Wardrip v. Thaler (705 F. Supp. 2d 593, 2010)

ORDER

A. JOE FISH, Senior District Judge.

Before the court are the Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Findings”) and the objections of both parties to those Findings. After making an independent review of the pleadings, files and records in this case, the Findings are (except for the recommendation as to resentencing) ADOPTED as the findings and conclusions of the court.

SO ORDERED.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

PAUL D. STICKNEY, United States Magistrate Judge.

This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge follow:

FINDINGS AND CONCLUSIONS

I. NATURE OF THE CASE

A state prison inmate has filed a petition for writ of habeas corpus pursuant to Title 28, United States Code, Section 2254.

II. PARTIES

Petitioner, Faryion Edward Wardrip, is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is the Director of TDCJ-CID.

III. PROCEDURAL HISTORY

After Petitioner pled guilty to capital murder, a jury heard evidence from the prosecution and defense regarding punishment and assessed Petitioner’s punishment at death by lethal injection. State v. Wardrip, No. F-99-0988-E, 1999 WL 34866004 (367th District Court of Denton County, Tex. Nov. 5, 1999). The case was appealed to the Texas Court of Criminal Appeals, and the Court of Criminal Appeals affirmed the death sentence in a published opinion. Wardrip v. State, 56 S.W.3d 588 (Tex.Crim.App.2001). Petitioner filed a state application for writ of habeas corpus on October 26, 2000. The Court of Criminal Appeals denied relief in an unpublished order based on the trial court’s findings and its own review. Ex parte Wardrip, No. 49,657-01 (Tex.Crim. App. November 14, 2001).

Petitioner filed an initial federal petition for writ of habeas corpus on December 31, 2002. Respondent filed an answer on April 23, 2003, and furnished the state court records. Petitioner filed a reply on September 23, 2003. This Court granted Petitioner’s request for an evidentiary hearing and conducted hearings on October 11, 2006, and November 1, 2006. Petitioner filed a post-hearing brief on January 10, 2007, and Respondent filed a post-hearing brief on February 7, 2007.

IY. RULE 5 STATEMENT

Respondent states that Petitioner has failed to exhaust state court remedies with respect to his first and eighth grounds for relief. Respondent asserts that Petitioner did not address these claims either on direct appeal or in his state writ of habeas corpus and that they are therefore procedurally barred. Furthermore, Respondent also contends that Petitioner’s other six claims were not exhausted at the state level because Petitioner has presented a substantial amount of evidence to this Court that was never presented at the state court level. Nonetheless, Respondent asserts that, in the alternative, all of Petitioner’s claims should also be denied on their merits pursuant to 28 U.S.C. § 2254(b)(2).

V. ISSUES

A. Petitioner’s Sixth Amendment rights were violated because his trial attorney provided ineffective assistance of counsel in the following seven respects:

1. Trial counsel failed to conduct an adequate pre-trial investigation (ground one);

2. Trial counsel failed to place -into evidence Petitioner’s prison record as mitigating evidence (ground two);

3. Trial counsel failed to present evidence that Petitioner had undergone a “complete transformation” in the fourteen years since he committed the murders (ground three);

4. Trial counsel failed to place into evidence any psychiatric testimony (ground four);

5. Trial counsel continuously emphasized the prosecution’s case when questioning potential jurors during voir dire (ground five);

6. Trial counsel continuously raised the issue of parole when questioning jurors during voir dire (ground six);

7. Trial counsel made only a perfunctory closing statement at the conclusion of the trial (ground seven).

B. The cumulative effect of trial errors undermines confidence in the jury’s verdict (ground eight).

This Court held evidentiary hearings on Petitioner’s second, third, and fourth grounds for relief.

VI. STANDARD OF REVIEW

The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254, provide:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(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 a State court proceeding.

28 U.S.C. § 2254(d) (2006).

Section 2254(d)(1) concerns pure questions of law as well as mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.2001). Under the “contrary to” clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). With respect to the “unreasonable application” clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s case. Williams, 529 U.S. at 413, 120 S.Ct. 1495. Under Williams, a state court unreasonably applies Supreme Court precedent if it “unreasonably extends a legal precedent 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.

Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495 (5th Cir.2000). Under § 2254(d)(2), federal courts “give deference to the state court’s findings unless they were “based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” ” Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.2000) (as modified on denial of rehearing). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

This statute applies to all federal habeas corpus petitions which, as with the instant case, were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court’s disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir.1997).

VII. FACTUAL BACKGROUND

The Texas Court of Criminal Appeals recited the following factual background in its opinion on direct appeal:

Appellant pleaded guilty to the capital murder of Terry Sims. The State presented evidence of the offense during the punishment phase of the trial. Leza Boone, Sims’ friend and co-worker, testified that she and Sims finished working their shifts at Bethania Hospital in Wichita Falls at approximately 11:15 p.m. on the night of December 20, 1984. They planned to exchange Christmas gifts at the home of a friend after work and Sims was to stay at Boone’s residence that night to help her study for her final exam the following day. Boone was unexpectedly called to return to the hospital to work the next shift, so she drove Sims to Boone’s residence after the Christmas gift exchange. She dropped Sims off at approximately 12:30 a.m. on December 21,1984.

Boone finished her shift at the hospital at approximately 7:15 a.m. and returned to her residence. Sims did not answer the door, so Boone obtained a key from her landlord who lived two doors down. Boone opened the door and noticed that the living room was in disarray. Sims did not respond when Boone yelled her name, so Boone ran back to her landlord’s residence and told him that something was wrong. The landlord then entered Boone’s residence and discovered Sims’ dead body.

Sims was found lying naked on her left side in a pool of blood on the bathroom floor. Her hands were bound tightly behind her back with part of an extension cord that was tied in four knots. Her body was covered in blood and there was blood splattered on the bathroom walls and floor. The living room and front bedroom were in disarray. There were blood stains on the bed sheets and the floor in the front bedroom. Sims’ bloodstained clothes were on the floor in the living room and the front bedroom.

Dr. Allen Stilwell, the forensic pathologist who performed the autopsy on Sims’ body, testified that she had eight stab wounds on the right side of her back, one stab wound on her left upper arm, and defensive cuts on her hands and fingers. Stilwell believed that Sims sustained most of these stab wounds after her assailant tied her hands behind her back. Sims also had bruises on the bridge of her nose, her lips, and above the left side of her cheek and eye. Stilwell testified that these bruises were consistent with Sims being struck by a fist or by her falling and banging her head on the floor. He further testified that Sims had additional “tease wounds” which her inflicted by her assailant “to get her attention.” He testified that at least one of Sims’ stab wounds caused hemorrhaging when it punctured a major artery and that other stab wounds caused her lungs to collapse which prevented her from breathing. He determined that Sims probably died from these injuries within two to four minutes after they were inflicted.

The forensic test results showed the presence of sperm on the oral and vaginal swabs taken from Sims’ body. The DNA testing of appellant’s blood and saliva samples revealed that appellant was the only individual who could have contributed the sperm found on Sims’ oral swab. In addition, appellant’s fingerprints matched a bloody fingerprint found on Sims’ tennis shoe.

Appellant gave a statement after his arrest. In his statement, he claimed that he was under the influence of “heavy drugs” on the night he murdered Sims. He stated that he was out walking when he saw Sims. He forced his way into the residence and “just ransacked her, just slung her all over the house in a violent rage.” He remembered “stripping her down out of anger,” tying her hands behind her back, and stabbing her with a knife, but he did not recall having sex with her. He could not remember if he brought the knife with him or what he did with the knife after he committed the murder. Appellant stated that he was “mad at the world” and that his drinking and drug abuse caused him to be paranoid and to have violent outbursts. He had the urge to “lash out” at two or three people that evening, but he acted on his urge when he encountered Sims.

* * *

The State introduced evidence that appellant murdered four more women in the two years following the murder of Terry Sims. Appellant’s second victim was Toni Gibbs. On February 15, 1985, utility workers found Gibbs’ nude body in a field in Archer County, a short distance from the Wichita County line. Gibbs had three stab wounds on her back, three stab wounds on her chest, and two defensive wounds on her left forearm and thumb. DNA testing revealed that appellant’s blood and saliva samples matched the sperm found on the vaginal smear taken from Gibbs’ body.

Appellant admitted to the murder of Gibbs in his statement. He encountered Gibbs at about six o’clock in the morning, after he had been out walking all night. He knew Gibbs because she was a nurse at the hospital where he worked as a janitor. Gibbs offered him a ride and he “started seeing images of hatred and anger” after he got in her car. He began “slinging” her around in the car and screaming at her and forced her to drive down a dirt road to a field. He admitted that he removed Gibbs’ clothing and stabbed her, but he could not remember if he had sex with her. He left the scene in Gibbs’ car and abandoned it on a street off the side of the freeway.

Appellant’s third victim was Debra Taylor, whose body was found in a field in Fort Worth on March 29, 1985. Taylor sustained blunt-force injuries to her head and face and her death was caused by manual strangulation. The medical examiner was unable to determine whether or not Taylor had been sexually assaulted. Appellant admitted in his statement that he strangled Taylor to death behind a Fort Worth nightclub and disposed of her body in the field.

Ellen Blau was appellant’s fourth victim. A county road crew employee found Blau’s body in a field in Wichita County on October 10, 1985. The state of decomposition was such that the doctor who performed the autopsy could only conclude that the cause of death was “undetermined homicidal violence.” Appellant admitted in his statement that he abducted Blau from a parking lot and forced her to drive down a dirt road. He took her to a field and stripped off her clothes, but did not recall if he raped her. He did not remember how she died, but stated: “She probably broke her neck because I was slinging her.” Afterward, he drove back into town and abandoned her car.

Appellant’s fifth victim was Tina Kim-brew, whose body was found on the floor of her ransacked apartment in Wichita Falls on May 6, 1986. Kimbrew had numerous bruises on her face, neck, and legs. Her nightgown was pulled up above her waist and her underwear was on the floor near her body; however, there was no evidence of recent sexual activity. The doctor who performed the autopsy concluded that Kimbrew was smothered to death. Appellant confessed to the murder of Kimbrew shortly thereafter. He pleaded guilty to murder and was sentenced to thirty-five years in prison. He was released on parole in 1997.

The State introduced a penitentiary packet showing appellant’s 1986 conviction and thirty-five year sentence for the murder of Tina Kimbrew. Appellant’s prison disciplinary records contained in his penitentiary packet showed that he was disciplined in prison for creating a disturbance and fighting without a weapon. The State introduced additional evidence that appellant dropped out of school in the twelfth grade and that he was discharged from the Army National Guard after a period of six years due to his conduct and willful absences.

Wardrip v. State, 56 S.W.3d at 591-94 (footnotes omitted).

VIII. PROCEDURAL ISSUES

A. Exhaustion

Respondent first asserts that Petitioner is procedurally barred from raising all of his grounds for relief. Specifically, Respondent contends that Petitioner’s claims were not exhausted at the state level because he failed to raise either his first or his eighth grounds at the state level at all and because his remaining six grounds for relief, although raised at the state level, are based in large part on evidence never presented to the state courts.

A review of the records in this case reveals that Petitioner did not raise his first or eighth grounds for relief on either direct appeal or at the state habeas level. Petitioner did, however, raise his second through seventh grounds for relief at the state habeas level. Petitioner’s claims when raised at the state level did not, however, have the evidentiary support submitted to this Court. At the state court level, Petitioner submitted as evidence affidavits from Larry Ravell and Ken Bishop, two gentleman who knew Petitioner when he was on parole. (State Habeas Transcript at 34, 35). Additionally, an affidavit from Petitioner’s trial counsel, John Curry, was provided with the state’s response and is part of the state habeas record. (SHTr.:46-56). In addition to these affidavits, however, Petitioner has also submitted to this Court several additional exhibits in support of his claims, including: 1) Wichita County and Denton County jail records; 2) an affidavit from Petitioner; 3) various notes and letters from Petitioner’s trial counsel; and 4) additional affidavits from individuals who knew Petitioner during the time he was paroled, as well as from a psychologist, a private investigator, one of Petitioner’s sisters, Petitioner’s former sister-in-law, and Petitioner’s state habeas counsel. (Petitioner’s Record Excerpts). And, pursuant to the evidentiary hearings held in this case, this Court has accepted further exhibits from Petitioner, including additional affidavits from people who knew him after he was paroled from prison and John Curry’s trial file. (Joint Advisory Regarding Exhibits and Stipulation of Parties, dated 1/4/07). Moreover, in the two days of hearings held in this case, this Court heard testimony from Petitioner’s trial counsel, John Curry, as well as a psychologist and psychiatrist hired by Curry to assist him in his defense of Petitioner.

Respondent contends that Petitioner has failed to exhaust his state court remedies with respect to his second through seventh grounds for relief because this additional evidentiary support was not submitted at the state court level. As support for this position, Respondent cites to Graham v. Johnson, 94 F.3d 958, 968 (5th Cir.1996), in which the Fifth Circuit held that a habeas petitioner has failed to exhaust his state court remedies if he presents “material additional evidentiary support” for his claims to the federal court. In his reply, Petitioner asserts that these claims are not unexhausted claims, citing to Anderson v. Johnson, 338 F.3d 382 (5th Cir.2003). In Anderson, the Fifth Circuit held that Anderson had exhausted his ineffective assistance of counsel claims because, although the claims were in a comparatively stronger evidentiary posture than they were in state court because of the additional affidavit submitted at the federal level, Anderson’s brief at the state court level was both factually and legally detailed regarding the information that was contained in the affidavit, Anderson was diligent and consistent in arguing his claim, Anderson did not deliberately withhold essential facts from the state court, and if the state court had held an evidentiary hearing as requested by Anderson, the exculpatory evidence contained in the affidavit would have most likely come to light. Id. at 388-89. Thus, the court in Anderson held that the new evidence “supplemented” and did not “fundamentally alter” the claim presented to the state court. Id. at 386-87.

The Fifth Circuit has more recently readdressed the issue of whether a claim is exhausted if additional evidence is presented to the federal court that was not presented to the state court, resulting in a factually stronger habeas claim in federal court. In Morris v. Dretke, 413 F.3d 484 (5th Cir.2005), the Fifth Circuit addressed a situation where a petitioner had raised a claim based on Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), in both the state and federal courts. At the state level, Morris filed a subsequent habeas application based on Atkins, and presented as evidence supporting his mental retardation claim his school records, affidavits from family members and friends, notes from the mental health expert appointed at trial, and an affidavit from a psychologist stating that, based on these records, he believed that there were indications that Morris had mental retardation and should be evaluated. The Court of Criminal Appeals dismissed the application as an abuse of the writ. Morris, 413 F.3d at 487-88. Morris submitted the same information to the federal district court and, after his motion requesting expert and investigative assistance was granted, also submitted an affidavit from another psychologist who had recently tested Morris’s I.Q. and level of adaptive functioning, as well as an affidavit from another mental health expert who reviewed the results of the testing. Both diagnosed Morris as being mentally retarded. Id. at 489. The federal district court dismissed the petition for failure to exhaust, based on the fact that this additional evidence was not presented to the state court. Id. at 490.

The Fifth Circuit ruled that Morris had not failed to exhaust his claims because, like in Anderson, his additional IQ evidence bolstered, but did not fundamentally alter his claim. In reaching this decision, the Fifth Circuit noted that: Morris’ Atkins claim was detailed in fact and law when presented at the state level; he had consistently asserted that he is mentally retarded and that, given the resources, tests would confirm this; and Morris did not deliberately withhold facts from the state court in an attempt to expedite federal review. Morris, slip op. at 495-96. The Court further noted that the circumstances in Morris differed from those in Graham because Graham presented a substantial amount of new evidence that had not been even abstractedly presented to the state court and Graham’s actual innocence and ineffective assistance of counsel claims had not yet been addressed by the state court and therefore could have been raised in a subsequent writ. Morris, 413 F.3d at 496-97.

Admittedly, this case differs from Morris because Petitioner did not submit to the state court numerous documents supporting his claims of ineffective assistance of counsel. However, the instant case differs also from Graham because Petitioner did raise six of his eight claims for relief at the state level. Moreover, three of the six claims that were raised both at the state level and here as his fifth through seventh grounds for relief, alleging that Petitioner’s trial counsel was ineffective during the voir dire process and in his closing argument at trial, do not appear to rely on the new evidence submitted to this Court. And, with regard to Petitioner’s fourth ground, in which he alleges that his trial counsel was ineffective for failing to present psychiatric evidence at trial, Petitioner’s state habeas counsel did request, and was denied, funds with which to hire a psychiatrist to examine Petitioner in order to present evidence to support this claim and was denied his request for an evidentiary hearing. (SHTr.:84-6, 88-91). Furthermore, federal habeas counsel has presented an affidavit from Petitioner’s state habeas counsel in which he states that he knew about other evidence submitted to this Court, including evidence of Petitioner’s good behavior in prison, and he attempted to develop this evidence at the state level, but was denied funds with which to hire an investigator. (Petitioner’s Record Exhibit # 30). Accordingly, the record reflects that Petitioner did attempt to obtain evidence to support his second, third, and fourth claim at the state habeas level. And finally, while Petitioner does present additional evidence to this Court to support these grounds for relief that was not placed into evidence and was not referred to at the state level, this Court finds that this additional evidentiary support for these claims supplements Petitioner’s claims and does not fundamentally alter them. Accordingly, this Court finds that Petitioner’s second through seventh ground for relief are exhausted claims.

With regard to Petitioner’s first and eighth grounds for relief, which were not raised at the state court level at all, procedural default occurs when a petitioner fails to exhaust all available state remedies and the state court to which he would be required to petition would now find that the claim is procedurally defaulted. Bledsue v. Johnson, 188 F.3d 250, 254 (5th Cir.1999). And indeed, were Petitioner’s unexhausted claims now brought in a subsequent state writ of habeas corpus, the Court of Criminal Appeals would consider these claims to be procedurally defaulted under Article 11.071 § 5 of the Texas Code of Criminal Procedure, which prohibits a claim from being raised in a subsequent habeas application unless: 1) it could not have been raised in the previous application because the factual or legal basis was unavailable at the time; or 2) the claim contains sufficient facts establishing that, but for a violation of the United States Constitution, no rational juror would have found petitioner guilty or would have answered the punishment issues in the State’s favor. See Tex.Code Crim. Proc. Ann. art 11.071 § 5(a) (Vernon Supp.1999). The legal and factual claims presented in the grounds for relief that Petitioner failed to raise at the state level appear to have been available to him at the time he filed his state habeas application, and Petitioner does not argue otherwise. And, Petitioner has made no attempt to allege, much less prove, that his unexhausted claims contain sufficient facts establishing that, but for a federal constitutional violation, no rational juror would have sentenced him to death.

Nevertheless, under 28 U.S.C. § 2254(b)(2), a federal petition for a writ of habeas corpus may be denied on its merits, notwithstanding the petitioner’s failure to exhaust state court remedies. See 28 U.S.C. § 2254(b)(2). Accordingly, as this Court has determined that Petitioner is not entitled to relief on these two unexhausted claims, this Court will address the unexhausted claims on their merits.

B. Right to Evidentiary Hearing

Respondent has also asserted, at oral arguments conducted by this Court on May 31, 2006, and at the beginning of the evidentiary hearings held in this case, that Petitioner was not entitled to an evidentiary hearing in this Court because he failed to exercise due diligence to discover the factual predicate for his ineffective assistance of counsel claims. (See 10/11/06 Evidentiary Hearing, page 3). Under 28 U.S.C. § 2254(e)(2), if a habeas petitioner has failed to develop the factual basis of a claim in state court, the district court shall not hold an evidentiary hearing on the claim unless the petitioner shows that the claim either relies on a new rule of constitutional law made retroactive or a factual predicate that could not have been previously discovered through the exercise of due diligence and the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the petitioner guilty. See 28 U.S.C. § 2254(e)(2).

In Michael Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), the Supreme Court held that, under 28 U.S.C. § 2254(e)(2), a habeas petitioner has not failed to develop the factual basis of a claim in state court unless there has been a lack of diligence, or some greater fault, on the part of the petitioner or petitioner’s counsel. The Court further stated that such diligence depends upon whether the petitioner made a reasonable attempt to investigate and pursue claims in state court. Id. at 435, 120 S.Ct. 1479. Diligence will therefore require that a petitioner, at a minimum, seek an evidentiary hearing in state court and that the petitioner be diligent in developing the record and presenting, if possible, all claims of constitutional error. Id. at 437, 120 S.Ct. 1479. As the Fifth Circuit has noted, the Supreme Court’s holding in Williams means that, if a petitioner develops the factual basis of a claim in state court, or sufficiently attempts to do so, § 2254(e)(2) does not bar an evidentiary hearing in district court. Guidry v. Dretke, 397 F.3d 306, 323 (5th Cir.2005), cert. denied, 547 U.S. 1035, 126 S.Ct. 1587, 164 L.Ed.2d 326 (2006).

In the case at hand, Petitioner’s state habeas counsel requested an evidentiary hearing in state court to develop claims of ineffective assistance of counsel, but this request was denied. (SHTr.:84-6). And, state habeas counsel also requested, and was denied, funds to hire an investigator to further investigate claims and funds to hire a psychologist to examine Petitioner and further develop the claim that counsel was ineffective for failing to present mental health expert testimony. (SHTr.: 88-9, 91). State habeas counsel also submitted several exhibits in support of the claims raised. Accordingly, because state counsel requested an evidentiary hearing in state court and sufficiently attempted to develop the factual bases for the claims through other means, § 2254(e)(2) does not bar an evidentiary hearing in this Court. Therefore, this Court granted Petitioner’s request for a hearing in part, holding limited evidentiary hearings regarding Petitioner’s second, third, and fourth claims of ineffective assistance of counsel, as these claims were exhausted claims that are non-record based claims, for which additional information needed to be developed.

IX. EXAMINATION OF THE GROUNDS FOR RELIEF

A. Ineffective Assistance of Counsel Claims

In his first through seventh grounds for relief, Petitioner argues that his rights under the Sixth Amendment were violated because his trial counsel provided ineffective assistance of counsel. In particular, Petitioner complains of his attorney’s representation with regard to pre-trial investigation, voir dire, the presentation of evidence, and the closing statement given at trial.

The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344-45, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In order to obtain federal habeas relief due to ineffective assistance of counsel, a petitioner must satisfy the two-prong test established in Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland test, in order to prove that his counsel was ineffective, a defendant must prove by a preponderance of the evidence both that counsel’s performance was deficient and that this deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. 2052. Courts, however, should “indulge a strong presumption” that counsel’s conduct falls within the range of reasonable assistance, and a defendant must overcome the presumption that an action is sound trial strategy. Id. at 689, 104 S.Ct. 2052. To establish prejudice, a petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. In the context of ineffective assistance of trial counsel, the prejudice component of the Strickland test “focuses on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Williams v. Taylor, 529 U.S. 362, 393 n. 17, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (citations and internal quotation marks omitted). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96, 104 S.Ct. 2052. The Court also noted in Strickland that a fair assessment of an attorney’s performance requires one “to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052.

1. Pre-trial Investigation and Presentation of Mitigating Evidence

In his first claim for relief, Petitioner claims that his trial counsel was ineffective for failing to conduct a complete pre-trial investigation. In his second, third, and fourth claims for relief, Petitioner asserts that his trial counsel was ineffective for failing to present sufficient mitigating evidence at the punishment phase of the trial. Specifically, Petitioner asserts that his attorney should have investigated and presented evidence of his excellent prison record while he was previously in prison for murder, evidence that Petitioner had undergone a “complete transformation” in the intervening years since he committed the murders, and should have presented testimony from a mental health expert.

Recently, in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), the Supreme Court applied the Strickland standard in cases where the claim was made that counsel was ineffective by failing to investigate, and then present, potentially mitigating evidence. The Court in Wiggins determined that the appropriate question was whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was a reasonable decision. Id. at 522-23, 123 S.Ct. 2527. Under the Strickland standard, a determination must be made regarding whether trial counsel used “reasonable professional judgment” to support a limited investigation into potential mitigation evidence. Id. This analysis is done by conducting an objective review of counsel’s performance under the prevailing professional norms, in the context of counsel’s perspective at the time of trial. Id. In Wiggins, the Court determined that trial counsel were ineffective for failing to investigate potential mitigating evidence beyond a series of tests conducted on Wiggins by a psychologist, a written pre-sentence investigation report, and records from the Department of Social Services (DSS). Id. at 523-24, 123 S.Ct. 2527. Furthermore, the Court held that Wiggins had been prejudiced by this failure because, had counsel had a social history report prepared and/or followed up on the information contained in the DSS records, counsel would have uncovered and been able to present evidence that Wiggins suffered from severe deprivation and abuse at the hands of an alcoholic mother and physical and sexual abuse during subsequent foster care, and there was a reasonable probability that the jury, confronted with this evidence, would have returned a different verdict at sentencing. Id. at 524-25, 534-36,123 S.Ct. 2527.

Then, in Rompilla, the Supreme Court held that trial counsel were ineffective for failing to examine the court’s file about a prior conviction Rompilla received for rape and assault in order to prepare to represent Rompilla at the sentencing phase of his capital murder trial, as defense counsel was on notice that the State intended to present evidence of this prior conviction in its attempt to seek the death penalty against Rompilla. 545 U.S. at 383, 125 S.Ct. 2456. The Supreme Court then held that, had counsel viewed this court file, counsel would have discovered “mitigation leads” from the prison files, which indicated that Rompilla’s history was very different from what Rompilla and his family had told trial counsel, including evidence of a childhood in a slum environment, a history of alcohol abuse, and previous psychological tests that pointed to schizophrenia and other disorders, as well as a low level of cognition. Id. at 390-91, 125 S.Ct. 2456. Then, had counsel pursued these leads, counsel would have discovered that Rompilla’s parents were severe alcoholics, their children were neglected, Rompilla was frequently physically abused by his father, and Rompilla suffered from organic brain damage and significantly impaired cognitive function. Id. at 391-92, 125 S.Ct. 2456. The Court concluded that Rompilla was prejudiced by this failure because there was a reasonable probability that he would not have been sentenced to death had the jury heard this evidence. Id. at 393,125 S.Ct. 2456.

a. Pre-trial investigation

In his first ground for relief, Petitioner asserts that his trial counsel, public defender John Curry, was ineffective for failing to conduct sufficient pre-trial investigation. Specifically, Petitioner alleges that Curry was ineffective because: 1) he did not begin his investigation in the case until two months before jury selection began; 2) he made no attempt to investigate the State’s scientific evidence in an attempt to rebut this evidence; 3) he made only a minimal effort to obtain the services of a mitigation expert; 4) he opted not to contest pre-trial issues such as the potential disqualification of the trial judge; and 5) he did not contact Petitioner’s friends and family to ascertain if they could testify at trial.

With regard to Petitioner’s contention that his attorney made only a minimal effort to obtain a mitigation expert and his assertion that Curry did not contact his family and friends to testify, these claims will be addressed along with Petitioner’s third ground for relief, in which Petitioner asserts that his attorney was ineffective for failing to present evidence of his “complete transformation” in the years since his prior imprisonment.

Regarding Petitioner’s other claims, he presents no evidence to support his claim that his attorney did not begin his work on the case until two months before jury selection. Without any evidence to support this claim, this Court will not find it to be meritorious. Contrary to another of Petitioner’s claims, his attorney contested several issues during the pre-trial process. He did file a motion to disqualify and an amended motion to disqualify the trial judge, Judge Brotherton, because Brotherton had represented Petitioner’s ex-wife during their divorce and had represented Danny Laughlin, a person who had previously been charged and tried for one of the murders Petitioner subsequently confessed to. (Tr.:62-63, 70-72). A hearing was held on this motion on August 2, 1999, Judge Brotherton was called as witness and questioned by defense counsel, and his testimony was that he had no contact with Petitioner during the divorce proceedings, that there were no allegations against Petitioner because it was a no-fault divorce, and that the case he represented Laughlin in, although it was a potential re-trial of the murder case, was ultimately dismissed, and Brotherton made only one court appearance in the case. (R. 3:4-9). The sitting judge denied defense counsel’s motion, and Petitioner has presented no evidence that this was an incorrect ruling. (R. 3:13; Tr.:73).

Moreover, John Curry also filed a motion to change venue, which was granted, and motions to suppress the statements confessing to the murders made by Petitioner and to suppress blood, pubic hair, finger prints, and palm prints obtained from Petitioner. These motions to suppress were denied after evidentiary hearings were held on August 27 and 30, 1999. (Tr.: 53-57, 64-68,105, 107; R. 5, R. 6). In addition, although the State maintained an open file policy with regard to Petitioner’s case (Tr.:4), defense counsel filed various motions for discovery, including motions for the State to produce evidence favorable to Petitioner, witnesses’ statements, any material tangible evidence, and evidence of any arrests or convictions of State’s witnesses, and for the State to reveal any agreements with witnesses and to give notice of any punishment evidence it intended to introduce. (Tr.: 7-13, 17-23, 31-32, 34-35, 39-50). Thus, the record reflects that defense counsel contested numerous issues during the pre-trial process.

And, with regard to Petitioner’s claim that his trial attorney was ineffective for making no attempt to investigate the State’s scientific evidence in an attempt to rebut this evidence, the record reflects that Curry filed a motion to inspect, examine, and test physical evidence, which was granted by the trial court. (Tr.: 26-28). But, given that the trial court ruled that the police did not violate Petitioner’s fourth amendment rights when it obtained DNA evidence from him and ruled that his confessions to all five murders were admissible, and given that Petitioner has never contested his guilt in any of the five murders, Petitioner has failed to show any reasonable probability that, had counsel contested the DNA evidence to any greater degree, Petitioner would have opted not to plead guilty, would have been found not guilty by a jury, or would not have been sentenced to death.

In summary, Petitioner has failed to present evidence that his trial attorney provided ineffective assistance of counsel during the pre-trial investigation stage. Petitioner’s first ground for relief is without merit, and it is recommended that it be denied.

b. Petitioner’s prison record

In his second ground for relief, Petitioner contends that his trial counsel was ineffective for failing to present evidence of his prior prison record as mitigating evidence at punishment. As noted earlier, Petitioner confessed to the murder of Tina Kimbrew, his fifth victim, shortly after he murdered her. He served eleven years of a thirty-five year sentence in prison for that murder before being paroled in 1997. It was after he was paroled that authorities tied him to two of the other murders based on DNA evidence and Petitioner’s fingerprint on the shoe of one of the victims. When questioned by the authorities, Petitioner eventually confessed to four murders in addition to Kimbrew’s murder. (R. 26: 10-22, 32-40, 48-57, 68-72, 84-110). Petitioner asserts that his trial counsel should have presented evidence from his eleven year confinement, such as the fact that he took classes while in prison, wrote articles for a prison newspaper, and was involved in a fund-raiser for the medical needs of a local young man. (Pet. Record Ex. # 20, 21, 28).

The state habeas court found that trial counsel was aware of Petitioner’s good prison record and made a strategic decision regarding both what evidence to present and not to present and made a tactical decision to rely on the State’s evidence to show Petitioner’s prison record. The state habeas court further found that evidence of Petitioner’s prison record was before the jury. (SHTr.: 135, finding # 19-22). The state habeas court then concluded that trial counsel was not ineffective for presenting further evidence of Petitioner’s good prison record because trial counsel chose the legitimate trial strategy of utilizing the State’s evidence rather than independently introducing evidence. The court further concluded that Petitioner had failed to establish a reasonable probability that he would not have received the death penalty had counsel introduced into evidence additional evidence of Petitioner’s good prison record. (SHTr.: 155-56, # 13,16).

Applicable Facts

Testimony at Evidentiary Hearing

John Curry testified at the evidentiary hearing held by this Court. At this hearing, he testified that, in September 1999, the State provided him Petitioner’s educational records, his prison records, and some hospital treatment records, but it was his recollection that he had some of these records before that time. (10/11 EH: 59). He further testified that Petitioner had informed him that he had had only one minor disciplinary infraction while he was in prison for the murder of Tina Kimbrew. (10/11 EH:61). Curry did not, however, attempt to contact any witnesses from the prison system who might be able to testify about Petitioner’s time in prison. (10/11 EH: 118-19, 122). He testified at the hearing that he did not recall why he did not attempt to discover or interview any witnesses with regard to Petitioner’s life in prison and did not recall making a conscious decision either to pursue or not to pursue this type of evidence. (10/11 EH: 119-20,122).

Curry further testified that he was concerned that the State would play the tapes from the mediation sessions between Petitioner and Tina Kimbrew’s parents while Petitioner was still in prison, in which he misrepresented his past behavior, as evidence that Petitioner’s behavior had not changed while he was in prison because he lied when asked direct questions. (10/11 EH:239-40). Curry also testified that he was concerned that, because Petitioner was previously sentenced to thirty-five years and was paroled after eleven years, the jury would believe that he could be paroled again. He was also concerned that the jury might believe that Petitioner manipulated the system in order to be paroled. So, he instead argued that Petitioner knew how to do time in prison and would not be a threat to anyone. (10/11 EH:277-78).

Evidence Presented at Trial

At trial, Petitioner’s penitentiary packet was admitted by the State at trial in its case in chief. (R. 26:146-47). This pen pack included two disciplinary actions taken against Petitioner when he was incarcerated for the murder of Tina Kimbrew, one for arguing with another inmate in a loud voice and another for fighting with and pushing another inmate for changing the channel on the television. (State Trial Ex. # 142). On rebuttal, the State presented testimony from Tina Kimbrew’s parents that they participated in mediation sessions with Petitioner in an attempt to forgive him for murdering their daughter. In these sessions, Petitioner told both of them that he had never harmed anyone other than Tina. (R. 27:32-3, 37-8). The videotapes of these sessions were not admitted into evidence.

Curry did not call any witnesses who could testify about Petitioner’s time in prison. Curry instead argued during closing arguments that the jury would have to determine whether Petitioner would be a future danger in prison society and that the pen packet only indicated two arguments with other inmates in over eleven years of confinement, even in a violent place such as prison. Curry then argued that this' was evidence that Petitioner could conform himself under a regimented system and would not be a threat to anyone. (R. 28:21-2).

Further Evidence Submitted to Federal Court

Petitioner has submitted to this Court records from the TDCJ reflecting that Petitioner attended classes while previously in prison, including art, special education, horticulture and construction classes. These records also indicate that Petitioner took and passed the GED exam. (Pet. Rec. Ex. #20). Petitioner has also submitted evidence that Petitioner wrote sports-related articles as a unit reporter for the monthly prison newsletter. (Pet. Rec. Ex. # 21). Petitioner has also submitted an affidavit from his investigator, F. David Moore. In this affidavit Moore states that, as part of his investigation, he spoke with Sergeant Gary Faulkenberg of the Texas Department of Criminal Justice and that Faulkenberg remembered Petitioner from his previous time in prison and recalled that Petitioner participated in attempts to raise funds from the community to assist a young man with emergency medical needs. Moore also states in his affidavit that all other employees of TDCJ he contacted were reluctant to cooperate, fearing reprisals from their immediate supervisors. (Pet. Ex.:# D-14 [Rec. Ex. # 28]). Respondent has also submitted a direct affidavit from Faulkenberg, in which he states that he told Investigator Moore that Petitioner had no major disciplinary cases against him when he was incarcerated, but did not tell Moore about any charity fundraising event organized by Petitioner, and would not have willingly testified on Petitioner’s behalf. (Resp. Ex. # R32).

The parties have stipulated to this Court that, in August 1992, there was a fundraiser held in the TDCJ unit where Petitioner resided for a local boy who needed an organ transplant. (Joint Advisory, 1/4/07). Finally, the parties have stipulated that, contained in the Wichita County District Attorney’s files, which were open to Curry, were notes of an interview the State conducted with a man named Stephen Wood, who was in prison with Petitioner in 1997 before Petitioner and Wood were paroled. (Joint Advisory, 1/4/07). In these notes, it is stated that Wood described Petitioner as a “con man” and a “freak” with an anger problem, who had the guards and counselors fooled that he was a model prisoner, but who had another side to him when he got mad, such that the other inmates would stay out of his way. (Resp. Ex. # R-24).

Analysis

The Supreme Court has stated in Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), that, in order to determine whether a limited investigation into potential mitigating evidence is reasonable, a court must determine whether trial counsel used “reasonable professional judgment” to support the decision not to pursue certain potential mitigating evidence. In the instant case, the record before this Court is that defense counsel was aware of Petitioner’s minimal disciplinary record from prison but, according to his own testimony from the evidentiary hearing, Curry did not make a strategic decision to end further investigation into Petitioner’s prison record. Instead, he testified that he did not contact any inmates or employees of the prison system who might have information about Petitioner and could not provide this Court with any reason for his failure to do so. This Court therefore cannot find that Curry exercised “reasonable professional judgment,” as defined by Wiggins, in his decision to conduct at best an extremely limited investigation into Petitioner’s prior prison record. Instead, under the Strickland standard, as further explained by the Supreme Court in Wiggins and Rompilla, trial counsel provided ineffective assistance of counsel by not further investigating Petitioner’s record while in prison and providing no trial strategy for his failure to do so. Accordingly, the state court’s determination that trial counsel provided effective assistance of counsel in this regard because he exercised a legitimate trial strategy is an unreasonable application of the Strickland standard.

Having determined that Petitioner’s trial counsel was ineffective for failing to further investigate evidence of Petitioner’s prison record, this Court must now determine whether Petitioner was prejudiced by this failure. Therefore, under the Strickland standard, this Court must determine whether, had counsel investigated and presented further evidence of Petitioner’s pri- or prison record, there is a reasonable probability that he would not have been sentenced to death. The record from the trial reflects that, an hour and a half into their deliberations, the jury sent a note to the trial court asking the court to define whether a threat to society meant public or prison. The court responded that there was no specific definition for the terms referenced in the note. (R. 28:36-7). This note from the jury suggests that the jury, in deliberating Petitioner’s sentence, was at the time the note was sent in the process of determining whether Petitioner would be a future danger to society.

Petitioner argues that prejudice has been shown because, had his trial counsel submitted the evidence presented to this Court that he took several classes in prison, wrote for the prison newspaper, and participated in a fund-raiser for a local boy who needed urgent medical treatment, there is a reasonable probability that the jury would not have unanimously determined that he was a future danger to society and therefore he would not have been sentenced to death. In response, Respondent has presented evidence that calls into question Petitioner’s evidence that he participated in the fund-raising event and evidence that the State had spoken to one former inmate prior to trial who knew Petitioner and believed he was a con man with an anger problem.

In the jury charge, the jurors were informed that a “yes” answer to the fust two special issues required unanimity and a “no” answer required that ten jurors agreed and a “no” answer to the third special issue required unanimity and a “yes” answer required ten votes. (Tr.:160). The jurors were further instructed that, if they answered the first two issues “yes” and the third “no” Petitioner would be sentenced to death, and if they answered either of the first two questions “no” or the third one “yes” he would be sentenced to life imprisonment. (Tr.:162). And, under Texas law, although the jurors themselves were not told this, if the jurors were unable to arrive at a unanimous answer of “yes” to the first two special issues or “no” to the third special issue, Petitioner would have been sentenced to life in prison. See Nichols v. State, 754 S.W.2d 185, 204 (Tex.Crim.App.1988), overruled on other grounds by Green v. State, 764 S.W.2d 242 (Tex.Crim.App.1989); see also TexCode Crim. Proc. Ann. Art. 37.071 § 2(g) 754 S.W.2d 185 (Vernon 2005). Furthermore, the jury was not told about Petitioner’s parole eligibility should he be sentenced to life in prison, which would have been twenty years under Texas state law at the time. See Act of Sept. 1, 1991, 72nd Leg., R.S., ch. 652, § 10,15(b) (amended 1999).

In order for Petitioner to be sentenced to death, the jury had to, among other things, unanimously find that there was a probability that Petitioner would commit criminal acts of violence that would constitute a continuing threat to society. (Tr.:159-60, 162). As noted earlier, a note received by the trial court from the jury indicates that at least one juror was interested in whether a continuing threat to society meant public or prison society. The trial judge did not, however, define the term “society” for the jury. In order to establish prejudice, Petitioner must show that there is a reasonable probability that, but for John Curry’s failure to investigate and present evidence of Petitioner’s record and behavior while previously in prison, the result of the proceeding would have been different. And in Strickland, the Supreme Court defined a “reasonable probability” as a probability sufficient to undermine confidence in the outcome. Accordingly, in order for Petitioner to be entitled to relief this Court must conclude that, had John Curry’s further investigated Petitioner’s prison record and presented evidence of such at trial, there is a probability sufficient to undermine confidence in the outcome that Petitioner would not have been sentenced to death. And, in order for Petitioner to be entitled to relief, this Court must also further conclude that the state habeas court’s determination that Petitioner had failed to prove either prong of the Strickland standard is an unreasonable application of that standard. Given the evidence from the jury note received by the trial judge indicating that the jury appeared to be deliberating about Petitioner’s future dangerousness while in prison, given the fact that the jury was not given any information about parole eligibility, and given the fact that in order for the outcome of the proceeding to have been different only one holdout juror was needed to decline to answer the future dangerousness issue in the affirmative, this Court finds that a probability sufficient to undermine confidence in the outcome has been shown that Petitioner would not have been sentenced to death had his defense counsel presented any evidence about his nearly spotless record and his commendable behavior during his prior eleven-year incarceration. Furthermore, this Court concludes that the state habeas court’s resolution of this claim was an unreasonable application of the Strickland standard. As the Supreme Court noted in both Wiggins and Rompilla, a federal court may determine that a state court’s application of the Strickland standard is unreasonable when defense counsel fails to investigate potentially mitigating evidence without any reasonable strategy for failing to do so, fails to present such evidence, and it is shown that there is a probability sufficient to undermine confidence in the outcome that, had such evidence been presented, the defendant would not have been sentenced to death. Such has been shown here. It is recommended that Petitioner’s second ground for relief be granted.

c. Evidence of transformation

In his third ground for relief, Petitioner argues that his trial counsel was ineffective for failing to present evidence of Petitioner’s “complete transformation” in the intervening years since he committed the murders. In particular, Petitioner alleges that, although his trial counsel did ask him to compile a list of individuals who would be willing to testify for him at trial, Curry failed to contact some of these witnesses and mistakenly believed that others would be reluctant witnesses, when in fact they were willing to testify on Petitioner’s behalf. Petitioner further contends that Curry failed to make any independent investigation to find witnesses and that, had he done so, he would have found other witnesses willing to testify for Petitioner. All of these potential witnesses would have testified that Petitioner had changed in the intervening thirteen years between the five murders and his trial.

Based on John Curry’s affidavit, the state habeas court found that: 1) counsel made the strategic decision not to call Larry Revell, Ken Bishop, and Petitioner’s wife as witnesses; 2) Petitioner did not want to call his wife as a witness; 3) trial counsel instead called as a witness the owner of the business where Petitioner worked after he was paroled; and 4) trial counsel made the strategic decision not to pursue the “changed man” defense because trial counsel believed that the jury would conclude that Petitioner controlled his behavior in prison in order to be paroled and on parole in order to prevent his parole from being revoked. (SHTr.:13840, # 27-31, 35-9). The habeas court then concluded that Petitioner had failed to establish both deficiency and prejudice with regard to his claim that trial counsel was ineffective for failing to call additional witnesses at trial. (SHTr.:155-56, # 19-23).

Applicable Facts

Testimony at Evidentiary Hearing

At the evidentiary hearing, Curry testified that Petitioner had given him a list of people who might be willing to testify on his behalf. (10/11 EH:113-14). He also, by way of a letter to Curry, informed him that he felt physically and mentally abused by his father, was afraid of him, grew up hating him, and had deep depression because of this. (10/11 EH:231). On August 9, 1999, he provided this list of witnesses to his investigator, Dana Rice. This list included people Petitioner knew after he was paroled and seven members of his family. (10/11 EH:27, 34, 118). He delegated to Rice the task of contacting the witnesses because, in his experience, she had a “knack” for getting people to open up to her. Along with this list, he gave Rice a questionnaire to use and a memo with instructions for her. In determining who to call as a witness, Curry relied on her written notes and verbal input and personally spoke to only approximately five of the thirty people suggested as possible witnesses. (10/11 EH:33-5, 130, 139-40, 209, 217). Curry also testified that he made the decision not to hire a mitigation expert because he believed that this was an investigation the Public Defender’s office could conduct, as it had in the past. (10/11 EH:54). Curry further testified that he chose to wait a period of time before asking Rice to contact potential character witnesses for Petitioner because Petitioner had been living in the small town of Olney, Texas, and due to the fact that these people did not know Petitioner’s history coupled with the publicity from the case, Curry did not believe that immediate interviews with friends or family would be fruitful. (10/11 EH:49