s answer. Docket entry no. 21. 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, 339, 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 habeas, 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), ceit. 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. Evidence of Good Character in the Texas Capital Sentencing Scheme A.The Claim In his fifth claim for relief herein, petitioner argues his capital sentencing jury was effectively precluded from giving mitigating effect to his evidence of good character because the mitigation or Penry capital sentencing special issue does not permit the jury to consider evidence unrelated to a defendant’s moral blameworthiness. B. State Court Disposition The Texas Court of Criminal Appeals rejected this same claim on the merits in the course of petitioner’s state habeas corpus proceeding. C. AEDPA Review 1. Clearly Established Federal Law The constitutional standard for evaluating the efficacy of punishment-phase jury instructions and special issues is well-settled: “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Abdul-Kabir v. Quarterman, — U.S. —, —, 127 S.Ct. 1654, 1674, 167 L.Ed.2d 585 (2007); Ayers v. Belmontes, — U.S. —, —, 127 S.Ct. 469, 474, 166 L.Ed.2d 334 (2006); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993); Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). “Although the reasonable likelihood standard does not require that the defendant prove that it was more likely than not that the jury was prevented from giving effect to the evidence, the standard requires more than a mere possibility of such a bar.” Johnson v. Texas, 509 U.S. at 367, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 380, 110 S.Ct. at 1198. In evaluating the instructions, courts do not engage in a technical parsing of the relevant language but instead approach the instructions the same way the jury would — with a “eommonsense understanding of the instructions in the light of all that has taken place at the trial.” Johnson v. Texas, 509 U.S. at 368, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 381, 110 S.Ct. at 1198. 2. The Punishment Phase of Petitioner’s Trial During both the guilt-innocence and punishment phases of petitioner’s trial, the defense presented extensive testimony describing petitioner not merely as non-violent but, rather, kind, soft-spoken, and a loving and supportive father. At the punishment phase of petitioner’s trial, the trial court instructed the jury in pertinent part, as follows: In deliberating on “Special Issue” No. 1 you shall consider all the evidence at the guilt or innocence stage of this trial, including evidence of the Defendant’s background or character or the circumstances of the offense that militates for or against the imposition of the death penalty. In answering “Special Issue” No. 2 you shall consider mitigating evidence to be evidence that a juror might regard as reducing the Defendant’s blameworthiness. The two special issues included in petitioner’s punishment-phase jury charge inquired as follows: Do you find from the evidence beyond a reasonable doubt that there is a probability that the Defendant, RIGOBERTO AVILA, would commit criminal acts of violence that would constitute a continuing threat to society? Do you find from the evidence, taking into consideration all of the evidence, in-eluding the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the Defendant, that there is [sic] a sufficient mitigating circumstances or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed? Petitioner’s jury answered the first special issue affirmatively and the second, negatively. During closing argument at the punishment phase of petitioner’s capital trial, petitioner’s defense counsel repeatedly pointed to the evidence before the jury showing both petitioner’s good character and the total absence of any evidence showing petitioner had ever engaged in any other violent or criminal act as justifying a negative answer to the first special issue regarding future dangerousness and arguing the petitioner’s crime was an “isolated incident.” The prosecution, in reply, emphasized the circumstances of petitioner’s offense (including petitioner’s lack of remorse during his guilt-innocence phase trial testimony), argued petitioner’s character witnesses had no personal knowledge regarding the heinous details of petitioner’s offense, but never suggested petitioner’s evidence of good character was irrelevant to either of the issues before the jury at the punishment phase of trial. 3. Synthesis Petitioner’s argument focuses on what he perceives to be the restrictive nature of the trial court’s definition of “mitigating evidence” in connection with the second special issue, i.e., evidence which reduces the defendant’s blameworthiness. However, petitioner ignores the obvious relevance of his good character evidence to the first Texas capital sentencing special issue, i.e., the issue of future dangerousness. Nothing in the Supreme Court’s Eighth Amendment jurisprudence requires a capital sentencing jury to. consider evidence of a defendant’s good character in multiple contexts. On the contrary, the Supreme Court has emphasized that states are permitted to shape a jury’s consideration of mitigating evidence, so long as all such evidence may be given full effect. See Johnson v. Texas, 509 U.S. 350, 369-71, 113 S.Ct. 2658, 2670-71, 125 L.Ed.2d 290 (1993)(holding the mitigating value of a defendant’s youth could be adequately considered by a Texas capital sentencing jury without the necessity of a Penry instruction or special issue); Saffle v. Parks, 494 U.S. 484, 493, 110 S.Ct. 1257, 1263, 108 L.Ed.2d 415 (1990)(“The State must not cut off full and fair consideration of mitigating evidence; but it need not grant the jury the choice to make the sentencing decision according to its own whim and caprice.”). Evidence of a defendant’s good character can find adequate expression through the future dangerousness special issue. Coble v. Dretke, 444 F.3d 345, 363 (5th Cir.2006). The Supreme Court views the future dangerousness special issue as allowing a capital sentencing jury to consider a wide array of evidence tied to the defendant’s personal culpability. See Abdul-Kabir v. Quarterman, — U.S. at —, 127 S.Ct. at 1670 (recognizing that, even before the Supreme Court’s holding in Penry v. Lynaugh, the Texas capital sentencing special issues provided an adequate vehicle for the evaluation of mitigating evidence offered to disprove deliberateness or future dangerousness); Johnson v. Texas, 509 U.S. at 368-69, 113 S.Ct. at 2669-70 (holding the Texas special issue addressing future dangerousness was sufficiently broad to permit the jury’s consideration of the mitigating effects of the defendant’s youth). Evidence of a defendant’s good character or lack of a history of violent conduct by their very nature tend to support a finding that the defendant’s commission of a capital offense was an aberrational act, unlikely to occur again in the future. The forward-looking future-dangerousness inquiry is not independent of an assessment of personal culpability. Ayers v. Belmontes, — U.S. at —, 127 S.Ct. at 475; Johnson v. Texas, 509 U.S. at 369, 113 S.Ct., at 2670. Thus, the first capital sentencing special issue afforded petitioner’s jury an adequate vehicle for giving mitigating effect to petitioner’s evidence of his good character and non-violent life-history. Petitioner’s trial counsel argued at the punishment phase of petitioner’s trial that his client’s good character and lack of a history of violent or criminal conduct showed petitioner’s capital offense was an isolated incident unlikely to recur. Nothing in the plain language or commonsense meaning of petitioner’s punishment-phase jury instructions was likely construed by the jury as foreclosing its consideration of the mitigating value of petitioner’s evidence of his good character. Even before the “mitigation” or Penry special issue was added to the Texas capital sentencing scheme, the Supreme Court, the Fifth Circuit, and this Court interpreted the Texas capital sentencing special issues as sufficiently broad to permit adequate jury consideration of a defendant’s evidence of good character. See Graham v. Collins, 506 U.S. 461, 475, 113 S.Ct. 892, 902, 122 L.Ed.2d 260 (1993)(holding evidence of good character introduced by Texas capital murder defendant tried before addition of the Penry special issue to Texas capital sentencing scheme was nonetheless subject .to adequate consideration by the capital sentencing jury); Nichols v. Scott, 69 F.3d 1255, 1278 (5th Cir.1995)(evidence of defendant’s good character could be adequately considered even without a Penry special issue), cert. denied, 518 U.S. 1022, 116 S.Ct. 2559, 135 L.Ed.2d 1076 (1996); Crank v. Collins, 19 F.3d 172, 175 (5th Cir.1994)(evidence of defendant’s good character could be adequately considered even in absence of a Penry special issue), cert. denied, 512 U.S. 1214, 114 S.Ct. 2699, 129 L.Ed.2d 825 (1994); James v. Collins, 987 F.2d 1116, 1122 (5th Cir.1993)(holding the same), cert. denied, 509 U.S. 947, 114 S.Ct. 30, 125 L.Ed.2d 780 (1993); Cordova v. Johnson, 993 F.Supp. 473, 496 & n. 122 (W.D.Tex.1998)(holding the same), appeal denied, 157 F.3d 380 (5th Cir.1998), cert, denied, 525 U.S. 1131, 119 S.Ct. 922, 142 L.Ed.2d 971 (1999). Moreover, insofar as petitioner argues the Texas statutory definition of “mitigating evidence” as “evidence that a juror might regard as reducing the defendant’s moral blameworthiness” somehow circumscribes a capital sentencing jury’s ability to give “mitigating” effect to evidence of a defendant’s good character, that argument defies logic. Evidence which tends to establish a defendant’s commission of a violent crime was an aberrational act (because it was inconsistent with the defendant’s background and character) by its very nature reduces the defendant’s moral blameworthiness. No reasonable juror could have construed the jury instructions at the punishment phase of petitioner’s trial as precluding the jury’s consideration of the inherently mitigating effect of evidence showing petitioner’s murder of Nicolas Macias was an aberrational act. Petitioner’s trial counsel argued precisely this point in connection with the future dangerousness issue and the relevance of the same evidence and argument to the Penry or mitigation special issue was rampantly obvious. Under such circumstances, it is not reasonably likely the petitioner’s jury construed the punishment-phase jury instructions as precluding it from considering and giving mitigating effect to petitioner’s evidence of his good character and non-violent background. 4. Conclusion Accordingly, the Texas Court of Criminal Appeals’ rejection on the merits of petitioner’s constitutional complaint regarding ' petitioner’s 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 in the petitioner’s state trial court and state habeas corpus proceedings. IV. Ring v. Arizona and Apprendi v. New Jersey Claim A. The Claim In his third claim herein, petitioner argues the Texas capital sentencing scheme’s Penry or mitigation special issue is constitutionally defective under the Supreme Court’s holdings in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because, as currently structured, the Texas mitigation special issue does not require the prosecution to carry its burden of persuasion “beyond a reasonable doubt.” B. State Court Disposition The Texas Court of Criminal Appeals rejected this same claim on the merits in the course of petitioner’s state habeas corpus proceeding. C. AEDPA Review I. Clearly Established Federal Law In Appi'endi v. New Jersey, supra,, the Supreme Court struck down on due process and jury trial grounds a state scheme which permitted a trial judge to make a factual finding based on a preponderance of the evidence regarding the defendant’s motive or intent underlying a criminal offense and, based on such a finding, increase the maximum end of the applicable sentencing range for the offense by a factor of one hundred percent, Apprendi, 530 U.S. at 497, 120 S.Ct. at 2366. The Supreme Court’s opinion in Apprendi emphasized it was merely extending to the state courts the same principles discussed in Justice Stevens’ and Justice Scalia’s concurring opinions in Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 1228-29, 143 L.Ed.2d 311 (1999): other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. Put more simply, the Supreme Court held (1) it was unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal is exposed and (2) all such findings must be established beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. at 2363. Two years later, in Ring v. Arizona, supra, the Supreme court applied the holding and its reasoning in Apprendi to strike down a death sentence in a case in which the jury had declined to find the defendant guilty of pre-meditated murder during the guilt-innocence phase of a capital trial (instead finding the defendant guilty only of felony murder) but a trial judge subsequently concluded the defendant should be sentenced to death based upon factual determinations that (1) the offense was committed in expectation of receiving something of pecuniary value (i.e., the fatal shooting of an armored van guard during a robbery) and (2) the foregoing aggravating factor out-weighed the lone mitigating factor favoring a life sentence (i.e., the defendant’s minimal criminal record). Ring, 536 U.S. at 609, 122 S.Ct. at 2443. The Supreme Court emphasized, as it had in Apprendi, the dispositive question “is not one of form, but of effect”: “[i]f a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt.” Ring, 536 U.S. at 602, 122 S.Ct. at 2439. “A defendant may not be exposed to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” Ring, 536 U.S. at 602, 122 S.Ct. at 2439-40, quoting Apprendi, 530 U.S. at 483, 120 S.Ct. at 2359. Because Ring would not have been subject to the death penalty but for the trial judge’s factual determination as to the existence of an aggravating factor, the Supreme Court declared Ring’s death sentence violated the right to trial by jury protected by the Sixth Amendment. Ring, 536 U.S. at 609, 122 S.Ct. at 2443. 2. Punishment Phase of Petitioner’s Trial As explained in Section III.C.2. above, at the punishment phase of petitioner’s capital trial, the jury was faced with two special issues: the first inquired whether the prosecution had established beyond a reasonable doubt that a probability existed the petitioner would commit criminal acts of violence constituting a continuing threat to society; and the second inquired whether, without any express or implicit burden of proof assigned, the mitigating evidence warranted a sentence of less than death. This submission was consistent with Section 2 of Article 37.071 of the Texas Code of Criminal Procedure, which mandates the state carry the burden of proving the defendant’s future dangerousness “beyond a reasonable doubt,” but imposes no similar burden of proof requirement for the Penry or mitigation special issue. 3. Synthesis Petitioner’s argument in support of this claim equates his jury’s negative answer to the Penry or mitigation special issue included in the Texas capital sentencing scheme with the Arizona trial judge’s factual findings regarding the existence of aggravated factors in Ring. However, petitioner misperceives the true nature of the Texas capital sentencing scheme. The Supreme Court explained in Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994), that the Eighth Amendment addresses two different but related aspects of capital sentencing: the eligibility decision and the selection- decision. Tuilaepa, 512 U.S. at 971, 114 S.Ct. at 2634. The Supreme Court’s analysis of those two aspects of capital sentencing provides a comprehensive system for analyzing Eighth Amendment claims: To be eligible for the death penalty, the defendant must be convicted of a crime for which the death penalty is a proportionate punishment. To render a defendant eligible for the death penalty in a homicide case,' we have indicated that the trier of fact must convict the defendant of murder and find one “aggravating circumstance” (or its equivalent) at either the guilt or penalty phase. The aggravated circumstance may be contained in the definition of the crime or' in a separate sentencing factor (or both). As we have explained, the aggravating circumstance must meet two requirements. First, the circumstance may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder. Second, the aggravating circumstance may not be unconstitutionally vague. * * * We have imposed a separate requirement for the selection decision, where the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence. “What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.” That requirement is met when the jury can consider relevant mitigating evidence of the character and record of the defendant and the circumstances of the crime. Tuilaepa, 512 U.S. at 971-73, 114 S.Ct. at 2634-35 (citations omitted). The Supreme Court clearly pronounced in Tuilaepa that States may adopt capital sentencing procedures which rely upon the jury, in its sound judgment, to exercise wide discretion. Tuilaepa, 512 U.S. at 974, 114 S.Ct. at 2636. The Supreme Court held further, at the selection stage, States are not confined to submitting to the jury specific propositional questions but, rather, may direct the jury to consider a wide range of broadly-defined factors, such as “the circumstances of the crime,” “the defendant’s prior criminal record” and “all facts and circumstances presented in extenuation, mitigation, and aggravation of punishment.” Tuilaepa, 512 U.S. at 978, 114 S.Ct. at 2638. In Loving v. United States, 517 U.S. 748, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996), the Supreme Court discussed the first part of the Tuilaepa analysis, i.e., the eligibility decision, as follows: The Eighth Amendment requires, among other things, that “a capital sentencing scheme must ‘genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.’ ” Some schemes accomplish that narrowing by requiring that the sentencer find at least one aggravating circumstance. The'narrowing may also be achieved, however, in the definition of the capital offense,'in which circumstance the requirement that the sentencer “find the existence of the aggravating circumstance in addition is no part of the constitutionally required narrowing process.” Loving, 517 U.S. at 755, 116 S.Ct. at 1742 (citations omitted). The Arizona capital sentencing scheme the Supreme Court addressed in Ring' relied upon a trial judge’s factual findings of “aggravating” factors and directed the trial judge to weigh those aggravating factors against any mitigating factors found to apply to the defendant. Thus the Arizona trial judge’s factual findings in Ring were part of the constitutionally-mandated eligibility determination, i.e., the narrowing function. 'In contrast, the Texas capital sentencing scheme under which petitioner was tried, convicted, and sentenced performed the constitutionally-required narrowing function discussed in Tuilaepa and Loving at the guilt-innocence phase of petitioner’s trial and further narrowed the category of those eligible for the death penalty by requiring a finding, beyond a reasonable doubt, of future dangerousness. See Sonnier v. Quarterman, 476 F.3d 349, 365-67 (5th Cir.2007)(recognizing the Texas capital sentencing scheme, like the one upheld by the Supreme Court in Kansas v. Marsh, — U.S. —, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006), performs the constitutionally-required narrowing function through its statutory definition of capital murder and further narrows the category of those eligible for the death penalty by requiring an additional fact finding, beyond a reasonable doubt, that there is a probability the defendant will commit criminal acts of violence that would constitute a continuing threat to society). Unlike Arizona’s weighing scheme, the Texas capital sentencing scheme performs the constitutionally-mandated narrowing function, i.e., the process of making the “eligibility decision,” at the guilt-innocence phase of a capital trial by virtue of the manner with which Texas defines the offense of capital murder in Section 19.03 of the Texas Penal Code. See Johnson v. Texas, 509 U.S. at 362, 113 S.Ct. at 2666 (holding that its previous opinions upholding the Texas capital sentencing scheme found no constitutional deficiency in the means used to narrow the group of offenders subject to capital punishment because the statute itself adopted different classifications of murder for that purpose); Lowenfield v. Phelps, 484 U.S. 231, 243-47, 108 S.Ct. 546, 554-55, 98 L.Ed.2d 568 (1988)(comparing the Louisiana and Texas capital murder schemes and noting they each narrow those eligible for the death penalty through narrow statutory definitions of capital murder); Jurek v. Texas, 428 U.S. 262, 268-75, 96 S.Ct. 2950, 2955-57, 49 L.Ed.2d 929 (1976) (plurality opinion recognizing the Texas capital sentencing scheme narrows the category of murders for which a death sentence may be imposed and this serves the same purpose as the requirements of other statutory schemes which require proof of aggravating circumstances to justify the imposition of the death penalty). Thé Texas capital sentencing scheme under which petitioner was convicted and sentenced involved a significantly different approach to capital sentencing than the Arizona scheme involved in Ring. By virtue of (1) its guilt-innocence phase determination beyond a reasonable doubt that the petitioner committed capital murder, as defined by applicable Texas law, and (2) its factual finding of future dangerousness, also made beyond a reasonable doubt, petitioner’s jury found beyond a reasonable doubt the petitioner was eligible to receive the death penalty. Sonnier v. Quarterman, 476 F.3d at 365-67. In contrast, Ring’s jury made no analogous factual findings. Instead, Ring’s Arizona jury found beyond a reasonable doubt only that Ring was guilty of “felony murder,” a wholly separate offense from the offense of capital murder as defined under Texas law. The petitioner’s first capital sentencing special issue, i.e., the future dangerousness issue, included a “beyond a reasonable doubt” burden of proof squarely placed on the prosecution. Petitioner’s jury’s factual finding on the future dangerousness special issue was an essential part of the procedural process under Texas law for determining whether the petitioner was eligible to receive the death penalty. In contrast, the Penry or “mitigation” special issue employed at the punishment phase of petitioner’s capital trial was designed to address the second aspect of capital sentencing discussed in Tuilaepa, i.e., the constitutional requirement that the jury be given an opportunity “to render a reasoned, individualized sentencing determination based on a death-eligible defendant’s record, personal characteristics, and the circumstances of his crime.” Kansas v. Marsh, — U.S. at —, 126 S.Ct. at 2524-25; Sonnier v. Quartemnan, 476 F.3d at 365. “The use of mitigation evidence is a product of the requirement of individualized sentencing.” Kansas v. Marsh, — U.S. at —, 126 S.Ct. at 2525. The Supreme Court has distinguished the constitutional requirements of the eligibility decision, i.e., the narrowing function, and the selection decision, i.e., the individualized assessment of mitigating cm-cumstances, holding the latter requires only that the sentencing jury be given broad range to consider all relevant mitigating evidence but leaving to the States wide discretion on how to channel the sentencing jury’s balancing of mitigating and aggravating factors. See Kansas v. Marsh, — U.S. at —, 126 S.Ct. at 2525 (holding, in connection with the selection phase of a capital sentencing proceeding, the Constitution mandates only that (1) the defendant has a right to present the sentencing authority with information relevant to the sentencing decision and (2) the sentencing authority is obligated to consider that information in determining the appropriate sentence); Tuilaepa, 512 U.S. at 978, 114 S.Ct. at 2638 (holding, at the selection stage, States are not confined to submitting to the jury specific propositional questions but, rather, may direct the jury to consider a wide range of broadly-defined factors, such as “the circumstances of the crime,” “the defendant’s prior criminal record” and “all facts and circumstances presented in extenuation, mitigation, and aggravation of punishment.”). At the selection phase of a capital trial, the Supreme Court has left to the States the decision whether to channel a sentencing jury’s weighing of mitigating evidence or grant the jury unfettered discretion to consider all relevant mitigating evidence and weigh same in any manner the jury deems reasonable. See Kansas v. Marsh, — U.S. —, 126 S.Ct. at 2525, 165 L.Ed.2d 429 (“So long as a state system satisfies these requirements, our precedents establish that a State enjoys a range of discretion in imposing the death penalty, including the manner in which aggravating and mitigating circumstances are to be weighed.”). Likewise, the Supreme Court has not yet imposed a particular burden of proof requirement with regard to a capital sentencing jury’s consideration of mitigating evidence when such consideration occurs exclusively within the selection process. “[Djiscretion to evaluate and weigh the circumstances relevant to the particular defendant and the crime he committed” is not impermissible in the capital sentencing process. “Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, ... the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment.” Indeed, the sentencer may be given “unbridled discretion in determining whether the death penalty should be imposed after it has been found that the defendant is a member of the class made eligible for that penalty.” Tuilaepa, 512 U.S. at 979, 114 S.Ct. at 2639 (citations omitted). “[Tjhere is no constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence ‘in an effort to achieve a more rational and equitable administration of the death penalty.’ ” Johnson v. Texas, 509 U.S. at 362, 113 S.Ct. at 2666 (quoting Boyde v. California, 494 U.S. at 377, 110 S.Ct. at 1196). “We have never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required.” Kansas v. Marsh, — U.S. at —, 126 S.Ct. at 2525. As explained above, the “eligibility” decision required by the Constitution is satisfied under Texas law by the jury’s findings “beyond a reasonable doubt” that (1) the defendant is guilty of capital murder as defined under Section 19.03 of the Texas Penal Code and (2) there is a probability the defendant will commit criminal acts of violence that would constitute a continuing threat to society. Sonnier v. Quarterman, 476 F.3d at 365-67. This is all the Constitution requires to satisfy the concerns discussed by the Supreme Court in Ring. Consistent with the Supreme Court’s holdings in Kansas v. Marsh, Tuilaepa v. California, and Johnson v. Texas, a Texas capital sentencing jury may be granted “unfettered discretion” regarding how it should weigh the mitigating evidence, if any, relevant to a particular defendant’s background and character against the aggravating circumstances of the defendant’s offense and the defendant’s demonstrated propensity for future dangerousness. Thus, the Texas Legislature’s decision not to assign a particular burden of proof on either party in connection with the Texas capital sentencing scheme’s Penry or mitigation special issue falls well within the broad range of discretionary authority a State may exercise in connection with the selection phase of a capital trial. The Arizona trial judge’s affirmative factual finding regarding the existence of an aggravating factor made in Ring did not serve the same constitutionally-mandated purpose as the jury’s negative answer to the Penry special issue made at petitioner’s Texas capital murder trial. The Arizona trial judge’s factual findings were designed to satisfy the “eligibility” requirement discussed in Tuilaepa. In jurisdictions such as Texas (where the “eligibility” decision discussed in Tuilaepa is made at the guilt-innocence phase of a capital trial) the only factual issues before the jury at the punishment phase of a capital trial address only the “selection” decision identified by the Supreme Court in Tuilaepa. Even if Texas’ future dangerousness special issue could be construed as falling within the scope of the constitutionally-mandated eligibility decision, Texas law clearly places the burden of proving same beyond a reasonable doubt on the prosecution. Thus, the procedural requirements applicable to the eligibility decision in weighing jurisdictions such as Arizona (where specific findings of aggravating factors are made during a separate post-conviction proceeding and then weighed against any “mitigating” factors also found by the sentencing authority) are inapplicable to a Texas capital sentencing jury’s selection decision, i.e., its determination as to whether the mitigating evidence in a particular case warrants a sentence of less than death for a criminal defendant who has already been convicted beyond a reasonable doubt of capital murder and already determined beyond a reasonable doubt to pose a risk of future dangerousness. See Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir.2007)(“a finding of mitigating circumstances reduces a sentence from death, rather than increasing it to death.”); Sonnier v. Quarterman, 476 F.3d at 363-67 (holding the deletion of the former special issue inquiring into whether the defendant acted “deliberately” in connection with the capital murder from the Texas capital sentencing scheme did not render same vulnerable to attack on Eighth Amendment grounds); Granados v. Quarterman, 455 F.3d 529, 537 (5th Cir.2006)(distinguishing Ring and Apprendi on the ground a jury’s affirmative answer to the Texas capital sentencing scheme’s Penry or “mitigation” special issue reduces a sentence from death rather than increasing it to death, as was the case with the factual findings made by the trial judges in Apprendi and Ring). cert. denied, — U.S. —, 127 S.Ct. 732, 166 L.Ed.2d 568 (2006); Rowell v. Dretke, 398 F.3d 370, 379 (5th Cir.2005) (“No Supreme Court or Circuit precedent constitutionally requires that Texas’s mitigation special issue be assigned a burden of proof.”), cert. denied, 546 U.S. 848, 126 S.Ct. 103, 163 L.Ed.2d 117 (2005). 4. Conclusion The Texas Court of Criminal Appeals’ rejection on the merits of petitioner’s Ring!Apprendi claim 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 in the petitioner’s state trial court and state habeas corpus proceedings. V. Brady Claim A. The Claim In his first claim f