Full opinion text
MEMORANDUM OPINION AND ORDER XAVIER RODRIGUEZ, District Judge. Petitioner Carlos Trevino filed this federal habeas corpus action pursuant to 28 U.S.C. Section 2254 challenging his July 1997, Bexar County capital murder conviction and sentence of death. For the reasons set forth at length below, petitioner is not entitled to federal habeas corpus relief from this Court but is entitled to a Certificate of Appealability. I. Statement of the Case A. Factual Background On the evening of June 9, 1996, while on a trip to buy beer for a party he had been attending, Santos Cervantes enticed fifteen-year-old Linda Salinas to get into a car driven by Cervantes’ Mend Brian Apolinar, with the assurance Apolinar would take Salinas to a nearby fast-food restaurant. Traveling with Apolinar, Cervantes, and Salinas that evening were Carlos Trevino (petitioner herein), petitioner’s teenage cousin Juan “Tati” Gonzales, and Seanido “Sam” Rey. Instead of driving to the restaurant, Apolinar drove the group to Espada Park, where Cervantes, Apolinar, and Rey sexually assaulted Salinas while she unsuccessfully straggled to escape. Gonzales overheard Apolinar, Cervantes, and the petitioner discuss their mutual desire not to leave any witnesses behind. At that point, Gonzales returned to the group’s vehicle; when the other four men returned, Cervantes and the petitioner had blood on them. During the group’s ensuing drive away from the Park and back to the Mata residence, Cervantes made a comment that it was “neat” or “cool” about how her neck had snapped and also made a comment about a knife; petitioner responded with the comments “I learned how to kill in prison” and “I learned how to use a knife in prison.” When the group returned to the Mata residence, Cervantes burned Salinas’ cloth backpack, which she had left in Apolinar’s car when the group, stopped at Espada Park. When Gonzales asked Cervantes why he had killed the girl, Cervantes responded “mind your own business.” While Gonzales never saw the petitioner or anyone else with a knife at the scene of the murder, a few days before Salinas’ murder, Gonzales had seen Cervantes with a knife and, two days after the murder, Cervantes told Gonzales he had broken the knife and thrown it into a river. The petitioner thereafter told Gonzales not to say anything to the police about the incident. Salinas’ partially nude body was discovered in Espada Park the day after the murder, ie., on June 10, 1996, in the tall grass along a trail leading down to a nearby creek. An autopsy revealed (1) Salinas suffered two stab wounds to the left side of her neck, one of which was fatal, (2) the fatal stab wound, to the back of the left side of Salinas’ neck, partially severed her carotid artery, resulting in massive bleeding, accompanied almost immediately by a rapid decrease in blood pressure and shock, (3) Salmas sustained soft tissue hemorrhaging and bruising in her vaginal area, as well as bruising, hemorrhaging, and a laceration at her anal opening, (4) a small quantity of a metabolite of marijuana was found in Salinas’ blood stream but at an insufficient level to suggest she was intoxicated at the time of her death, (5) Salinas sustained no internal injuries to her neck other than those caused by the two stab wounds, (6) there was no physical evidence anyone had attempted to “snap” her neck, and (7) there were scratches on Salinas’ legs and fresh bruises to her breasts. B. Indictment On April 8, 1997, a Bexar County grand jury indicted petitioner in cause no. 97-CR-1717-D on a charge of capital murder, to wit, intentionally and knowingly causing the death of Linda Salinas by cutting and stabbing her with a deadly weapon while in the course of committing and attempting to commit the aggravated sexual assault of Salinas. C. Unsuccessful Plea Negotiations Petitioner’s original trial counsel, attorney Mario Trevino (no relation to petitioner) negotiated a plea bargain on petitioner’s behalf in which petitioner would enter a plea to the capital murder charge and receive a life sentence without having to testify against any of his co-defendants. During an emotional debriefing with personnel from the Bexar County District Attorney’s office, petitioner broke down and, when the de-briefing resumed a week or two later, petitioner had changed his mind and refused to accept the plea bargain offered. D. GuilP-Innocence Phase of Trial The guilt-innocence phase of petitioner’s trial commenced on June 19, 1997. In addition to the evidence outlined above, the jury heard testimony from DNA and forensic experts establishing (1) the examination of a pair of blue women’s shorts and a pair of white women’s panties found at the crime scene, both identified by Linda Salinas’ mother as belonging to Linda, revealed the presence of polyester and cotton fibers which were consistent with a pair of slacks owned by the petitioner, (2) a blood stain found on Linda Salinas’ white panties contained a mixture of the DNA from at least two persons, with DNA testing eliminating all but Linda Salinas and the petitioner (from among those identified by Juan Gonzales as present at Espada Park on the night of the murder) as possible sources of the DNA included in that mixed bloodstain, and (3) the oral, vaginal, and anal swabs taken from Linda Salinas’ body during autopsy failed to reveal the presence of sperm or seminal fluid. On July 1, 1997, after deliberating less than six hours, petitioner’s jury returned a guilty verdict. E. Punishment Phase of Trial The punishment phase of petitioner’s trial commenced on July 2,1997. The prosecution presented evidence establishing (1) petitioner was first referred to the Bexar County juvenile probation office at age thirteen, (2) as a juvenile, petitioner was adjudicated on charges of evading arrest, possession of up to two ounces of marijuana, unauthorized use of a motor vehicle, and unlawfully carrying a weapon (identified as a nine millimeter handgun), and (3) petitioner was convicted as an adult of operating a motor vehicle while intoxicated, burglary of a vehicle, and burglary of a building. The jury also heard uncontradicted testimony establishing (1) petitioner had identified himself to a juvenile probation officer as a member of a street gang and (2) petitioner was a documented prison gang member whose body bore the tell-tale tattoos indicative of petitioner’s membership in the violent prison gang La Hermidad y Pistoleros Latinos (“HPL”). The defense presented a single witness, petitioner’s aunt, who testified (1) she had known petitioner all his life, (2) petitioner’s father was largely absent throughout petitioner’s life, (3) petitioner’s mother “has alcohol problems right now,” (4) petitioner’s family was on welfare during his childhood, (5) petitioner was a loner in school, (6) petitioner dropped out of school and went to work for his mother’s boyfriend doing roofing work, (7) petitioner is the father of one child and is good with children, often taking care of her two daughters, and (8) she knows petitioner is incapable of committing capital murder. On July 3, 1997, after deliberating approximately eight hours, petitioner’s jury returned its verdict at the punishment phase of trial, finding (1) beyond a reasonable doubt, there is a probability the petitioner would commit criminal acts of violence which would constitute a continuing threat to society, (2) beyond a reasonable doubt the petitioner actually caused the death of Linda Salmas or, if petitioner did not actually cause her death, the petitioner intended to Mil her or another, or the petitioner anticipated a human life would be taken, and (3) taMng into consideration all of the evidence, including the circumstances of the offense, the petitioner’s character and background, and the petitioner’s personal moral culpability, there were insufficient mitigating circumstances to warrant a sentence of life imprisonment be imposed upon petitioner. In accordance with the jury’s verdict, the state trial court imposed a sentence of death. F. Direct Appeal Petitioner appealed his conviction and sentence. In appellant’s brief filed September 4, 1998, petitioner presented nineteen claims for relief. In an opinion issued May 12, 1999, the Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence. Trevino v. State, 991 S.W.2d 849 (Tex.Crim.App.1999). Petitioner did not thereafter seek further review of his conviction or sentence via a petition for certiorari directed to the United States Supreme Court. G. First State Habeas Proceeding On April 19,1999, while his direct appeal was still pending, petitioner filed an application for state habeas corpus relief in which he urged forty-six grounds for relief. The state habeas trial court held an evidentiary hearing on July 10, 2000, during which petitioner called a single witness, his former trial co-counsel, attorney Mario Trevino, who testified, in pertinent part (1) he had no difficulty communicating with petitioner, (2) the defense team contacted Juan Gonzales prior to trial and knew what testimony Gonzales would give, (3) he negotiated a waiver of the death penalty for petitioner but, after initially accepting same, petitioner later rejected this plea bargain offer, (4) petitioner never denied participating in the offense and admitted he was present when Salinas was killed, (5) whenever defense counsel pressed petitioner about the facts of the offense, however, petitioner responded he was too stoned at the time of the offense to recall details, (6) petitioner never denied saying “I learned to kill in prison,” (7) defense counsel accepted petitioner’s assertions there was no way any of petitioner’s DNA could have been on Salinas’ clothing, and (8) the defense team was shocked when, on the eve of trial, the prosecution produced DNA test results showing petitioner as a possible source of a mixed blood stain found on Salinas’ panties. In an Order issued December 6, 2000, the state habeas trial court issued its findings of fact, conclusions of law, and recommendation that petitioner’s state habeas corpus application be denied. In an unpublished, per curiam Order issued April 4, 2001, the Texas Court of Criminal Appeals adopted the state habeas trial court’s findings and conclusions and denied petitioner’s state habeas corpus application. Ex parte Carlos Trevino, WR-48,153-01 (Tex.Crim.App. April 4, 2001). H. Initial Proceedings in this Court On March 14, 2002, represented by the same attorney (Albert Rodriguez) who had represented petitioner during his original state habeas corpus proceeding, petitioner filed his original petition for federal habeas corpus relief in this Court, asserting four claims for relief. Docket entry no. 10. After the respondent filed an answer and motion for summary judgment (docket entry no. 12), attorney Rodriguez filed a motion to withdraw, citing health concerns. Docket entry no. lb This Court granted attorney Rodriguez’s motion for leave to withdraw and appointed new counsel to represent petitioner herein. Docket entry nos. 17 & 21. Petitioner subsequently filed, and this Court granted, an unopposed motion for stay, seeking leave to return to state court and explore a potential mental retardation claim, as well as other unexhausted claims. Docket entry nos. 36 & 37. I. Second State Habeas Proceedings On August 15, 2004, petitioner filed his second state habeas corpus application, asserting new claims that (1) his trial counsel rendered ineffective assistance by failing to adequately investigate, develop, and present available mitigating evidence during the punishment phase of petitioner’s capital trial and (2) the Supreme Court’s holding in Atkins v. Virginia precluded petitioner’s execution because petitioner suffers from fetal alcohol syndrome. In an unpublished, per curiam Order issued November 23, 2005, the Texas Court of Criminal Appeals dismissed petitioner’s second state habeas corpus application pursuant to the Texas writ-abuse statute. Ex parte Carlos Trevino, WR-48,153-02, 2005 WL 3119064 (Tex.Crim.App. November 23, 2005). J. Further Proceedings in this Court This Court issued a new scheduling order in December 2005. Docket entry no. b2. Thereafter, petitioner filed, and this Court granted in August 2006, another motion for stay in which petitioner sought to return to state court and exhaust a new, unexhausted, Brady claim based on the discovery of a witness statement given by petitioner’s accomplice Seanido “Sam” Rey in which Rey stated that Santos Cervantes told Rey he (Cervantes) had stabbed Salinas. Docket entry nos. 49, 50 & 54 K. Further State Court Proceedings Petitioner thereafter filed a motion for appointment of counsel in state court, seeking legal representation in connection with his new Brady claim. However, despite the passage of more than two years and the best efforts of counsel for the parties now before this Court to get the state judicial officer in question to act, the state judicial officer to whom the petitioner’s motion for appointment of counsel was referred steadfastly refused to rule on petitioner’s motion. L. Return to this Court In an Order issued October 2, 2008, this Court lifted the stay and set deadlines for the completion of the remainder of the proceedings in this cause. Docket entry no. 62. On December 8, 2008, petitioner filed his amended petition for federal habeas corpus relief, in which he asserted eight grounds for relief. Docket entry no. 76. Respondent filed his Answer thereto on June 22, 2009. Docket entry no. 82. Petitioner filed his response to respondent’s Answer on September 14, 2009. II. AEDPA Standard of Review Because petitioner filed his federal habeas corpus action after the effective date of the AEDPA, this Court’s review of petitioner’s claims for federal habeas corpus relief is governed by the AEDPA. Penry v. Johnson, 532. U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 1438, 161 L.Ed.2d 334 (2005); Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000); 28 U.S.C. § 2254(d). The Supreme Court has concluded the “contrary to” and “unreasonable application” clauses of 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, 550 U.S. 465, 473, 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 de termination 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. Alva mdo, 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, 550 U.S. at 473-74, 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) (“[W]e presume the Texas court’s factual findings to be sound unless Miller-El rebuts the ‘presumption of correctness by clear and convincing evidence.’ ”); 28 U.S.C. § 2254(e)(1). However, the deference to which state-court factual findings are entitled under the AEDPA does not imply an abandonment or abdication of federal judicial review. See Miller-El v. Dretke, 545 U.S. at 240, 125 S.Ct. at 2325 (the standard is “demanding but not insatiable”); Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 1041, 154 L.Ed.2d 931 (2003) (“Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.”). Finally, in this Circuit, a federal habeas court reviewing a state court’s rejection on the merits of a claim for relief pursuant to the AEDPA must focus exclusively on the propriety of the ultimate decision reached by the state court and not evaluate the quality, or lack thereof, of the state court’s written opinion supporting its decision. See St. Aubin v. Quarterman, 470 F.3d 1096, 1100 (5th Cir.2006) (holding Section 2254(d) permits a federal habeas court to review only a state court’s decision and not the written opinion explaining that decision), cert. denied, 550 U.S. 921, 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, 550 U.S. 920, 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. Brady Claim A. The Claim In his first claim in his amended petition, petitioner argues his constitutional rights under the Supreme Court’s holding in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), were violated when the prosecution withheld from petitioner’s trial counsel Seanido Rey’ s June 12,1996 statement to police indicating Santos Cervantes claimed to have actually stabbed Salinas. Because no state court has yet either addressed the merits of this claim or dismissed same as procedurally defaulted, this Court’s review of this claim is necessarily de novo. See Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 2467, 162 L.Ed.2d 360 (2005) (holding de novo review of the prejudice prong of Strickland was required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice). B. Circumstances That Render State Habeas Processes Ineffective Respondent correctly points out that petitioner has thus far been unable to obtain a ruling from the state courts on the merits of petitioner’s Brady claim. Under the circumstances of this case, that failure cannot reasonably be ascribed to any fault of the petitioner. It was petitioner’s federal habeas counsel who first discovered the statement of Seanido Rey that forms the basis for petitioner’s Brady claim. When confronted with a non-frivolous Brady claim (see docket entry no. 49), this Court stayed this cause for the express purpose of permitting petitioner an opportunity to return to state court to exhaust state habeas remedies on his newly discovered, non-frivolous claim. Thereafter, petitioner filed a motion for appointment of counsel in the appropriate state trial court for the purpose of obtaining the assistance of counsel to exhaust state habeas remedies on petitioner’s Brady claim. However, for reasons known only to the state judicial officer who had the responsibility to address petitioner’s motion, and despite explicit entreaties from this Court (see docket entry no. 61), more than two years passed with no indication the courts of the State of Texas would ever address petitioner’s motion. The applicable federal statute prohibits this Court from granting relief unless the petitioner has either (1) exhausted available state court remedies, (2) there is an absence of available state corrective process, or (3) circumstances exist that render such process ineffective to protect the federal habeas petitioner’s rights. 28 U.S.C. § 2254(b)(1). The refusal of the responsible state judicial officer to even address petitioner’s motion for appointment of counsel for more than two years convinces this Court that circumstances exist that render any otherwise available state habeas processes wholly ineffective to protect petitioner’s federal constitutional rights. Any procedure that compels a death row inmate to litigate a non-frivolous Brady claim in the state courts without the assistance of counsel is necessarily ineffective to protect that prisoner’s federal constitutional rights. Therefore, petitioner’s failure to exhaust available state remedies with regard to his Brady claim is statutorily excused in this case. C. The Applicable Constitutional Standard 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); Bartee v. Quarterman, 574 F.Supp.2d 624, 690-93 (W.D.Tex. 2008), CoA denied, 339 Fed.Appx. 429 (5th Cir.2009), cert. filed November 23, 2009 (09-7757); Moore v. Quarterman, 526 F.Supp.2d 654, 678-79 (W.D.Tex.2007), CoA denied, 534 F.3d 454 (5th Cir.2008); Berkley v. Quarterman, 507 F.Supp.2d 692, 746 (W.D.Tex.2007), CoA denied, 310 Fed.Appx. 665 (5th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 366, 175 L.Ed.2d 70 (2009). 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). “[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. 419, 437-38, 115 S.Ct. 1555, 1567-68, 131 L.Ed.2d 490 (1995). 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 Supreme Court has emphasized four aspects of the Brady materiality inquiry. First, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted in the defendant’s acquittal. See United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383 (expressly adopting the “prejudice” prong of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), analysis of ineffective assistance claims as the appropriate standard for determining “materiality” under Brady). Second, the materiality standard is not a sufficiency of the evidence test. Kyles v. Whitley, 514 U.S. at 434-35, 115 S.Ct. at 1566. Third, once materiality is established, harmless error analysis has no application. Kyles v. Whitley, 514 U.S. at 435-36, 115 S.Ct. at 1566-67. Finally, materiality must be assessed collectively, not item by item. Kyles v. Whitley, 514 U.S. at 436-37, 115 S.Ct. at 1567. The rule in Brady applies to impeachment evidence. Strickler v. Greene, 527 U.S. at 280, 119 S.Ct. at 1948; United States v. Bagley, 473 U.S. at 676 & 685, 105 S.Ct. at 3380 & 3385. D. Synthesis There are many unresolved factual disputes before this Court concerning precisely what documentation was made available to petitioner’s trial counsel by the prosecution before and during petitioner’s capital murder trial. More specifically, there appears to be a genuine issue of material fact regarding whether petitioner’s accomplice Rey’s statement, which indicated Cervantes admitted to Rey that he stabbed Salinas, was ever made available to petitioner’s trial counsel. It is unnecessary to resolve these disputes because, having reviewed the evidence from both phases of petitioner’s trial, this Court concludes Rey’s statement does not satisfy the “materiality” prong for purposes of Brady analysis. 1. Guilt-Innocence Phase of Trial The trial testimony of petitioner’s teenage cousin Juan “Tati” Gonzales did not place the murder weapon in petitioner’s hands. Gonzales’ testimony at the guilt-innocence phase of petitioner’s trial tended to minimize petitioner’s role in the offense and emphasize Cervantes’ role as the person who lured Salinas into Apolinar’s vehicle, took the lead in beating and sexually assaulting Salinas, and then burned Salinas’ backpack. Furthermore, Gonzales was clear that (1) he never saw anyone with a knife or other weapon in then-hands at the crime scene, (2) he saw blood on both petitioner and Cervantes when they returned to Apolinar’s vehicle, (3) it was Cervantes who brought up the subject of a knife during the group’s drive away from Espada Park, (4) Cervantes did own a knife, which Cervantes told Gonzales he destroyed and threw into a river only days after Salinas’ murder, (5) Gonzales knew the girl was dead based on Cervantes’ statements, and (6) Gonzales asked Cervantes why Cervantes had murdered the girl. Gonzales likewise made it clear he held Cervantes responsible for the girl’s murder. Nothing in Rey’s statement to police suggests any of the foregoing testimony by Gonzales was factually inaccurate. The only evidence before petitioner’s jury at the guilt-innocence phase of trial obliquely suggesting petitioner might have been the person who killed Salinas consisted of an exchange between the petitioner and Cervantes recounted by Gonzales in which Cervantes made a comment to petitioner to which petitioner responded with “I learned how to kill.” However, according to Gonzales, this comment by petitioner was made in response to Cervantes’ bizarre comment about snapping the girl’s neck, something which the medical examiner testified had not, in fact, occurred. Furthermore, the only other inculpatory exchange between petitioner and Cervantes recounted for the jury by Gonzales during the guilt-innocence phase of trial consisted of petitioner allegedly responding to Cervantes and Rey’s comments about not wanting any witnesses with a statement “we’ll do what we have to do.” However, on cross-examination, Gonzales admitted that the conversation in question took place at the crime scene in a mixture of both English and Spanish and that petitioner’s actual words could have been “do what you have to do.” Thus, there was virtually no evidence before the jury at the guilt-innocence phase of trial, even when Gonzales’ testimony is considered in the light most favorable to the prosecution’s theory of the case, suggesting the petitioner was the one who actually stabbed Salinas. Therefore, rather than refuting Gonzales’ trial testimony during the guilt-innocence phase of trial, Rey’s newly discovered statement to police identifying Cervantes as the person who actually stabbed Salinas did little more than corroborate Gonzales’ version of the critical events, which tended to emphasize Cervantes as the principal actor in Salinas’ abduction, sexual assault, and murder. Thus, Rey’s statement would have possessed little-to-no impeachment value in terms of Gonzales’ guilt-innocence phase testimony. Rey’s statement, assuming it could have been admitted as that of a co-conspirator made in the furtherance of a criminal conspiracy or under an exception to the Hearsay Rule, at best would have confirmed what Gonzales had already strongly suggested to the jury, ie., that Cervantes was responsible for Salinas’ murder. More significantly, nothing in Rey’s statement to police suggests there was anything factually inaccurate about any inculpatory aspect of Gonzales’ testimony during the guilt-innocence phase of petitioner’s trial. At the guilt-innocence phase of trial, the state trial court charged petitioner’s jury under the Texas law of parties: Our law provides a person is criminally responsible as a party to an offense if the offense is committed by his own conduct, or by the conduct of another for which he is criminally responsible, or by both. Each party to an offense may be charged with commission of the offense. Mere presence alone will not make a person a party to an offense. A person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense he solicits, encourages, directs, aids or attempts to aid the other person to commit the offense. If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. Capital murder and aggravated sexual assault are felonies. The term “conspiracy”, as used in these instructions, means an agreement between two or more persons, with intent that a felony be committed, that they, or one or more of them, engage in conduct that would constitute the offense. An agreement constituting a conspiracy may be inferred from acts of the parties. Thus, petitioner’s jury properly could have convicted petitioner without a showing that petitioner was the person who fatally stabbed Salinas. Even more significantly, petitioner has alleged no facts, much less furnished this Court with any evidence, suggesting any of the inculpatory comments attributed to the petitioner by Gonzales during the guilt-innocence phase of petitioner’s trial were factually inaccurate or erroneously recounted. On the contrary, the record now before this Court includes the uncontradicted testimony of petitioner’s former lead trial counsel, which established petitioner never informed his trial counsel that any of Gonzales’ trial testimony was factually inaccurate. Petitioner never denied to his trial counsel being physically present when Salinas was murdered. Nothing in Rey’s statement to police suggests Gonzales testified falsely about the petitioner (1) holding Salinas down while Rey raped her, (2) telling Cervantes either “we’ll do what we have to do” or “do what you have to do” in response to comments from Rey and Cervantes about their desire not to leave any witnesses, or (3) telling Gonzales to say nothing to the police about the incident. At best, Rey’s hearsay-within-hearsay statement to police establishes Cervantes stabbed Salinas. The medical examiner testified without contradiction that Salinas was stabbed twice. Nothing in Rey’s statement forecloses the possibility Cervantes and the petitioner each stabbed Salinas once. Thus, Rey’s statement to police does not afford any basis for impeaching the most salient, inculpatory, portions of Gonzales’ testimony at the guilt-innocence phase of petitioner’s trial. Given the record at the guilt-innocence phase of petitioner’s trial, there is simply no reasonable probability that, but for the failure of the prosecution to disclose Rey’s statement to petitioner’s trial counsel, the outcome of the guilt-innocence phase of petitioner’s trial would have been different. See Banks v. Dretke, 540 U.S. at 698-99, 124 S.Ct. at 1276 (holding 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). 2. Punishment Phase of Trial As was explained above, during the punishment phase of petitioner’s trial, the jury was faced not only with the brutal details of Salinas’ sexual assault and murder, but also with evidence establishing the petitioner (1) came from a poor, broken family background, which including an absent father and an alcoholic mother, (2) had been on his own most of his life, (3) admitted to membership in a street gang as a teenager, (4) had been convicted as a youth and adult of a wide range of offenses, including auto theft, burglary, evading arrest, driving while intoxicated, and illegally carrying a handgun, and (5) bore numerous tattoos indicating his membership in a notoriously violent prison gang. More significantly, petitioner’s jury was faced with a record utterly bereft of any indication the petitioner had ever accepted responsibility for his involvement in Salinas’ murder or expressed sincere contrition over her death. On the contrary, Gonzales testified without contradiction during the guilt-innocence phase of trial that, at one point during the sexual assault upon the fifteen-year-old Salinas, the petitioner urged Gonzales to rape Salinas. Moreover, during the punishment phase of petitioner’s trial, Gonzales also testified without contradiction the petitioner (1) told Cervantes “I learned how to kill in prison” and “I learned how to use a knife in prison,” and (2) had only been out of prison a few weeks prior to Salinas’ murder. Significantly, Gonzales admitted he never saw the petitioner sexually assault or stab Salinas. Thus, nothing in Rey’s statement to police (about Cervantes’ confession to having stabbed Salinas) contradicts or impeaches any of Gonzales’ most aggravating testimony establishing the petitioner (1) held Salmas down while Rey sexually assaulted her, (2) urged Gonzales to participate in the sexual assault of Salinas, (3) said nothing to dissuade Cervantes and Rey from killing Salinas when they commented they did not want to leave any witnesses, (4) had blood on him when he returned to Apolinar’s vehicle, (5) urged Gonzales not to tell the police what happened the night of the murder, (6) had been out of prison only a few weeks at the time of Salinas’ murder, or (7) told Cervantes he (the petitioner) had “learned how to kill in prison.” In addition, petitioner’s sentencing jury also had before it the uncontradicted tes-" timony of Jay Mata establishing that, after their return to Mata’s residence the evening of Salinas’ murder, the petitioner appeared nonchalant while Cervantes appeared nervous, scared, and introspective. During the punishment phase of petitioner’s capital murder trial, the jury was confronted with three special issues inquiring whether (1) beyond a reasonable doubt there was a probability the petitioner would commit criminal acts of violence that would constitute a continuing threat to society, (2) beyond a reasonable doubt the petitioner actually caused the death of Salinas or, if he did not actually cause Salinas’ death, he intended to kill Salmas or another or he anticipated that a human life would be taken, and (8) taking into consideration all of the evidence, including the circumstances of the offense and the petitioner’s character, background, and personal moral culpability, there were sufficient mitigating circumstances to warrant a sentence of life imprisonment, rather than a death sentence, be imposed. Rey’s statement to police is most directly relevant to the second special issue, which still allowed an affirmative answer even if the jury were convinced, as Gonzales had strongly suggested throughout his trial testimony (and as Rey stated to police), that Cervantes was the person who actually stabbed Salinas. The upshot of Rey’s statement is also somewhat relevant to the mitigation special issue. The problem for petitioner in terms of the materiality analysis under Brady is that petitioner does not contest the accuracy of any of Gonzales’ relevant trial testimony. Moreover, nothing in Rey’s statement to police dated June 12, 1996 contradicts the accuracy of Gonzales’ testimonial recitation of the inculpatory and aggravating statements made by petitioner to Cervantes. Likewise, Rey does not claim in his statement to have actually witnessed Salinas’ murder or to possess any personal knowledge of who stabbed Salinas. Instead, like Gonzales, Rey merely claims to have engaged in a conversation after the fact during which Cervantes claimed to have stabbed Salinas himself. In addition, the “mitigating” aspects of Rey’s statement to police also must be weighed in light of the absence therein of any admission by Rey that he participated in the sexual assault on Salinas. Rey’s sexual assault on Salinas played a prominent role in Gonzales’ trial testimony but petitioner does not allege, even at this date, Gonzales was inaccurate in his description of the sexual assault on Salinas. Under these circumstances, there is no reasonable probability that, but for the failure of the prosecution to disclose to petitioner’s trial counsel Rey’s statement to police (stating Cervantes had confessed to stabbing Salinas), the outcome of the punishment phase of petitioner’s capital murder trial would have been different. More simply, there is no reasonable probability the petitioner’s jury would have answered any of the capital sentencing special issues differently had the prosecution made Rey’s statement available to petitioner’s trial counsel. E. Conclusions Assuming that Rey’s recently discovered statement of June 12, 1996 satisfies the other prongs of the Brady analysis, petitioner’s claim fails because the contents of Rey’s statement to police indicating Cervantes claimed to have stabbed Salinas were not “material” within the meaning of Brady. See Banks v. Dretke, 540 U.S. at 698-99, 124 S.Ct. at 1276 (holding 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). Rey’s statement does not negate Gonzales’ trial testimony. Viewed in the context of petitioner’s trial, there is no reasonable probability the disclosure of Rey’s statement to petitioner’s trial counsel would have resulted in a different outcome at either phase of petitioner’s capital murder trial. Petitioner’s first claim herein does not warrant federal habeas relief. IV. Ineffective Assistance Claims A. The Claims In the second, third, and sixth claims of his amended petition, petitioner argues his trial counsel rendered ineffective assistance by failing to (1) discover and employ Rey’s statement of June 12, 1996 during petitioner’s trial, (2) investigate, develop, and present mitigating evidence during the punishment phase of petitioner’s capital murder trial, (3) meaningfully convey the plea bargain offered to petitioner by the prosecution, and (4) object on hearsay grounds to the inculpatory statements made by petitioner recounted at trial by Juan Gonzales. B. The Constitutional Standard The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of trial counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 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. To satisfy the first prong of Strickland, i.e., establish that his counsel’s performance was constitutionally deficient, a convicted defendant must show that counsel’s representation “fell below an objective standard of reasonableness.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000). In so doing, a convicted defendant must carry the burden of proof and overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. at 687-91, 104 S.Ct. at 2064-66. 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. at 2536 (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 said 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. at 2066. To satisfy the “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. at 2542; Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068. 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. at 2542. 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, 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 (same). 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). C. Failure to Discover and Employ Rey’s Statement Petitioner argues his trial counsel should have investigated the case against petitioner more thoroughly, discovered Rey’s statement of June 12, 1996, and employed same during both phases of petitioner’s capital murder trial. 1.Circumstances That Render State Process Ineffective For the same reasons discussed at length in Section III.B. above, the refusal of the responsible state judicial officer to rule on petitioner’s motion for appointment of counsel when petitioner sought legal assistance to fairly present his unexhausted second claim herein to the state habeas court excuses petitioner’s failure to exhaust available state remedies on this aspect of petitioner’s ineffective assistance claims herein. 2. Standard of Review For the reasons discussed in Section III A. above, this Court must undertake a de novo review of petitioner’s second claim herein, the ineffective assistance claim, which no state court has yet addressed on the merits or dismissed on procedural grounds. 3. Synthesis For the same reasons discussed at length in Section I1ID. above, petitioner’s complaints about his trial counsel’s failure to discover and employ Seanido Rey’s June 12,1996 statement during petitioner’s capital murder trial do not satisfy the prejudice prong of Strickland analysis. There is no reasonable probability that, but for the failure of petitioner’s trial counsel to discover and employ Rey’s statement during petitioner’s trial, the outcome of either phase of petitioner’s capital murder trial would have been different. Rey’s hearsay-within-hearsay statement, even assuming it could have been admitted as a co-conspirator’s statement made iri^bhe furtherance of a criminal conspirág’ or under some other exception to the ifgarsay Rule, would have furnished firtualljmo impeachment value vis-a-vis GonzalewSrial testimony. fF Juan Gonzales made it clea/^fyoughout his trial testimony that he Considered Santos Cervantes the perm responsible for the death of Linda Salinas. Rey’s hearsay-within-hearsay statement suggesting Cervantes admitted to having stabbed Salinas offers little'»¿>f truly exculpatory or mitigating evidence. The medical examiner testified without contradiction that Salinas was stabbed twice. Petitioner alleges no new facts, and Rey’s statement contains none, that challenge the factual accuracy of Gonzales’ trial testimony regarding either the conduct of, or comments made by, petitioner before, during, or after Salinas’ murder. 4. Conclusions The contents of Seanido Rey’s June 12, 1996 statement to police do not satisfy the prejudice prong of Strickland analysis. Petitioner’s second claim herein does not, therefore, warrant federal habeas corpus relief. D. Failure to Investigate, Develop, & Present Mitigating Evidence Petitioner argues that if his trial counsel had investigated petitioner’s background more thoroughly, said counsel would have discovered “mitigating evidence” establishing (1) petitioner’s mother was an emotionally unstable, physically abusive, alcoholic who abused alcohol throughout her pregnancy with petitioner, (2) petitioner weighed only four pounds at birth and required considerable hospital care during his first few weeks of life, (3) for the rest of his life, petitioner suffered the deleterious effects of Fetal Alcohol Syndrome, as well as his mother’s physical and emotional abuse, (4) petitioner suffered numerous serious head injuries as a child for which he received little or no medical care due to the neglect of his mother and the absence of his father, (5) petitioner was exposed to alcohol and drug abuse from an early age and began abusing both alcohol and marijuana himself before he reached age twelve, (6) petitioner became involved in street gangs and street crime by age twelve, (7) petitioner experienced a lifetime of adversity, disadvantage, and disability, (8) petitioner attended school irregularly and performed poorly in school, and (9) petitioner suffers from impaired cognitive abilities. 1. State Court Disposition Petitioner first presented this claim to the state courts in his second state habeas corpus application, which the Texas Court of Criminal Appeals dismissed on writ-abuse grounds. Ex parte Carlos Trevino, WR-48,153-02, 2005 WL 3119064 (Tex. Crim.App. November 23, 2005). 2. Procedural Default on Dismissed Claims Respondent argues petitioner procedurally defaulted on this multi-faceted claim by failing to present same to the state habeas court during petitioner’s first state habeas corpus proceeding, which resulted in the dismissal of this claim when presented in petitioner’s second state habeas corpus application. a. Procedural Default Generally Procedural default occurs where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, or (2) the petitioner fails to exhaust all available state remedies, and the state court to which he would be required to petition would now find the claims proeedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991). In either instance, the petitioner is deemed to have forfeited his federal habeas claim. O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999). Procedural defaults only bar federal habeas review when the state procedural rule that 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). The Fifth Circuit has consistently held that federal habeas review is procedurally barred on claims dismissed by the Texas Court of Criminal Appeals under the Texas writ-abuse statute. See, e.g., 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, 549 U.S. 1343, 127 S.Ct. 2030, 167 L.Ed.2d 772 (2007); Aguilar v. Dretke, 428 F.3d 526, 533 (5th Cir.2005) (holding the Texas abuse of the writ rule ordinarily is 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) (holding the violation of the Texas writ-abuse rule ordinarily furnishes an adequate and independent procedural ground which bars federal habeas review of a claim), 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); Cotton v. Cockrell, 343 F.3d 746, 755 (5th Cir.2003) (holding the Texas writ abuse doctrine is an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 540 U.S. 1186, 124 S.Ct. 1417, 158 L.Ed.2d 92 (2004). b. Exceptions Inapplicable The Supreme Court has recognized exceptions to the doctrine of procedural default where a federal habeas corpus petitioner can show “cause and actual prejudice” for his default or that failure to address the merits of his procedurally defaulted claim will work a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565; Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). To establish “cause,” a petitioner must show either that some objective external factor impeded the defense counsel’s ability to comply with the state’s procedural rules or that petitioner’s trial or appellate counsel rendered ineffective assistance. Coleman v. Thompson, 501 U.S. at 753, 111 S.Ct. at 2566; Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (holding that proof of ineffective assistance by counsel satisfies the “cause” prong of the exception to the procedural default doctrine). While a showing of ineffective assistance can satisfy the “cause” prong of the “cause and actual prejudice” exception to the procedural default doctrine, petitioner cannot rely upon the allegedly deficient performance or even “ineffective” assistance of his first state habeas corpus counsel as a basis for excusing his failure to present this aspect of his ineffective assistance claims herein to the state courts during petitioner’s first state habeas corpus proceeding. A negligent failure or a malicious refusal by a convicted defendant’s state habeas counsel to present a potentially meritorious claim in the course of the defendant’s state habeas corpus proceeding effectively precludes federal habeas review of that claim, unless the defendant can satisfy the fundamental miscarriage of justice exception to the federal procedural default doctrine. See Ruiz v. Dretke, 2005 WL 2146119, *14 (W.D.Tex. August 29, 2005) (holding a state habeas counsel’s inexplicable failure to assert glaringly obvious grounds for state habeas corpus relief constituted a procedural barrier to federal habeas review of those same unexhausted claims), affirmed, 460 F.3d 638 (5th Cir.2006), cert. denied, 549 U.S. 1283, 127 S.Ct. 1815, 167 L.Ed.2d 326 (2007). Infirmities in state habeas corpus proceedings, even those that arise exclusively from the gross incompetence of a petitioner’s state habeas counsel, do not constitute grounds for federal habeas relief and are insufficient to excuse a federal habeas petitioner’s procedural default on a federal constitutional claim. Ruiz v. Quarterman, 460 F.3d 638, 644-45 (5th Cir.2006), cert. denied, 549 U.S. 1283, 127 S.Ct. 1815, 167 L.Ed.2d 326 (2007). In order to satisfy the “miscarriage of justice” test, the petitioner must supplement his constitutional claim with a colorable showing of factual innocence. Sawyer v. Whitley, 505 U.S. 333, 335-36, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992). In the context of the punishment phase of a capital trial, the Supreme Court has held that a showing of “actual innocence” is made when a petitioner shows by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found petitioner eligible for the death penalty under applicable state law. Sawyer v. Whitley, 505 U.S. at 346-48, 112 S.Ct. at 2523. The Supreme Court explained in Sawyer v. Whitley this “actual innocence” requirement focuses on those elements that 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. Instead petitioner merely cites to a plethora of new, double-edged, mitigating evidence, which he argues was available at the time of petitioner’s trial and which might have convinced his jury to answer the final capital sentencing special issue, i.e., the mitigation special issue, in a manner favorable to petitioner. Even with this additional, potentially mitigating evidence, petitioner would have remained “eligible” for the death penalty because none of this evidence had any potentially mitigating effect with regard to the first two capital sentencing special issues before petitioner’s jury. In fact, evidence showing petitioner’s virtually lifelong criminal history, Fetal Alcohol Syndrome, long history of alcohol and narcotics abuse, as well as petitioner’s abused and neglected childhood would likely have solidified the jury’s affirmative answer to the first capital sentencing special issue, i.e., the future dangerousness special issue. Moreover, some of petitioner’s purportedly “new” mitigating evidence was cumulative of the evidence already before petitioner’s capital sentencing jury. For instance, both Juan Gonzales and Juanita DeLeon testified during the punishment phase of petitioner’s trial that