Hernandez v. Thaler (787 F. Supp. 2d 504, 2011)

MEMORANDUM OPINION AND ORDER DENYING RELIEF

ORLANDO L. GARCIA, District Judge.

Petitioner Ramon Torres Hernandez filed this federal habeas corpus action pursuant to Title 28 U.S.C. Section 2254 challenging his October, 2002 Bexar County conviction for capital murder and sentence of death. For the reasons set forth hereinafter, petitioner is entitled to neither federal habeas relief nor a Certificate of Appealability from this Court.

I. Background

A. The Cold Case

On the evening of December 16, 1994, a pair of middle school girls, cousins Sarah Gonzales and Priscilla Aliñares, disappeared while walking together not far from Sarah’s residence in the Timber Creek area of San Antonio. On December 17, 1994, a group of employees from an automobile dealership and their families out delivering Christmas baskets to needy families discovered the lifeless bodies of Sarah and Priscilla lying in the high brush along side a road. The medical examiner testified both girls’ bodies showed signs of severe sexual assault and asphyxiation by strangulation, possibly either manual or ligature. Sarah’s sexual assault kit revealed no sperm. Priscilla’s vaginal slide did not reveal any sperm but her anal slide did show the presence of sperm. DNA testing employing the techniques available in 1995 managed only to exclude two gang members whom law enforcement officers were investigating at that time. The trail of Sarah and Priscilla’s killer quickly grew cold until DNA testing performed in 2001 showed petitioner’s DNA to be a match for the sperm fraction of Priscilla’s anal swab.

B. The Disappearance of Rosa Rosado

On the evening of March 31, 2001, Rosa Maria Rosado disappeared while en route to work.

C. The Confession of Asel Abdygapparova

On April 5, 2011, Asel Abdygapparova met with a San Antonio Police Homicide Detective and gave a five-page written statement detailing her knowledge of Rosado’s abduction, robbery, sexual assault, and murder by petitioner Ramon Hernandez and Santos Minjarez. On April 6, 2011, Abdygapparova led police to a clearing near the University of Texas at San Antonio campus off 1604 and Chase Hill Boulevard where police found Rosado’s body-buried in a shallow grave. Abdygapparova also led police to the motel where she informed police petitioner and Minjarez had held Rosado during her final hours.

D. Petitioner’s Arrest and First Interro- ■ gation (April 6, 2001)

San Antonio Police arrested petitioner during the early morning hours of April 6, 2001. From approximately 2:25 to 5:00 a.m. on April 6, 2011, San Antonio Police Detectives John Kellogg and Andrew Carian interviewed petitioner after giving petitioner his Miranda warnings. Initially, petitioner denied knowing either Minjarez or Abdygapparova. Petitioner eventually admitted he knew Minjarez but then asked for an attorney and his interview promptly halted.

E. Petitioner’s Second Interrogation (April 7, 2001).

Around 11:45 a.m. on April 7, 2001, petitioner met with Bexar County Adult Detention Center social worker Kim Robinson and, shortly thereafter, with BCADC intake and release supervisor Rogelio Contreras. Deputy Contreras notified the San Antonio Police Department’s homicide office that petitioner wished to speak with detective Carian. Later that same date, detectives Carian and Kellogg met with petitioner at the BCADC and, after again being given his Miranda warnings, petitioner agreed to be transported to the San Antonio Police for the purpose of giving a formal written statement. Petitioner thereafter gave a nine-page, written statement which petitioner reviewed and edited very carefully. In his written statement executed April 7, 2001, petitioner stated (1) he and Minjarez decided to rob Rosado when they spotted her near a bus stop, (2) he drove the vehicle during Rosado’s abduction, but (3) Minjarez was the person who actually sexually assaulted and murdered Rosado. Petitioner does not claim there was any factually inaccurate information contained in his written statement.

F. Indictment

On March 12, 2003, a Bexar County grand jury indicted petitioner in cause no. 2002-CR-1613 on a single Count of capital murder, alleging four different theories of that offense. More specifically, petitioner was charged with (1) having intentionally and knowingly murdered Rosado while in the course of committing and attempting to commit the predicate felonies of aggravated sexual assault, kidnaping, and robbery upon Rosado and (2) having committed more than one murder (i.e., the murders of Rosa Rosado, Sarah Gonzales, and Priscilla Almares) during different criminal transactions but pursuant to the same scheme and course of conduct.

G. Petitioner’s Motion to Suppress His Statement

On March 20, 2002, the state trial court held an evidentiary hearing on petitioner’s motion to suppress, as involuntary, his written statement. Petitioner did not testify during the hearing on his motion to suppress.

The social worker with whom petitioner spoke on the morning of April 7, 2001 testified (1) petitioner appeared anxious when she spoke with him, (2) when petitioner indicated he wanted to get something off his chest, she halted her interview of petitioner and had the booking sergeant take petitioner away, (3) while petitioner was anxious and upset, she did not consider him suicidal, and (4) petitioner’s exact words to her were that he would feel better if he got something off his chest.

A San Antonio Police detective testified (1) on April 7, 2001, he received a call from the jail around 11:40 a.m. saying that a person arrested in a homicide wished to talk regarding the case, (2) he paged Detective Carian, and (3) the day before, i.e., on April 6, 2011, petitioner’s interview with Detective Carian had terminated as soon as petitioner asked for an attorney.

The detective who took petitioner’s written statement on April 7, 2001 testified (1) he had contact with Asel Abdygapparova on April 6, 2001 and Abdygapparova furnished information which led to the discovery of Rosado’s body and the arrests of petitioner and Minjarez, (2) Abdygapparova identified petitioner as her boyfriend and identified a motel from which evidence was recovered, (3) after petitioner’s arrest on April 6, 2001, he personally read petitioner his rights off a printed card, (4) petitioner claimed initially that he didn’t know Minjarez or Abdygapparova, (5) petitioner later admitted he knew Minjarez but denied any knowledge of the offense and then requested a lawyer, (6) the following date, April 7, 2001, while in Austin, he received a page shortly before noon indicating the petitioner wanted to speak with him, (7) when he arrived at the BCADC, he once more read petitioner his rights, (8) petitioner indicated he was willing to talk with police and to go to the police homicide office, (9) petitioner claimed Minjarez actually committed the offense, (10) petitioner carefully edited the first and final drafts of the written statement, making many changes thereto, (11) no promises or threats were made to petitioner to induce petitioner’s statement, (12) petitioner indicated he understood his rights, (13) petitioner was furnished with drinks and snacks and given restroom breaks during his interview, (14) the detective was unaware petitioner was taking any prescribed medications for depression or that petitioner had been in contact with the BCADC’s mental health department, (15) petitioner’s demeanor during his April 7, 2001 interview was “serious,” not emotional, (16) he did confront petitioner with the statements of both Abdygapparova and Minjarez, and (17) petitioner appeared to have a rational understanding of the facts of the case, made sense, and did not appear to be “out of it” or to be unaware of what was going on.

At the conclusion of the hearing, the state trial judge denied petitioner’s motion to suppress petitioner’s written statement.

H. Additional DNA Testing

More sophisticated DNA testing revealed that (1) petitioner could not be excluded as a possible donor of the sperm fraction of the anal swab from Priscilla Almares’ rape kit and (2) Minjarez could not be excluded as a possible source of semen found on a carpet stain in the motel room to which Abdygapparova led police.

I. Guilt-Innocence Phase of Trial

The guilt-innocence phase of petitioner’s capital murder trial commenced on October 1, 2002.

1. The Prosecution’s Case

In addition to the evidence summarized above, including petitioner’s written statement which was read in open court, the jury also heard testimony from the Bexar County medical examiner who testified (1) Rosado died as a result of asphyxiation, (2) Rosado’s body showed indications that pressure had been applied to the back of her neck, causing hemorrhaging into the whites of her eyes, (3) he was unable to determine the precise manner in which Rosado had been asphyxiated, (4) both Sarah Gonzales and Priscilla Almares were strangled but he was unable to determine if the precise method of strangulation was manual or a ligature, (5) to cause death by strangulation, it would be necessary to apply pressure for somewhere between ninety seconds to two and a half minutes, (6) unconsciousness can be achieved in the average adult by applying pressure to the neck for ten to fifteen seconds, (7) Rosado suffered reddish and greenish bruises on her face, forehead, chin, the bridge of her nose, and cheeks, as well as multiples bruises on her arms and legs (8) Rosado suffered chemical burns on her right cheek as a result of application of an alkaline compound such as lye bleach, (9) Rosado also suffered bleaching stains on her upper torso, (10) Rosado suffered multiple hemorrhages, contusions, and abrasions to her vaginal area, (11) Rosado’s head injuries were consistent with her having been beaten about the head, i.e., with blunt force trauma to the head, (12) Rosado’s leg injuries were consistent with her leg having been caught in a closing car door, as petitioner indicated in his written statement, (13) Sarah Gonzales suffered multiple bruises to her forehead and the left side of her face, as well as the back of her neck, (14) internal bleeding was observed in both of Sarah’s eyes, (15) Sarah suffered a laceration, a contusion, and multiple abrasions to her vaginal area, as well as trauma to her hymen and bruising and hemorrhaging of her vaginal walls consistent with vaginal penetration, (16) Priscilla Almares also suffered facial injuries, Petechiae in the her facial skin and the whites of both her eyes, (17) Priscilla suffered scrapes to the left side of her chest, (18) Priscilla suffered multiple vaginal lacerations consistent with vaginal penetration, (19) while both Sarah and Priscilla suffered post-mortem ant bites, their bodies were unusually clean for a sexual assault case,(20) all three case showed similarities, to wit, all were young females who were abducted, sexually assaulted, beaten about the head, killed by asphyxiation in a manner he could not definitively determine but which indicated they had not offered much resistance, (21) all three victims had pressure applied to their necks, and (22) Rosado’s body had been cleaned with bleach and the two girls’ bodies appeared unusually clean.

2. The Defense’s Evidence

An acquaintance of Sarah and Priscilla testified (1) she saw Sarah and Priscilla at Westlakes Mall on the evening of December 16, 1994 in the company of a young man, possibly around age 19 or 20, whom she had not met before and who did not appear to want to look at her, (2) she later saw the two girls riding in a minivan driven by an unidentified male, and (3) a person she did not know later showed her a Polaroid photograph of Priscilla naked with three guys who were throwing gang signs. On cross-examination, however, she admitted her statement to police indicated the date she had seen the two girls was December 12, 1994 and she had not gone to the police when she learned of the girls’ deaths on December 17,1994.

A resident of the area from which the girls disappeared testified that, on December 16, 1994, he observed Sarah and Priscilla walking down the street and being followed by three young, teenage guys who appeared to be harassing the girls.

Another witness testified (1) he saw two girls walking during the early morning hours of December 17, 1994 near the access road to Loop 410 near Marbach Road, (2) the girls appeared to be having trouble with a group of guys in a pickup truck with whom the girls were arguing, (3) petitioner was not among the men in the pickup truck, (4) he was not certain the two petite girls he had seen were Sarah and Priscilla, and (5) the guys in the pickup truck were wearing gang attire.

A psychiatrist employed at the BCADC reviewed for the jury’s benefit the petitioner’s history of medications on April 7, 2001, pointing out petitioner’s BCADC medical records indicated (1) petitioner received 20 mg of Prozac at approximately 11:05 a.m. on that date, or the equivalent of “a couple cups of coffee,” and (2) petitioner appeared anxious but coherent and said he would feel better if he got something off his chest.

3. The Verdict

On October 9, 2001, the jury returned its verdict at the guilt-innocence phase of petitioner’s trial, finding petitioner guilty of capital murder, as charged in the indictment.

J. Punishment Phase of Trial

The punishment phase of petitioner’s capital murder trial commenced on October 10, 2002.

1. The Prosecution’s Evidence

A former neighbor of the petitioner’s family testified about an incident in April, 1986 in which he and his wife returned home to find their home had been “turned upside down” and law enforcement officers later found his television in the kids’ bedroom next door, his wife’s jewelry box in an ice chest in their backyard, and his wallet on top the roof (minus all credit cards).

An eyewitness and several law enforcement officers testified about an incident in April, 1990 in which petitioner and another man broke down the door of a home, burglarized the residence, and fled on foot when police arrived.

A trio of San Antonio Police Officers testified about an incident in June, 1990 in which petitioner was arrested for auto theft and possession of an illegal knife.

A pair of witnesses who were once neighbors of petitioner testified about an incident in January, 1991 in which (1) petitioner invited a male neighbor to petitioner’s apartment to watch a porn video, (2) petitioner left his apartment on a pretext and locked the male neighbor inside petitioner’s apartment, and (3) petitioner then went to the neighbor’s apartment and raped his neighbor’s wife.

The victim of a residential burglary testified about having her home burglarized in April, 1991 and, later, obtaining the return of all her stolen property.

A quintet of law enforcement officers testified about an incident in March, 1994 in which petitioner and Minjarez burglarized a house, led police on a high speed chase (at least briefly driving the wrong way on a major highway), wrecked their vehicle, and then fled on foot across a busy thoroughfare.

A quartet of BCADC employees testified about an incident in August, 2002, in which the petitioner was caught late at night hiding in a cell other than his own in the midst of an attempted escape that involved cutting through cinder block walls and concealing the resulting holes with a home-made, stucco-like, substance.

The prosecution also introduced documents establishing petitioner had previously been convicted of (1) multiple counts of burglary of a habitation with intent to commit theft and one count of carrying an illegal knife and (2) burglary with intent to commit sexual assault.

2. The Defense’s Evidence

Petitioner’s trial counsel presented evidence showing that all charges against petitioner arising from the incident in June, 1990 were subsequently dismissed for insufficient evidence.

A psychiatrist who had interviewed petitioner testified (1) petitioner possessed normal intelligence, (2) petitioner had a normal family development until age 15 (i.e., in 1986), when petitioner’s father was murdered, (3) petitioner felt guilt and experienced depression and mental health problems thereafter, (4) petitioner was diagnosed with post traumatic stress disorder (“PTSD”), anxiety disorder, and major depressive disorder and subsequently developed significant symptoms, entered treatment, and remained intermittently on medication for the next fifteen years, (5) among the medications prescribed for petitioner were Prozac, Klonopin (described by the witness as a mild tranquilizer), Thorazine, and Trazodone, (6) petitioner was admitted to the hospital at least twice for his depression and PTSD relating to his father’s death, (7) petitioner has a documented mental illness stemming from the traumatic murder of petitioner’s father that petitioner observed at a young age, (8) petitioner has been chronically depressed for many years, (9) the physician found no indications petitioner was malingering, and (10) it was unusual for a person with an antisocial personality to be clinically depressed because such persons typically lack a conscience.

On cross-examination, however, the same physician testified (1) petitioner got a girlfriend pregnant at age fifteen, a different girlfriend pregnant at age 16, and Asel Abdygapparova was pregnant with petitioner’s child at the time of Rosado’s murder, (2) petitioner is not retarded, (3) petitioner was diagnosed in both 1994 and 1996 with anti-social personality disorder, which features recurrent violations of social norms, an inability to learn from past experience, disregard for the rights and property of others, and a lack of social conscience, (4) petitioner had been through the juvenile justice system and was on probation prior to his father’s murder, (5) petitioner’s mental health indicate petitioner tends to blame others for his own conduct, (6) petitioner told one of his treating doctors that he liked to fight, (7) petitioner was found by one interviewer to be manipulative and head strong, (8) petitioner used marijuana, LSD, and alcohol all before the age of 16, (9) petitioner tends to be aggressive toward others and deceitful, (10) impulsiveness is high among antisocial personalities, (11) petitioner has a long history of not caring for his children and not paying child support, (12) petitioner has experienced significant periods of unemployment and was frequently absent from work when employed, and (13) petitioner’s antisocial personality means petitioner lacks empathy for others and tends to engage in exploitive and irresponsible sexual relations.

Petitioner’s aunt testified petitioner was a good man, a hard worker, very intelligent, on the Dean’s List at college, good with children, very respectful and polite, had problems as a juvenile arising from his father’s murder which were noticeable as early as his father’s funeral, and deserved to live.

Several of petitioner’s friends and other family members testified to petitioner’s good character and good personality traits.

3. The Verdict

On October 11, 2002, the jury returned its verdict at the punishment phase of petitioner’s capital murder trial, finding (1) beyond a reasonable doubt there was a probability the defendant would commit criminal acts of violence that would constitute a continuing threat to society, (2) beyond a reasonable doubt the defendant actually caused the death of Rosa Rosado or did not actually cause the death of Rosa Rosado but intended to kill Rosa Rosado or another or he anticipated that a human life would be taken, and (3) taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the defendant’s personal moral culpability, there was insufficient mitigating circumstance to warrant a sentence of life imprisonment rather than a sentence of death. The state trial court imposed sentence.

K. Direct Appeal

Petitioner appealed his conviction and sentence. In a brief filed December 19, 2003, petitioner asserted five points of error. In an unpublished opinion issued March 23, 2005, the Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence. Hernandez v. State, AP-74,451 (Tex.Crim.App. March 23, 2005). Petitioner did not thereafter seek certiorari .review of his conviction or sentence by the United States Supreme Court.

L. State Habeas Corpus Proceeding

On October 6, 2004, petitioner filed an application for state habeas corpus relief in which he asserted a dozen grounds for relief.

October 25-26 and 30-31, 2007, the state habeas trial court held an evidentiary hearing on petitioner’s grounds for state habeas corpus relief. The primary focus of the evidentiary hearing was the voluntariness of petitioner’s written statement executed April 7, 2001.

1. Petitioner’s Testimony

After introducing voluminous copies of petitioner’s medical and mental health records from the BCADC, the Center for Health Care Services (where petitioner was treated for PTSD, depression, and anxiety disorder following his release on parole from prison), and other facilities, petitioner took the stand at the state habeas hearing, offered his own six-page affidavit, and then submitted to cross-examination by the State.

The thrust of petitioner’s testimony before the state habeas court was his assertion that he had been suffering from severe withdrawal symptoms, relating to his abuse of the prescription medication Klonopin, at the time of his arrest and during both of his interviews by detective Carian on April 6 and 7, 2001, during which interviews petitioner claimed he begged for medication while Carian mocked petitioner’s obvious signs of withdrawal and threatened to withhold any medication from petitioner until petitioner furnished a statement that was consistent with the written statement given previously by Abdygapparova.

More specifically, petitioner testified in pertinent part that (1) Dr., Wilson had prescribed Klonopin for years to help petitioner sleep, (2) Klonopin is highly addictive, (3) in October, 2000, Dr. Stowe began to reduce petitioner’s Klonopin prescription, (4) nonetheless, petitioner continued to take the same dosage of Klonopin by supplementing his own prescription with additional Klonopin he obtained from his uncle Joe Torres, (5) he had only one and a half milligrams of Klonopin in his possession on March 29, 2001 and was unable to obtain any additional supply thereafter, (6) he experienced severe symptoms of Klonopin withdrawal during both his interviews •with detective Carian, including the sensation of blood rushing through his head, feelings of tenseness and nervousness, the involuntary shaking of his arms and legs, hyperventilation, a racing heartbeat, and uncontrollable shaking and trembling, (7) Carian repeatedly threatened petitioner with the death penalty unless petitioner gave a statement and refused to honor petitioner’s requests for an attorney and to terminate their interview on April 6 until detective Barney Whitson arrived, (8) petitioner told the booking nurse he was going through withdrawal, (9) his mother subsequently brought petitioner’s medications to the jail but he was given only Prozac on April 7, (10) he was unable to sleep and was suicidal following his arrest, (11) when he told the POD officer he was suicidal, he was taken to see Kim Robinson, (12) he told Robinson about his interrogation and the threats Carian had made, informed Robinson he was withdrawing from Klonopin, and said he needed to see a doctor because he “needed to get these things off my chest,” (18) when Robinson informed him there was no doctor available, petitioner became hysterical and demanded to see a doctor, (14) Robinson then got officer Contreras, whom petitioner also informed he needed medications, (15) when he was taken to see Carian on April, 7, petitioner was tired, disoriented, and his body was jerking uncontrollably, (16) it took eight hours for petitioner to give and correct his statement on April 7, (17) the panic attack petitioner experienced during his interview on April 7 did not affect his memory or his ability to edit his written statement, (18) Carian told petitioner his statement should conform to Abdygapparova’s statement, (19) when petitioner told Robinson and Conteras he wanted to “get things off his chest,” he had not intended to suggest he wanted to talk to a detective about his case but, rather, meant he wanted to talk to a doctor about his medication, (20) he told officer Contreras he was suicidal and needed to see a doctor, (21) he drank beer and liquor the first week in April, 2001 to ameliorate the effects of his Klonopin withdrawal, (22) the only reason petitioner gave his written statement on April 7 was his belief, based on Carian’s statements on April 6, that petitioner would continue to be denied Klonopin unless petitioner gave a statement, and (23) he did not discuss with his trial counsel either the circumstances surrounding the giving of his written confession, his mental condition, or the fact he was going through Klonopin withdrawal at the time he gave his written statement.

2. Petitioner’s Experts

Dr. Paula Kathleen Lundberg-Love, a professor of psychology and expert psycho-pharmacologist, testified in pertinent part that (1) based upon her review of petitioner’s medical and mental health records, as well as her clinical interview of petitioner, petitioner had clearly experienced a traumatic event, i.e., the fatal shooting of petitioner’s father, which caused petitioner to suffer from post traumatic stress disorder (“PTSD”), (2) the petitioner also suffered from panic disorder, a condition characterized by overwhelming anxiety, (3) petitioner also suffered from major depression, including suicidal ideation, (4) Klonopin is a Benzodiazepine drug designed to reduce anxiety and is no longer a drug of choice to treat panic disorder because patients tend to develop tolerance and dependance on same, (5) persons coming off Benzodiazepine drugs may experience enhanced anxiety, (6) after his release from prison, petitioner’s anxiety disorder had been treated initially with Ativan and Paxil, (7) later Buzbar was added and, even later, petitioner was treated with Ativan, Inderal, and Paxil, (8) eventually, petitioner was prescribed Prozac in lieu of Paxil, in part because of the negative sexual side-effects of Paxil on petitioner, (9) in June, 1998, Dr. Wilson switched petitioner from Ativan to Klonopin, which is a longer-acting medication, (10) petitioner took 4 rag of Klonopin daily from June, 1998 until August, 2000, when Dr. Stowe began reducing petitioner’s dosage of Klonopin, (11) by the late-1990’s Benzodiazepine drugs were contraindicated for anxiety disorder and PTSD because of the tendency of patients to develop iatratenic drug dependence, i.e., physician-induced dependence, (12) she questioned whether petitioner’s reduction in Klonopin dosage from 4 mg to 1 mg daily was too rapid, (13) a person who had taken Klonopin for a sustained period of time and experienced a reduction of dosage from 4 mg to 1 mg daily would likely experience “breakthrough symptoms of anxiety,” (14) petitioner’s testimony regarding his symptoms during his interviews with Carian was consistent with what she believed a person experiencing rapid withdrawal from Klonopin, (15) Klonopin withdrawal causes significant anxiety symptoms and is exacerbated by alcohol use, (16) maximum symptoms may be delayed as much as a week but, in as little half a week, symptoms would be disruptive and would contravene a patient’s ability to function normally, (17) withdrawal from Klonopin is also exacerbated by simultaneous withdrawal from alcohol, (18) petitioner reported to her that he experienced hyperventilation and trembling shortly after his arrest, (19) Klonopin withdrawal could cause elevated heart rate and pulse, shallow respiration, and trembling, (20) petitioner’s vital signs taken on April were all in or near the normal range but that fact did not rule out the possibility of Klonopin withdrawal, (21) while Prozac would ameliorate the symptoms of depression and help PTSD, it would not help with Klonopin withdrawal, (22) she was unable to say whether petitioner’s written statement on April 7, 2001 was voluntary, and (23) nothing in petitioner’s clinical interview or testimony was inconsistent with Klonopin withdrawal.

The psychiatrist who treated petitioner from August, 2000 to March, 2001, Dr. Robert H. Stowe, testified in pertinent part that (1) Dr. Wilson had prescribed Prozac and Klonopin for petitioner, (2) he decided to taper down petitioner’s dosage of Klonopin, in part because of petitioner’s diagnosis of poly-substance abuse/dependence, (3) Dr. Wilson had prescribed up to 6 mg of Klonopin daily and Dr. Stowe was concerned about the possibility of cross-addiction, (4) it would have been easy for petitioner to become addicted to a Benzodiazepine drug like Klonopin, (5) he did not intend to substitute another drug for Klonopin because he believed Prozac would be sufficient to treat petitioner’s symptoms, (6) the typical symptoms of Klonopin withdrawal include anxiety, convulsions, tremors, increased blood pressure, increased heart rate, sweating, agitation, increased motor restlessness, and seizures, (7) over a period of several months he weaned petitioner off Klonopin and in February, 2011, he discontinued any Klonopin for petitioner, (8) he believed petitioner successfully adjusted to the gradual reductions in dosage of Klonopin, (9) in early 2001, petitioner indicated to Dr. Stowe that he was only taking 20 mg of Prozac daily, instead of the prescribed 30 mg daily and he was only taking Klonopin on an “as needed” basis rather than as prescribed, (10) psychotropic medications are only effective when taken as prescribed, (11) a sudden stop of Klonopin after taking high doses would result in extreme agitation, (12) Klonopin withdrawal would normally include anxiety, insomnia, restlessness, high blood pressure, and rapid heart rate, (13) nonetheless, he would not expect Klonopin withdrawal to affect a person’s judgment, (14) he was never contacted by petitioner’s trial counsel, (15) he never saw any signs of Klonopin withdrawal while treating petitioner but did see increased anxiety, (16) he prescribed Trazodone to help with petitioner’s insomnia, not as a substitute for Klonopin, (17) he was satisfied with petitioner’s anxiety symptoms until petitioner’s last visit on March 29, 2001, when he became concerned about petitioner’s symptoms, (18) he had no knowledge that petitioner was ever taking more than the prescribed dosage of Klonopin, (19) it is possible, if petitioner’s account of his over-self-medication is true, the petitioner was experiencing Klonopin withdrawal on April 6, 2001, (20) petitioner never appeared to resist his efforts to reduce petitioner’s Klonopin dosage, (21) a person who had been on. Klonopin for five years would have a riskier withdrawal than a patient who had been the medication less time, (22) reducing the dosage of petitioner’s Klonopin would not have done any good if petitioner had been supplementing from other sources, (23) withdrawal from Benzodiazepine drugs like Klonopin is much more medically significant than withdrawal from heroin or cocaine and can cause life-threatening seizures and extreme elevations in blood pressure and heart rate, which can lead to stroke or heart attack, (24) petitioner’s anxiety level in 2001 was consistent with petitioner supplementing his Klonopin to maintain the prior dosage before Dr. Stowe began tapering down petitioner’s dosage, (25) petitioner’s “normal” vital signs taken at 11:58 a.m. on April 7, 2001 were not indicative of Klonopin withdrawal, (26) Klonopin withdrawal symptoms are not necessarily apparent to an observer, (27) a person withdrawing from Klonopin might have difficulty focusing on details, (28) petitioner typically manifested panic symptoms intermittently, and (29) by March 29, 2001, petitioner knew the name of the medication Klonopin.

3. Petitioner’s Trial Counsel

Attorney Michael Ugarte testified (1) he had petitioner’s medical records and BCADC classification records prior to the hearing on petitioner’s motion to suppress, (2) petitioner’s trial counsel had petitioner evaluated by a court-appointed mental health expert, Dr. Gripon, (3) Ugarte became aware that petitioner was receiving mental health services, (4) he was aware petitioner had been diagnosed with PTSD and major depression, (5) he was aware petitioner had been prescribed Klonopin, (6) he spoke with petitioner regarding petitioner’s dealings with Dr. Wilson, (7) both of petitioner’s trial counsel and Dr. Gripon had discussions with petitioner regarding the circumstances surrounding petitioner’s giving of his written statement, (8) had petitioner’s trial counsel been aware of petitioner’s alleged Klonopin withdrawal at the time petitioner gave his statement, they would have explored that subject further, (9) petitioner was aware of his constitutional rights, including his right to testify at the hearing on petitioner’s motion to suppress, (10) petitioner was “quite talkative,” “very intelligent,” experienced in the criminal justice system, and understood how the system worked, (11) petitioner never mentioned to Ugarte that petitioner was undergoing withdrawal from Klonopin or any other drug at the time of petitioner’s interrogations by detective Carian, (12) the petitioner never told Ugarte that, on April 6, detective Carian ignored petitioner’s repeated requests to terminate petitioner’s interview and for an attorney, (13) petitioner did not tell Ugarte that petitioner began experiencing panic attacks as soon as Carian began interviewing-petitioner, (14) petitioner never told Ugarte that petitioner began to tremble and shake during his first interview with Carian, (15) petitioner never told Ugarte that Carian laughed at petitioner, accused petitioner of faking illness, or threatened petitioner with the death penalty during petitioner’s interviews, (16) petitioner never told Ugarte that Carian directed petitioner to conform petitioner’s statement to Abdygapparova’s statement or that Carian refused to arrange for petitioner to receive medical attention during the petitioner’s interviews, (17) petitioner never told Ugarte that petitioner was suicidal during his interviews or that petitioner had gone without sleep for 72 hours prior to giving his statement, (18) Ugarte would have expected petitioner to convey such information to Ugarte if, in fact, it had happened because petitioner had attended college and was very good about furnishing trial counsel with information, (19) Ugarte would have objected if the prosecutor had gestured toward the victims’ families during jury argument, and (20) had petitioner informed trial counsel that petitioner was withdrawing from Klonopin while giving his written statement, the whole strategy of petitioner’s trial counsel at the hearing on the motion to suppress petitioner’s statement would have been different.

Attorney Patrick Hancock, petitioner’s other trial counsel, testified in pertinent part that (1) petitioner’s trial counsel obtained petitioner’s medical records from the BCADC and the Center for Health Care Services, (2) Hancock asked petitioner about medications prior to the suppression hearing, (3) he did not object to prosecutorial argument concerning the wishes of the victims’ families because he did not wish to make a big deal out of same, (4) Hancock spoke with petitioner regarding the circumstances surrounding petitioner giving his written statement and used that information in their motion to suppress, (5) petitioner is a very intelligent man whom Hancock believes would have been unlikely to hold anything back from trial counsel, (6) petitioner understood every aspect of trial and a lot of the nuances of court work, (7) petitioner never told Hancock that petitioner was withdrawing from Klonopin at the time petitioner gave his statement, (8) petitioner never told Hancock that petitioner was denied any medication while giving his statement, (9) petitioner never said he was experiencing a panic attack during his interrogation, (10) petitioner was “very proactive in his defense and he wasn’t shy about communicating” with his trial counsel, in writing or whispering or talking during the breaks, (11) if petitioner had told Hancock that Carian had laughed at, mocked, or threatened petitioner during the interrogation, Hancock would have questioned Carian about same, (12) petitioner never indicated there was anything factually inaccurate in petitioner’s written statement, (13) Hancock was aware petitioner was being treated and medicated for mental illness at the time of petitioner’s arrest, (14) Hancock was unaware that petitioner was not receiving his prescribed medications at the time of petitioner’s interrogation, (15) petitioner’s trial counsel had their own mental health expert independently evaluate petitioner’s medical records, (16) any evidence petitioner was withdrawing from drugs at the time petitioner gave his statement would have been relevant to the issue of the voluntariness of petitioner’s statement and would have been helpful to the defense, and (17) petitioner never told Hancock that petitioner was suffering withdrawal symptoms or needed medication during petitioner’s interrogation.

4. Petitioner’s State Appellate Counsel

The attorney who filed petitioner’s appellant’s brief on direct appeal testified in pertinent part that (1) he focused his review of the trial record on claims that were properly preserved, (2) he did not raise a point of error complaining about the state trial court’s failure to admit Abdygapparova’s written statement under the “rule of optional completeness,” in part, because petitioner’s trial counsel never argued for admission of her statement on that basis, (3) he also believed such a point of error lacked substantial likelihood of success because of the state harmless error rule, and (4) he believed petitioner’s trial counsel had opened the door to the questions by prosecutors directed to detective Carian which resulted in Carian explaining that petitioner refused to cooperate with investigators until Carian informed petitioner that Abdygapparova had implicated petitioner in Rosado’s rape and murder.

5. BCADC Staff

Caroline Mkubwa, a social worker at the BCADC who interviewed petitioner during the intake process, testified in pertinent part that (1) she interviewed petitioner on April 7, 2001, (2) petitioner gave a history of PTSD and anxiety and indicated he was then taking Prozac 15 mg every morning and Trazodone 50 mg, (3) petitioner denied suicidal ideation and denied a history of substance abuse, (4) petitioner was coherent, alert, oriented to time, place, and person, and displayed logical thinking with a normal neurological affect, (5) she is familiar with drug withdrawal and routinely asks inmates about their drug use and drug withdrawal, (6) petitioner did not tell her he was going through withdrawal from Klonopin, (7) she checked off a form indicating petitioner’s demeanor was “normal” and “calm,” and (8) had petitioner been showing signs of withdrawal distress, he would have been assigned to the detox unit but, instead, petitioner was assigned to the general population.

The social worker who saw petitioner just before noon on April 7, 2001 testified in pertinent part that (1) she interviewed petitioner around 11:15 a.m. on April 7, 2001, (2) petitioner wanted medications and appeared anxious, (3) petitioner appeared to be anxious but coherent and oriented to time, place, and situation, (3) she checked with the nurse and learned petitioner had received Prozac or Trazodone that morning, (4) petitioner said he had been interrogated by the police for a long time, he had been silent during his interrogation, and he believed he would feel better if he got something off his chest, (5) at that point, she halted her interview and referred petitioner to the booking sergeant, (6) petitioner did not appear to be in need of immediate medical attention, (7) petitioner did not tell her he had gone without sleep for several days, (8) petitioner did not tell her he had been threatened with the death penalty and had been having panic attacks all night long, (9) petitioner did not appear suicidal, (10) petitioner did not tell her he wanted to see a doctor, (11) she is generally familiar with Klonopin, as an anti-depressant, (12) she cannot recognize Klonopin withdrawal, (13) sergeant Contreras came and took petitioner away, (14) petitioner did not become hysterical and did not demand to see a doctor, (15) petitioner was not having seizures, was not shaking or jerking uncontrollably, and was not sweating profusely, and (16) when petitioner said he wanted to get something off his chest, he did so in the context of describing his lengthy interrogation by police and she did not understand that comment to mean petitioner wanted to see a doctor.

The BCADC booking sergeant whom the social worker summoned when petitioner said he wanted to get something off his chest testified in pertinent part that (1) the social worker told him petitioner wanted to get something off his chest, (2) he would not have known petitioner wished to speak with detective Carian unless petitioner himself specifically identified Carian as the person with whom petitioner had already spoken, (3) if petitioner had merely requested to speak to a law enforcement officer generically, he would have referred petitioner to the Bexar County Sheriffs Department’s Criminal Investigation Department, (4) he is familiar with inmates who are going through drug withdrawal, (5) petitioner did not appear to be showing symptoms of drug withdrawal, (6) he routinely refers inmates going through drug withdrawal or experiencing medical problems to the BCADC medical staff or a social worker, (7) he would not have told an inmate going through withdrawal to talk with an investigator, and (8) “I want to get something off my chest” is a common expression used by inmates who wish to make a confession.

6. The Interviewing Detectives

Detective John Kellogg testified, in pertinent part that (1) after interviewing Asel Abdygapparova, he obtained an arrest warrant for petitioner, (2) when he saw petitioner shortly after petitioner’s arrest, petitioner did not appear to be having a panic attack and did not appear to be in need of medical attention, (3) petitioner did not appear to be experiencing convulsions or seizures or any involuntary muscle movement, (4) petitioner did not mention medications, (5) he did not see detective Carian laugh at, mock, or threaten petitioner with the death penalty, (6) he did not see detective Carian accuse petitioner of faking any symptoms of a medical problem, (7) he did not witness petitioner invoke his right to counsel within the first few minutes of the April 6, 2001 interview, (8) neither he nor detective Carian ever refused any request by petitioner for medical attention, (9) he was not present when petitioner invoked his right to counsel (Kellogg left the interview around 3:30 a.m. on April 6, 2001), (10) neither he nor detective Carian suggested they had the authority to withhold medical treatment or medication from petitioner, (11) petitioner never mentioned Klonopin in his presence, (12) petitioner never indicated he was going through withdrawal from any drug, (13) petitioner did not appear to be shaking, sweating profusely, or exhibiting any other sign or symptom of a need for medical attention, (14) he did not recall detective Carian ever telling petitioner that the information contained in Abdygapparova’s statement was what the petitioner should put into his own statement, (15) following a trip to Austin on April 7, 2001, he and detective Carian met again with petitioner at the BCADC, (16) when they met again on the afternoon of April 7, 2001, petitioner did not appear surprised to see them, (17) petitioner did not express a desire to see a physician, (18) petitioner was not trembling, suicidal, or any more anxious that other suspects, and (19) petitioner did not appear to be in need of medical attention on April 7, 2001.

Detective Andrew B. Carian testified in pertinent part that (1) Abdygapparova led police to the location of Rosado’s body, (2) he obtained an arrest warrant for petitioner, (3) his first contact with petitioner came on April 6 after petitioner’s arrest when he (Carian) read petitioner his rights, (4) Carian advised petitioner that Abdygapparova had implicated petitioner in a murder, (5) petitioner did not appear to be having a panic attack, (6) petitioner had a very serious demeanor and showed no sign he lacked comprehension, (7) petitioner was able to communicate clearly and appeared to understand what Carian said, (8) petitioner’s arms and legs were not jerking involuntarily, (9) petitioner did not appear to be having a seizure and was not sweating profusely, (10) petitioner never mentioned that he needed any medications or any medicine at all, (11) Carian did not laugh at, mock, or accuse petitioner of faking any symptoms of a medical problem, (12) Carian never suggested he had the authority to withhold medications from petitioner, (13) petitioner did not invoke his right to counsel or ask to terminate the interview at the outset or within five minutes of the start of that interview, (14) petitioner did not repeatedly request an attorney, (15) initially, petitioner denied knowing either Minjarez or Abdygapparova and claimed to be unable to identify a photo of Minjarez, (16) eventually, after more than two hours of discussion during which petitioner made it clear he did not wish to give a formal statement, petitioner did invoke his right to counsel and petitioner’s interview immediately halted on that date, (17) at that time (around 5 a.m. on April 6), Carian turned petitioner over to a patrol officer for transport to the Magistrate’s office, (18) petitioner never mentioned Klonopin to Carian, (19) petitioner exhibited no signs on April 6 that petitioner needed medicine or medical attention, (20) while in Austin on April 7, Carian received a page from detective Whitson indicating petitioner wanted to talk with Carian, (21) Carian and detective Kellogg went to see petitioner at the BCADC, (22) petitioner did not appear surprised to see them, (23) Carian again gave petitioner his Miranda warnings, informed petitioner that Carian had received a message that petitioner wanted to talk, and asked “What’s up?”, (24) petitioner did not ask for a doctor, (25) at that point, petitioner started discussing his case, specifically, blaming Minjarez for Rosado’s death, (26) Carian asked petitioner if he would agree to be transported to the Homicide Office to give a statement and petitioner consented, (27) once they all arrived at the Homicide Office, petitioner gave a written statement outlining petitioner’s role in the offense, (28) Carian did not suggest to petitioner what information petitioner should include in petitioner’s statement, (29) petitioner did not appear to be having a panic attack, (30) throughout that interview on April 7, petitioner did not mention any need for medication and did not request to see a physician, (31) Carian did not laugh at or accuse petitioner of faking any symptoms of any medical condition, (32) Carian did not threaten petitioner with the death penalty if petitioner failed to cooperate, (33) Carian did not withhold any medication or threaten to withhold any medication from petitioner, (34) petitioner never mentioned Klonopin to Carian, (35) petitioner was not sweating profusely, shaking, having a seizure, or exhibiting involuntary twitching of his arms or legs, (36) Carian typed petitioner’s statement on a computer and then petitioner spent at least three hours carefully editing the nine-page statement, (37) petitioner made several corrections to the initial draft of his statement and even made a few changes to the final draft, (38) two civilians witnessed petitioner’s execution of his written statement, (39) petitioner never mentioned medicine prior to the execution of his statement, (40) at the time petitioner requested an attorney on April 6, everything stopped, (41) during both interviews, Carian was unaware that petitioner had been under the care of a psychiatrist while on parole or that petitioner was taking prescribed medications, and (42) Carian had no reason to suspect that was the case.

7. Oral Argument

On March 20, 2008, the state habeas trial court heard final oral argument in petitioner’s state habeas corpus proceeding. During petitioner’s argument, his state habeas counsel emphasized that resolution of petitioner’s complaint about the admission of his allegedly involuntary confession turned on a credibility determination in which the court had to weigh the relative credibility of petitioner’s account of his interview with that of detectives Carian and Kellogg.

8. Findings and Conclusions

In an Order issued March 31, 2008, the state habeas trial judge issued her findings of fact and conclusions of law recommending denial of petitioner’s state habeas corpus application. For unknown reasons, on July 8, 2008, the state habeas trial court issued a second, virtually identical, order setting forth its findings of fact, conclusions or law, and recommendation that petitioner’s state habeas corpus application be denied.

In pertinent part, the state habeas trial court found (1) petitioner’s assertion that he supplemented his own Klonopin prescription with medicine he obtained from his uncle was not credible, (2) petitioner’s assertions in his affidavit and testimony-regarding his interview on April 6, 2001 were not credible and the testimony of detectives Kellogg and Carian concerning the petitioner’s interview on April 6, 2001 was credible, (3) petitioner’s assertions that he became hysterical, demanded Kim Robinson call a doctor right away, and that Sergeant Contreras told petitioner “you need to talk to an investigator, not a doctor” were not credible, (4) the testimony of Caroline Mkubwa, Kim Robinson, and Rogelio Contreras was credible and established that petitioner’s testimony concerning his condition while at the BCADC on April 7, 2001 was false, (5) the testimony of John Kellogg and Andrew Carian concerning petitioner’s condition during his interview on April 7, 2001 was credible and established that petitioner’s assertions that his will was overborne and his written statement was involuntary were false, and (6) petitioner’s assertions that he was suffering from withdrawal symptoms on April 6-7, 2001 were not credible.

Based on the foregoing factual findings, the state habeas trial court concluded, in pertinent part, that (1) petitioner’s written statement to police was freely and voluntarily given, (2) police scrupulously honored petitioner’s invocation of his right to counsel and to terminate his interview and spoke with petitioner again only because petitioner asked them to come back and talk with him, (3) the officers first reminded petitioner of his rights before re-initiating contact with him, and (4) petitioner’s trial counsel were both constitutionally effective.

9. Texas Court of Criminal Appeals’ Ruling

In an unpublished, per curiam, order issued September 10, 2008, the Texas Court of Criminal Appeals adopted the findings and conclusions of law issued by the state trial judge with the exception of the trial court’s findings and conclusions regarding petitioner’s final claim, i.e., petitioner’s complaint that his state appellate counsel failed to raise a point of error protesting the state trial court’s failure to permit petitioner’s trial counsel to introduce the contents of Abdygapparova’s statement.

M. Procedural History in this Court

On May 15, 2009, petitioner filed his petition for federal habeas corpus relief in this Court, urging six claims for relief. Docket entry no. 11.

On October 14, 2009, respondent filed his answer. Docket entry no. 25.

On December 3, 2009, petitioner filed his reply to respondent’s answer. Docket entry no. 28.

II. AEDPA Standard of Review

Because petitioner filed his federal habeas corpus action after the effective date of the AEDPA, this Court’s review of petitioner’s claims for federal habeas corpus relief is governed by the AEDPA. Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 1438, 161 L.Ed.2d 334 (2005); Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000); 28 U.S.C. § 2254(d).

The Supreme Court has concluded the “contrary to” and “unreasonable application” clauses of Title 28 U.S.C. Section 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). Under the “contrary to” clause, a federal habeas court may grant relief if (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Brown v. Payton, 544 U.S. at 141, 125 S.Ct. at 1438; Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003) (“A state court’s decision is ‘contrary to’ our clearly established law if it ‘applies a rule that contradicts the governing law set forth in our cases’ or it ‘confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.’ ”). A state court’s failure to cite governing Supreme Court authority does not, per se, establish the state court’s decision is “contrary to” clearly established federal law: “the state court need not even be aware of our precedents, ‘so long as neither the reasoning nor the result of the state-court decisions contradicts them.’ ” Mitchell v. Esparza, 540 U.S. at 16, 124 S.Ct. at 10.

Under the “unreasonable application” clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts of the petitioner’s case. Brown v. Payton, 544 U.S. at 141, 125 S.Ct. at 1439; Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003). A federal court making the “unreasonable application” inquiry should ask whether the state court’s application of clearly established federal law was “objectively un reasonable.” McDaniel v. Brown, — U.S. —, —, 130 S.Ct. 665, 673, 175 L.Ed.2d 582 (2010) (“A federal habeas court can only set aside a state-court decision as ‘an unreasonable application of ... clearly established Federal law,’ § 2254(d)(1), if the state court’s application of that law is ‘objectively unreasonable.’ ”); Wiggins v. Smith, 539 U.S. at 520-21, 123 S.Ct. at 2535. The focus of this inquiry is on whether the state court’s application of clearly established federal law was objectively unreasonable; an “unreasonable” application is different from a merely “incorrect” one. Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007) (“The question under the AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable'—a substantially higher threshold.”); Wiggins v. Smith, 539 U.S. at 520, 123 S.Ct. at 2535; Price v. Vincent, 538 U.S. 634, 641, 123 S.Ct. 1848, 1853, 155 L.Ed.2d 877 (2003) (“it is the habeas applicant’s burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner”).

Legal principles are “clearly established” for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions as of the time of the relevant state-court decision establish those principles. Yarborough v. Alvarado, 541 U.S. 652, 660-61, 124 S.Ct. 2140, 2147, 158 L.Ed.2d 938 (2004) (“We look for ‘the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.’ ”); Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003).

The AEDPA also significantly restricts the scope of federal habeas review of state court fact findings. Section 2254(d)(2) of Title 28, United States Code, provides federal habeas relief may not be granted on any claim that was adjudicated on the merits in the state courts unless the state court’s adjudication of the claim resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wood v. Allen, — U.S. —, 130 S.Ct. 841, 849, 175 L.Ed.2d 738 (2010) (“[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”); Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522 (“[A]n unreasonable application of federal law is different from an incorrect application of federal law.”). Even if reasonable minds reviewing the record might disagree about the factual finding in question (or the implicit credibility determination underlying the factual finding), on habeas review, this does not suffice to supersede the trial court’s factual determination. Wood v. Allen, — U.S. at —, 130 S.Ct. at 849; Rice v. Collins, 546 U.S. 333, 341-42, 126 S.Ct. 969, 976, 163 L.Ed.2d 824 (2006).

In addition, Section 2254(e)(1) provides a petitioner challenging state court factual findings must establish by clear and convincing evidence that the state court’s findings were erroneous. Schriro v. Landrigan, 550 U.S. at 473-74, 127 S.Ct. at 1939-10 (“AEDPA also requires federal habeas courts to presume the correctness of state courts’ factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.’ ”); Rice v. Collins, 546 U.S. 333, 338-39, 126 S.Ct. 969, 974, 163 L.Ed.2d 824 (2006) (“State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’ ”); Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005) (“[W]e presume the Texas court’s factual findings to be sound unless Miller-El rebuts the ‘presumption of correctness by clear and convincing evidence.’ ”); 28 U.S.C. § 2254(e)(1). It remains unclear at this juncture whether Section 2254(e)(1) applies in every case presenting a challenge to a state court’s factual findings under Section 2254(d)(2). See Wood v. Allen, — U.S. at -, 130 S.Ct. at 849 (choosing not to resolve the issue of Section 2254(e)(l)’s possible application to all challenges to a state court’s factual findings); Rice v. Collins, 546 U.S. at 339, 126 S.Ct. at 974 (likewise refusing to resolve the Circuit split regarding the application of Section 2254(e)(1)).

However, the deference to which state-court factual findings are entitled under the AEDPA does not imply an abandonment or abdication of federal judicial review. See Miller-El v. Dretke, 545 U.S. at 240, 125 S.Ct. at 2325 (the standard