Full opinion text
MEMORANDUM AND ORDER MELINDA HARMON, District Judge. Robert Woodard, an inmate on Texas’ death row, seeks federal habeas corpus relief. Woodard has filed a federal petition for a writ of habeas corpus that challenges his capital conviction and death sentence. Respondent Rick Thaler has moved for summary judgment. This Court has considered the pleadings, record, and law, particularly the relevant provisions of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). For the reasons discussed at length below, the Court finds that Woodard has not shown an entitlement to federal habeas relief. Accordingly, the Court will grant Respondent’s summary judgment motion and deny Woodard’s habeas petition. The Court will not certify any issue for appellate review. BACKGROUND The State of Texas indicted Woodard for murdering Achamma and Thankachen Mathai during a robbery on February 12, 2000. Woodard stood trial in the 339th District Court of Harris County, Texas. The Texas Court of Criminal Appeals has summarized the facts surrounding the murders as follows: The Mathais owned and operated a convenience store in Houston. On the night of February 12, 2000, Thankachen was working at the store, and Achamma had brought him dinner. Between 10 and 11 p.m., Cory Calloway bought gasoline from the store’s pumps for his 1989 Lincoln. Leaving the engine running at the gas pumps, Calloway went to a pay telephone at the side of the building. While Calloway talked on the phone, Garvina Sadiki came in the store to buy merchandise. As Sadiki paid for her items, a man dressed in a hooded jacket entered the store with a gun in his hand. The man fired a shot and said, “This is a robbery. Don’t anybody move.” The robber ran behind the counter where Thankachen and Achamma stood, and ordered Thankachen to open the register. He ordered Sadiki not to look at him, and she obeyed. When Thankachen could not get the register open, the robber shot him. The man then ordered Achamma to open the register and threatened to shoot Thankachen again if she did not. Achamma cried and screamed, begging the man not to hurt them. As she fumbled with the register, the man pointed the gun toward Thankachen and fired another shot. Hearing police sirens, the robber cursed and ran from behind the counter to the front door only to discover that it had been locked. The man screamed for Achamma to open the door. Sadiki heard the lock open, and she saw the man push open the door. Then the robber returned to the counter where Achamma and Sadiki were standing. He backed up to Sadiki, keeping his face hidden, and demanded her keys. Sadiki handed the man her keys. The man said to Achamma, “Bitch,” and he shot her in the head. He then ran out the front door. Outside the store, Calloway was still talking on the telephone. He heard the gunshots and then “a loud bust through the door.” He looked up and saw a person wearing a hooded sweater run toward his Lincoln. Calloway ran toward the man, who pointed a gun at him. Calloway retreated to safety, and the man drove away in Calloway’s Lincoln. Calloway went in the store and called for help. Police officers arrived quickly. Achamma was already dead. Thankachen died shortly after being taken to a hospital. Woodard v. State, No. 74,080, 2005 WL 77143, at *1 (Tex.Crim.App. Oct. 20, 2004) (unpublished). Woodard’s identity as the man wearing the hooded jacket was a central issue at trial. The State relied on eyewitness testimony from Garvina Sadiki and Cory Calloway to establish Woodard’s identity as the murderer. Ms. Sadiki did not get a good look at the killer’s face. Tr. Vol. 24 at 105. She did not conclusively recognize anyone in a live line-up, but Woodard “gave [her] a real strange feeling. It just made [her] feel real eerie inside.” Despite the uneasy feeling Woodard gave Ms. Sadiki, she told the police that she could not make a positive identification. Tr. Vol. 24 at 108-09. Nevertheless, she thought that Woodard had “slender hands” like the murderer. Cory Calloway made a stronger identification. Six days after the murders, Mr. Calloway viewed Woodard in a live lineup, but qualified that he could only make a “strongly tentative” identification. He said he would be “100 percent sure” if he could see Woodard in a hooded jacket like that worn during the robbery. Because the police could not locate similar clothing for the live lineup, they later showed Mr. Calloway a photo array wherein they superimposed hoods over the men’s pictures. Mr. Calloway then conclusively recognized Woodard. Both Ms. Sadiki and Mr. Calloway identified Woodard at trial. However, the prosecution’s case against Woodard did not rely on eyewitness testimony alone. Circumstantial evidence and incriminatory testimony otherwise confirmed Woodard’s guilt. A Crime Stoppers tip led to a police investigation which turned up evidence pointing to Woodard as the murderer. The police found Mr. Calloway’s Lincoln at the apartment complex where Woodard’s brother Reginald Willis lived. The police searched Mr. Willis’ apartment and found items stolen from Mr. Calloway. The police linked Woodard to the robbery/murder through interviews with Woodard’s friends and family members. For example, Mr. Willis’ girlfriend Caspar Hines told the police that around the time of the murders Woodard showed up at their apartment wearing black gloves and knocking on the door loudly. Woodard carried items taken from Mr. Calloway’s car into her apartment. Woodard tried to give her a gun that was “hot.” Woodard’s friend Dan Webster also saw him soon after the murders. Woodard had been driving a Lincoln like that stolen from Mr. Calloway and possessed items that had been in Mr. Calloway’s car. Woodard told Mr. Webster that he had robbed a store and fired shots because a woman would not open the cash register. Woodard said that he thought that he had killed the woman. Woodard said that he stole the car immediately afterwards. Woodard also confessed that “he had messed up, and he hope God forgive him.” Tr. Vol. 26 at 83. Mr. Webster explained that Woodard carried many lottery tickets which he stole during the robbery. Woodard, Mr. Webster, and Mr. Willis scratched off the tickets. Mr. Webster later took several tickets to stores for redemption. Store clerks later identified Woodard as also having turned in some of the stolen lottery tickets. Woodard told his brother that he robbed the store, fired his gun, and stole Mr. Calloway’s car. Mr. Willis saw Woodard with several stolen items. Mr. Willis told the police how Woodard had disposed of the murder weapon. A man performing cleanup for community service later found parts of a gun similar to that used in the murder in the same location where Woodard got rid of the weapon. Based on information from Mr. Willis, Ms. Hines, and Mr. Webster, the police began preparing an arrest warrant for Woodard. On February 17, 2000, police officers arrested Woodard outside his apartment complex. The police had not yet secured an arrest warrant. Woodard, however, consented to a subsequent search of his apartment, which turned up a cell phone stolen from Mr. Calloway along with ammunition similar to that used in the killings. Before trial, on appeal, and in this proceeding, Woodard has challenged the legality of his arrest and the subsequent search. The trial court appointed Robert Loper and Loretta Muldrow to represent Woodard. The prosecution’s case against Woodard rested on two main arguments: (1) eyewitnesses identified him as the killer; and (2) Woodard’s statements and possession of incriminating items tied him to the murders. The defense responded with a two-fold strategy. First, the defense extensively attacked the reliability of the eyewitness identification through cross-examination. Second, the defense pointed to Woodard’s brother Reginald Willis as the one who committed the robbery and murders. The defense called witnesses who testified that Mr. Willis made statements that implicated himself, along with Woodard, in the robbery/murders. The defense also challenged Mr. Willis’ alibi. The jury instructions allowed for Woodard’s conviction under three theories: (1) he murdered Achamma Mathai during the course of a robbery; (2) he murdered Thankachen Mathai during the course of a robbery; or (3) he killed both victims during the same criminal transaction. Clerk’s Record at 254-55. The jury convicted Woodard of capital murder. In a separate punishment phase, the jury had to answer two special issue questions: Special Issue No. 1 Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant, Robert L. Woodard, would commit criminal acts of violence that would constitute a continuing threat to society? Special Issue No. 2 Do you find from the evidence, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, Robert L. Woodard, that there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed? Clerk’s Record at 273-74. The State presented evidence showing that, despite his young age, Woodard had a long history of criminal activity and violence. Woodard’s lawlessness began at age fourteen with an arrest for possessing several rocks of cocaine. That same year he stole a car at gunpoint. Gang activity marked Woodard’s teenage years. While some of his offenses were comparatively minor, such as curfew violations and trespassing, he had also had previously committed assaults and thefts. Continued drug use led to the revocation of a probated sentence for possession of marijuana. While incarcerated for that crime, Woodard received disciplinary convictions for possession of contraband, extortion of other inmates, assault of fellow inmates, and interfering with a head count. Jail personnel described Woodard as confrontational, disruptive, and threatening. The prosecution also presented testimony about the impact the murders had on the victims’ family members. In sum, the prosecution characterized Woodard as a violent man whose aggressive actions had escalated to capital murder, but for whom the jurors could have no confidence that incarceration would abate his lawlessness. The defense presented evidence intending to humanize Woodard and show that he would not be a future threat to society. Family members described Woodard’s turbulent, impoverished, abused, and neglected upbringing. Because of his father’s absence and his mother’s instability and early death, members of the extended family had raised Woodard. Jailors testified that Woodard’s behavior before trial, in contrast to his earlier imprisonment, was not marred by disciplinary problems. A clinical psychologist, Dr. Shirley Gruen, testified that Woodard behaved well in a structured environment like prison. The jury answered the special issues in a manner requiring the imposition of a death sentence. In compliance with Texas law, Woodard’s direct appeal and state habeas proceedings ran concurrently. In both actions, the Texas Court of Criminal Appeals found no error and affirmed Woodard’s conviction and sentence. These federal habeas proceedings followed. In his federal habeas petition, Woodard raises the following grounds for relief: 1. The police arrest and the introduction of evidence from the subsequent line-up violated Woodard’s rights under the Fourth Amendment. 2. The procedures used by the police in the line-up were impermissibly suggestive and created a heightened chance for an incorrect identification. 3. Trial counsel inadequately advised Woodard of his right to testify at trial. 4. Trial counsel should have retained an expert witness to challenge the eyewitnesses’ testimony. 5. Trial counsel ineffectively impeached the prosecution’s witnesses. 6. Trial counsel inadequately prepared an expert to testify at the punishment phase of trial. 7. Trial counsel did not object to a prosecutor’s alleged misstatement of the law. 8. Trial counsel’s errors, when considered cumulatively, amount to a constitutional violation. 9. Appellate counsel rendered ineffective assistance. 10. Insufficient evidence proved that Woodard would be a future societal danger. 11. The future-dangerousness special issue unconstitutionally failed to place a beyond-a-reasonable-doubt burden on the prosecution. 12. The future dangerousness special issue unconstitutionally (1) fails to allocate a burden to the State and (2) does not require jury unanimity with regard to aggravating unadjudicated offenses. 13. The mitigation special issue is unconstitutional because it does not incorporate a proof-beyond-a-reasonable-doubt standard. 14. Texas’ habeas corpus scheme that runs concurrent to direct appeal violates the federal constitution. 15. Woodard is actually innocent of capital murder. 16. The State failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Respondent has filed a motion for summary judgment arguing that procedural law bars federal consideration of several claims. Respondent also asserts that all Woodard’s claims are without merit. Woodard has requested that the Court hold an evidentiary hearing. The Court finds that Woodard’s petition is ripe for adjudication. LEGAL STANDARDS The Constitution honors the writ of habeas corpus as “a vital instrument for the protection of individual liberty[.]” Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 2246, 171 L.Ed.2d 41 (2008). Federal courts and Congress, however, “adjust the scope of the writ in accordance with equitable and prudential considerations.” Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 1040, 169 L.Ed.2d 859 (2008). Congress has limited federal habeas jurisdiction to the question of whether an inmate “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Thus, “[t]he role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials.” Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); see also Moore v. Dempsey, 261 U.S. 86, 87-88, 43 S.Ct. 265, 67 L.Ed. 543 (1923) (“[Wjhat we have to deal with [on habeas review] is not the petitioners’ innocence or guilt but solely the question whether their constitutional rights have been preserved.”). Through statutory and jurisprudential limitations, federal habeas proceedings honor the “presumption of finality and legality [that] attaches to [a petitioner’s] conviction and sentence.” Barefoot, 463 U.S. at 887, 103 S.Ct. 3383. Federal courts give effect to the traditional limits of habeas review through the AEDPA’s deferential review of state court judgments. “Congress enacted AEDPA to reduce delays in the execution of state and federal criminal sentences, particularly in capital eases and to further the principles of comity, finality, and federalism!.]” Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003) (quotation and citation omitted). The AEDPA exists “to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). To that end, the AEDPA forbids habeas relief on issues “adjudicated on the merits” in state court unless the state decision “was contrary to, or an unreasonable application of, clearly established Federal law” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). In application, these standards liberally defer to state adjudication. The Supreme Court has held that a state court decision is only “contrary to” federal precedent if: (1) the state court’s conclusion is “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] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Cone, 535 U.S. at 698, 122 S.Ct. 1843; Early v. Packer, 537 U.S. 3, 7-8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). A state court unreasonably applies federal law only if it “identifies the correct governing legal rule from [the Supreme Court] cases but unreasonably applies it to the particular facts of the particular state prisoner’s case” or “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407, 120 S.Ct. 1495. Under 28 U.S.C. § 2254(d)(2) “a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding^]” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Jurisprudential doctrines further limit the availability of habeas relief. No Supreme Court case “ha[s] suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AED-PA standard^]” Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002); see also Robertson v. Cain, 324 F.3d 297, 306 (5th Cir.2003) (finding that 28 U.S.C. § 2254(d) “does not require federal habeas courts to grant relief reflexively”). Other judicial precepts, such as the harmless-error doctrine and the non-retro-activity principle, bridle federal habeas relief. See Thacker v. Dretke, 396 F.3d 607, 612 n. 2 (5th Cir.2005). Any trial error cannot require habeas relief unless it “ha[d] a ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Robertson, 324 F.3d at 304 (quoting Brecht v. Abrahamson, 507 U.S. 619, 629, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)); see also Aleman v. Sternes, 320 F.3d 687, 690-91 (7th Cir.2003) (“Nothing in the AEDPA suggests that it is appropriate to issue writs of habeas corpus even though any error of federal law that may have occurred did not affect the outcome.”). A habeas court likewise cannot grant relief if it would require the creation of new constitutional law. See Horn, 536 U.S. at 272, 122 S.Ct. 2147 (relying on Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)). Respondent has moved for summary judgment. Summary judgment is proper when the record shows “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In ordinary civil cases, a district court considering a motion for summary judgment must construe disputed facts in a light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”). “As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment, applies with equal force in the context of habeas corpus cases.” Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). However, a court on summary judgment must view the evidence through “the prism of the substantive evidentiary burden.” Anderson, 477 U.S. at 254, 106 S.Ct. 2505. Congress, through the AEDPA, has constricted both the nature and availability of habeas review. This Court, therefore, applies general summary judgment standards only insofar as they do not conflict with the language and intent of the AED-PA. See Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir.2002) (“[Rule 56] applies only to the extent that it does not conflict with the habeas rules.”), overruled on other grounds by Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004). The AEDPA’s significant deference to a state court’s resolution of factual issues guides summary judgment review in habeas eases. Woodard presented many of his claims in state court. The state courts issued detailed findings of fact and explicit conclusions of law with respect to each exhausted claim. A federal habeas court must presume the underlying factual determinations of the state court to be correct, unless the petitioner “rebut[s] the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Miller-El, 537 U.S. at 341, 123 S.Ct. 1029. Facts that the Texas state courts have decided adversely to Woodard bind this Court unless he sufficiently refutes them. With these standards in mind, the Court turns to the procedural adequacy and substantive merit of Woodard’s grounds for relief. PROCEDURAL ADEQUACY OF WOODARD’S CLAIMS Before the Court addresses Woodard’s grounds for relief, he must show that he advances them in a procedurally adequate manner. Respondent argues that three procedural hurdles prevent this Court from considering many of Woodard’s claims. First, Respondent argues that Woodard failed to raise claim 16 in a manner that complies with the AEDPA’s stringent limitations period. Next, Respondent asserts that this Court cannot consider claims 8, 9, and 16 because Woodard did not first give the state courts an opportunity to consider their merits. Finally, Respondent argues that the same state procedural law that prevented the state courts from considering claims 1, 10, 12, and 13 also forecloses federal review. I. Application of the AEDPA Limitations Period The AEDPA places strict limits on a petitioner’s ability to file for habeas corpus relief. Under 28 U.S.C. § 2244(d)(1)(A), an inmate generally has one year to file a federal habeas petition after his criminal judgment becomes final on direct appeal. The United States Supreme Court denied certiorari review from Woodard’s direct appeal on May 16, 2005, giving him one year to file in federal court unless some circumstance tolled the limitations period. The AEDPA allows a “properly filed application for State post-conviction or other collateral review” to toll that limitations period. 28 U.S.C. § 2244(d)(2). Woodard’s state habeas action ran concurrent to his direct appeal. Accordingly, Woodard had one full year from when the Court of Criminal Appeals denied habeas relief on June 27, 2007, to file a federal petition. Because Woodard filed his initial federal petition on June 26, 2008, that pleading is timely. Woodard’s initial petition, however, did not contain his sixteenth claim that the prosecution withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Woodard first raised his Brady claim in his amended federal petition dated November 17, 2008. Because Woodard filed the Brady claim outside the one-year limitations period, Respondent asserts that the AED-PA bars consideration of that one claim. The Supreme Court has held that the AEDPA generally prevents insertion of new claims into federal habeas cases after the expiration of the AEDPA’s limitations period. See Mayle v. Felix, 545 U.S. 644, 662, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). The Supreme Court has reasoned that “[i]f claims asserted after the one-year period could be revived simply because they relate to the same trial, conviction, or sentence as a timely filed claim, AEDPA’s limitation period would have slim significance.” Id. Unless a claim asserted in an amended petition “relates back” to the original pleading under Fed. R.Civ.P. 15(c), the claim is subject to dismissal under 28 U.S.C. § 2244(d). Because Woodard’s initial petition did not contain nor allude to his Brady claim, Respondent contends that its insertion into these proceedings in the amended petition is time-barred. Woodard has not responded to the time-bar argument. Woodard has not argued that his new Brady claim relates to his initial petition. Aso, Woodard makes no attempt to prove that statutory or equitable exceptions to the AEDPA’s limitations period would forgive the untimely presentation of this claim. The Court, therefore, finds that Woodard failed to raise his Brady claim in a timely manner, thus barring federal consideration of its merits. II. The Exhaustion and Procedural Bar Doctrines Federal habeas review honors the principles of comity and federalism that define the American system of dual sovereigns. Federal courts, both through statutory mandate and judicially created rules, generally will not consider challenges to an inmate’s conviction and sentence when (1) an inmate fails to exhaust his claims in state court or (2) an inmate fails to comply with adequate and independent state procedural law when he exhausted his claims. These doctrines are intertwined; an inmate’s failure to exhaust his claims triggers a federal procedural-bar inquiry. Respondent argues that both doctrines foreclose federal habeas review and relief on several issues. A. Exhaustion and Procedural Bar Section 2254 provides that habeas relief shall not be granted if the petitioner has failed to exhaust available state remedies. See 28 U.S.C. § 2254(b)(1). Exhaustion requires a petitioner to present his claims in state court before federal review becomes available. Respondent correctly argues that Woodard raises claims 8, 9, and 16 for the first time on federal habeas review. Woodard’s failure to exhaust those claims precludes federal review. The related procedural-bar doctrine may also impede federal review of a petitioner’s claims. A petitioner must not only raise a claim in state court, he must do so in a manner that fully allows for state consideration of its merits. “When a state court declines to hear a prisoner’s federal claims because the prisoner failed to fulfill a state procedural requirement, federal habeas is generally barred if the state procedural rule is independent and adequate to support the judgment.” Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir.2001). The state courts found that Woodard did not present his first, tenth, twelfth, and thirteenth claims in a manner consistent with state procedural law. That finding likewise forecloses federal review. The unexhausted nature of claims 8. 9, and 16 also results in a federal procedural bar. See Horsley v. Johnson, 197 F.3d 134, 137 (5th Cir.1999). “A procedural default ... occurs when a prisoner fails to exhaust available state remedies and ‘the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.’ ” Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir.1997) (quoting Coleman v. Thompson, 501 U.S. 722, 734 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)); see also Edwards v. Carpenter, 529 U.S. 446, 454-55, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000) (“[T]he judge may not issue the writ if an adequate and independent state-law ground justifies the prisoner’s detention, regardless of the federal claim.”) (Breyer, J. concurring); Steele v. Young, 11 F.3d 1518, 1524 (10th Cir.1993) (holding that when “it is obvious that the unexhausted claim would be procedurally barred in state court, we will forego the needless ‘judicial ping-pong’ and hold the claim procedurally barred from habeas review”). An inmate who files a petition containing unexhausted claims usually cannot return to state court because Texas’ abuse-of-the-writ doctrine (codified at TexCode Crim. Pro. art. 11.071 § 5) generally prohibits the filing of successive state habeas applications. Woodard agrees that Texas would not allow him to file a successive habeas application raising the unexhausted claims. The application of procedural law prevents federal consideration of claims 1, 8, 9, 10, 12, 13, and 16 which Woodard defaulted or did not present in state court. A procedural default, however, is not an insurmountable barrier to federal review. The Supreme Court has noted that [i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750, 111 S.Ct. 2546. A petitioner bears the burden of making a sufficient showing of cause and actual prejudice, or that a fundamental miscarriage of justice will occur. See Gray v. Netherland, 518 U.S. 152, 161-62, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996); Jones v. Johnson, 171 F.3d 270, 277 (5th Cir.1999). Woodard asserts that he can overcome the procedural bar by showing cause and prejudice and by showing a fundamental miscarriage of justice. B. Cause and Actual Prejudice Woodard does not argue that he can show cause and prejudice for the claims that the Texas courts procedurally barred. Woodard only argues that he can make a sufficient showing of cause and actual prejudice to overcome the procedural bar of his unexhausted claims (claims 8, 9, 13 and 16). Woodard claims that the state habeas court’s refusal to hold an evidentiary hearing constitutes adequate cause to forgive nonexhaustion. Cause requires a petitioner to show that something external, and not attributable to him, prevented compliance with a state procedural rule or thwarted his ability to exhaust his claims. See Coleman, 501 U.S. at 753, 111 S.Ct. 2546. Woodard confuses his ability to develop his claims with his opportunity to raise them. The state habeas court’s failure to hold a hearing may theoretically have hampered Woodard’s ability to develop the factual basis of his constitutional claims, but it did not prevent him from asserting the claims themselves. Under Texas habeas procedure, by the time a state district court decides whether factual issues need development through an evidentiary hearing, statutory law precludes the amendment of the habeas application or the insertion of new claims. Compare Tex.Code Crim. Pro. art. 11.071 § 5(f) (treating any amended habeas application as a successive writ if filed either 180 days after the appointment of counsel or 45 days after the State files its brief in the appellate proceeding) and art. 11.071 § 8(a) (requiring the trial court to decide if a hearing is necessary within 20 days of the State answering the habeas application, which answer must be filed 120 days after the application). Woodard should have advanced his claims well before the state habeas courts denied factual development. The failure to hold a hearing did not prevent Woodard from raising his claims. C. Fundamental Miscarriage of Justice Woodard also claims that he meets the fundamental-misearriage-of-justice safety valve for the consideration of defaulted claims. Actual innocence requires a showing that “as a factual matter, he did not commit the crime for which he was convicted.” Finley v. Johnson, 243 F.3d 215, 220 (5th Cir.2001). In the context of claims attacking an inmate’s sentence, a petitioner must show that, but for the complained-of error, no reasonable juror would have sentenced him to death “because some constitutional or state statutory prerequisite for the imposition of a death sentence could not have been satisfied.” Moore v. Quarterman, 454 F.3d 484, 498 (5th Cir.2006) (quotation omitted); see also Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Courts, however, have repeatedly emphasized how this exception is extremely narrow. See Moore, 534 F.3d at 464. The actual-innocence exception is only available in “an extraordinary case, where a constitutional violation has probably resuited in the conviction of one who is actually innocent.” Id. (quotations omitted). Woodard makes two arguments for actual innocence. First, Woodard argues that he is actually innocent of his death sentence because, unlike the testimony that came before the jury at trial, a psychologist has recently opined that he is not a sociopath. The fundamental-misearriage-of-justice exception in the sentencing context means that, because of the claim, no reasonable juror would have found him eligible for a death sentence. The “actual innocence requirement must focus on those elements that render a defendant eligible for the death penalty[.]” Sawyer, 505 U.S. at 347, 112 S.Ct. 2514. While conceivably the jury relied on testimony showing that he was a sociopath to find that he would be a future danger to society, Woodard has not shown that to be the only, or even most influential, factor in the jury’s deliberations. The jury had before it a full picture of Woodard’s violent past and criminal activities. In light of the incriminating case against Woodard, and his violence in committing the double murder for which he was convicted, he has not brought forth evidence that would prevent reasonable jurors from returning answers to the special issues that would result in a death sentence. Second, Woodard claims that recently presented evidence proves that he did not commit the double murders. The evidence is of three types: (1) affidavits that attack certain portions of the prosecution’s case against Woodard, including from trial witnesses who claim that police pressure influenced their testimony; (2) affidavits from investigators who relate hearsay statements that would implicate others in the murder; and (3) evidence showing that Woodard’s brother was violent and mentally retarded, suggesting that he may have been the murderer or that the police manipulated him into providing a false statement. As the centerpiece of his evidence, Woodard himself has sworn an affidavit claiming that he did not kill the victims. Woodard argues that “when the court weighs Mr. Woodard’s sworn testimony that he did not commit the murders with the remaining evidence that weaken further the already weak trial testimony, there is clear and convincing evidence of sufficient reasonable doubt on whether he is guilty of capital murder[.]” (Instrument No. 8 at 108). On that basis, he argues that his new evidence establishes that “the evidence at trial is insufficient to uphold a conviction that would withstand constitutional scrutiny.” (Instrument No. 8 at 106). Woodard misapprehends the nature of habeas review and his burden in asserting actual innocence. A habeas action is not a retrial. An inmate enjoys “no presumption of innocence in at a habeas proceeding.” Moore, 534 F.3d at 464 (quotations omitted). Actual-innocence claims “ ‘eome[ ] before the habeas court with a strong — and in the vast majority of the cases conclusive-presumption of guilt.’ ” Bosley v. Cain, 409 F.3d 657, 664 (5th Cir.2005) (quoting Schlup v. Delo, 513 U.S. 298, 326 n. 42, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). This is not a question of whether reasonable doubt may have existed if new information had come before the jury, or whether sufficient evidence sustains the judgment, “but rather that no reasonable juror would have found the defendant guilty.” Schlup, 513 U.S. at 329, 115 S.Ct. 851. Woodard accumulates evidence to weaken the case presented by the prosecution at trial, creating a scenario that he hopes would increase the likelihood that a jury would have reasonable doubt about his commission of the murder. Several problems detract from the viability of Woodard’s actual-innocence argument. From the outset, some of the evidence Woodard relies on would not be admissible in court and he provides no guarantee that he could present the same information in an admissible form. Inadmissible hearsay is insufficient to meet the Schlup standard. See Moore, 534 F.3d at 465; Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (finding “particularly suspect” claims of actual innocence based on hearsay-filled affidavits). Also, the allegations Woodard relies upon are suspect as they arise years after the trial. See Herrera, 506 U.S. at 417, 113 S.Ct. 853. The passage of years diminishes the reliability of the information that challenges the trial testimony. Even so, the Fifth Circuit “views recanting affidavits with extreme suspicion.” Komolafe v. Quarterman, 246 Fed.Appx. 270, 272 (5th Cir. 2007) (citing Spence v. Johnson, 80 F.3d 989, 1003 (5th Cir.1996)). Importantly, the affidavits “must be considered in light of the proof of petitioner’s guilt at trial[.]” Herrera, 506 U.S. at 417, 113 S.Ct. 853. Woodard’s allegations of actual innocence are not facially compelling. Eyewitness testimony proved Woodard to be the murderer. His brother’s testimony, though now possibly weaker on some points, still contains incriminating elements that would be unaffected by the new affidavits. Unrebutted physical evidence linked Woodard to the crime. He also admitted its commission to others such as Dan Webster who has not recanted his trial testimony. Woodard’s new evidence does not significantly cast doubt on the evidence of his guilt. Here, the state habeas court considered the substance of Woodard’s complaint that he was actually innocent. After reviewing the whole of the evidence Woodard raised to show his innocence, the state habeas court found that he “fail[ed] to present evidence that constitutes substantive, dis-positive newly discovered evidence and that [he] fail[ed] to meet the threshold showing for an actual innocence claim.” State Habeas Record at 587. The state habeas court found that the information was not exculpatory, not admissible, unpersuasive, without evidentiary value, or was not newly discovered. In sum, the state habeas court found that Woodard’s evidence did not raise a valid actual innocence claim. In the end, Woodard’s recently procured affidavits and evidence develop previously undisclosed areas of trial investigation and offer trial strategies that differ from that used by his attorneys. At its most generous reading, an attorney could have used Woodard’s new evidence to present a stronger defense. But rejecting an actual innocence claim is not to say that petitioner’s affidavits are without probative value. Had this sort of testimony been offered at trial, it could have been weighed by the jury, along with the evidence offered by the State and petitioner, in deliberating upon its verdict. Since the statements in the affidavits contradict the evidence received at trial, the jury would have had to decide important issues of credibility. Herrera, 506 U.S. at 418, 113 S.Ct. 853. Here, Woodard cobles together evidence that may have chipped away at the prosecution’s case but does not reach the level of certainty required in habeas cases to question the finality of state court judgments. Woodard’s allegations do not satisfy his burden of showing that no reasonable juror would have found him guilty. In sum, only claims 2 through 7, 11, and 14 are available for full federal consideration. In the interests of justice, however, the Court will briefly address the merits of Woodard’s other cognizable claims. WOODARD’S REQUEST FOR AN EVIDENTIARY HEARING Woodard asks the Court to hold an evidentiary hearing. Specifically, Woodard wants to develop his actual-innocence claim and two of his ineffective-assistance-of-counsel claims. The AEDPA limits a federal court’s ability to hold an evidentiary hearing. A petitioner must not have “failed to develop the factual basis of a claim in State court proceedings[.]” 28 U.S.C. § 2254(e)(2). A petitioner fulfills this requirement by showing diligence in developing his constitutional claims in state court. See Williams v. Taylor, 529 U.S. 420, 434, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000); Robison v. Johnson, 151 F.3d 256, 268 (5th Cir.1998). Even if a petitioner has satisfied the requirements of 28 U.S.C. § 2254(e)(2), he is not entitled to an evidentiary hearing. “[Overcoming the narrow restrictions of § 2254(e)(2) does not guarantee a petitioner an evidentiary hearing; it merely opens the door for one[.]” Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir.2000). Federal law leaves “[t]he decision whether to conduct an evidentiary hearing ... to the sound discretion of the district court[.]” Barrientes v. Johnson, 221 F.3d 741, 770 (5th Cir.2000). “[W]here a district court has before it sufficient facts to make an informed decision regarding the merits of a claim, a district court does not abuse its discretion in refusing to grant an evidentiary hearing (even where no factual findings are explicitly made by any state court).” Murphy, 205 F.3d at 816; see also McDonald v. Johnson, 139 F.3d 1056 (5th Cir.1998) (“The district court had sufficient facts before it to make an informed decision on the merits ... and, accordingly, did not abuse its discretion in refusing to hold an evidentiary hearing.”); Young v. Herring, 938 F.2d 543, 560 n. 12 (5th Cir.1991) (“[A] petitioner need not receive an evidentiary hearing if it would not develop material facts relevant to the constitutionality of his conviction.”). Even if Woodard had met the AEDPA standard of diligence, this Court has discretion to deny a hearing if a fair adjudication does not necessitate factual development. Woodard raised many of his claims in state court. The parties there developed a substantial factual record. Woodard has not shown that additional inquiry into those questions that he did not present to the state court is necessary to adjudicate his claims. The record before the Court is adequate to rule on the issues that Woodard wishes to flesh out through live testimony. The Court, therefore, will deny Woodard’s motion for an evidentiary hearing. ANALYSIS OF THE MERITS I. Fourth Amendment Challenge to the Arrest (claim one). The police arrested Woodard and searched his apartment without a warrant. The search, which the police conducted pursuant to consent from both Woodard and his girlfriend, resulted in the seizure of incriminating evidence. Woodard claims that, because the warrantless arrest and search violated his Fourth Amendment rights, he merits federal habeas corpus relief from his conviction. Traditional and longstanding limits on the scope of habeas corpus review prevent the Court from addressing the substance of those allegations. A. The Warrantless Arrest and Search On direct appeal, the Court of Criminal Appeals described the circumstances surrounding Woodard’s arrest: About a day and a half after the Mathais were murdered and Calloway’s automobile was stolen, someone reported to police that the automobile was parked at an apartment complex several miles from the crime scene. Police seized the vehicle. Five days after the crime, an individual gave investigators information that they used to get a warrant to search an apartment near the place where the stolen automobile had been found. In the apartment, they found property that had been taken from Calloway’s automobile. At the apartment were three people (one of whom was [Woodard’s] brother) who said [Woodard] told them he had shot and killed some people at a store and stolen a customer’s car. They said that [Woodard] had brought stolen property with him, and that he had asked one of the occupants to hide his gun for a few days. [Woodard’s] brother told investigators where [Woodard] lived. While the investigators were preparing an affidavit for a warrant to arrest [Woodard], other officers kept a watch on the apartment building where [he] lived. After midnight, the officers saw [Woodard] walking near the apartment building, and they seized him. They had no warrant, and the investigators abandoned their efforts to get a warrant when they heard that [Woodard] had been arrested. Woodard, 2005 WL 77143, at *3. Under Texas law, the police may only arrest a suspect without a warrant when he has committed a felony and is about to escape. Tex.Code Crim. Pro. art. 14.04. The arresting officer described at trial how he took Woodard into custody: He was walking down the street and I was driving the car and I pulled out onto the little side street that he was walking down and ... I paralleled him at which time I stopped my unmarked police car. And myself, I got out of the driver’s side, and my partner got out of the passenger’s side and I asked him his name at which time he identified himself as Robert Woodward.... We placed him in the back seat of my police car and drove back to the original location ... [a]nd at that time, I got out of the car and gave him his Miranda warning.... I advised him he was under arrest for capital murder. Tr. Vol. 25 at 105-07. Because the police arrested Woodard without first securing a warrant, trial counsel filed a pretrial “Motion to Suppress the Arrest and Search of Defendant.” Clerk’s Record at 189. The motion broadly asserted that the State’s “illegal acts ... violate[d][his] rights as guaranteed him under both federal and state constitutions and State statutes.” Clerk’s Record at 189. Woodard asked the trial court to “[sjuppress the arrest ... and any evidence derived pursuant to the arrest” including evidence taken from Mr. Calloway’s car and evidence taken from the searched apartments. Clerk’s Record at 193. The trial court held a hearing on Woodard’s motion to suppress. The parties examined witnesses, including the arresting officer. Woodard argued that his warrant-less arrest was illegal. Tr. Vol. 23 at 265-67. The prosecution countered that it was reasonable for officers to assume that Woodard was fleeing, thus justifying his arrest. Tr. Vol. 23 at 267-68. The trial court denied the motion to suppress. Tr. Vol. 23 at 269. On direct appeal, Woodard challenged his arrest, and the admission of evidence that flowed from it, under both federal and state law. The Court of Criminal Appeals found that Woodard had not adequately briefed the federal aspect of his claim, thus procedurally barring review. The Court of Criminal Appeals, however, considered his state law arguments. The Court of Criminal Appeals found that the circumstances did “not show, and the State does not attempt to explain how a court could find, that [Woodard] was about to escape.” Woodard, 2005 WL 77143, at *5. After finding no justification for his warrantless arrest, the Court of Criminal Appeals found no evidence that the illegal arrest of [Woodard] was ever cured or that his detention at the time of the lineup was made legal by authority of a magistrate. The police investigators testified that they abandoned their efforts to obtain a warrant when they heard that [Woodard] was arrested without warrant. There was no evidence that [Woodard] was taken before a magistrate, or that his detention at the time of the lineup was under the authority of a magistrate rather than whatever authority an officer might have to arrest without a warrant. Woodard, 2005 WL 77143, at *5 (footnote omitted). The Court of Criminal Appeals, therefore, concluded that Woodard’s arrest was illegal. That, however, was not enough to reverse his conviction. On direct appeal, Woodard challenged two categories of trial evidence stemming from his illegal arrest. First, Woodard complained about evidence secured during a subsequent search of his apartment, particularly the police recovery of ammunition similar to that used in the murders. The Court of Criminal Appeals found that Woodard, and most importantly his girlfriend, consented to the search: [Woodard] gave the officers written consent to search the apartment, which was the “apartment 414” to which his brief refers. The officers went to the apartment, where Andrea Nero opened the door. She said it was her apartment. Officers testified that she and [Woodard] lived there together. She consented to the search, and she added her signature to the written consent that [Woodard] had signed. In the apartment, the officers found a “gym bag” or “canvas bag” that contained a box of ammunition, which was admitted in evidence as State’s Exhibit 111. Also in the bag were clothing, a camera and film, two telephones, some jewelry, and “some I.D. cards attached to a neck strap and had Reginald Willis and looked like an I.D. number of some type on each card.” Woodard, 2005 WL 77143, at *3. While noting that “[e]vidence obtained in violation of the laws of the state may not be admitted in evidence against the accused on the trial of a criminal case,” the Court of Criminal Appeals found that “[t]he issue of the validity of [Woodard’s] consent is moot. [His girlfriend’s] consent to search her apartment was sufficient authority for the officers’ search.” Woodard, 2005 WL 77143, at *4. Second, Woodard complained that the eyewitness identifications flowed from his illegal arrest. The Court of Criminal Appeals described the subsequent identifications and relevant trial testimony: Later [on the day of Woodard’s arrest], investigators put [him] in a lineup for viewing by Garvina Sadiki and Cory Calloway, the customers who were at the store during the robberies and murders. State’s Exhibit 4 was a copy of a videotape recording of the lineup, which was shown to the jury. Calloway testified on direct examination that he recognized [Woodard] in the lineup, and that he told a police investigator that he “strongly agreed” that [Woodard] was the person who stole his automobile. He requested to see [Woodard] in a hood, because the person who stole his car was wearing a hooded sweatshirt, but the police could not find one to put on the people in the lineup. On cross-examination, Calloway testified that he told the police officer, “I was strongly tentative----I said I would be 100 per cent sure if I see the hood,” that “I strongly believed that it was” [Woodard], and that “I would be more sure if I had the hood.... But that’s what I meant by saying positive, is being strongly tentative about it. The only reason I had doubt was the hood.” A police investigator who conducted the lineup gave similar testimony about Calloway’s identification of [Woodard] at the lineup. Woodard, 2005 WL 77143, at *3-4. The Court of Criminal Appeals refused to address Woodard’s complaint about Mr. Calloway’s identification because he did not object at trial. Woodard, 2005 WL 77143, at *4 (finding that Woodard “made no objection at trial to Calloway’s testimony about his identification ... [therefore, error may not be predicated on the admission of that testimony”). Woodard’s only remaining complaint was the prosecution erred in introducing a videotaped recording of the lineup. The Court of Criminal Appeals found: Here, the erroneously admitted evidence was a videotape recording of a lineup. The other evidence that was admitted without a finding of error in this appeal included oral testimony about the lineup, testimony about the identification of the appellant at the lineup, and an in-court identification of [Woodard] by one of the witnesses who viewed the lineup. Considering this evidence, as well as the other properly admitted evidence of guilt and the other aspects of the trial, we hold that the erroneous admission of State’s Exhibit 4 was harmless. Woodard, 2005 WL 77143, at *5. Against that background, this Court must consider Woodard’s claim that he deserves habeas relief because the police arrested him in a manner that violated his Fourth Amendment rights. B. The Stone Exclusionary Rule “[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (footnote omitted). The existence of state processes allowing an opportunity for full and fair litigation of Fourth Amendment claims, rather than a defendant’s use of those processes, serves the policies underlying Stone’s exclusionary rule and bars federal habeas corpus consideration of claims. See Caver v. State of Alabama, 577 F.2d 1188, 1192-93 (5th Cir.1978). The Stone bar “applies to all claims arising under the Fourth Amendment,” including challenges to an arrest or the seizure of evidence. Hughes v. Dretke, 412 F.3d 582, 596 (5th Cir.2005). Stone presumptively forecloses federal review of Woodard’s Fourth Amendment claims. Woodard recognizes the Stone bar, but complains that he did not receive a fair chance to litigate his Fourth Amendment claim on appeal. Woodard states that it was completely unfair to Mr. Woodard to have the court find that the arrest was unlawful under State grounds, but inadequately briefed under Federal Constitutional ground. Mr. Woodard objected at trial, and raised the issue of the constitutionality of his arrest on appeal in conjunction with his challenge under the state statute. It was not clearly foreseeable that the appeals court would not review this claim. Further, it was unconscionable under these circumstances to deny review of his meritorious challenge to his arrest. (Instrument No. 8 at 19). Here, the state courts provided a forum both at trial and on appeal for Woodard to challenge the legality of his arrest. The state trial court heard testimony and refused to suppress any evidence or testimony. The Court of Criminal Appeals gave Woodard a chance to present his Fourth Amendment challenge on direct appeal. The Court of Criminal Appeals found that Woodard failed to meet procedural requirements in the presentation of the federal aspects of his challenge, a ruling that would foreclose federal review under the procedural bar doctrine even if Stone preclusion did not'apply. Even if the state court improperly applied its own procedural law in refusing to consider Woodard’s Fourth Amendment argument, “[e]rrors in adjudicating Fourth Amendment claims are not an exception to Stone’s bar.” Moreno v. Dretke, 450 F.3d 158, 167 (5th Cir.2006); see also Swicegood v. Alabama, 577 F.2d 1322, 1324-25 (5th Cir.1978). The Fifth Circuit has emphasized that the “ ‘opportunity for full and fair litigation’ [means] just that: ‘an opportunity.’” Janecka v. Cockrell, 301 F.3d 316, 320 (5th Cir.2002) (quoting Caver, 577 F.2d at 1192). “[A]bsent additional allegations that state processes routinely or systematically are applied in such a way as to prevent the actual litigation of Fourth Amendment claims, mistakes that thwart the presentation of Fourth Amendment claims do not render the Stone bar inapplicable.” Janecka, 301 F.3d at 321. Disagreement with the outcome in state court does not remove the Stone bar. Because Woodard had a full and fair opportunity to present his claims in state court, Stone requires this Court to forgo a renewed examination of the circumstances leading to his arrest. Stone’s exclusionary rule prevents this Court from addressing whether Woodard’s arrest, the subsequent seizure of evidence, and the videotape of his lineup met Fourth Amendment standards. The Court denies Woodard’s first ground for relief. II. Challenge to the Pre-Trial Identification (claim two) Woodard claims that the police set up a situation where suggestive and improper procedures allowed a witness to identify him as the murderer. Woodard complains that the identification by Corey Calloway lacked sufficient reliability. On state habeas review, the Texas courts summarized Mr. Calloway’s trial account of the events immediately after the murders: Calloway left his 1989 Lincoln Town car with the engine running by the Conoco station gas pumps while he used the outside pay phone on February 12, 2000[.] ... Calloway heard two gunshots and saw [Woodard] run toward Calloway’s car[.] ... [Woodard] opened the driver’s door and pointed a gun at Calloway when he ran toward his car[.] ... [Woodard] drove away in Calloway’s car and made a u-turn[.] ... Calloway made eye contact with [Woodard] as he drove by the station[.] State Habeas Record at 578. Mr. Calloway identified Woodard three times, two of which resulted in strongly positive identifications and the other resulted in an affirmative, but tentative, identification. At some point Mr. Calloway viewed a photo array containing Woodard’s picture, but he could not identify Woodard as the robber. On February 18, 2000, the police arranged a live lineup that included Woodard. Mr. Calloway “strongly agreed” that Woodard was the robber, but qualified that he wanted to see the suspects wearing a hood. The police could not at the time of the live lineup find similar clothing. On April 24, 2000, however, the police arranged for a photo array in which they had superimposed a hood over each picture. Mr. Calloway identified Woodard in an array that apparently contained the same photographs as the initial photo array. Finally, at trial Woodard donned a hooded jacket in the courtroom and Mr. Calloway positively identified him. Woodard challenged Mr. Calloway’s identification in a pre-trial motion to suppress. Clerk’s Record at 186. The trial court held a lengthy hearing on the suppression motion. The trial court found that “both the live lineup procedure as well as the photographic identification procedures were not impermissibly suggestive and a violation of Mr. Woodard’s rights.” Tr. Vol. 23 at 275. In particular, the trial court noted that the “level of certainty” of the identifying witnesses “goes to the weight, not admissibility” of their identification. Tr. Yol. 23 at 275. Also, the trial court found “no substantial likelihood of misidentification.” Tr. Vol. 23 at 275. Trial counsel’s opening argument highlighted problems with the identification. Tr. Vol. 24 at 16-18. Cross-examination of the identifying witnesses focused on problems with their ability to point out Woodard as the killer. On direct appeal, Woodard raised three arguments about the invalidity of Mr. Calloway’s testimony. As noted by the Court of Criminal Appeals: [Woodard] contended] that the identification was impermissibly suggestive based on the combination of three factors: (1) seeing [him] in a live lineup with dissimilar individuals, (2) viewing a photospread of [him] during the investigation, and (3) then seeing that individual in court wearing a hooded garment without other individuals for comparison. Woodard, 2005 WL 77143, at *5. On federal review, Woodard points to other factors that made the identification impermissibly suggestive. Woodard argues that the police created an environment that encouraged misidentification because they had Mr. Calloway identify items stolen along with the car, suggesting that they had made an arrest and that the array contained a photograph of the suspect. Woodard also complains that his live lineup was suggestive because only five individuals instead of six participated. Of those, Woodard again argues that all the others were markedly dissimilar from him because of facial hair, disfigurement, or differences in height. Also, Woodard complains once more that repeated showing of his photograph in at least two, and possibly more, photo arrays made Mr. Calloway disposed to picking him where he otherwise might not have. The Due Process Clause prohibits the prosecution from presenting identification testimony at trial that derives from impermissibly suggestive procedures. See Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Under that constitutional guarantee, a conviction based on resultant eyewitness identification may be set aside “if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). “A two-step process governs the admissibility of identification evidence: First, a court must determine whether the pretrial identification was impermissibly suggestive; if it was, then se