Full opinion text
MEMORANDUM OPINION AND ORDER DENYING RELIEF FRED BIERY, District Judge. Petitioner Anthony Bartee filed this federal habeas corpus action pursuant to Title 28 U.S.C. Section 2254 collaterally attacking his May, 1998, Bexar County conviction for capital murder and sentence of death. For the reasons set forth below, petitioner is entitled to neither federal ha-beas corpus relief nor a Certificate of Ap-pealability from this Court. I.Statement of the Case A. Factual Background 1. Petitioner Attempts to Solicit Assistance On August 15, 1996, petitioner telephoned his acquaintance Heidi Munoz and informed her he planned to “ace some white dude out.” Munoz interpreted this remark as indicating petitioner planned to rob and “get rid of’ the person in question, whom petitioner indicated was named “David.” When Ms. Munoz refused petitioner’s request to assist in this endeavor, petitioner asked for the phone number of Ms. Munoz’s ex-boyfriend, Joey Banks, and indicated he planned to seek Mr. Banks’ help. During the same telephone conversation, petitioner also unsuccessfully solicited the assistance of Ms. Munoz’s friends Nadine Berlanga and Stella Suarez. At some point during the summer of 1996, petitioner telephoned Joey Banks and requested Mr. Banks’ help in robbing and killing someone who lived in the same neighborhood where petitioner stayed and who, petitioner informed Mr. Banks, had “some gold cards and a motorcycle” petitioner wanted. When Mr. Banks indicated he would not help, petitioner told Joey Banks he would do it himself. 2. Petitioner’s Arrival at Heidi Munoz’s Apartment Later on that same date, petitioner arrived at Ms. Munoz’s apartment riding a motorcycle which petitioner said he had acquired through a lawsuit. Petitioner gave Ms. Suarez a ride on his motorcycle but Ms. Munoz declined petitioner’s invitation for a ride. Although petitioner said he was carrying a gun, Ms. Munoz never saw one. 3. Petitioner’s Claims at the Bowling Alley The following morning, on August 16, 1996, petitioner approached two employees of a bowling alley located near petitioner’s parents’ residence and informed them he owned the Harley Davidson motorcycle they had found parked behind the bowling alley. 4. Petitioner’s Trip to Corpus Christi Later that same date, petitioner drove the Harley motorcycle to Corpus Christi, Texas, where he met up with his acquaintance Macedonio Gonzalez. Petitioner informed Mr. Gonzalez that he had traded in two motorcycles to acquire the new Harley. Petitioner also informed Mr. Gonzalez petitioner had seen a Mend of his shot in the head by two members of the “Ace of Spades” gang. Petitioner never informed Mr. Gonzalez that the motorcycle belonged to petitioner’s murdered Mend. A few days later, petitioner returned to San Antonio but left the new Harley in Macedonio Gonzalez’s custody, telling Mr. Gonzalez he would return to pick it up. When petitioner did not return after several weeks, Mr. Gonzalez contacted local law enforcement authorities in Corpus Christi, who took custody of the Harley. A Corpus Christi homicide detective testified at petitioner’s trial that, on August 26, 1996, he took possession of a motorcycle from Macedonio Gonzalez which he identified as the same motorcycle reported stolen in connection with the murder of David Cook in San Antonio. 5. Discovery of the Decedent’s Body On the morning of August 17, 1996, police and David Cook’s family members discovered the body of David Cook inside Mr. Cook’s locked residence in San Antonio, Texas. An autopsy revealed Mr. Cook had been fatally shot twice in the head and stabbed once in the shoulder. At the crime scene, police discovered: (1) a slug which fell from the face of David Cook as his body was rolled over by personnel from the medical examiner’s office, (2) a second slug which had passed through a wall, penetrated the rear of Mr. Cook’s refrigerator, and come to rest therein, and (3) a pair of spent shell casings and several live 9 mm rounds. A firearms expert testified at petitioner’s trial that the spent round, shell casings, and bullet fragment recovered from the crime scene were all consistent with 9 mm bullets that had been fired from the type of handgun Mr. Cook owned but which was missing from the crime scene following Mr. Cook’s murder. Both David Cook’s 9 mm pistol and Harley Davidson motorcycle were missing from his residence. 6.The Missing Harley Several members of David Cook’s family described and identified a photograph of a red Harley Davidson motorcycle owned by David Cook which was missing from Mr. Cook’s residence following the discovery of David Cook’s body. Heidi Munoz identified a photograph of David Cook’s Harley Davidson motorcycle as similar to the one driven by petitioner when he visited Ms. Munoz’s apartment late on the night of August 15, 1996. Each of the two bowling alley employees who encountered petitioner the following morning identified the same photograph of Mr. Cook’s motorcycle as the one petitioner claimed as his own. A friend of petitioner’s who resided in Corpus Christi identified the same photograph of David Cook’s motorcycle as the one petitioner drove to Corpus Christi in August, 1996 and claimed as his own. 7. Petitioner’s First Statement to Police On August 20, 1996, shortly after his return to San Antonio, petitioner gave San Antonio police a written statement in which he claimed to have no knowledge whatsoever of David Cook’s murder. 8. Petitioner’s Second Statement to Police On August 30, 1996, while in custody on an unrelated charge, and after having been informed that police had recovered David Cook’s missing motorcycle, petitioner gave San Antonio Police a second written statement in which he claimed: (1) he had been present at David Cook’s home at the time of Mr. Cook’s fatal shooting, (2) he had witnessed two local gang members he knew only as “Snake” and “Throw down” enter Mr. Cook’s residence and escort Mr. Cook to the back bedroom, (3) he then went to the garage and sat down on Mr. Cook’s motorcycle, (4) suspecting foul play was about to occur, he started Mr. Cook’s motorcycle, and (5) when he then heard gunshots, he fled the scene on Mr. Cook’s motorcycle out of fear for his own safety. 9. Petitioner’s Call to His Friends In following weeks, petitioner telephoned Heidi Munoz and one of Ms. Munoz’s friends, claimed to have had no involvement in David Cook’s murder, and urged them both to claim they had no knowledge of anything relating to David Cook’s murder or of the motorcycle petitioner was riding the night he visited Ms. Munoz’s apartment. B. Indictment On April 2, 1997, a Bexar County grand jury indicted petitioner in cause no. 97-CR-1659 on a single count of capital murder, to wit having intentionally and knowingly caused the death of David Cook by shooting Mr. Cook with a firearm while in the course of committing and attempting to commit the predicate offenses of robbery and burglary on Mr. Cook. C. Trial 1. Jury Selection Jury selection began in petitioner’s capital murder trial on March 9, 1998, and concluded on April 8,1998. 2. Replacement of Petitioner’s Co-Counsel On April 13, 1998, the day the guilt-innocence phase of petitioner’s trial was to begin, petitioner’s co-counsel, attorney Michael Sawyer, advised the trial court he had only that morning become aware of the fact he knew Susan Cook, one of David Cook’s sisters, and the entire Cook family. Mr. Sawyer requested to withdraw as petitioner’s co-counsel. The trial court granted Mr. Sawyer’s request, appointed attorney Joel Perez to replace Michael Sawyer, granted a four-week continuance, but denied petitioner’s motion for mistrial. 3. Guilt-Innocence Phase of Trial The guilt-innocence phase of petitioner’s capital murder trial commenced on May 11,1998. After presenting the evidence outlined above, the prosecution rested on May 14, 1998. The defense then called a neighbor of David Cook who testified: (1) he heard what he believed was a loud motorcycle take off around ten p.m. on August 15, 1996, and (2) very shortly thereafter, he heard automotive tires squealing. The defense also presented a second neighbor of David Cook who testified she witnessed a white vehicle with two black stripes squealing its tires as it left David Cook’s driveway around 10:45 p.m. the evening of the murder. The defense then rested. The prosecution then called in rebuttal a third neighbor of David Cook who testified, on the evening of David Cook’s murder: (1) sometime after 11 p.m., he was visited by a drunken friend who parked his car directly across the street from David Cook’s home, (2) he argued with his inebriated friend, who was driving a big white car with dark blue stripes, and (3) his friend later left the area, first by backing his vehicle into David Cook’s driveway and then squealing his tires as he left the area at a high rate of speed. In its guilt-innocence phase jury instructions, the trial court charged the jury on the lesser-included offense of non-capital murder, as well as capital murder. On May 15, 1998, after deliberating less than five hours, the jury returned its verdict, finding petitioner guilty of capital murder, as charged in the indictment. 4. Punishment Phase of Trial The punishment phase of petitioner’s capital murder trial commenced on May 18,1998. The prosecution presented a pair of witnesses, each of whom testified to the details of separate aggravated sexual assaults the petitioner perpetrated upon them at knife-point in July 1982 when they were teenagers. A fingerprint examiner testified the petitioner’s fingerprints matched those on a pair of penitentiary packets indicating the petitioner had been: (1) convicted of aggravated rape in Texas in separate criminal cases arising from the two incidents about which the two women had testified, (2) sentenced to serve terms of thirty-three and ten years, respectively, as a result of those convictions, and (3) convicted on a pair of theft charges in California in 1980. The defense then called petitioner’s father, who testified the petitioner: (1) was an above-average student who had been honorably discharged from the United States military, (2) was a “giving” person, not aggressive, and “always willing to help,” (3) had always been respectful to his parents when growing up, (4) had never been deprived of visitation privileges during pretrial detention, (5) had served twelve years incarceration in California and Texas prisons, and (6) deserved mercy. The defense also called a public school risk counselor who testified petitioner: (1) while serving a prison sentence, had been a “model prisoner” who participated in a program to discourage gang-involved school students from continuing their gang-related affiliation, (2) had been sexually abused as an adolescent and showed symptoms of sexual abuse, (3) had difficulty adjusting once he was released from prison, and (4) had impressed her with the way he handled himself when addressing her students. On May 19, 1998, the jury returned its verdict at the punishment phase of petitioner’s trial, finding: (1) beyond a reasonable doubt there was a probability petitioner “would commit criminal acts of violence that would constitute a continuing threat to society,” and (2) there were insufficient mitigating circumstances to warrant a sentence of life imprisonment rather than a death sentence be imposed. 5. Direct Appeal Petitioner filed his appellant’s brief on July 1, 1999, asserting twelve points of error. In an unpublished opinion issued May 3, 2000, the Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence. Bartee v. State, No. 73,126 (Tex.Crim.App. May 3, 2000). Petitioner did not thereafter seek certiorari review of his conviction by the United States Supreme Court. 6. State Habeas Proceeding On January 3, 2000, petitioner filed an application for state habeas corpus relief in which he asserted thirty-seven claims for relief, including a multi-faceted claim of ineffective assistance by his trial counsel. The state habeas trial court held evi-dentiary hearings on petitioner’s claims on September 8-9 and 28, 2004. Petitioner called four witnesses to testify during those hearings: (1) attorney Vincent D. Callahan, petitioner’s former lead trial counsel; (2) petitioner’s father; (3) the lead prosecutor from petitioner’s trial; and (4) the private investigator who assisted petitioner’s court-appointed defense investigator in interviewing potential witnesses prior to petitioner’s trial. Petitioner did not question his own lead trial counsel regarding the subjective thought processes and strategic reasoning underlying counsel’s decision-making in connection with petitioner’s trial, particularly with regard to counsel’s decisions not to investigate certain potentially advantageous factual matters more thoroughly, i.e., the very crux of petitioner’s own ineffective assistance claims. Petitioner likewise, never called his co-counsel at trial, attorney Joel Perez, to testify. Petitioner also introduced no testimony from any witness suggesting that any additional, admissible, exculpatory, mitigating, or favorable impeachment evidence existed at the time of petitioner’s trial which could have been discovered or developed through more thorough investigation by petitioner’s trial counsel and investigators. In an Order issued October 17, 2005, the state trial court found petitioner had failed to present any evidence supporting the vast majority of his claims, concluded none of petitioner’s state habeas claims possessed any merit, and recommended denial of petitioner’s state habeas application. In an unpublished Order issued March 8, 2006, the Texas Court of Criminal Appeals adopted the state habeas trial court’s findings of fact and conclusions of law, and denied state habeas relief. Ex parte Anthony Bartee, WR-63,381-01, 2006 WL 560692 (Tex.Crim.App. March 8, 2006). B. Proceedings in Federal Court On February 21, 2007, petitioner filed his federal habeas corpus petition in this cause, asserting thirty-one claims for relief. Docket entry no. 11. On September 28, 2007, respondent filed his answer and motion for summary judgment, arguing the state courts reasonably rejected each of petitioner’s claims herein on the merits in the course of petitioner’s direct appeal and state habeas corpus proceedings. Docket entry no. 17. On February 1, 2008, petitioner filed his reply brief. Docket entry no. 28. 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, 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, 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, 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 ease differently than the Supreme Court on a set of materially indistinguishable facts. Brown v. Payton, 544 U.S. at 141, 125 S.Ct. 1432; Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 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. 7. 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. 1432; Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 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. 2527. 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. 2527; Price v. Vincent, 538 U.S. 634, 641, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2008) (“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, 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, 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, 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, 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, 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. 2317 (the standard is “demanding but not insatiable”); Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 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 habeas 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. Actual Innocence Claim A. The Claim In his first claim, petitioner argues he is “factually innocent” of David Cook’s murder because law enforcement authorities did an inadequate job investigating whether others might have been involved in the murder. More specifically, petitioner complains that potentially exculpatory DNA evidence (in the form of hair fibers allegedly found in David Cook’s hand) was never properly examined, fingerprints found at the crime scene were never compared to those of other suspects, and police failed to identify either “Snake” or “Throw down,” the two men petitioner claimed to have seen inside Mr. Cook’s residence on the night of the murder. In his state habeas proceeding, petitioner also pointed to the potentially exculpatory testimony of a Robert Keith Adams to support his assertion of actual innocence. B. State Court Disposition As the state habeas trial court pointed out in its findings of fact and conclusions of law, later adopted by the Texas Court of Criminal Appeals, petitioner offered the state habeas court no evidence showing: (1) “Snake” or “Throw down” were anything more than figments of petitioner’s imagination, (2) any exculpatory fingerprint or DNA evidence had ever existed, or (3) Robert Keith Adams had any personal knowledge regarding David Cook’s murder. The Texas Court of Criminal Appeals rejected this claim on the merits when it adopted the state habeas trial court’s findings and conclusions. C. AEDPA Analysis In Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), the United States Supreme Court 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. 853. 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. 853. The Supreme Court’s holding in Herrera precludes petitioner’s argument suggesting his belated attacks on the quality of the police investigation into David Cook’s murder independently warrant 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. 853; 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 contention 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 habeas 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, 130 L.Ed.2d 808, (1995); Herrera v. Collins, 506 U.S. at 404, 113 S.Ct. 853; Parr v. Quarterman, 472 F.3d at 252. In Schlup v. Delo, the Supreme Court explained 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. 851; Wright v. Quarterman, 470 F.3d 581, 590 (5th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 2996, 168 L.Ed.2d 707 (2007); 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, 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 536-38, 126 S.Ct. 2064; Parr v. Quarterman, 472 F.3d at 252; Wright v. Quarterman, 470 F.3d at 590-92. Petitioner’s arguments about allegedly undiscovered exculpatory evidence and the poor quality of the police investigation into David Cook’s murder do not satisfy the constitutional “actual innocence” standard discussed in House v. Bell. As the Supreme Court emphasized, the threshold for a showing of “actual innocence” is “extraordinarily high.” House v. Bell, 547 U.S. at 553-55, 126 S.Ct. 2064. Petitioner’s speculative allegations about allegedly undiscovered or unexamined exculpatory evidence are insufficient to satisfy this standard. More than a decade has passed since David Cook’s murder. Despite that fact, and the availability since 2001 of procedures under Article 64 of the Texas Code of Criminal Procedure permitting post-conviction scientific examination of potentially exculpatory evidence, petitioner identifies no “newly discovered” exculpatory evidence. In order to satisfy the eviden-tiary standard set forth in House v. Bell, it was incumbent upon petitioner to present the state habeas court (or this Court) with some actual newly discovered evidence establishing “more likely than not any reasonable juror would have reasonable doubt.” Petitioner presented neither the state habeas court nor this Court with any such evidence. Petitioner’s arguments about potentially exculpatory evidence, premised on forensic testing never actually performed on any physical evidence, do not satisfy the standard set forth in Schlup v. Delo and House v. Bell. Likewise, petitioner’s attacks on the sufficiency of the evidence supporting his conviction do not satisfy the “actual innocence” standard. As another Judge of this Court has recently noted, Moore v. Quarterman, 526 F.Supp.2d 654, 681-82 (W.D.Tex.2007), the Supreme Court’s explanation of what it meant by the term “actual innocence” is perhaps 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 the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do. Thus, a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt. We note finally that the Carrier standard requires a petitioner to show that it is more likely than not that “no reasonable juror” would have convicted him. The word “reasonable” in that formulation is not without meaning. It must be presumed that a reasonable juror would consider fairly all of the evidence presented. It must also be presumed that such a juror would conscientiously obey the instructions of the trial court requiring proof beyond a reasonable doubt. Moore v. Quarterman, 526 F.Supp.2d at 681-92 (quoting Schlup v. Delo, 513 U.S. at 329, 115 S.Ct. at 868 (footnote omitted)). As Judge Ferguson also noted: The Supreme Court took great care in Schlup to distinguish the standard it applied in that case from the evidentiary sufficiency test it announced in Jackson v. Virginia: Though the Carrier standard requires a substantial showing, it is by no means equivalent to the standard of Jackson v. Virginia. The Jackson standard, which focuses on whether any rational juror could have convicted, looks to whether there is sufficient evidence which, if credited, could support conviction. The Jackson standard thus differs in at least two important ways from the Carrier standard. First, under Jackson, the assessment of the credibility of witnesses is generally beyond the scope of review. In contrast, under the gateway standard we describe today, the newly presented evidence may indeed call into question the credibility of the witnesses presented at trial. In such a case, the habeas court may have to make some credibility assessments. Second, and more fundamentally, the focus of the inquiry is different under Jackson than under Carrier. Under Jackson, the use of the word “could” focuses the inquiry on the power of the trier of fact to reach its conclusion. Under Carrier, the use of the word “would” focuses the inquiry on the likely behavior of the trier of fact. Indeed, our adoption of the phrase “more likely than not” reflects this distinction. Under Jackson, the question whether the trier of fact has the power to make a finding of guilt requires a binary response: Either the trier of fact has power as a matter of law or it does not. Under Carrier, in contrast, the habeas court must consider what reasonable triers of fact are likely to do. Under this probabilistic inquiry, it makes sense to have a probabilistic standard such as “more likely than not.” Thus, though under Jackson the mere existence of sufficient evidence to convict would be determinative of petitioner’s claim, that is not true under Carrier. Moore v. Quarterman 526 F.Supp.2d at 682 (quoting Schlup v. Delo, 513 U.S. at 330, 115 S.Ct. at 868-69 (citations and footnote omitted)). D. Conclusion The Texas Court of Criminal Appeals’ rejection on the merits of petitioner’s actual innocence claim during the course of petitioner’s state habeas corpus proceeding was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner’s state habeas corpus proceeding. IY. Denial of Counsel— Conflict of Interest A. The Claim In his second claim, petitioner argues he was denied the assistance of counsel when one of his original trial counsel, attorney Michael Sawyer, withdrew following the completion of jury selection but prior to the start of the guilt-innocence phase of petitioner’s capital murder trial. Petitioner argues Mr. Sawyer’s conflict of interest justifies granting petitioner a presumption of prejudice. B. State Court Disposition The state habeas trial court found petitioner had presented no evidence showing either Mr. Sawyer had an actual conflict of interest in connection with petitioner’s case or any such conflict had an adverse effect on petitioner’s trial and concluded petitioner’s conflict of interest claim lacked merit. The Texas Court of Criminal Appeals adopted these findings and conclusions. C. AEDPA Review 1. The General Rule Ordinarily, complaints about the performance of a criminal defendant’s trial counsel are evaluated under the familiar dual prongs of the test announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. In his second claim, petitioner seeks to have this Court evaluate the performance of his former trial counsel Michael Sawyer under the far more exacting tests applicable when an actual conflict of interest impedes counsel’s performance. The Sixth Amendment right to counsel includes the right to representation that is free from any conflict of interest. United States v. Garcia-Jasso, 472 F.3d 239, 243 (5th Cir.2006); United States v. Vasquez, 298 F.3d 354, 360 (5th Cir.), cert. denied, 537 U.S. 1024, 123 S.Ct. 546, 154 L.Ed.2d 436 (2002); United States v. Vaquero, 997 F.2d 78, 89 (5th Cir.), cert. denied, 510 U.S. 1016, 114 S.Ct. 614, 126 L.Ed.2d 578 (1993). 2. Inapplicability of Cuyler v. Sullivan Exception A conflict of interest exists when defense counsel places himself in a position conducive to divided loyalties. United States v. Vasquez, 298 F.3d at 360; United States v. Vaquero, 997 F.2d at 89. “In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); United States v. Infante, 404 F.3d 376, 390-91 (5th Cir.2005); Ramirez v. Dretke, 396 F.3d 646, 649 (5th Cir.2005); United States v. Salado, 339 F.3d 285, 291 (5th Cir.2003). The Cuyler standard differs substantially from the Strickland test in that Cuyler requires no showing of “prejudice.” See Strickland v. Washington, 466 U.S. at 692, 104 S.Ct. 2052 (recognizing prejudice is presumed under the Cuyler test only if the defendant demonstrates that counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer’s performance.”); United States v. Newell, 315 F.3d 510, 516 (5th Cir.2002) (“When a defendant has been able to show that his counsel ‘actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance,’ constitutional error has occurred and prejudice is inherent in the conflict.”); Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir.2000) (discussing the distinction between the Cuyler and Strickland tests). Under the Cuyler test, an “actual conflict” exists when defense counsel is compelled to compromise his duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client. Perillo v. Johnson, 205 F.3d at 781. A defendant must show more than a speculative or potential conflict. United States v. Garcia-Jasso, 472 F.3d at 243; United States v. Infante, 404 F.3d at 391. The defendant must demonstrate his counsel made a choice between possible alternative courses of action; if he did not make such a choice, the conflict remained hypothetical. United States v. Garcia-Jasso, 472 F.3d at 243. The mere possibility of a conflict, absent a showing that the attorney actively represented conflicting interests, is not sufficient. Cuyler v. Sullivan, 446 U.S. at 350, 100 S.Ct. 1708 (“But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.”); United States v. Villarreal, 324 F.3d 319, 327 (5th Cir.2003). “An adverse effect on counsel’s performance may be shown with evidence that counsel’s judgment was actually fettered by concern over the effect of certain trial decisions on other clients.” United States v. Infante, 404 F.3d at 393; Perillo v. Johnson, 205 F.3d at 807. The defendant must establish adverse effect by demonstrating there was some plausible alternative defense strategy that could have been pursued, but was not, because of the actual conflict. United States v. Infante, 404 F.3d at 393; Perillo v. Johnson, 205 F.3d at 781; Beathard v. Johnson, 177 F.3d 340, 345 (5th Cir.), cert. denied, 528 U.S. 954, 120 S.Ct. 380, 145 L.Ed.2d 296 (1999). “To prevail, a defendant must identify ‘some plausible defense strategy or tactic that might have been pursued but was not, because of the conflict of interest.’ ” United States v. Villarreal, 324 F.3d at 327; Hernandez v. Johnson, 108 F.3d 554, 560 (5th Cir.), cert. denied, 522 U.S. 984, 118 S.Ct. 447, 139 L.Ed.2d 383 (1997); Perillo v. Johnson, 79 F.3d 441, 449 (5th Cir.1996). “A conflict of interest is present ‘whenever one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel is also representing.’ ” Ramirez v. Dretke, 396 F.3d at 650. “An actual conflict of interest exists if counsel’s introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing.” United States v. Salado, 339 F.3d at 291; United States v. Rico, 51 F.3d 495, 509 (5th Cir.), cert. denied, 516 U.S. 883, 116 S.Ct. 220, 133 L.Ed.2d 150 (1995). In Beets v. Scott, 65 F.3d 1258 (5th Cir.1995) (en banc), cert. denied, 517 U.S. 1157, 116 S.Ct. 1547, 134 L.Ed.2d 650 (1996), the Fifth Circuit rejected a broad-ranging application of the Cuyler standard to complaints of ineffective assistance arising from alleged conflicts of interest by defense counsel. See Beets v. Scott, 65 F.3d at 1268 (holding that not every potential conflict, even in multiple client representation cases, is an “actual conflict’ for Sixth Amendment purposes). Subsequently, the Fifth Circuit has consistently refused to apply the Cuyler test outside the context of multiple representation situations. See, e.g., United States v. Garza, 429 F.3d 165, 172 (5th Cir.2005) (“Cuyler only applies where an attorney was effectively, if not technically, representing multiple clients in the same proceeding.”), cert. denied, 546 U.S. 1220, 126 S.Ct. 1444, 164 L.Ed.2d 143 (2006); United States v. Newell, 315 F.3d at 516 (holding Strickland “more appropriately gauges an attorney’s alleged conflict of interest arising not from multiple client representation but from a conflict between the attorney’s personal interest and that of his client”); Perillo v. Johnson, 205 F.3d at 781 (“An ‘actual conflict’ exists when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client.”); Moreland v. Scott, 175 F.3d 347, 349 (5th Cir.) (“cases in which it is alleged that the attorney’s representation was affected by his own self-interest are evaluated under the more relaxed Strickland standard.”), cert. denied, 528 U.S. 937, 120 S.Ct. 342, 145 L.Ed.2d 267 (1999); Hernandez v. Johnson, 108 F.3d at 559 (“This circuit has limited Cuyler to actual conflicts resulting from a lawyer’s representation of multiple criminal defendants.”). Petitioner’s complaints of “conflict of interest” by his trial counsel fall outside the situations in which the Fifth Circuit applies the Cuyler test. United States v. Garza, 429 F.3d at 172; Perillo v. Johnson, 205 F.3d at 781; Hernandez v. Johnson, 108 F.3d at 559; Beets v. Scott, 65 F.3d at 1268. Petitioner’s complaints about the performance of Michael Sawyer during jury selection do not satisfy either the “actual conflict” or “adverse effect” requirements of the narrow Cuyler exception to the Strickland standard. Petitioner’s affidavit, purporting to detail events on the morning Mr. Sawyer withdrew from petitioner’s representation, was never properly before the state habeas court and petitioner proffered no other evidence, either through his own testimony or Mr. Sawyer’s exploring the reasons for Michael Sawyer’s withdrawal. The fact Mr. Sawyer was familiar with one or more members of David Cook’s family does not, standing alone, establish an “actual conflict” within the meaning of Cuyler, nor does it satisfy the “adverse effect” prong. Any adverse impact that relationship might have had on Mr. Sawyer’s performance during voir dire was negated by the fact Michael Sawyer did not realize he personally knew the David Cook family until he saw David Cook’s sister in the courtroom. Petitioner presented the state habeas court with no evidence either showing Michael Sawyer had ever represented any member of the Cook family or establishing Mr. Sawyer’s relationship with the Cook family was anything more than social in nature. Thus, petitioner failed to present any evidence to the state habeas court showing Mr. Sawyer suffered from an “actual conflict” sufficient to make the Cuyler standard applicable to petitioner’s trial. Moreover, petitioner failed to present the state habeas court with any evidence showing Michael Sawyer’s performance during voir dire was “adversely effected” by virtue of his relationship with the Cook family- 3. Inapplicability of Cronic v. United States Petitioner also seeks to invoke a second exception to the Strickland standard of review. In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), decided the same day as Strickland, the Supreme Court held that a presumption of prejudice similar to that recognized in Cuyler arises in three narrow circumstances: first, when a criminal defendant is completely denied the assistance of counsel; second, when counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing; and finally, where the circumstances are such that even competent counsel very likely could not render effective assistance. United States v. Cronic, 466 U.S. at 659, 104 S.Ct. 2039. As examples of the latter two situations, respectively, the Supreme Court cited the denial of effective cross-examination in Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (defendant was denied the opportunity to cross-examine the prosecution’s key witness for bias), and the circumstances surrounding the trial of the so-called “Scottsboro Boys” addressed in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) (no individual attorney was appointed to represent the defendants and trial proceeded after a volunteer attorney from another state appeared on the first day of trial but confessed he had not had an opportunity to prepare for trial). United States v. Cronic, 466 U.S. at 659-61, 104 S.Ct. 2039. In a footnote, the Supreme Court recognized the continuing efficacy of its earlier holding in Cuyler, presuming prejudice where a defendant establishes an actual conflict of interest adversely affected his counsel’s performance. United States v. Cronic, 466 U.S. at 661 n. 31, 104 S.Ct. 2039. In Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002), the Supreme Court reiterated the second exception to the requirement of Strickland “prejudice” it had envisioned in Cronic was limited to situations in which defense counsel completely failed to subject the prosecution’s case to meaningful adversarial testing. See Bell v. Cone, 535 U.S. at 697-988, 122 S.Ct. 1843 (holding complaints about trial counsel’s waiver of closing argument at the punishment phase of trial and failure to adduce mitigating evidence insufficient to create a presumption of prejudice absent a showing trial counsel completely failed to challenge the prosecution’s case throughout the sentencing proceeding). The presumption of prejudice recognized in Cronic does not apply where the defendant complains of merely shoddy or poor performance by his trial counsel; for a defendant to be entitled to such a presumption, his attorney’s failure must be complete. See Bell v. Cone, 535 U.S. at 697, 122 S.Ct. 1843 (holding the presumption applicable only when counsel failed to subject the prosecution’s case to meaningful adversarial testing); United States v. Griffin, 324 F.3d 330, 364, (5th Cir.2003) (“When the defendant complains of errors, omissions, or strategic blunders, prejudice is not presumed; bad lawyering, regardless of how bad, does not support the per se presumption of prejudice.”); Riddle v. Cockrell, 288 F.3d 713, 718 (5th Cir.) (holding “constructive denial of counsel” sufficient to support a presumption of prejudice arises only when counsel was absent from the courtroom, there was an actual conflict of interest, or there was official interference with the defense), cert. denied, 537 U.S. 953, 123 S.Ct. 420, 154 L.Ed.2d 300 (2002); Mayo v. Cockrell, 287 F.3d 336, 340 n. 3 (5th Cir.) (holding the same), cert. denied, 537 U.S. 975, 123 S.Ct. 443, 154 L.Ed.2d 332 (2002); Burdine v. Johnson, 262 F.3d 336, 344 n. 4 (5th Cir.2001) (holding the same), cert. denied, 535 U.S. 1120, 122 S.Ct. 2347, 153 L.Ed.2d 174 (2002); Gochicoa v. Johnson, 238 F.3d 278, 284 (5th Cir.2000) (“ ‘A constructive denial of counsel occurs in only a very narrow spectrum of cases where the circumstances leading to counsel’s ineffectiveness are so egregious that the defendant was in effect denied any meaningful assistance at all.’ We have found constructive denial in cases involving the absence of counsel from the courtroom, conflicts of interest between defense counsel and the defendant, and official interference with the defense; and have stated that constructive denial will be found when counsel fails to subject the prosecution’s case to any meaningful adversarial testing.” (citations and footnote omitted)). At all times throughout voir dire, petitioner was represented by his lead counsel, attorney Vincent D. Callahan, in addition to attorney Michael Sawyer. Thus, even assuming Mr. Sawyer was somehow rendered constructively absent during voir dire by virtue of his relationship with the Cook family, petitioner was not completely devoid of legal representation during jury selection; the first Cronic exception to Strickland has no application to petitioner’s trial. Petitioner’s allegations his trial counsel inadequately investigated the case against petitioner, failed to interview potential witnesses, failed to discover and develop exculpatory and mitigating evidence, and inadequately examined venire members during voir dire do not fall within the narrow scope of the presumed prejudice rule announced in Cronic. Bell v. Cone, 535 U.S. at 697, 122 S.Ct. 1843 (holding the presumption applicable only when counsel entirely failed to subject the prosecution’s case to meaningful adversarial testing). The second Cronic exception to Strickland does not apply to petitioner’s trial. Finally, petitioner presented the state habeas court with no evidence showing Michael Sawyer’s relationship with the Cook family, whatever it might have been, had any effects on Mr. Sawyer’s performance during voir dire analogous to the extreme situations in which the Supreme Court has found the third Cronic exception to Strickland applicable. On the contrary, the record before the state habeas court appears to suggest the state trial court granted Michael Sawyer’s motion to withdraw primarily in an effort to avoid even the appearance of impropriety, rather than to address an actual conflict of interest. Petitioner presented the state habeas court with no evidence establishing the precise nature of Michael Sawyer’s personal relationship with the Cook family. D. Conclusion Petitioner failed to present the state ha-beas court with any evidence showing either (1) Sawyer suffered from “an actual conflict of interest” which had an “adverse effect,” within the meaning of Cuyler, on petitioner’s capital murder trial, or (2) petitioner was constructively denied legal representation during voir dire within the meaning of Cronic. Accordingly, the Texas Court of Criminal Appeals’ rejection on the merits of petitioner’s conflict of interest claim during the course of petitioner’s state habeas corpus proceeding was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner’s state habeas corpus proceeding. V. Ineffective Assistance Claims A. The Claims In his third group of claims, petitioner argues his trial counsel rendered ineffective assistance by failing to: (1) adequately investigate the evidence against petitioner at the guilt-innocence phase of trial, (2) interview prosecution witnesses, (3) investigate footprint evidence, (4) meet with petitioner’s parents, (5) cross-examine prosecution witness Joey Banks about his criminal record, (6) cross-examine prosecution witness Rick Wood about his criminal record, (7) request limiting instructions regarding allegedly improper prosecution jury arguments, (8) search for “Snake” and “Throw down,” (9) obtain a mental health examination of petitioner, (10) interview petitioner’s family members for mitigating evidence, and (11) present more than two mitigation witnesses. B. State Court Disposition 1. The State Habeas Hearing During petitioner’s state habeas corpus proceeding, petitioner’s former lead trial counsel testified, in part: (1) the defense team attempted without success to locate the persons petitioner had identified as “Snake” and “Throw down” or to corroborate petitioner’s account suggesting those two persons had been inside the Cook residence on the night of the murder, (2) he interviewed petitioner extensively regarding the contradictions between petitioner’s first and second statements to police, (3) petitioner’s version of the relevant events surrounding David Cook’s murder changed radically throughout his representation of petitioner from “I wasn’t there” to “I saw who did it and I had to run away because I was afraid,” (4) once petitioner admitted he was present at the time of David Cook’s murder, it was unnecessary to continue investigations into locating potential alibi witnesses, (5) admission of petitioner’s second statement into evidence was beneficial to petitioner in that it permitted the defense to present the jury with petitioner’s version of the offense without the necessity of petitioner testifying, (6). the guilt-innocence phase trial strategy was to attack the prosecution’s circumstantial case based on the absence of any evidence directly linking petitioner to David Cook’s murder, (7) he never felt petitioner had any mental health problems, (8) petitioner consistently indicated he had no interest in seeking a plea bargain, and (9) he interviewed petitioner’s mother. Petitioner’s father testified during the same hearing, in part, as follows:, (1) he had only about five brief telephone conversations with attorney Callahan before he testified as a character witness during the punishment phase of petitioner’s trial, (2) he had no personal knowledge regarding the crime, (3) he told the jury everything he wanted to tell them regarding petitioner’s character, (4) petitioner had no history of mental illness, had never been abused as a child, and had no history of drug abuse, and (5) no one in petitioner’s family was aware of the facts of the offense. One of petitioner’s prosecuting attorneys, William Pennington, testified: (1) he interviewed purported defense witness Robert Keith Adams, (2) Adams and petitioner knew each other, (3) the only information Mr. Adams had regarding David Cook’s murder was information petitioner had given to him during conversations which took place following petitioner’s arrest for David Cook’s murder, and (4) he personally informed petitioner’s trial co-counsel Joel Perez of the foregoing information. Thomas Orsen Caldwell testified: (1) he assisted court-appointed defense investigator John M. Kemmy in connection with petitioner’s case, (2) he and Mr. Kemmy checked alias files in Bexar County and unsuccessfully attempted to identify and locate the persons petitioner had identified as “Snake” and “Throw down,” and (3) they were never able to identify any persons who matched petitioner’s descriptions of either of those two individuals. Petitioner’s affidavit, along with the affidavits of petitioner’s parents and John Connors, quoted extensively in petitioner’s pleadings and relied upon by petitioner in this proceeding, were all excluded from consideration by the state habeas trial court because of their hearsay character and, thus, were not properly before the state habeas court. 2. State Habeas Trial Court’s Findings The state habeas trial court found petitioner had failed to present any evidence showing: (1) any additional exculpatory or mitigating evidence was available at the time of petitioner’s trial, (2) the bases underlying petitioner’s trial counsel’s investigative strategies, i.e., the reasons why petitioner’s trial counsel chose to investigate certain matters but not others in preparation for trial, (3) any benefit would have been derived from additional investigation of petitioner’s background, (4) the strategic bases underlying petitioner’s trial counsel’s trial tactics, (5) the persons petitioner identified as “Snake” and “Throw down” have ever existed, or (6) precisely what any uncalled witnesses might have furnished in terms of admissible testimony at petitioner’s trial. C. ABDPA Analysis 1. The Constitutional Standard of Review As explained in Section IV.C.l. above, the applicable standard of review for petitioner’s ineffective assistance claims herein are the dual prongs of the test set forth in Strickland v. Washington. To satisfy the first prong of Strickland, i.e., establish that his counsel’s performance was constitutionally deficient, a convicted defendant must show counsel’s representation “fell below an objective standard of reasonableness.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In so doing, a convicted defendant must carry the burden of proof and overcome a strong presumption the conduct of his trial counsel falls within a wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. See Wiggins v. Smith, 539 U.S. at 523, 123 S.Ct. 2527 (holding the proper analysis under the first prong of Strickland is an objective review of the reasonableness of counsel’s performance under prevailing professional norms which includes a context-dependent consideration of the challenged conduct as seen from the perspective of counsel at the time). It is strongly presumed counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. 2052. To satisfy the second or “prejudice” prong, a convicted defendant must establish a reasonable probability that, but for the objectively unreasonable misconduct of his counsel, the result of the proceeding would have been different. Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. 2527; Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. 2052. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id. In evaluating prejudice, a federal habeas court must “re-weigh the evidence in aggravation against the totality of available mitigating evidence.” Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. 2527. In evaluating petitioner’s complaints about the performance of his counsel under the AEDPA, the issue before this Court is whether the Texas Court of Criminal Appeals could reasonably have concluded petitioner’s complaints about his trial counsel’s performance failed to satisfy either prong of the Strickland analysis. Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir.2003), cert. denied, 540 U.S. 1154, 124 S.Ct. 1156, 157 L.Ed.2d 1050 (2004). In making this determination, this Court must consider the underlying Strickland standard. Id. In those instances in which the state courts failed to adjudicate either prong of the Strickland test, this Court’s review of the unadjudicated prong is de novo. See Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 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. 2527 (holding the same). 2. Petitioner’s Failure to Address the Presumption of Reasonableness Afforded an Attorney’s Performance A habeas petitioner has the burden to prove both prongs of the Strickland ineffective assistance standard by a preponderance of the evidence. Montoya v. Johnson, 226 F.3d 399, 408 (5th Cir.2000), cert. denied, 532 U.S. 1067, 121 S.Ct. 2220, 150 L.Ed.2d 212 (2001). Under the well-settled Strickland standard, the Supreme Court recognizes a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Bell v. Cone, 535 U.S. at 698, 122 S.Ct. 1843; Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. 2052; Scheanette v. Quarterman, 482 F.3d 815, 820 (5th Cir.2007); Sonnier v. Quarterman, 476 F.3d 349, 356 (5th Cir.), cert. denied, — U.S. -, 128 S.Ct. 374, 169 L.Ed.2d 259 (2007); Amador v. Quarterman, 458 F.3d 397, 410 (5th Cir.2006); Gonzales v. Quarterman, 458 F.3d 384, 390 (5th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 1909, 167 L.Ed.2d 568 (2007). Furthermore,