Full opinion text
MEMORANDUM OPINION AND ORDER MONTALVO, District Judge. Petitioner William Josef Berkley filed this federal habeas corpus action pursuant to Title 28, United States Code, Section 2254, collaterally attacking his otherwise final, April, 2002, El Paso County conviction for capital murder and sentence of death. For the reasons set forth in detail below, petitioner is entitled to neither federal habeas corpus relief nor a Certificate of Appealability from this Court. I. Statement of the Case A. The Crime Sophia Martinez left her home in El Paso, Texas at approximate ten p.m. on the evening of March 10, 2000 in her red Grand Am sports car to meet a blind date. Approximately twenty minutes later, bank security cameras located at an ATM near Sophia’s home in El Paso recorded Sophia making a twenty dollar withdrawal from her account. The same security cameras then recorded a male brandishing a handgun approach Sophia’s vehicle and fire a shot into the vehicle which shattered a window in Sophia’s vehicle. The security cameras next recorded the male assailant’s entry into the rear seat of the driver’s side of the vehicle and a now-bloody-faced Sophia making a second withdrawal from her account, this time in the amount of two hundred dollars. Sophia’s vehicle then departed the security cameras’ field of vision. The following morning, Sophia’s abandoned vehicle was located by New Mexico State Police in a desert area not far from El Paso. There were numerous blood stains apparent on the interior of Sophia’s vehicle. Later the same date, El Paso police found Sophia’s lifeless body laying face up beside a dirt road in an isolated location near a well. An autopsy revealed Sophia had been shot five times in the head. Vaginal swabs revealed Sophia had engaged in intercourse shortly before her death. B. Petitioner’s Confessions More than six months later, El Paso police arrested petitioner, who gave a two-page written statement in which he stated (1) his gun went off as he approached Sophia’s vehicle, (2) he then entered her vehicle, directed her to make a $200 withdrawal from her account, and directed her to drive her vehicle away from the ATM to a deserted area, (3) when they arrived at that location, “the girl” initiated multiple episodes of sexual relations between them, (4) when she attempted to hug him, his gun “went off’ again, (5) he passed out and did not wake up for several hours, (6) when he did so, he saw “the girl” laying on the ground, (7) he “freaked out” and drove her car to another part of the desert where he drove it off the road, and (8) he then walked home. Two days after petitioner gave his first written statement, petitioner’s father notified police petitioner wished to make another statement. In his second, far more detailed, written statement, petitioner stated (1) the murder weapon was a .22 caliber handgun he had secretly purloined from his father, (2) his close friend Michael Jacques had played an integral role in the planning and execution of the robbery as well as the disposal of Sophia’s car, and (3) he later burned “the girl’s” driver’s license in a barbeque grill. C. Indictment On December 19, 2000, an El Paso County grand jury indicted petitioner on a single Count of capital murder, to wit, intentionally causing Sophia Martinez’s death by shooting her with a firearm in the course of committing and attempting to commit the predicate offenses of robbery, kidnaping, and aggravated sexual assault of Sophia. D. Guilt-Innocence Phase of Trial The guilt-innocence phase of petitioner’s trial commenced on April 15, 2002. 1. The Prosecution’s Evidence In addition to the testimony summarized above, petitioner’s jury heard the estranged wife of Michael Jacques testify that, the day after the robbery and murder, she observed a set of car keys and a driver’s license belonging to Sophia Martinez lying on the counter of her kitchen and Sophia’s driver’s license was later burned in a barbeque grill. An El Paso Police officer and FBI agent both testified regarding the discovery of a .22 caliber handgun and ammunition for same inside a night-stand drawer in the master bedroom of petitioner’s parents’ home. An El Paso Police officer testified regarding the discovery on the roof of the apartment building where Michael Jacques and petitioner had resided in March, 2000 of a set of car keys which fit the ignition and trunk of Sophia’s vehicle. A firearms expert testified (1) the .22 caliber handgun located in the Berkley home had a trigger pull of over nine pounds on double-action and over six pounds on single-action and (2) she was unable to perform a comparison between bullets she test-fired from that handgun and the four bullet fragments removed from Sophia’s head because the latter were too badly damaged to permit comparison. An FBI DNA examiner and a Texas Department of Public Safety crime lab employee testified petitioner’s DNA matched that of the sperm fraction recovered from Sophia Martinez’s vaginal swabs. 2. The Defense’s Evidence Petitioner’s father testified (1) petitioner introduced him to a girl named “Sophia” in February, 2000 whom he believed to be Sophia Martinez and (2) he did not believe his .22 caliber handgun had been out of his home during March, 2000. However, during cross-examination petitioner’s father admitted that (1) he could not be certain his .22 caliber handgun had not left his home in March, 2000 and (2) neither of petitioner’s confessions included any indication petitioner knew his victim. Douglas Bosanko, the owner of a wrecker and locksmith company, testified that (1) on the night of Sophia’s robbery and murder, he passed the location where Sophia’s vehicle was abandoned at a high rate of speed and observed a vehicle 25-30 feet off the roadway and saw the dome light inside that vehicle come on and saw a figure get out of the vehicle, (2) about an hour to eighty minutes later, as he returned past the same location, he observed the vehicle again but saw no one near the vehicle, (3) when he drove on to an intersection three-to-four miles down the road, where he observed a Hispanic male pacing back and forth, (4) he stopped to ask this person whether he needed a ride, (5) the Hispanic male said he was waiting for his buddy to give him a ride, (6) the person he saw pacing at the intersection was not petitioner, and (7) he could not identify the Hispanic male he observed pacing at that location was the same person he had seen more than an hour before exit the abandoned vehicle several miles back up the road. Bosanko testified he contacted police shortly after learning of Sophia’s murder and helped police develop a composite sketch of the Hispanic male he had observed on the night in question. He also testified he subsequently was unable to identify anyone in a pair of police photo arrays but, later, identified a person whom he observed through a glass window. 3. Prosecution’s Rebuttal Evidence A pair of El Paso Police officers each testified (1) Bosanko was unable to identify anyone in the lone photo array shown to him on March 13, 2000, (2) Bosanko was later taken to police headquarters and given an opportunity to view a former boyfriend of Sophia Martinez named Jose Hernandez, but (3) Bosanko was unable to identify Hernandez as the person he had seen several miles from the location where Sophia’s vehicle was abandoned on the night of her murder. Sophia’s mother testified she was very close with Sophia, she had never heard of petitioner before Sophia’s murder, and she was not aware of Sophia ever having dated petitioner. Jose Hernandez testified (1) his romantic relationship with Sophia had cooled months before her murder, (2) he spent the evening before and the night of Sophia’s murder with his girlfriend at his parents’ home watching television, (3) he took his girlfriend home around 2 a.m., and (4) he had nothing to do with Sophia’s murder. 4. Verdict On April 19, 2002, the jury returned its verdict, finding petitioner guilty of capital murder. E. Punishment Phase of Trial The punishment phase of petitioner’s capital trial commenced later that same date. 1. The Prosecution’s Evidence One of petitioner’s former neighbors testified that (1) one evening in March, 20000, petitioner borrowed a dark sweatshirt and knit cap from her and her roommate, (2) the following afternoon, petitioner asked her to give him an alibi if the police asked her where he had been the previous night, and (3) she had twice seen petitioner under the influence of narcotics. Sophia Martinez’s mother testified Sophia’s younger siblings had suffered since Sophia’s violent death and that Sophia had been a good student who planned to attend college and study to become a teacher. Petitioner’s former supervisor at the Army Exchange service testified she repeatedly counseled petitioner regarding his poor attendance, rude behavior with customers, and fighting with co-workers during the few months he worked under her but petitioner was non-responsive to her counseling and petitioner’s reputation for being peaceful among his co-workers was bad. One of petitioner’s former co-workers who also was a friend of petitioner’s mother and had known petitioner since he was twelve years old testified petitioner (1) was perpetually disrespectful to his co-workers, mother, and elders, (2) often referred to woman as “bitches,” (3) frequently carried a knife, and (4) often spoke ethnic slurs and made verbal threats against a female Asian co-worker. The loss prevention employee at petitioner’s former place of employment testified about an incident in which petitioner was caught stealing food from his employer, confessed to the theft, and agreed to pay back the value of the food. One of petitioner’s former girlfriends testified about numerous incidents in which petitioner behaved violently toward her and others, including instances in which petitioner choked her until she lost consciousness, threatened to kill her, and bragged about having beaten up a guy with a brick. Petitioner’s seventeen-year-old former neighbor testified (1) petitioner frequently used marijuana, (2) the night before petitioner’s arrest petitioner verbally threatened and actually cut the nose of one of their mutual acquaintances with a knife, (3) petitioner once showed him where petitioner’s father kept his .22 caliber handgun hidden, (4) petitioner once drew a map to a location where petitioner claimed to have hidden a cache of weapons, and (5) the night before petitioner’s arrest, petitioner identified an undercover police officer who was staking out petitioner’s house and encouraged others to confront the officer. The same witness also testified about (1) several letters petitioner had sent him while petitioner was in jail awaiting trial for Sophia’s murder in which petitioner made repeated crude references to women and (2) an incident in which petitioner and the mother of petitioner’s child had battled violently and petitioner had choked her until petitioner’s father commanded petitioner to stop. An FBI agent testified about numerous letters petitioner sent to one of petitioner’s girlfriends from jail in which petitioner made repeated professions of his love for the young woman but also included negative, crude, and threatening references toward his own mother. Heather Jacques returned to the stand and testified petitioner (1) often spoke derisively about his mother and said he wanted to “whack” her, (2) bragged about stabbing an ex-girlfriend with a fork, (3) dispassionately described assaulting a guy with a brick, and (4) often grabbed his toddler daughter’s arm violently to get her to sit down. Another of petitioner’s former neighbors testified (1) petitioner’s parents cared and provided for petitioner, (2) petitioner was suspended in middle school for having struck a female student in the nose, (3) petitioner dropped out of high school, (4) he had observed petitioner abusing both marijuana and crack cocaine, and (5) as a child, petitioner once punched out a window because he was upset about the outcome of a neighborhood basketball game. A prosecution psychiatrist testified he (1) would describe a person possessing petitioner’s history of violence as an antisocial personality, (2) would expect such a person to be a continuing threat to society, and (2) believed the best predictor of future violence is a person’s past behavior. 2. The Defense’s Evidence The father of a childhood friend of petitioner’s testified he had known petitioner since he was seven years old and had never known petitioner to be violent or aggressive and petitioner’s reputation in the community for being peaceful was good. A former childhood friend and classmate of petitioner testified petitioner possessing many redeeming qualities and petitioner’s parents were nice people. A female friend of petitioner testified petitioner had a normal childhood, was less attentive when he took drugs, and was a “goofy” who could make others laugh. Petitioner’s former wrestling coach testified petitioner showed potential talent and respect for him during practices but petitioner’s ADHD caused petitioner attendance and academic problems which rendered petitioner ineligible for competition. Petitioner’s father testified petitioner was eleven years old when he was sent off to fight in the first Gulf War, he did not return home on a permanent basis until petitioner was sixteen, and he suspected petitioner began abusing drugs during that period. A former classmate of petitioner testified petitioner had artistic talent and a good sense of humor and petitioner’s parents took good care of petitioner when he was growing up. The mother of one of petitioner’s childhood friends testified petitioner had always behaved respectfully toward her. The mother of petitioner’s daughter testified (1) she had initiated the incident in which petitioner choked her by “racking” petitioner for having spoken with another woman on the phone and (2) petitioner was good with their daughter. A defense psychologist testified (1) criminals with female victims were less likely to re-offend if sentenced to a prison term, (2) there is a very low incidence of recidivism among convicted capital murderers, (3) petitioner’s use of a gun and his sexual assault of his victim were not good predictors of petitioner’s propensity for future violence, (4) as a person ages, their propensity for violence diminishes, and (5) conditions in prison leave few opportunities for assaults. Petitioner’s mother testified (1) she and petitioner had moved frequently when petitioner was growing up, (2) petitioner frequently missed his father growing up, (3) she learned petitioner had ADHD when petitioner was 15 years old, (4) until that time, petitioner had been a good student, (5) petitioner loves art work, (6) petitioner had no criminal record until this incident, (7) petitioner loves his daughter, (8) she and her husband had been good parents to petitioner, (9) she believed Michael Jacques had been a bad influence on petitioner, and (10) she did not accept the jury’s guilty verdict. 3. The Prosecution’s Rebuttal The Assistant Director of Security Threat group Management and vice-chair of Classification and records at the Texas Department of Criminal Justice (“TDCJ”) testified (1) Texas prison inmates were ingenious when it comes to making home-make weapons, (2) assaults on TDCJ staff and other inmates have occurred even in the most secure portions of TDCJ facilities, (3) an officer was recently killed by a TDCJ inmate, (4) a group of inmates at a high security TDCJ facility who had excellent disciplinary records had recently escaped from administrative segregation and killed a police officer, and (5) inmates convicted of capital murder who receive a life sentence are placed in the general prison population. 4. Verdict On April 22, 2002, petitioner’s jury returned its verdict at the punishment phase of trial, finding (1) beyond a reasonable doubt there was a probability the petitioner would commit criminal acts of violence that would constitute a continuing threat to society and (2) taking into consideration all of the evidence, including the circumstances of the offense, the petitioner’s character and background, and the petitioner’s personal moral culpability, there were insufficient mitigating circumstances to warrant a sentence of life imprisonment. F. Direct Appeal Petitioner filed his appellant’s brief on April 16, 2004, urging a dozen points of error. In an unpublished opinion issued April 6, 2005, the Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence. Berkley v. State, AP no. 74,336 (Tex.Crim.App. April 6, 2005). Petitioner did not thereafter seek certiorari review of his conviction or sentence from the United States Supreme Court. G. State Habeas Corpus Proceeding On December 29, 2004, petitioner filed an application for state habeas corpus relief in which he urged nine claims for relief. On August 19, 2005, without holding an evidentiary hearing, the state trial court issued an Order containing its findings of fact, conclusions or law, and recommendation that state habeas corpus relief be denied. On March 8, 2006, the Texas Court of Criminal Appeals issued an unpublished per curiam opinion in which it adopted the state trial court’s findings and conclusions and denied state habeas relief. Ex parte Berkley, WR no. 63,079-01, 2006 WL 561467 (Tex.Crim.App. March 8, 2006). H. Federal Habeas Proceedings On October 6, 2006, petitioner filed his federal habeas corpus petition in this Court. Docket entry no. 1U. Respondent filed his answer on December 1, 2006. Docket entry no. 15. On January 29, 2007, petitioner filed his reply to respondent’s answer. Docket entry no. 18. 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, 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 (“AED-PA 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, 338-39, 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), 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 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. Bias of Venire Member Lucero A. The Claim In his first claim herein, petitioner argues he was denied his Sixth and Fourteenth Amendment right to trial before a fair and impartial jury when the state trial court overruled petitioner’s challenge for cause to venire member Albert Ernest Lucero. B. State Court Disposition Petitioner’s third point of error in his appellant’s brief argued the state trial court’s failure to grant petitioner’s challenge for cause to venire member Lucero violated state law principles which mandated the exclusion of any potential juror who would automatically answer the Texas capital sentencing scheme’s future dangerousness special issue affirmatively based solely upon a finding of guilt on a charge of capital murder. The Texas Court of Criminal Appeals carefully reviewed Luce-ro’s voir dire examination, found Lucero gave vacillating answers regarding his ability to answer the future dangerousness special issue based on all of the evidence presented during both phases of a capital trial, and concluded the trial court’s rejection of petitioner’s challenge for cause was entitled to deference. Berkley v. State, AP-74,336 (Tex.Crim.App. April 6, 2005), slip op. at pp. 10-21. Petitioner did not include any grounds for relief in his state habeas corpus application complaining about the state trial court’s failure to grant petitioner’s challenge for cause to venire member Lucero. C.Procedural Default 1. Failure to Exhaust State Remedies on Federal Claim Respondent correctly argues the point of error petitioner presented during his state direct appeal did not “fairly present” the Texas Court of Criminal Appeals with the same federal constitutional claim petitioner presents to this Court. Petitioner’s third point of error on direct appeal included no citation to federal constitutional authority, no argument premised upon federal constitutional principle, nor any hint petitioner was urging anything other than a purely state law claim for relief. The only two authorities petitioner cited in support of his third point of error on direct appeal presented arguments that were exclusively state-law in nature. See Banda v. State, 890 S.W.2d 42, 54-55 (Tex.Crim.App.1994) (holding a state trial court properly refused a challenge for cause directed against a venire member who gave vacillating answers on whether he would automatically say “yes” to one of the punishment issues), cert. denied, 515 U.S. 1105, 115 S.Ct. 2253, 132 L.Ed.2d 260 (1995); Gardner v. State, 730 S.W.2d 675, 680-84 (Tex.Crim.App.1987) (holding state trial court properly granted the prosecution’s challenge for cause to a venire member who expressed confusion over her ability to answer the former Texas capital sentencing special issue inquiring into whether the defendant had acted “deliberately” independently of her earlier finding beyond a reasonable doubt that the defendant had “intentionally” killed the victim), cert. denied, 484 U.S. 905, 108 S.Ct. 248, 98 L.Ed.2d 206 (1987). The Texas Court of Criminal Appeals’ opinions in both Banda and Gardner relied upon and applied purely state-law principles. Nothing in petitioner’s brief on direct appeal furnished the Texas Court of Criminal Appeals with any clue petitioner’s third point of error was intended to assert a federal constitutional claim. The Texas Court of Criminal Appeals’ opinion addressed petitioner’s third point of error on direct appeal as a purely state-law claim. Respondent correctly points out petitioner has procedurally defaulted on his federal constitutional claim 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. 2. 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 habe-as 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). 3. Failure to Exhaust Produces 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. Procunier, 762 F.2d 429, 431-32 (5th Cir.1985). 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 fundamental problem with petitioner’s first claim for relief herein is that petitioner presents his complaints about the trial court’s failure to exclude venire member Lucero to this Court in the guise of a Sixth and Fourteenth Amendment constitutional challenge to the fairness of his trial; the only similar complaints petitioner voiced on direct appeal were presented in the context of, and premised solely upon, state-law procedural principles. Thus, the legal arguments petitioner presents to this Court in support of his first claim herein are entirely different from those which he presented to the Texas Court of Criminal Appeals in his third point of error in his direct appeal. 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 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 unex-hausted 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 his Sixth and Fourteenth Amendment complaints about the state trial court’s failure to exclude venire member Lucero in the course of his direct appeal or state habeas corpus proceeding. Likewise, petitioner alleges no specific facts and presents no evidence to this Court 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 federal constitutional arguments contained in petitioner’s first claim for relief before this Court. If petitioner were to attempt at this juncture to return to state court and assert his federal constitutional complaints about the trial court’s failure to exclude venire member Lucero 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 first 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). Petitioner’s attempt to convert a purely state-law argument regarding venire member Lucero’s eligibility for jury service into a federal constitutional claim is untimely procedurally barred from merits review in this federal habeas corpus proceeding. 4. 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 state appellate counsel’s failure to raise federal constitutional claims attacking the trial court’s failure to exclude veni-re member Lucero 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 colorable 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 default under the fundamental miscarriage of justice exception to the procedural default doctrine. D. No Merit 1. De Novo Standard of Review Alternatively, petitioner’s federal constitutional complaint about the trial court’s failure to exclude venire member Lucero possesses no merit. Because the state courts never addressed the merits of petitioner’s federal constitutional complaint regarding venire member Lucero’s alleged bias, this Court’s review of this un-adjudicated claim is necessarily de novo. See Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 2467, 162 L.Ed.2d 360 (2005) (holding de novo review of the prejudice prong of Strickland was required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice); Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542 (holding the same). 2. Lucero’s Voir Dire Examination This Court has painstakingly reviewed the entirety of Albert Ernest Lucero’s voir dire examination and finds nothing erroneous with the state trial court’s conclusion that Lucero could properly decide the Texas capital sentencing special issues based upon the evidence to be presented during both phases of a capital trial. The Texas Court of Criminal Appeals accurately described Lucero as a “vacillating” juror. During his initial voir dire examination by the prosecution, Lucero repeatedly stated he would answer the Texas capital sentencing special issues based on the evidence presented during trial, would not automatically answer the first special issue (regarding future dangerousness) in a particular way just to reach a particular result, and could fairly consider imposing a sentence of life imprisonment. Lucero’s resoluteness survived the initial wave of questions by petitioner’s trial counsel: Q So if someone commits murder, they should pay with their own life? A Yes, sir. Q With that in mind, since you believe that deep down, you’re not going to be able to consider life in prison, are you? A On hearing the facts, yes, sir. Q And because it is so strong, aren’t you automatically — if you believed someone was guilty of capital murder, aren’t you going to sentence them to death based on your belief? A If the facts are there, yes. Q You see, these issues up here (indicating), they pretty much give the juror latitude to go one way or the other. But what I’m hearing is, if you believe someone committed capital murder, you are going to give them the death penalty, right? A If the facts are there, yes. Q The facts that they committed capital murder? A Yes. Q If those facts are there, you will give them the death penalty, right? AI don’t know. The prosecution’s follow-up questioning elicited similar responses: Q Then there would be additional evidence. A Right. Q Is that the facts you’re referring to? A Yes. Q Because you can’t — and that’s why I asked you. When I asked you if you would automatically do it, you indicated you would not, that you would listen to the evidence— AI would listen to the evidence. Q — and—and then decide whether or not it’s life in prison or the death penalty- A Right, yes. Q Can you do that fairly? A Yes. Q And you can keep an open mind until you hear the facts? A Yes. Q Okay. And after listening to the evidence in this case, if all the facts indicated that it should be life in prison, could you do that? A No. Q Even if the facts demonstrated that? A Say it one more time. I’m confused. Q I’m confusing you. I’m sorry. If the facts indicated that the sentence should be life in prison — in other words, if there were mitigating circumstances that said that, could you do that? A Yes. Q And if the facts warranted that the death penalty should be imposed, could you do that? A Yes. Q So you can consider both, until you hear the facts? A Yes. Petitioner’s trial counsel once again attempted to get Lucero to confess some sort of bias: Q Sir, if you found someone guilty of capital murder, could you give them a life sentence? A Yes. Q Right. Does that mean, since you believe in it, if you’ve found someone guilty of capital murder, you’re giving them the death penalty? Is that what that means? A Listening to — on that, I would say no, then. Q You would say — why would you say no? A Depending how everything went. Q * * * So my honest question to you is: Can you really keep an open mind as to life versus death if you found someone guilty of capital murder? Can you do that? A Yes, I can. Q Am I right or wrong? Can you keep an open mind in this case, sir? A Yes, I can. Q If I[sic] find someone guilty of capital murder, are you going to automatically give them the death penalty? A Yes. Q All right. The prosecution’s efforts to rehabilitate Lucero then met with confusion: Q If I’ve confused you in any way, I apologize for that. The issue is, as Mr. DeKoatz said, keeping an open mind, not making a determination until you hear the facts. A Until I hear the facts. * * * Q Okay, if the person’s found guilty of capital murder, you can’t automatically do anything without hearing the second part of that trial, is what is required. Do you understand what I’m saying? A Yes, ma’am. Q Okay. And you understand what the law requires. He’s asking you, can you honestly consider everything openly and fairly? And at the outset, as I said, it’s okay to have your own views and feelings. And his concern is great. Can you set aside your feelings, and answer those questions based on the facts and circumstances or on the evidence in this case. A Yes. Q And you can openly consider life, as well as the death penalty, and you’re not going to automatically impose the death penalty? AI see what you mean. Q Are you automatically going to impose the death penalty simply based on the fact the person’s found guilty? A Yes. Q You will? A Yes, I will. Q Under all circumstances? A (Indicating.) Q I’m sorry, you have to answer out loud. A Yes. Q So you could not consider life in prison? A No. Q Never? A Yes. Q Okay. Why don’t you reiterate it back to me. MR. DeKOATZ: Object, been asked and answered. THE COURT: Overruled, sir. Q (BY MS. AGUILAR) Okay? because I’m not sure I haven’t confused you at this point. A If the person — if the person is found guilty with the facts and everything, yes, I do believe in the death penalty. Q Okay. And are you going to impose that regardless of what the facts and circumstances shows? A Oh, regardless? Q Yes. In other words— MR. DeKOATZ: I’m going to object to the form because she’s not specifying which facts and circumstances, Judge THE COURT: Overruled, sir. Q (BY MS. AGUILAR) I’m going to start over just a little bit. * * * Q So what the law requires is that a person be able to answer those questions based on the facts and circumstances, not just on the finding of guilt, because, you know, in the second part, we’re going to have to prove one and two to you beyond a reasonable doubt. A Right. q * * * Now, my question is, can you consider life in prison if the facts and circumstances justify it — ■ A Yes. Q — or show it? A Yes. Q And could you consider the death penalty if that’s what the facts and circumstances show? A Yes. Once again, petitioner’s trial counsel attempted to lure Lucero into an admission of bias: Q Sir, in relation to question number one— A Right. Q — if you’ve found someone guilty of capital murder, you’re going to believe that they’re a future danger to society, right? A Right. Q Just based on the fact that they were convicted of capital murder? A Right. Q Now, based on that belief — back to my question again — if you find someone guilty of capital murder, that fact alone, you gonna give them the death penalty, right? A No. Q Tell me why I’m wrong. A It all — depending how the case goes. Q Okay. Let’s say the case results in a guilt verdict of capital murder. You found that an individual is guilty, let’s say, of murdering someone and raping them. Okay? That fact alone, you believe they’ve forfeited their right to live, right? A No, I don’t believe so. * * * Q Okay. So you are predisposed to believe that we should execute everyone who commits murder, correct? A Yeah. Q And for that reason, you cannot legitimately consider a life sentence for capital murder, can you? A Well, it all depends. Q Everything depends on everything. But my question is: Based on your views and your convictions against murderers and your belief that we shouldn’t house them in the pen, we ought to kill them, you can’t honestly consider a life sentence in this case, can you? A No. MR. DeKOATZ: Thank you very much. Pass the juror. The prosecution made a final effort at rehabilitation: Q That’s where the automatic,.not automatic part comes in. Okay? Can you honestly and openly consider the full range of punishment in a capital murder, that being life in prison, as 'well as the death penalty depending on the facts and circumstances? A Yes, ma’am. Q And if the facts and circumstances demonstrate it or warrant it, that the person deserves or gets life in prison, can you do that? A Yes, I can. Q Or the opposite? A The opposite, yeah. After listening to argument .by counsel for both parties, the trial court denied petitioner’s challenge for cause to Lucero. This Court finds absolutely nothing in Lucero’s voir dire answers which casts any doubt of venire member Lucero’s federal constitutional qualifications for jury service during petitioner’s capital murder trial. Counsel for both the State and. defense focused their voir dire examination of veni-re member Lucero on issues unrelated to the pivotal issue of Lucero’s federal constitutional qualifications under applicable Supreme Court precedent. Simply put, with a single exception, neither party asked Lucero the type of question necessary to establish him as an unqualified juror under applicable federal case law. In fact, at times, Lucero’s voir dire examination appeared to have been conducted by attorneys totally unfamiliar with the applicable federal constitutional standard for establishing juror qualifications in capital murder trials. This is quite possibly because the parties were not attempting to satisfy the federal constitutional standard for showing juror ineligibility. 3. Clearly Established Federal Law In Witherspoon v. Illinois, 391 U.S. 510, 521-23, 88 S.Ct. 1770, 1776-77, 20 L.Ed.2d 776 (1968), the Supreme Court held that prospective jurors may not be excused from sitting on a- capital jury simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. Rather, the Supreme Court held as follows: •The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty regardless of the . facts and circumstances that might emerge in the course of the proceedings. Witherspoon v. Illinois, 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21. In Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), the Supreme Court emphasized the limitations Witherspoon imposed on the ability of the State to exclude members of a jury venire from service on a petit capital jury and directly addressed jury selection in Texas capital murder trials: a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by th