Full opinion text
MEMORANDUM OPINION AND ORDER DENYING RELIEF ROYAL FURGESON, District Judge. Petitioner Frank Moore filed this federal habeas corpus action pursuant to Title 28 U.S.C. Section 2254 challenging his July, 1999 Bexar County conviction for capital murder and sentence of death. For the reasons set forth below, petitioner is entitled to neither federal habeas corpus relief nor a Certificate of Appealability. I. Statement of the Case A. The Events of January 21, 1994. There is no genuine dispute over the facts that (1) during the early morning hours of January 21, 1994, petitioner took an assault rifle and shot several times into a vehicle occupied by Patrick Clark (age 15) and Samuel Boyd (age 23) and (2) both Clark and Boyd died as a result of multiple gunshot wounds they each sustained in that incident. B. Indictment On April 13,1994, a Bexar County grand jury indicted petitioner on a charge of capital murder, to wit, intentionally and fatally shooting both Clark and Boyd with a deadly weapon during the same criminal transaction. C. Petitioner’s First Trial, Appeal, and State Habeas Proceeding On June 20, 1996, a Bexar County jury convicted petitioner of capital murder. On June 24, 1996, the same jury found (1) beyond a reasonable there was a probability petitioner would commit criminal acts of violence constituting a continuing threat to society and (2) there were insufficient mitigating circumstances to warrant a sentence of life imprisonment for petitioner. The state trial court imposed a sentence of death. Petitioner appealed his conviction and sentence. In an opinion issued June 10, 1998, the Texas Court of Criminal Appeals reversed petitioner’s conviction, holding the state trial court had erred in denying petitioner’s requests for jury instructions on the lesser-included offenses of voluntary manslaughter and murder. Moore v. State, 969 S.W.2d 4, 10-13 (Tex.Crim.App.l998)(holding the trial testimony of petitioner’s half-brother Tyron Parks raised questions regarding whether petitioner was acting under the influence of sudden passion when he shot Clark and Boyd and that there was evidence (again Parks’ testimony) from which a jury could conclude petitioner had acted in self-defense with regard to the fatal shooting of Clark). On June 20, 1997, petitioner filed an application for state habeas corpus relief. On January 27, 1999, the Texas Court of Criminal Appeals dismissed petitioner’s first state habeas corpus application. Ex parte Frank Moore, App. no. 40,046-01 (Tex.Crim.App. January 27,1999). D. Retrial 1. Guiltr-Innocence Phase The guilt-innocence phase of petitioner’s second capital murder trial commenced on July 6,1999. a. Prosecution’s Evidence As it had at petitioner’s first trial, the cornerstone of the prosecution’s case against petitioner consisted of the eyewitness testimony of Angela Wallace. At petitioner’s second trial, Ms. Wallace testified in pertinent part that (1) she had observed Boyd and petitioner shake hands and greet each other amicably inside the club several hours before the shootings, (2) she observed nothing exceptional about either Boyd’s or Clark’s demeanor while they were inside the club, (3) as she exited the club, she observed several men, including Boyd, Clark, and another man, engaged in a confrontation during which one participant in the confrontation shoved another person, (4) at that point, the men engaged in the confrontation scattered, (5) a white vehicle drove into the club’s parking lot and stopped, (6) the white vehicle did not strike petitioner and did not back up, (7) she neither saw nor head anyone threaten petitioner, (8) the petitioner walked to the rear of the white vehicle and Ivory Sheffield tossed petitioner a rifle, (9) once he received the rifle, petitioner aimed and began shooting directly into the white vehicle, (10) she neither saw nor heard any shots being fired prior to petitioner opening fire with the rifle, (11) she observed no immediate threat to petitioner at the time he began shooting into the white vehicle, and (12) after he stopped shooting, petitioner passed the rifle back to Sheffield, got into his vehicle, and drove away from the scene. The medical examiner testified (1) Clark died as a result of a total of five, non-close-range, gunshot wounds to the head (two) and upper back (three), all of which traveled from the back to the front, (2) any one of these five gunshot wounds would have been fatal, (3) Boyd died as a result of six, non-close-range, gunshot wounds to his head, neck, chest, arm, shoulder, and thigh, (4) Boyd’s head, neck, and chest wounds were all fatal wounds but wounds to Boyd’s arm were not life-threatening, (5) all of the gunshot wounds to both victims were consistent with someone standing outside the left rear, i.e., the driver’s side, of their vehicle firing a rifle into their vehicle from a distance of at least three and a half feet, (6) Clark’s blood screen and vitreous alcohol levels indicated he was acutely intoxicated on alcohol and muscle relaxants at the time of his death, and (7) Boyd had a blood alcohol level of 0.28 g/deciliter and was also acutely intoxicated at the time of his death. Police recovered six spent shell casings and two spent bullets from the crime scene from locations which were consistent with Wallace’s description of petitioner’s location at the time he fired into the white vehicle, i.e., outside the rear of the vehicle’s driver’s side. All of the spent shell casings and bullets the police recovered at the crime scene were later matched to a rifle police recovered during their subsequent investigation of the crime. Police recovered no other weapons, spent shell casings, or bullets linked to either victim. Barbara J. Boyd, who was Patrick Clark’s older sister and Samuel Boyd’s sister-in-law, testified (1) Angela Wallace, whom she had never seen before, arrived at her residence and drove Barbara and other members of her family back to the crime scene shortly after the shooting, (2) they arrived at the club before any police, (3) when they arrived, Clark was laying on the ground and Samuel Boyd was still inside the white car but no one else was inside or near the white car, (4) she called out to Samuel to wake up but he never did, (5) she then entered the club and called EMS and the police, (6) she next went back outside and flagged down a police vehicle, and (7) at no time did she see anyone going through the white car or touching Clark’s or Boyd’s body. b.The Defense’s Evidence The defense presented the disjointed testimony of Robert Mays, Jr., who testified (1) around closing time, he went outside the Wheels of Joy club on January 21, 1994, (2) he heard some guys say they were going to get their stuff, which he construed as meaning they planned to get guns and return to the scene, (3) he heard angry words exchanged between individuals outside the club, (4) two-to-three men with guns, including a rifle, in a white car tried to run over Mays and his cousin Tyron Parks in the parking lot, (5) earlier that evening, several of the individual inside the white car had calmly spoken inside the club of shooting Mays, (6) after unsuccessfully striking Mays the first time, the white car backed up and tried to run down Mays three or four more times, and (7) he left the scene and had been gone from the scene for five-to-ten minutes before he heard shooting coming from the direction of the club’s parking lot. Mays’ testimony was full of contradictions. For instance, Mays claimed the petitioner was still inside the club when the white vehicle attempted to run Mays over but he then contradicted himself, testifying the petitioner was outside the club when that happened. Mays also testified he left the scene before any shots were fired but then claimed the individuals inside the white car fired at least six shots at Mays as he fled the parking lot. Mays claimed he went inside the club to seek sanctuary after the white car tried to run him down but then left the club and ran away as three or four individuals inside the white car got out of that vehicle and fired shots at him. Mays claimed he never saw petitioner fire into the white car because he had been gone from the scene for five or ten minutes before he heard (presumably more) gun shots. c. Waiver of Lesser-Induded Offense Instructions Both at the close of the prosecution’s case and during the charge conference at the guilt-innocence phase of trial, petitioner expressly advised the trial court that, despite his own trial counsel’s advice to the contrary, petitioner did not want the trial court to include any instructions on lesser-included offenses in the trial court’s guilt-innocence phase jury instructions. d. The Verdict On July 8, 1999, the jury returned its verdict, finding petitioner guilty of capital murder. 2. Punishment Phase The punishment phase of petitioner’s capital trial commenced on July 9, 1999. a. Prosecution’s Evidence The prosecution presented a wide range of testimony concerning petitioner’s long criminal record and propensity for violence. A San Antonio Police officer testified that, when he arrested petitioner on January 25, 1994 in connection with the shooting deaths of Clark and Boyd, petitioner was carrying a handgun and petitioner subsequently was charged in federal court with illegal possession of a firearm by a convicted felon. A fingerprint expert testified petitioner’s fingerprints matched those of a Frank Wardell Moore who had been (1) charged in 1982 with murder and later convicted of negligent homicide, (2) convicted in 1983 of attempted murder, (3) convicted in 1990 of possession of cocaine, and (4) convicted in 1991 of delivery of cocaine. A San Antonio Police homicide detective testified petitioner was a member of the East Terrace Gangster, a street gang affiliated with the Crips gang and associated with violent, drug-related criminal activity. Another San Antonio Police detective testified he made undercover purchases of crack cocaine from petitioner in November and December, 1993. A former parole officer testified petitioner’s parole records indicated (1) petitioner identified himself during a prison interview on December 5, 1986 as a member of the Black Panthers since 1984 and described his duties within that organization as recruiting new members, obtaining, hiding, and distributing weapons for fellow gang members, (2) petitioner had juvenile convictions for burglary and arson, (3) petitioner acknowledged he was an active participant in a race riot at the Texas Department of Criminal Justice’s Darrington Unit in July, 1985, (4) petitioner was involved in an incident in prison on July 7, 1994 in which he verbally threatened a guard, disobeyed an order, and pushed a guard, (5) petitioner indicated to parole officials he was a lieutenant in the Crips gang and had been a member of that gang since age 14, (6) following his conviction for attempted murder, petitioner was released from prison under mandatory supervision but he was revoked and returned to prison less than eight months later, (7) petitioner finally discharged his sentence for attempted murder in March, 1989 but was convicted of cocaine possession the following year, (8) petitioner was paroled in 1991 but revoked later that same year, and (9) petitioner received a 20-year sentence for drug-trafficking in 1991 but was released on November 3, 1993 and revoked in March, 1994. The Chief of Classification at the Texas Department of Criminal Justice’s (“TDCJ’s”) Fabian Dominguez State Jail testified petitioner’s prison disciplinary records revealed (1) during a prison stay from July, 1984 through January, 1986, petitioner was cited repeatedly for refusing to work, disobeying an order, creating a disturbance, and once for striking an officer, (2) after a short release on mandatory supervision, petitioner returned to prison in November, 1986 and was convicted a month later of threatening an officer and refusing to obey orders, and (3) following a second release on mandatory supervision in February, 1987, petitioner returned to prison in November, 1991 and over the next two years was convicted of eleven separate instances of refusing to work, refusing to obey orders, and creating a disturbance. A Bexar County Adult Detention Center (“BCADC”) official testified (1) petitioner identified himself during a May 18, 1991 interview as a member of the Crips gang, (2) in November, 1990, petitioner was disciplined for fighting, (3) in December, 1990, petitioner was disciplined for inciting a riot, (4) petitioner was sent to TDCJ custody in January, 1991, (5) within thirty days of petitioner’s return to the BCADC in May, 1991, he had been found guilty of multiple offenses, including disobeying staff, making threats, and conveying inflammatory threats, (6) in July, 1991, petitioner was placed in administrative segregation for continuing disruptive behavior, (7) throughout the Summer of 1991, petitioner continued to commit disciplinary violations, including an assault on another inmate and disruptive behavior in September, 1991, (8) petitioner was returned to administrative segregation in September, 1991 then transferred to TDCJ the following month, (9) petitioner returned to the BCADC in January, 1994 and, within 45 days, had committed multiple disciplinary violations including assaults, (10) in December, 1994 petitioner was again placed in administrative segregation for assaultive behavior, (11) after a stay at TDCJ, petitioner returned to the BCADC on July 28, 1998, (12) by October 8, 1998 petitioner was back in administrative segregation for multiple disciplinary violations, and (13) petitioner was placed back in administrative segregation in April, 1999 following petitioner’s convictions for three fights with other inmates over an eight-month period. A federal probation officer testified petitioner informed her during an interview in 1994 that he was a lieutenant with the Crips gang and petitioner pleaded guilty in federal court to illegal possession of a firearm by a convicted felon. b. Defense’s Evidence Petitioner presented only one witness during the punishment phase of his trial, Frederick Buhler, an eyewitness to the shooting in the Wheels of Joy club on January 21, 1994, who testified (1) the petitioner attempted" to break up the disturbance between the men arguing outside the club near closing time, (2) the white car stopped only inches from Buhler’s legs when it entered the club’s parking lot, (3) he did not see any weapons inside the white vehicle, (4) he did not believe petitioner provoked the incident, but (5) petitioner fired five or six times into the white car. c. Petitioner’s Waiver of Other Mitigating Evidence Outside the jury’s presence, petitioner advised the trial judge on the. record that he did not want his trial counsel to introduce any additional mitigating evidence. d. The Verdict After deliberating approximately six hours, on July 13, 1999, the jury returned its punishment-phase verdict, finding (1) beyond a reasonable doubt there was a probability the petitioner would commit criminal acts of violence constituting a continuing threat to society and (2) there were insufficient mitigating circumstances to warrant a sentence of life imprisonment. E. Second Direct Appeal On June 12, 2000, petitioner filed his appellant’s brief, asserting sixteen points of error. On January 9, 2002, the Texas Court of Criminal Appeals issued an unpublished opinion affirming petitioner’s conviction and sentence. Moore v. State, No. 73,526 (Tex.Crim.App. January 9, 2002). Petitioner did not thereafter seek certiorari review of his conviction or sentence from the United States Supreme Court. F. Second State Habeas Corpus Proceeding On February 28, 2001, petitioner filed a state habeas corpus application collaterally attacking his capital murder conviction in which petitioner asserted thirty-five grounds for state habeas corpus relief. On August 27, 2002, the state trial court held a hearing on petitioner’s state habeas. corpus application but petitioner offered no witnesses and presented no evidence at that hearing. On February 7, 2003, the state habeas trial court issued an Order containing its factual findings, legal conclusions, and recommendation that petitioner’s application for state habeas relief be denied. On May 14, 2003, the Texas Court of Criminal Appeals issued an unpublished, per curiam, Order adopting the trial court’s findings and conclusions and denying state habeas relief. Ex parte Frank Moore, App. No. 40,046-02 (Tex.Crim.App. May 14, 2003). G. Federal Habeas Corpus Proceedings Petitioner filed his original petition for federal habeas corpus relief in this Court on March 31, 2004, asserting twenty claims for relief therein. Docket entry no. 15. Respondent filed an answer thereto on August 17, 2004. Docket entry no. SO. Petitioner filed his reply to petitioner’s answer on December 2, 2004. Docket entry no. 4.0. On November 9, 2004, this Court granted petitioner’s motion for stay and to hold this cause in abeyance so that petitioner could return to state court and exhaust his then-unexhausted Atkins claim ánd directed petitioner to file his successive state habeas application asserting his Atkins claim within sixty days of that date. Docket entry no. 39. In an Order issued August 16, 2005, this Court directed the parties to advise the Court regarding the status of petitioner’s successive state habeas corpus proceeding. Docket entry no. 41. In an advisory filed September 6, 2005, the respondent informed this court that petitioner had not, as of that date, filed any successive state habeas corpus’ application. Docket entry no. 42. In an advisory filed September 30, 2005, respondent advised this Court a mental health examination of petitioner had been scheduled and should have been completed as of that date and the state habeas court had directed the filing of a state habeas application on petitioner’s behalf within thirty days. Docket entry no. 43. On October 11, 2005, respondent advised this court additional testing would be performed on petitioner. Docket entry no. 44- On October 12, 2005, petitioner finally responded to this court’s Order directing the filing of status-reports on petitioner’s successive state habeas corpus proceeding by advising this Court that petitioner intended to pursue a then-unexhausted Brady claim but failing to mention the status of petitioner’s Atkins claim. Docket entry no. 45. On January 26, 2006, respondent filed an advisory and motion to lift stay, informing this Court that petitioner had advised respondent that, while numerous mental health examinations of petitioner had been completed, yet another mental health examination of petitioner had been scheduled for February, 2006. Docket entry no. 48. On March 2, 2006, this Court issued a show cause Order directing petitioner to explain why the stay previously issued in this cause should not be lifted. Docket entry no. 50. On March 9, 2006, petitioner responded thereto, arguing the stay should be kept in place so that petitioner could exhaust available state habeas remedies on his unexhausted Brady claim but otherwise furnishing no rational explanation for petitioner’s failure to timely prosecute his Atkins claim. Docket entry no. 51. On March 14, 2006, petitioner filed an advisory in which he informed this court petitioner had filed a successive state habeas corpus application asserting petitioner’s Brady claim but making no mention of petitioner’s Atkins claim. Docket entry no. 52. In an Order issued August 4, 2006, this Court lifted the stay in this case and di~ rected petitioner to file his amended federal habeas corpus petition within thirty days from that date. Docket entry no. 53. When petitioner failed to timely comply with that Order, this Court issued a show cause Order on September 18, 2006. Docket entry no. 54. On September 28, 2006, petitioner finally filed his amended federal habeas corpus petition, asserting therein twenty-two claims for relief but no Atkins claim. Docket entry no. 55. Respondent filed his answer to petitioner’s amended petition on January 13, 2007. Docket entry no. 62. On May 30, 2007, petitioner finally replied to respondent’s answer. Docket entry no. 68. H. Third State Habeas Corpus Proceeding On March 13, 2006, petitioner filed his third state habeas corpus application, asserting as grounds for relief therein arguments that (1) his constitutional rights under Brady v. Maryland were violated when San Antonio Police withheld information regarding an incident between petitioner, Clerk, Boyd, and another man hours before petitioner’s fatal shootings of Boyd and Clark, (2) San Antonio Police violated petitioner’s rights under the Texas Constitution by inadequately investigating the circumstances of petitioner’s fatal shootings of Boyd and Clark, and (3) the San Antonio Police department’s investigation of the fatal shootings of Boyd and Clark violated federal due process principles by inadequately examining whether petitioner acted in self-defense. In an unpublished, per curiam, Order issued September 13, 2006, the Texas Court of Criminal Appeals dismissed petitioner’s third state habeas corpus application as an abuse of the writ. Ex parte Frank Moore, App. no. 40,046-03, 2006 WL 2615542 (Tex.Crim.App. September 13, 2006). 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 (“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, 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. Quartennan, 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. Brady Claim A.The Claim In his first claim in his amended federal habeas corpus petition, petitioner argues his constitutional rights were violated when the prosecution, through the San Antonio Police Department, withheld from petitioner’s defense counsel information potentially exculpatory, impeaching, and mitigating evidence in violation of the rule announced by the Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). More specifically, petitioner alleges the prosecution- withheld from petitioner’s trial counsel information consisting of (1) eyewitness accounts by unidentified persons about an incident on January 20, 1994, only hours prior to petitioner’s fatal shootings of Clark and Boyd, in which a person named Ernest Bedford (acting in concert with Clark and Boyd) allegedly threatened petitioner and displayed a handgun and (2) eyewitness accounts by unidentified persons establishing that (a) Ernest Bedford was present at the Wheels of Joy club immediately before petitioner’s fatal shootings of Clark and Boyd, (b) Bedford fired a handgun at petitioner and ran into the bar, and (c) when Clark and Boyd began firing at petitioner with handguns from their vehicle, petitioner returned fire with the rifle Ivory Sheffield had just given to petitioner. In support of his Brady claim, petitioner presents the hearsay affidavit of one Warren Keith Huel, the owner of a private security firm who claims his employees interviewed various unidentified persons about the incidents in question but in which Mr. Huel makes no profession of personal knowledge about either incident. B. State Court Disposition Petitioner presented his Brady claim to the state courts for the first and only time in his third state habeas corpus application, filed March 13, 2006, which the Texas Court of Criminal Appeals dismissed as an abuse of the writ. Ex parte Frank Moore, 2006 WL 2615542 (Tex.Crim.App. September 13, 2006). C. Procedural Default Respondent correctly points out petitioner procedurally defaulted on his Brady claim by failing to present same to the state habeas court in the course of petitioner’s second state habeas corpus proceeding. Procedural default occurs where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, or (2) the petitioner fails to exhaust all available state remedies, and the state court to which he would be required to petition would now find the claims procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991). In either instance, the petitioner is deemed to have forfeited his federal habeas claim. O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999). Procedural defaults only bar federal habe-as 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). In its September 13, 2006 Order dismissing petitioner’s third state habeas corpus application as an abuse of the writ, the Texas Court of Criminal Appeals applied a long-recognized, firmly-established, and regularly-followed Texas state procedural barrier to federal habeas review of claims presented in a successive state habeas corpus application which were available at the time of a previous state habeas corpus proceeding and which, through the exercise of due diligence, could have been fully litigated in the previous state habeas corpus proceeding. See Coleman v. Quarterman, 456 F.3d 537, 542 (5th Cir.2006) (“Texas’s abuse of the writ doctrine is a valid state procedural bar foreclosing federal habeas review.”), cert. denied, — U.S.-, 127 S.Ct. 2030,-167 L.Ed.2d 772 (2007); Aguilar v. Dretke, 428 F.3d 526, 533 (5th Cir.2005)(“This court has consistently held that Texas’ abuse-of-writ rule is ordinarily an ‘adequate and independent’ procedural ground on which to base a procedural default ruling.”), cert. denied, 547 U.S. 1136, 126 S.Ct. 2059, 164 L.Ed.2d 793 (2006); Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir.2004) (“Texas’ abuse-of-the-writ rule is ordinarily an ‘adequate and independent’ procedural ground on which to base a procedural default ruling.”), cert. denied, 543 U.S. 1124, 125 S.Ct. 1067, 160 L.Ed.2d 1074 (2005); Busby v. Dretke, 359 F.3d 708, 724 (5th Cir.2004)(“the Texas abuse of the writ doctrine is an adequate ground for considering a claim procedurally defaulted.”), cert. denied, 541 U.S. 1087, 124 S.Ct. 2812, 159 L.Ed.2d 249 (2004); Kunkle v. Dretke, 352 F.3d 980, 989 (5th Cir.2003)(“The abuse of writ doctrine has been consistently applied as a procedural bar in Texas since 1994, long before its codification in Tex.CodeCrim.Proc. art. 11.071 § 5, and well before Kunkle filed his second state habeas petition in 1995.”), cert. denied, 543 U.S. 835, 125 S.Ct. 250, 160 L.Ed.2d 56 (2004); Emery v. Johnson, 139 F.3d 191, 201 (5th Cir.1998)(holding Texas strictly and regularly applied, its common law abuse of the writ doctrine at least as early as February 23, 1994, i.e., the date of the Texas Court of Criminal Appeals’ decision in Ex parte Barber, 879 S.W.2d 889 (Tex.Crim.App.1994)), cert. denied, 525 U.S. 969, 119 S.Ct. 418, 142 L.Ed.2d 339 (1998). Thus, petitioner procedurally defaulted on his Brady claim. 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). Petitioner cannot satisfy the “e'ause and actual prejudice” exception to the procedural default doctrine because he cannot show he was unaware of the facts underlying his Brady claim at the time petitioner filed his second state habeas corpus appli-, cation. Petitioner has alleged no facts showing the allegedly “newly discovered” information contained in Mr. Huel’s affidavit was unavailable to petitioner at the time petitioner filed his second state habe-as corpus application. Mr. Huel’s affidavit purports to recount, albeit in a hearsay manner, incidents about which petitioner necessarily possessed personal knowledge at all times relevant to petitioner’s trials and state habeas corpus proceedings. If Mr. Huel’s unidentified employees’ accounts of their interviews with unidentified witnesses are to be believed, then (1) petitioner was verbally and physically threatened by Ernest Bedford, Patrick Clark, and Samuel Boyd on January 20, 1994, only hours before petitioner’s fatal shootings of Boyd and Clark and (2) at the time petitioner fatally shot Clark and Boyd, petitioner was engaged in a pitched gun battle with Bedford, Clark, and Boyd. Petitioner does not allege any facts suggesting he suffered from any mental, emotional, or physical impairment which prevented him from remembering either of those facts at the time of either of his trial or at the time he filed his second state habeas corpus application. Petitioner does not allege any facts showing that he was prevented by any external factor from informing his own trial counsel and state habeas counsel of the foregoing information. Thus, petitioner cannot show cause for his failure to present his Brady claim to the state courts during his second state habeas corpus proceeding. In order to satisfy the “miscarriage of justice” test, the petitioner must supplement his constitutional claim with a color-able showing of factual innocence. Sawyer v. Whitley, 505 U.S. 333, 335-36, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992). In the context of the punishment phase of a capital trial, the Supreme Court has held that a showing of “actual innocence” is made when a petitioner shows by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found petitioner eligible for the death penalty under applicable state law. Sawyer v. Whitley, 505 U.S. at 346-48, 112 S.Ct. at 2523. The Supreme Court explained in Sawyer v. Whitley this “actual innocence” requirement focuses on those elements which render a defendant eligible for the death penalty and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error. Sawyer v. Whitley, 505 U.S. at 347, 112 S.Ct. at 2523. Petitioner has alleged no specific facts satisfying this “factual innocence” standard. At best, the “newly discovered” information which petitioner uses to support his Brady claim consists of hearsay within hearsay statements made by unidentified persons to unidentified employees of Mr. Huel’s company and address matters which, by their very nature, were within the personal knowledge of the petitioner at all times relevant to petitioner’s trials and first two state habeas corpus proceedings. Because petitioner has failed to satisfy the “actual innocence” test, he is not entitled to relief from his procedural defaults under the fundamental miscarriage of justice exception to the procedural default doctrine. D. Limitations Respondent also correctly argues petitioner’s Brady claim is foreclosed by the AEDPA’s one-year statute of limitations. The AEDPA imposes a one-year limitations period on the filing of a federal habe-as corpus petition. Pace v. DiGuglielmo, 544 U.S. 408, 410, 125 S.Ct. 1807, 1809, 161 L.Ed.2d 669 (2005); Johnson v. Quarterman, 483 F.3d 278, 285 (5th Cir.2007), cert. denied, — U.S.-, 128 S.Ct. 709, 169 L.Ed.2d 557, 2007 WL 2508931 (December 3, 2007); Prieto v. Quarterman, 456 F.3d 511, 514 (5th Cir.2006); Emerson v. Johnson, 243 F.3d 931, 932 (5th Cir.2001); 28 U.S.C. § 2244(d)(1). Under the AEDPA’s one-year limitations provision, a convicted criminal defendant must file a Section 2254 petition within one year of the date his conviction becomes final generally or within one year of the AEDPA’s effective date, i.e., April 24, 1996, if the defendant’s conviction became final prior to that date. Emerson v. Johnson, 243 F.3d at 932; Ybanez v. Johnson, 204 F.3d 645, 646 (5th Cir.2000), cert. denied, 531 U.S. 881, 121 S.Ct. 193, 148 L.Ed.2d 134 (2000); Felder v. Johnson, 204 F.3d 168, 169 (5th Cir.2000), cert. denied, 531 U.S. 1035, 121 S.Ct. 622, 148 L.Ed.2d 532 (2000); Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir.1999), cert. denied, 529 U.S. 1057, 120 S.Ct. 1564, 146 L.Ed.2d 467 (2000). The Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence in an opinion issued January 9, 2002. Petitioner’s conviction became-final for purposes of the AEDPA’s one-year statute of limitations not later than ninety days after the Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence on direct appeal, i.e., on April 10, 2002, the date petitioner’s deadline for filing a petition for certiorari with the United States Supreme Court expired. See Foreman v. Dretke, 383 F.3d 336, 340 (5th Cir.2004) (holding a state prisoner’s conviction became final ninety days after the Texas Court of Criminal Appeals refused his petition for discretionary review where the prisoner failed to file a timely petition for writ of certiorari); Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir.2003) (holding direct appeal terminates with the disposition of a petition for writ of certio-rari to the United States Supreme Court or with the expiration of the deadline for filing such a petition). Petitioner did not file a petition for certiorari. Thus, his state criminal conviction became final for purposes of the AEDPA’s one-year statute of limitations when the time for filing a petition for writ of certiorari elapsed. Roberts v. Cockrell, 319 F.3d at 693-94; Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir.1998). However, petitioner filed his second state habeas corpus application on February 28, 2001. Petitioner’s second state habeas corpus application remained pending before the state courts until May 14, 2003. The AEDPA’s one-year statute of limitations is statutorily tolled during the time an application for state habeas corpus relief is pending. In re Wilson, 442 F.3d 872, 874 (5th Cir.2006). More specifically, Title 28 U.S.C. Section 2244(d)(2) provides that the “time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation.... ” Ott v. Johnson, 192 F.3d 510, 512 (5th Cir.1999), cert. denied, 529 U.S. 1099, 120 S.Ct. 1834, 146 L.Ed.2d 777 (2000). Thus, the AED-PA’s one-year statute of limitations on petitioner’s claims herein was statutorily tolled until May 14, 2003. The AEDPA’s limitations period applicable to petitioner’s claims herein generally commenced to run the following date, i.e., on May 15, 2003. Petitioner is entitled to the benefit of no statutory tolling after that date. The filing of petitioner’s initial federal habeas corpus petition in this Court on March 31, 2004 did not result in any additional tolling of the AEDPA’s applicable one-year statute of limitations on petitioner’s then-unexhausted Brady claim. See Duncan v. Walker, 533 U.S. 167, 172-77, 121 S.Ct. 2120, 2124-27, 150 L.Ed.2d 251 (2001)(holding the pendency of a federal habeas corpus petition does not toll the AEDPA’s one-year statute of limitations); In re Wilson, 442 F.3d at 876 n. 5 (holding the same). Prior to the date petitioner filed his first federal habeas corpus petition in this cause, i.e., March 31, 2004, the Texas Court of Criminal Appeals had rescinded its notorious “two-forum” rule which forbade Texas habeas courts from entertaining claims that were pending before federal courts. More specifically, on February 11, 2004, the Texas Court of Criminal Appeals announced it was abandoning its long-standing “two-forum rule” and would, henceforth, entertain the merits of claims for state habeas corpus relief filed during the pendency of a federal habeas corpus proceeding in which the same claims were pending. Ex parte Soffar, 143 S.W.3d 804, 807 (Tex.Crim.App.2004). Petitioner is entitled to no benefit from the two-forum rule, which was abrogated more than two years before petitioner filed his third state habeas application. Nothing in this Court’s Order issued November 9, 2004 staying this cause tolled the applicable AEDPA limitations period on petitioner’s Brady claim. That Order was limited to holding this cause in abeyance for the sole purpose of permitting petitioner an opportunity to “fairly present” his then-unexhausted Atkins claim to the state courts. Mr. Huel’s affidavit is dated March 9, 2005. Petitioner alleges no facts showing that he was unaware after that date of the hearsay within hearsay information contained in that document. Thus, even disregarding the reality that petitioner necessarily had to possess personal knowledge of the factual bases underlying his Brady claim herein at the time of his second trial and second state habeas corpus proceeding, petitioner most certainly had notice of Mr. Huel’s hearsay within hearsay allegations not later than March 9, 2005. Despite this fact, petitioner waited until March 13, 2006 to file his third state habe-as corpus application. In rare and exceptional circumstances, equitable considerations may toll the AEDPA’s statute of limitations. Johnson v. Quarterman, 483 F.3d at 286; Flores v. Quarterman, 467 F.3d 484, 486 (5th Cir.2006), cert. denied, — U.S.-, 127 S.Ct. 2909, 168 L.Ed.2d 242 (2007); Prieto v. Quarterman, 456 F.3d at 514; In re Wilson, 442 F.3d at 875. However, to be entitled to equitable tolling, a petitioner must show (1) he pursued his rights diligently but (2) some extraordinary circumstance stood in his way and prevented timely filing. Lawrence v. Florida, — U.S.-,-, 127 S.Ct. 1079, 1085, 166 L.Ed.2d 924 (2007); Johnson v. Quarterman, 483 F.3d at 286; In re Wilson, 442 F.3d at 875. Petitioner has alleged no facts showing that he is entitled to the benefits of the doctrine of equitable tolling during the period from March 9, 2005 until March 13, 2006. While petitioner argues he should not be punished for failing to discover the existence of Mr. Huel prior to March 9, 2005, petitioner offers absolutely no rational justification for petitioner’s failure to timely submit his third state habeas application (premised on Mr. Huel’s hearsay affidavit) until March 13, 2006. The record now before this Court establishes petitioner utterly failed to diligently pursue state habeas remedies on his Brady claim after petitioner alleges he first became aware of the information contained in Mr. Huel’s hearsay affidavit on March 9, 2005. Even if this Court were to turn a blind eye to the reality that petitioner necessarily knew all of the hearsay information contained in Mr. Huel’s affidavit at the time petitioner filed his second state habeas corpus application, petitioner has alleged no facts showing he exercised due diligence to exhaust available state habeas remedies on his Brady claim between March 9, 2005 and March 13, 2006. Accordingly, petitioner’s Brady claim herein is barred by the AEDPA’s one-year statute of limitations. E. No Merits Moreover, petitioner’s Brady claim is without arguable merit. Because no state court has ever reviewed the “merits” of petitioner’s Brady claim herein, any analysis by this Court of that same claim must be undertaken 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). As this Court has noted on many occasions, few constitutional principles are more firmly established by Supreme Court precedent than the rule that “ ‘the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’ ” Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 1272, 157 L.Ed.2d 1166 (2004); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963); Gutierrez v. Dretke, 392 F.Supp.2d 802, 850 (W.D.Tex.2005), Certificate of Appealability denied, 201 Fed.Appx. 196 (5th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 1297, 167 L.Ed.2d 112 (2007). The Supreme Court has consistently held the prosecution’s duty to disclose evidence material to either guilt or punishment, i.e., the rule announced in Brady v. Maryland, applies even when there has been no request by the accused. Banks v. Dretke, 540 U.S. at 690, 124 S.Ct. at 1272; Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999); United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976). This duty also applies to impeachment evidence. Strickler v. Greene, 527 U.S. at 280, 119 S.Ct. at 1948; United States v. Bagley, 473 U.S. 667, 676 & 685, 105 S.Ct. 3375, 3380 & 3385, 87 L.Ed.2d 481 (1985). Significantly for petitioner’s case, the rule in Brady encompasses evidence known only to police investigators and not personally known by the prosecutor. Strickler v. Greene, 527 U.S. at 280-81, 119 S.Ct. at 1948; Kyles v. Whitley, 514 U.S. 419, 438, 115 S.Ct. 1555, 1568, 131 L.Ed.2d 490 (1995). “[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in this case, including the police.” Strickler v. Greene, 527 U.S. at 281, 119 S.Ct. at 1948 (emphasis added); Kyles v. Whitley, 514 U.S. at 437, 115 S.Ct. at 1567. Under clearly established Supreme Court precedent, there are three elements to a Brady claim: (1) the evidence must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be “material,” i.e., prejudice must have ensued from its non disclosure. Banks v. Dretke, 540 U.S. at 691, 124 S.Ct. at 1272; Strickler v. Greene, 527 U.S. at 281-82, 119 S.Ct. at 1948. Evidence is “material” under Brady where there exists a “reasonable probability” that had the evidence been disclosed the result at trial would have been different. Banks v. Dretke, 540 U.S. at 698-99, 124 S.Ct. at 1276. The fundamental problem with petitioner’s Brady claim herein is the fact that all of the hearsay within hearsay information contained in Mr. Huel’s affidavit was necessarily within the personal knowledge of petitioner at all times relevant to petitioner’s trials. Mr. Huel claims that unidentified persons within his employ interviewed unidentified persons who stated (1) Ernest Bedford, Patrick Clark, and Samuel Boyd verbally and physically threatened petitioner on January 20, 1994 only hours before petitioner fatally shot Boyd and Clark and (2) at the time petitioner fatally shot Clark and Boyd, petitioner was engaged in a pitched gun battle with Bedford, Clark, and Boyd. Petitioner offers no explanation, rational or otherwise, as to how either of these facts could be true and yet petitioner remain unaware of them. If, as Mr. Huel asserts, unidentified witnesses told Huel’s employees that Bedford, Clark and Boyd verbally and physically threatened petitioner hours before the fatal shooting and, at the time of the fatal shootings, petitioner was merely returning gun fire directed at him by Bed-ford, Boyd, and Clark, then petitioner (who does not allege he was suffering from any mental, emotional, or physical disability at either time) necessarily was aware of those facts at the time they occurred. Petitioner alleges no facts showing that any external force or any mental, emotional, or physical impairment prevented him from accurately perceiving or comprehending either the threats Bedford, Clark, and Boyd allegedly directed toward petitioner hours before the fatal shootings or the gun fire the same three individuals allegedly directed to petitioner as he was firing into Clark and Boyd’s vehicle. Petitioner alleges no facts showing that any mental, emotional, or physical disability prevented him from relating this information to his trial counsel. Barring some mental, emotional, or physical impairment which prevents a criminal defendant from effectively communicating with his trial counsel, it is legally impossible for the prosecution to “withhold” or “suppress” information for Brady purposes when the same information is within the defendant’s personal knowledge. See Castillo v. Johnson, 141 F.3d 218, 223 (5th Cir.1998) (“Under Brady, the prosecution has no obligation to produce evidence or information already known to the defendant, or that could be obtained through the defendant’s exercise of diligence.”), cert. denied, 524 U.S. 979, 119 S.Ct. 28, 141 L.Ed.2d 788 (1998); Brown v. Cain, 104 F.3d 744, 750 (5th Cir.l997)(“The prosecution had no obligation under Brady to produce for Brown evidence or information already known to him, or that he could have obtained from other sources by exercising reasonable diligence.”), cert. denied, 520 U.S. 1195, 117 S.Ct. 1489, 137 L.Ed.2d 699 (1997). For the foregoing reasons, petitioner’s Brady claim is without arguable merit. F. Conclusions Petitioner procedurally defaulted on his Brady claim by failing to present same to the state courts until finally including same in petitioner’s third state habeas corpus application. Because petitioner waited more than a year after the date Mr. Huel executed his hearsay-within-hearsay affidavit to submit same to the state courts as part of petitioner’s third state habeas corpus application, petitioner’s Brady claim is barred by the AEDPA’s one-year statute of limitations. Finally, petitioner’s Brady claim is both without merit and without legal foundation. IV. Actual Innocence Claim A. The Claim Petitioner argues the allegedly “newly discovered” information contained in Mr. Huel’s hearsay within hearsay affidavit establishes petitioner’s “actual innocence,” i.e., establishes petitioner acted in self-defense when he returned Boyd and Clark’s gun fire. B. State Court Disposition Petitioner has never presented his “actual innocence” claim for relief to any state court as a stand-alone point of error or ground for habeas corpus relief. C. Procedural Default For the same reasons set forth in Section III.C. above, petitioner procedurally defaulted on his “actual innocence” claim by failing to present the state courts with that claim until he filed his third state habeas application, which the Texas Court of Criminal Appeals dismissed under Texas writ-abuse principles. However, respondent did not point out this obvious fact and this Court is precluded from noting sua sponte petitioner’s procedural default no matter how egregious and overt that default. See Prieto v. Quarterman, 456 F.3d at 518-19 (holding this Court abused its discretion in sua sponte dismissing as procedurally defaulted an unexhausted claim). Therefore, this Court must address the merits of this otherwise procedurally defaulted claim. D.No Merits Because no state court has ever addressed the merits of petitioner’s “actual innocence” claim, this Court’s review of same is 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); Wright v. Quarterman, 470 F.3d 581, 591 (5th Cir.2006) (holding claims which had not been presented to state court but nonetheless were not procedurally defaulted were entitled to de novo federal habeas review), cert. denied, — U.S. -, 127 S.Ct. 2996, 168 L.Ed.2d 707 (2007). In Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), the United States Supreme Court unequivocally declared that claims of “actual innocence” based on newly discovered evidence do not constitute an independent ground for granting federal habeas corpus relief. Herrera v. Collins, 506 U.S. at 400-01, 113 S.Ct. at 860-61. However, in Herrera, the Supreme Court also reaffirmed that a state prisoner who supplements his federal habeas claims with “a colorable showing of actual innocence” can thereby circumvent procedural barriers to obtaining federal habeas review on the merits for his constitutional claims. Herrera v. Collins, 506 U.S. at 404, 113 S.Ct. at 862. The Supreme Court’s holding in Herrera precludes petitioner’s argument that the new evidence he presented for the first time during his third state habeas corpus proceeding, i.e., Mr. Huel’s hearsay-within-hearsay affidavit, independently warrants federal habeas corpus relief. Under Herrera, even new evidence establishing a state prisoner’s actual innocence beyond any doubt does not independently authorize federal habeas corpus relief. Herrera v. Collins, 506 U.S. at 400-02, 113 S.Ct. at 860-61; Parr v. Quarterman, 472 F.3d 245, 252 (5th Cir.2006), cert. denied, — U.S. - — , 127 S.Ct. 2974, 168 L.Ed.2d 707 (2007); Foster v. Quarterman, 466 F.3d 359, 367 (5th Cir.2006), cert. denied, — U.S.-, 127 S.Ct. 2099, 167 L.Ed.2d 817 (2007); Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir.2000), cert. denied, 532 U.S. 915, 121 S.Ct. 1250, 149 L.Ed.2d 156 (2001). However, the foreclosure of petitioner’s frontal assault upon his conviction does not end this Court’s examination of petitioner’s actual innocence claim. The Supreme Court has held that a showing of “actual innocence” opens the door to federal habe-as review of procedurally defaulted claims and claims that would otherwise be barred by abuse-of-the-writ principles. Schlup v. Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851, 867, 130 L.Ed.2d 808 (1995); Herrera v. Collins, 506 U.S. at 404, 113 S.Ct. at 862; Parr v. Quarterman, 472 F.3d at 252. In Schlup v. Delo, the Supreme Court explained that a petitioner seeking to surmount a procedural default through a showing of “actual innocence” must establish it is more likely than not that, in light of the new evidence, no juror, acting reasonably, would have voted to find the petitioner guilty beyond a reasonable doubt. Schlup v. Delo, 513 U.S. at 327, 115 S.Ct. at 867; Wright v. Quarterman, 470 F.3d at 590; Foster v. Quarterman, 466 F.3d at 367. The Supreme Court has more recently reaffirmed the vitality of this standard of review. See House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 2077, 165 L.Ed.2d 1 (2006) (“A petitioner’s burden at the gateway stage is to demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt — or to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.”). Thus, even though petitioner may not seek federal habeas corpus relief premised exclusively on a showing that new evidence establishes his “actual innocence,” he may assert such an argument as a means of circumventing his procedural default on any other constitutional claim he presents to this Court. House v. Bell, 547 U.S. at 535-38, 126 S.Ct. at 2076-77; Parr v. Quarterman, 472 F.3d at 252; Wright v. Quarterman, 470 F.3d at 590-92. The Supreme Court’s explanation of what it meant by the term “actual innocence” is more helpful to understanding how a federal habeas court must evaluate such a claim than the standard itself: The meaning of actual innocence as formulated by Sawyer, and Carrier does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty. It is not the district court’s independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires