Byrom v. Epps (817 F. Supp. 2d 868, 2011)

AMENDED MEMORANDUM OPINION AND ORDER

MICHAEL P. MILLS, Chief Judge.

Michelle Byrom is an inmate confined to the Mississippi Department of Corrections who has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the otherwise final capital murder conviction and . sentence of death imposed on her by the Circuit Court of Tishomingo County, Mississippi, for her involvement in the murder of her husband.

Facts and Procedural History

On June 4, 1999, Edward Byrom, Sr. (hereinafter “Edward”) was fatally shot four times in the chest with his own 9 millimeter pistol inside of his home in Iuka, Mississippi. Edward’s son, Edward Byrom, Jr. (hereinafter “Junior”) called 911 after he discovered Edward’s body slumped over a coffee table in a spare bedroom that the family used as an entertainment room. At the time Edward’s body was found, his wife, the Petitioner in this cause, was a patient in the Iuka Hospital. She had been admitted earlier in the day by her physician, Dr. Ben Kitchens, with a diagnosis of double pneumonia. Within hours of Edward’s death, Tishomingo County law enforcement officials had questioned Petitioner and Junior and obtained statements from them. The police learned that Petitioner had devised a scheme to hire one of Junior’s friends, Joey Gillis (hereinafter “Gillis”), to kill her husband in exchange for $15,000 to be paid out of Edward’s insurance proceeds. Petitioner, Junior, and Gillis were all arrested.

The events leading up to and immediately following Edward’s murder are contested, but all accounts appear to agree that the Byrom household was not one of tranquility. Edward and Petitioner fought frequently, usually about money, and Junior would often intercede when the fights escalated. While Petitioner alleges that Edward was physically, sexually, and verbally abusive to her, not all of the fights in the home were between the parents. Fights often broke out between Junior and his dad, as well, over disputes about Junior’s drug use, his partying, and the fact that he was an unemployed high-school dropout. Junior estimates that the family would get into screaming and cursing arguments at least twice a week in the six months prior to Edward’s death, and that the fights were usually worse when alcohol was involved. Petitioner and Edward both drank whiskey regularly to the point of intoxication, and Junior threw frequent parties at the home that involved the consumption of alcohol, marijuana, cocaine, and prescription pills. Petitioner and Edward would often stay at a local motel when Junior threw a party. Junior’s friends spent a lot of time at his house aside from the weekend parties, however, and Petitioner frequently spent time with the teenagers. She admits that she occasionally purchased alcohol for them, and Junior states, though Petitioner denies it, that she sometimes smoked marijuana with him.

From the accounts of Petitioner and Junior, Edward generally preferred to detach himself from his family when he was home. They maintain that he often ate and slept in the entertainment room, which had been a sound studio at one time. There was shag carpet on the walls and black plastic covering the windows, which Petitioner maintains was for the purpose of allowing Edward to feed his addiction to pornography in private. Petitioner alleges that Edward forced her to view commercial pornography and engage in masturbatory acts while he videotaped her, in addition to forcing her to engage in sexual activities with women he brought home with him. She maintains that she was physically abused when she refused to submit to Edward’s demands, and that her fear that Edward would harm her or Junior kept her from leaving Edward.

It was after a graduation party that Junior threw at the Byrom home in May 1999 that Petitioner’s plan to have Edward killed began to form. Edward and Petitioner had been staying at a motel, but they returned home while the party was still ongoing. Junior and Petitioner allege that Edward became angry, yelled at everyone to leave, pushed Petitioner to the ground, and struck Junior and one of Junior’s friends. After Edward’s angry outburst, Petitioner alleges that she, Junior, and his friends began to joke about having Edward killed. Junior states that sometime shortly thereafter, Petitioner asked him if he could find someone who would murder Edward.

Junior testified that he approached his friend, Joey Gillis, about the murder approximately a week prior to Edward’s murder. Petitioner and Gillis agreed that he would find someone to murder Edward in exchange for $15,000, which would be paid after Petitioner collected the proceeds from Edward’s insurance. Petitioner stated that the initial plan was for someone to hide in the woods across the street from the house and shoot Edward as he waited for his ride to work. Edward worked seven days a week, and on most days, he would wait to be picked up at the end of his driveway. According to Petitioner, attempts to carry out this plan failed on the Wednesday and Thursday before the murder. The first attempt failed because a neighbor was outside in his garden at the time. Another attempt failed when the Byroms’ dogs were let out of the house and began approaching Gillis, who was hiding in the woods. On Friday, June 4, 1999, however, the plan was carried out.

Junior states that he got into an argument with his dad when he arrived home at approximately 1:30 a.m. on the morning of the murder, and that he went to sleep after the argument. (See Def. Trial Ex. 70). Sometime later that morning, Petitioner went to see her physician, Dr. Kitchens, who told her that he was admitting her to the hospital to treat her for double pneumonia. Petitioner returned home to gather her things and tell Edward that she was being admitted to the hospital, and she estimates that she and Edward left for the hospital around 11:00 a.m. Junior testified that sometime after his mother and father left for the hospital, Gillis came into his bedroom and said that Petitioner wanted Edward murdered that day.

Petitioner’s illness on the day of the murder is only one sickness in a medical history that demonstrates illnesses that are staggering in both quantity and scope. Petitioner has been hospitalized numerous times. One hospitalization followed a February 1997 suicide attempt. She has undergone numerous surgeries, several of which were exploratory, in addition to bilateral hip replacement and a hysterectomy. Many of her physical illnesses are thought to have been related to her diagnosis of Munchausen syndrome, which she manifests by deliberately producing or feigning symptoms in order to garner sympathy and attention. See Harold L. Kaplan & Benjamin J. Sadock, Synopsis of Psychiatry: Behavioral SciencesIClinical Psychiatry 656 (8th ed. 1998). As part of the disorder, Petitioner chronically and intentionally ingested rat poison, and medical records report the suspicion that she was ingesting poison as early as 1989. Dr. Keith Caruso, a psychiatrist authorized to assist in defense of this case, opines that Petitioner developed the disorder, along with Borderline Personality Disorder, in order to seek hospital admission and escape the abusiveness in her home. (Reply Ex. 6, Ex. C at 8). Additionally, Petitioner suffers from recurrent depression, alcohol dependence, lupus, hypertension, fibromyalgia, and Factor X deficiency, which is an inherited bleeding disorder that requires her to receive periodic transfusions of frozen plasma. These illnesses required frequent trips to the hospital, and frequent bills resulted. The resulting expenses were another source of friction between Petitioner and Edward. They argued over medical bills on the morning of his murder.

According to her hospital admission records, Petitioner was admitted to the Iuka Hospital at approximately 10:50 a.m. on June 4,1999. When she was first hospitalized, Petitioner was treated with IV fluids and was given her regular medications. Among these medications were Talwin, a painkiller; Flexeril, a muscle relaxant; Prilosec, for stomach ulcers/acid; Restoril, a sleep aid; Synthroid, a thyroid medication; Prednisone and Plaqueril, which were prescribed to treat lupus; and Zoloft, which treats depression. (See, e.g., Pet. Ex. 9, Aff. of Dr. Anthony Verlangieri). Sometime later that afternoon, Junior arrived at the hospital and told Petitioner that “it was done.” She stated she told him to go make sure that Edward was dead, and to call an ambulance if he was not. Junior returned home, stopping on the way to speak to friends who he invited home with him so that they could smoke marijuana. When they entered the house, Junior found his father dead and called 911. Subsequently, Petitioner was informed of her husband’s death. At 4:50 p.m., Dr. Kitchens ordered that Petitioner be given an injection of Librium, a benzodiazepine, which is used to control agitation normally associated with alcohol withdrawal , and that she be given an injection every four hours thereafter, or as needed.

Not long after he arrived at the crime scene, Tishomingo County Sheriff, David Smith, became suspicious that Junior was involved in Edward’s murder. During the course of his 911 call, Junior told the dispatcher that his dad had been shot. When officers arrived at the Byrom home, however, Junior asked whether Edward had suffered a heart attack. Junior also had cuts on his knuckles and blood on the back of his pants near the belt line and leg. Junior was taken into custody to await questioning, and he later implicated himself, Petitioner, and Gillis in the murder.

Although the exact timing and order of Junior’s first interview and Petitioner’s first interview are disputed, it appears that a law enforcement officer was dispatched to the hospital to talk to Petitioner before Junior gave any statement implicating Petitioner in the murder. Rick Marlar, an investigator with the Criminal Investigation Bureau of the Mississippi Highway Patrol, went to the hospital to ask about weapons that might have been in the Byrom home and learn about the relationship between Edward and Junior. He did not consider Petitioner a suspect at the time, and she made no incriminating statements during the 8:38 p.m. interview. After Junior was questioned, however, the police went back to the hospital to speak to Petitioner.

Petitioner was confronted at around 10:47 p.m. on June 4 with the Tishomingo County Sheriffs assertion that Junior had confessed an involvement in the murder. During the interview, she implicated herself, Junior, and Gillis in a murder-for-hire scheme. Gillis was taken into custody for questioning, and he later confessed that he was involved in the murder, but he maintained that someone else actually killed Edward. On October 21, 1999, Petitioner was indicted by the Tishomingo County Circuit Court under Miss.Code Ann. § 97-3 — 19(2)(d), which provides that:

The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases: (d) Murder which is perpetrated by any person who has been offered or has received anything of value for committing the murder, and all parties to such a murder, are guilty as principals[.]

In December, an order was entered appointing Terry Wood and Sonya “Sunny” Phillips as Petitioner’s trial counsel. The State’s theory was that Edward was killed in a murder-for-hire, and the defense’s theory was that Petitioner confessed to the scheme only to protect Junior, who shot Edward out of rage at the mistreatment Edward inflicted upon the family.

As a result of an order entered after a consolidated hearing on June 22, 2000, all three codefendants underwent separately administered psychological examinations conducted by Dr. Criss Lott for the purpose of evaluating competency-related issues. (See SCP Vol. 1, 100-104). Prior to trial, Petitioner was granted the assistance of licensed psychiatrist, Dr. Keith Caruso, to evaluate the voluntariness of her confession and to identify mitigating evidence that could be offered at the penalty phase of trial. (Reply Ex. 6).

A jury trial commenced November 13, 2000, with the Honorable Thomas J. Gardner, III, presiding. Petitioner’s June 4 statement and a subsequent statement were later suppressed by the court because of defective Miranda warnings. Two additional statements, taken on June 6 and June 7, were admitted against her at trial. Junior testified against his mother as part of a plea bargain he entered into on November 6, 2000. He testified that on the day of the murder he dropped off Gillis, who was wearing a glove on his right hand and carrying the 9 millimeter pistol, near a wooded area close to the Byrom home. He picked him up at the same location thirty minutes later, and Gillis told him that Edward was dead. Junior later led police to the recovery of the pistol and the shirt Gillis had been wearing, but police never located the black cotton glove.

The jury found Petitioner guilty of capital murder on November 17, 2000. Petitioner petitioned for a sentencing hearing without a jury, to which the prosecution agreed, and the trial court found that Petitioner made a valid waiver of her right to jury sentencing. At sentencing, Petitioner did not present live witness testimony, but she offered into evidence the report of defense expert Dr. Caruso, medical records from Dr. Ben Kitchens, and the report of the court-ordered evaluation conducted by Dr. Lott. Defense counsel later stated they believed that the trial court made several reversible errors by the time the sentencing phase commenced, and that they did not present live testimony so that when a retrial occurred, the State would not have previous knowledge of the mitigation evidence. They also admitted that they wanted Judge Gardner to sentence Petitioner so that he would be under a conflict in the event of a retrial, and because the jury waiver itself might be grounds for reversal. At the conclusion of the hearing, Petitioner was sentenced to die by lethal injection.

In March 2001, Gillis pled guilty to accessory after the fact to capital murder and conspiracy to commit capital murder. While his own case was being prepared for trial in May 2001, Junior repudiated his plea deal. On June 21, 2001, less than a month after he withdrew his guilty plea, Junior pled guilty to conspiracy to commit capital murder, accessory before the fact to grand larceny, and accessory before the fact to burglary with intent to commit assault.

Petitioner’s appeal was denied by the Mississippi Supreme Court, as was her petition for post-conviction relief. See Byrom v. State, 863 So.2d 836 (Miss.2003) (“Byrom I ”), cert. denied, Byrom v. Mississippi, 543 U.S. 826, 125 S.Ct. 71, 160 L.Ed.2d 40 (2004); Byrom v. State, 927 So.2d 709 (Miss.2006) (“Byrom II”), cert. denied, Byrom v. Mississippi, 549 U.S. 1056, 127 S.Ct. 662, 166 L.Ed.2d 520 (2006). This petition followed. The parties have filed briefs in support of their respective pleadings, and this Court has expanded the record to include Petitioner’s Iuka Hospital records from June 1999. This matter is now ripe for review.

Applicable Standards

This petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), such that this Court may not grant relief in connection with any claim adjudicated on the merits in State court proceedings unless that adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court precedent; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the presented evidence. See 28 U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). The factual findings of the State court are presumed correct, and Petitioner bears the burden of rebutting the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

Federal habeas relief may be granted under the “contrary to” clause where the State court (1) arrives at a conclusion opposite that reached by the Supreme Court on a question of law; or (2) decides a ease differently than the Supreme Court on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the “unreasonable application” clause, a federal court may grant relief where the State court applies the correct legal principle to the facts in an unreasonable manner. See id. at 407-08, 120 S.Ct. 1495; Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005). Whether a decision is “unreasonable” is an objective inquiry, and it does not turn on whether the decision is merely incorrect. See Schriro, 550 U.S. at 473, 127 S.Ct. 1933 (“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.”); Williams, 529 U.S. at 410-11, 120 S.Ct. 1495; Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir.2004) (habeas relief merited where state decision both incorrect and objectively unreasonable).

A petitioner is required to exhaust her claim in the highest court of the state prior to seeking federal habeas relief. See 28 U.S.C. § 2254(b)(1); Morris v. Dretke, 379 F.3d 199, 204 (5th Cir.2004); see also Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.2001) (“[W]here petitioner advances in federal court an argument based on a legal theory distinct from that relied upon in the state court, he fails to satisfy the exhaustion requirement.”). While a federal court may not grant federal habeas relief on an unexhausted claim, it may deny relief on an unexhausted claim. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Mercadel v. Cain, 179 F.3d 271, 276 (5th Cir.1999).

Where a petitioner fails to exhaust her State remedies, but it is clear that the State court to which she would return to exhaust the claim would find the claim procedurally barred, the claim is procedurally defaulted for purposes of federal habeas corpus relief. See, e.g., Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Finley v. Johnson, 243 F.3d 215, 220 (5th Cir.2001). Likewise barred from federal habeas review are claims that the State court held procedurally barred on review on the basis of independent and adequate State law grounds. See, e.g., Coleman, 501 U.S. at 729-30, 111 S.Ct. 2546 (“The doctrine applies to bar federal habeas claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests upon independent and adequate state procedural grounds.”); Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Moreover, where a State court holds a claim barred on independent and adequate State law grounds and reaches the merits of the claim in the alternative, the bar imposed by the State court is not vitiated. See Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Thacker v. Dretke, 396 F.3d 607, 614 (5th Cir.2005) (procedural bar imposed for petitioner’s failure to contemporaneously object and preserve claim for review not circumvented by State court’s alternative holding that constitutional claim lacked merit).

A petitioner may receive federal habeas review of a procedurally defaulted claim if she can demonstrate “ ‘cause’ for the default and ‘prejudice attributable thereto,’ or demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.’” Coleman, 501 U.S. at 749-50, 111 S.Ct. 2546 (internal citations omitted). In order to demonstrate cause, a petitioner must show “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Prejudice may be demonstrated by showing that the errors “worked to [the petitioner’s] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at 494, 106 S.Ct. 2639 (internal quotations omitted). If a petitioner is unable to demonstrate cause and prejudice, she may obtain review of his claim by demonstrating that the application of the procedural bar would result in a miscarriage of justice because she is actually innocent. See House v. Bell, 547 U.S. 518, 537-38, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006).

Counsel’s failure to preserve a claim in State court can constitute cause sufficient to overcome a procedural default. See Coleman, 501 U.S. at 753-54, 111 S.Ct. 2546. However, a petitioner claiming ineffective assistance of counsel for the purpose of having the underlying substantive claim reviewed on its merits must ordinarily have presented the ineffective assistance of counsel claim independently in State court before it may be argued as cause to excuse a procedural default. See Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). A federal habeas petitioner’s claim that she was denied the effective assistance of counsel at trial is generally measured by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, Petitioner must establish that (1) her trial counsel’s performance was so deficient that it cannot be said that the attorneys were functioning as “counsel” within the meaning of the Sixth Amendment, and (2) the deficient performance prejudiced her defense. See id. at 687, 104 S.Ct. 2052; see also Boyle v. Johnson, 93 F.3d 180, 187 (5th Cir.1996) (ineffective assistance of counsel claims analyzed under Strickland fratnework). As claims of ineffective assistance of counsel involve mixed questions of law and fact, claims previously considered and rejected by the State court may be overturned only if “contrary to, or involving] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); Strickland, 466 U.S. at 698, 104 S.Ct. 2052.

With the foregoing standards in mind, the Court turns to Petitioner’s specific claims for relief.

Actual Innocence

Petitioner concedes that several of the claims raised in the petition might be proeedurally defaulted. She argues, however, that this Court’s failure to consider the otherwise proeedurally defaulted claims raised in the petition would result in a fundamental miscarriage of justice, as she is actually innocent of the death penalty. See Hughes v. Quarterman, 530 F.3d 336, 341 (5th Cir.2008) (citing Coleman, 501 U.S. at 750, 111 S.Ct. 2546). The law recognizes that the miscarriage of justice exception is implicated where a petitioner can demonstrate actual innocence of the substantive offense for which she was convicted or actual innocence of the death penalty under the applicable state law. See Schlup v. Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). The claim is not in and of itself a ground for habeas relief, but rather, it acts as a “gateway” that allows review of otherwise procedurally defaulted claims. See, e.g., Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). To raise a claim of actual innocence, Petitioner must first produce “new reliable evidence— whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851. Then, she must show that it is “more likely than not, in light of the new evidence, no reasonable juror would find [her] guilty beyond a reasonable doubt.” House, 547 U.S. at 538, 126 S.Ct. 2064; see also Schlup, 513 U.S. at 323-24, 115 S.Ct. 851. The exception is extremely narrow, applying only to those cases “where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

Petitioner maintains that newly discovered evidence demonstrates that Edward’s death was not a murder-for-hire, inasmuch as Junior confessed to examining psychologist Dr. Lott that he alone killed his father while in a fit of rage. She maintains that the evidence supports her claim that the State suppressed Dr. Lott’s report in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that this otherwise procedurally defaulted claim may be reviewed because proof now exists that she did not meet the condition of eligibility that elevated her crime to capital murder. Because the murder was not “perpetrated by any person who [had] been offered or [had] received anything of value for committing the murder” as required under Miss.Code Ann. § 97 — 3—19(2) (d), she argues, she cannot be guilty of murder-for-hire, and thus, capital murder, under Mississippi law.

Dr. Criss Lott was ordered by the trial court to conduct a psychiatric evaluation of Petitioner, Junior, and Gillis. (See SCP Vol. 1, 103-04). Although defense counsel objected to the same psychiatrist examining all three defendants, the trial judge stated that he had spoken to Dr. Lott and received his assurances that there would be no conflict in the separate examinations. (Id. at 107-08). The trial court ordered the reports sent to the court to be reviewed in camera, and ruled that the State would not be entitled to a copy of the reports absent the court’s consent. (Id. at 95-98; 108-09). The examinations were scheduled to occur in July 2000, with Petitioner’s examination scheduled first. (See, e.g., SCP Vol. 1, 95-98; R. Memo Ex. B; Reply Ex. 3). Although it is not known when the reports were completed, the record indicates that Petitioner’s examination was completed by August 11, 2000. (Trial Tr. Vol. 10, 5-6). Dr. Lott’s report concerning Petitioner was ordered released to the State on October 18, 2000, but there is no indication in the current record that any release orders were entered in either Gillis’ or Juniors’ cases. (See Trial Tr. Vol. 10, 59-61; SCP Vol. 3, 428-29). To the Court’s knowledge, Petitioner has never been granted access to Dr. Lott’s report of his psychological evaluation of Junior.

Petitioner apparently learned of Junior’s alleged statements to Dr. Lott when two area newspapers cited the prosecutor’s comments about the plea deal offered to Gillis in March 2001. The Tishomingo County News published the following on March 22, 2001:

According to [the] Assist. District Attorney ..., in his testimony against his mother, Byrom Jr. made some conflicting statements about what happened. Since then, in preparation for the Gillis trial, it was learned that he also made a conflicting statement to a psychologist.

(See Pet. Ex. 7-B). The Daily Corinthian attributed to the Assistant District Attorney that the prosecution learned “[w]hile preparing for the Gillis trial,” that Junior made “another conflicting statement to his psychologist” and that those statements could have “seriously compromised’ [Junior]^ future testimony against Gillis.” (Pet. Ex. 7-A, March 16, 2001).

Habeas counsel submits to this Court that he spoke to Dr. Lott and Gillis’ trial attorneys, and that the recollection of each was that Junior did confess to Dr. Lott that he murdered his father. (See Reply Ex. 4 & 5, Decís, of David L. Calder). Gillis’ attorneys refused to make a declaration in the matter, however, and habeas counsel maintains that Dr. Lott, while initially agreeable to meeting with the purpose of discussing Junior’s evaluation, refused to do so after Judge Gardner ordered him not to discuss the case without the trial court’s approval. (Id.). Petitioner also notes that an attorney, Louwylnn Vanzetta Williams, and an investigator, Tomika Harris, both with the Mississippi Office of Post-Conviction Counsel, interviewed Gillis in November 2004. They report that he stated at that time that Petitioner did not hire him to kill her husband. (See Pet. Ex. 13, 14).

Petitioner argues that further evidence of the unreliable nature of Junior’s testimony is found in the fact that on May 31, 2001, he repudiated the plea bargain he struck prior to testifying against his mother. She notes that Junior, not Gillis, had gunpowder on his palms. (Trial Tr. Vol. 15, 888-89, 91). She also argues that letters written from Junior to Petitioner, which were not allowed into evidence at trial because of defense’s counsel failure to disclose them, contain Junior’s admission that he killed his father in a fit of rage. (See Trial Tr. Vol. 14, 719-20; 740-45). Petitioner maintains that if the jury had considered Dr. Lott’s report and/or testimony that Junior confessed to the murders, along with the letters Junior wrote confessing to the murders, it is probable that no reasonable jury would have found her guilty of capital murder.

Petitioner raised a claim of actual innocence on post-conviction review, and the Mississippi Supreme Court considered whether she could claim actual innocence and exempt the procedural default imposed against her claims. Byrom II, 927 So.2d at 729. The court noted that Petitioner had attached only her own affidavit to the petition, and that she otherwise merely stated that the jury’s findings were wrong. Id. The court rejected the claim as having no merit. Id.

The Court note's that while courts agree that a claim of actual innocence requires “new” evidence to be presented, they disagree as to whether the evidence must be “new” in the sense that it was not available or discoverable with due diligence at the time of trial, or whether it must be “newly presented.” See Wright v. Quarterman, 470 F.3d 581, 591 (5th Cir.2006). While the Fifth Circuit has not conclusively determined the issue of “new” versus “newly presented” evidence in this context, it has held that evidence will not meet the standard if “it was always within the reach of [the inmate’s] personal knowledge or reasonable investigation.” Moore v. Quarterman, 534 F.3d 454, 465 (5th Cir.2008). While Petitioner may not have been aware of Junior’s alleged statements to Dr. Lott at the time of trial, she was certainly in possession of the knowledge at the time of her direct appeal and post-conviction review. She failed, however, to present the State court with a claim that the information was improperly suppressed.

The newspaper articles giving rise to Petitioner’s claim were published in March 2001. The following excerpt appears in Petitioner’s November 2001 appellate brief:

It has come to light since the trial of [Petitioner] that Dr. Lott revealed to counsel for Gillis that Junior confided in him that he (Junior) had shot [Edward]. (Obviously this new information is not in [Petitioner’s] record but on remand would no doubt be of significant value in her defense. The information was obtained from Gillis’ counsel)[.]”. (Pet. DA Brief 9).

Although not part of the record in this case, a few months after the trial of [Petitioner], Dr. Lott divulged to Gillis’ attorneys that Junior had confided to him that he had shot [Edward.] This revelation no doubt helps the cause of [Petitioner] and raises Brady issues (did the state not have copies of Junior’s report prior to [Petitioner’s trial?) since it is consistent with the physical evidence and the theory argued at trial by the defense. Nevertheless!,] this is merely fortuitous for [Petitioner] as it could have just as well occurred that something erroneous[ ] could have been divulged by Junior and then later, asked of [Petitioner] by Dr. Lott to which she may have given erroneous answers to protect her son with her response making its way into the report of Dr. Lott.

(Pet. Direct Appeal Br. 16). During oral argument before the Mississippi Supreme Court on December 4, 2002, counsel for the State informed the court, in response to a justice’s inquiry as to whether Junior admitted killing his father, that “[t]here is some speculation of something that happened with Dr. Lott after the trial, ... but I have nothing in the record.” (Pet. Ex. 15 at 37). Additionally, the Court notes that the information learned as a result of Gillis’ November 19, 2004 interview was not presented on post-conviction review, despite the fact that one of the interviewers, Ms. Harris, was one of the post-conviction attorneys and could have raised the issue of Gillis’ statement when the petition for post-conviction relief was filed in February 2005. (See Pet. Ex. 14).

Aside from the issue of whether the evidence is sufficiently “new” to warrant relief, the Court is not persuaded that the evidence is of such a character that it is “more likely than not any reasonable juror would have reasonable doubt” if the evidence had been considered. House, 547 U.S. at 538, 126 S.Ct. 2064. A habeas court does not ask whether the evidence would have created reasonable doubt in the mind of one of the jurors, because there is no presumption of innocence in habeas proceedings. Bosley v. Cain, 409 F.3d 657, 664 (5th Cir.2005). Rather, the issue is whether it is more likely than not that “no reasonable juror” would have found her guilty. Schlup, 513 U.S. at 329, 115 S.Ct. 851. Petitioner fails to satisfy this exacting standard.

Petitioner’s jury was presented with evidence that Junior had gunpowder residue on him, that Junior had been fighting with his father, and that Junior admitted to telling others that he shot his father. While defense counsel was not allowed to introduce into evidence the actual letters written from Junior to Petitioner while they were in jail awaiting trial, he was allowed to read from the letters and question Junior about the contents. Junior testified that he and his mother began to realize that their letters were being intercepted by law enforcement, and that they began fabricating details of the crime in the hopes of avoiding punishment. (Trial Tr. Vol. 14, 737-38, 750, Trial Tr. Vol. 15, 751-54). He maintained that when he wrote letters taking full responsibility for the murders, he was depressed and “ready to take the rap for everything to be able to free my mother and Joey.” (Trial Tr. Vol. 15, 754). Junior admitted that he had told various lies about his involvement, and that the contents of the letters were not the truth. (Id.).

Moreover, Gillis refused to sign an affidavit attesting to the things reported in the affidavits of Ms. Williams and Ms. Harris, and Junior’s contradictory statements indicate a lack of reliability that lessens the persuasiveness of Petitioner’s argument. See, e.g., Moore, 534 F.3d at 465. Both appellate and post-conviction counsel were aware that Junior had allegedly made statements implicating himself as the person who shot Edward and did not pursue this matter as a claim. Additionally, Petitioner confessed in great detail to facts of this crime, including the failed attempts, that are consistent with Junior’s own account of the scheme. Even if Junior did make inculpatory statements to Dr. Lott, such would be consistent with his trial testimony that he made self-incriminating admissions to others. Having considered the evidence presented to the Mississippi Supreme Court, as well as the evidence first presented in these proceedings, the Court finds that Petitioner has failed to demonstrate that no reasonable juror would have found her guilty of capital murder beyond a reasonable doubt if the juror had known of Dr. Lott’s report of Junior. Therefore, Petitioner has failed to meet the high standard of actual innocence sufficient to obtain review of any defaulted claim raised in the petition, and the Court will not address Petitioner’s allegations of actual innocence further in the opinion. Rather, the Court will consider any arguments of cause and prejudice asserted by Petitioner to secure review of any claims raised in her petition that are defaulted.

I. Exclusion of Pornographic Video

As part of evidence collection at the crime scene, law enforcement officials took numerous videotapes from the Byrom home, some of which were videotape copies of commercially produced pornographic movies that Edward had rented. (See Trial Tr. Vol. 10, 10, 72). Additionally, there were camcorder tapes recovered, and some of the home-movie footage on these tapes had been altered, either through someone’s attempt to erase the tape or record over the original content. (Id at 71). A few surviving frames in one of these tapes showed Petitioner engaged in a masturbatory act. (Id). Prior to trial, the State moved to have the tapes and any reference to them deemed inadmissible at trial, arguing that such evidence was not relevant and only went to the character of the victim. (See id at 63). The defense intended to argue at trial its theory that it was Edward’s addiction to pornography and his forcing of Petitioner to engage in sexual acts while he videotaped her that provided Junior’s motive to kill his father. (See id at 63-68). Defense counsel argued that the home video was mitigating, as it was relevant to the theory that Edward forced Petitioner to engage in pornography. (Id at 71). The trial court ultimately granted the State’s motion, finding that there was no justifiable reason to show the jury the pornography. (Id at 73). It ruled that defense counsel could introduce testimony about the tapes and ordered that defense counsel could take the home video to a technician and have the video frames reduced to a 8x10 photograph. (Id at 87-89; SCP Vol. 3, 427). The trial judge informed counsel that he would review the photograph and determine whether he would allow it to be admitted. (Id at 89).

Outside of the jury’s presence at trial, the court considered whether defense counsel should even be allowed to allude to the existence of pornography in the Byrom home. (Trial Tr. Vol. 13, 534-544). After hearing argument, the trial court ruled that evidence of the pornographic material found at the home could not be explored through testimony, except insofar as it might provide a motive for any conduct Junior might have independently undertaken to cause his father’s death. (Id at 533-34).

On direct appeal, the Mississippi Supreme Court rejected Petitioner’s claim that the trial court abused its discretion in refusing to admit the videotapes. Byrom I, 863 So.2d at 853-54. The court noted that other evidence demonstrated Petitioner’s theory that the crime was motivated by the abuse that Edward heaped on Petitioner, and that the crime scene videotapes and photographs were sufficient to show Edward’s obsession with pornography. Id. at 854. Three justices dissented on this issue, stating that they would have found that the trial court erred in failing to allow Petitioner to introduce the home video. Id. at 885. (Pittman, C.J., dissenting, joined by McRae, P.J. and Graves, J.).

On post-conviction review, Petitioner again argued that the home video and Junior’s letters were erroneously excluded and denied her a fair trial. The court agreed with Respondents that the claim was barred, citing both Petitioner’s waiver of the issue and res judicata to preclude review of the claim. Byrom II, 927 So.2d 709, 726 (Miss.2006). The court otherwise found the issue without merit. Id.

On habeas review, Petitioner argues that the trial court unconstitutionally limited her right to present a meaningful defense and present mitigating evidence at sentencing when it prohibited the introduction of the pornographic videotapes collected from the crime scene. Alternatively, she argues that counsel was ineffective for not attempting to renew their attempt to submit the tapes or photographs in the sentencing hearing. The parties are in dispute as to whether Petitioner’s substantive claim is barred on habeas review. The Court acknowledges that a reasonable reading of the opinion might lead one to conclude that the Mississippi Supreme Court found the issue of the admissibility of the videotapes barred on the ground of res judicata, while it rejected the due process argument as not having been presented on direct appeal. While the court expressly found the claim procedurally barred, this Court would have to guess as to why, as it did not clarify which portions of the claim were res judicata and which were waived. Therefore, the Court will review the claim, as res judicata does not bar federal habeas review. See Cone v. Bell, 556 U.S. 449, 467, 129 S.Ct. 1769, 1780-82, 178 L.Ed.2d 701 (2009).

A federal habeas court has no jurisdiction to determine whether the state court reasonably applied its rules of evidence. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“It is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”); Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir.2007). A trial court ruling on an evidentiary issue provides a basis for federal habeas relief only if it so prejudiced the petitioner that it rendered the trial unfair. Estelle, 502 U.S. at 67-68, 112 S.Ct. 475. The Fifth Circuit has held that the failure to admit evidence is a due process violation when the omitted evidence is a “crucial, critical, highly significant factor in the context of the entire trial.” Johnson v. Puckett, 176 F.3d 809, 821 (5th Cir.1999).

A “meaningful opportunity to present a complete defense” is a right guaranteed to criminal defendants by the Constitution. Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). However, that right is not unfettered or absolute. See, e.g., Montana v. Egelhoff, 518 U.S. 37, 62, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996). A trial judge has “wide latitude” to exclude marginally relevant evidence. See Crane, 476 U.S. at 689-90, 106 S.Ct. 2142. In this case, the trial court did not prevent defense counsel from pursuing its theory, nor did it bar counsel from presenting allegedly mitigating evidence. The trial court granted defense counsel the opportunity to explore whether Junior had any knowledge of any sexual exploitation of his mother by his father, and it allowed defense counsel the opportunity to reduce the videotape images of Petitioner to a photograph. While there is no indication anywhere in the record that trial counsel followed through with that order, there is also no indication in the record that the depiction would have necessarily shown that Petitioner was an unwilling participant in the video. Insofar as the mitigation portion of trial is concerned, the trial judge was the sentencer, and he was well aware of the allegations of physical and sexual abuse made by Petitioner. Therefore, the Court does not find that Petitioner was denied a fair trial by the court’s refusal to introduce the videotapes into evidence.

Petitioner only briefly argued, in her rebuttal brief on post-conviction review, that counsel was ineffective for failing to raise this issue. (See “Rebuttal to State’s Response to Petition for Post-Conviction Relief’ 6). The court did not consider the argument. See, e.g., Overstreet v. Allstate Ins. Co., 474 So.2d 572, 576 (Miss.1985) (holding that appellate court is under no obligation to consider additional issues raised for the first time in a reply brief). Petitioner has never properly raised and exhausted counsel’s performance on this issue as an independent claim for relief in State court, and it may not be used as a basis for federal habeas relief. See Edwards v. Carpenter, 529 U.S. 446, 451-52, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).

II. Exclusion of Junior’s Jailhouse Confession Letter

Petitioner argues that the trial court denied her right to present a meaningful defense, effectively cross-examine witnesses, and rebut the State’s case when it excluded from evidence letters written by Junior to Petitioner in which he confessed that he alone killed Edward. She maintains that in rejecting this claim, the Mississippi Supreme Court unreasonably determined facts in light of the actual trial testimony, inconsistently applied its own rules concerning the appropriate remedy for a discovery violation, and unreasonably failed to apply clearly established federal law that requires courts to consider the impact of the excluded evidence on the truth-finding process.

As previously discussed, Junior and Petitioner exchanged letters while they were in jail. The letters that Petitioner alleges were erroneously excluded from trial were letters written from Junior to Petitioner that were not intercepted by law enforcement officials. Petitioner apparently turned these letters over to defense counsel at some point prior to trial. At a pretrial hearing held on October 18, 2000, defense counsel informed the court that he had impeachment material to use in the event that Junior testified consistently with the prosecution’s theory of the case. (See Trial Tr. Vol. 10, 86). After hearing arguments from both the prosecution and the defense as to whether the information should be disclosed, defense counsel was told to produce the material or risk it being objectionable at trial. (Id. at 37-40).

At trial, Junior testified that Edward was killed as part of a murder-for-hire scheme, which was consistent with the State’s theory of the case. During his cross-examination of Junior, defense counsel Wood produced a letter written by Junior to Petitioner while they were both being housed in the Tishomingo County Jail. (See, e.g., Trial Tr. Vol. 14, 714). Counsel attempted to introduce this letter, in which Junior stated that he alone killed Edward. (See id.; Def. Tr. Ex. 72). The prosecution objected, as the letter had not been previously disclosed, and the trial court took up the issue outside of the jury’s presence. (Id. at 713). Defense counsel argued that the material was intended solely for impeachment purposes and did not have to be disclosed under the rules, while the prosecution argued that the rules prohibited the intentional withholding of evidence in order to ambush opposing counsel. (Id. at 714-15). After recessing the jury for the evening, the trial court granted the prosecution’s request for permission to question Junior about the letters, and it asked defense counsel if there was other evidence that had not been discovered. (Id. at 717-19). Counsel Wood stated that he had “other impeachment evidence” with which he intended to “impeach the daylights” out of Junior. (Id. at 719). The court cautioned Wood that nondisclosure would get the evidence excluded altogether or would delay the trial of the case, and that such nondisclosure would be at Wood’s “own peril.” (Id.).

After hearing argument regarding the letter’s admissibility the following day, the trial court found that the evidence outlined the substantive theory of the defense’s case and should be excluded in light of defense counsel’s deliberate discovery violation. (See id. at 723-31) (referencing holding of Coates v. State, 495 So.2d 464 (1986)). In what the court acknowledged as hair splitting, it ruled that defense counsel could ask Junior about the contents of the letter, but that counsel could not handle the letter or otherwise make reference to existence of the letter. (Id. at 730-33). Later in his cross-examination of Junior, counsel attempted to ask Junior about another letter he wrote to Petitioner, and the proceedings were again recessed so that the trial court could determine the admissibility of the letter. (See id. at 74CM1). The trial court again ruled that defense counsel could ask Junior if he made the statements, but that he could not refer to the existence of a letter. (See id. at 741-45).

Throughout the course of cross-examination, defense counsel was allowed to read directly from the letters. Junior admitted that he had told different stories about his involvement in his father’s death, and he admitted that he wrote his mother a letter stating that he killed his father. (Id. at 740, 746). He admitted that he had told others that there was no conspiracy, and that he alone shot his father after he had gotten mad at him. (Id. at 748-49). He denied making some statements in the letter, such as the fact that he told Gillis to hide the gun after he shot his father while Edward was asleep. (Id. at 747-48). However, he ultimately denied that he alone killed his father. (Id. at 749).

On redirect examination, the prosecutor elicited from Junior that he and his mother realized at some point after their arrest that their letters were being intercepted, and that they began to write letters with the specific intent that they be intercepted by law enforcement officers. (Id. at 750). He admitted that some of the letters outlined different schemes that they intended to use to avoid punishment for what they had done. (Id.). Junior stated that the letters defense counsel asked him about were part of the scheme. (Trial Tr. Vol. 15, 751-54). Junior stated that when he wrote the letters taking full responsibility for the murders, he was depressed and “ready to take the rap for everything to be able to free [Petitioner] and Joey.” (Id. at 754). Junior stated that the contents of the letter were not the truth, and that he had never told the District Attorney or the State that he killed his father. (Id.). He admitted that he approached Gillis at his mother’s request and discussed with him the amount of money Gillis wanted in exchange for his participation in the murder. (Id. at 767-68).

On direct appeal, the Mississippi Supreme Court rejected Petitioner’s claim that the trial court improperly excluded the evidence, as the trial court followed the proper procedure to determine the sanction for defense counsel’s deliberate discovery violation of substantive evidence. See Byrom I, 863 So.2d at 868-71 (Miss.2004). It also found that Petitioner was not prejudiced by the sanction since she was able to elicit from Junior testimony favorable to the defense theory. See id. at 870-71. Three justices dissented, finding that they would reverse based upon the exclusion of the letters. See id. at 885 (Pittman, C.J., dissenting, joined by McRae, P.J. and Graves, J.). On post-conviction review, the court found the issue barred and otherwise without merit. Byrom II, 927 So.2d at 726.

States have the authority to interpret their own statutes, and absent an attempt to evade a federal issue, this Court is bound by that interpretation. See, e.g., Jordan v. Watkins, 681 F.2d 1067, 1079-80 (5th Cir.1982); see also Castillo v. Johnson, 141 F.3d 218, 222 (5th Cir.1998) (holding that absent an error that constitutes a denial of fundamental fairness, a habeas court does not interfere with the evidentiary rulings of a state court). Regardless of whether defense counsel honestly believed that he did not have to disclose the letters because they were evidence intended for impeachment, the fact remains that he was warned prior to trial that this failure to properly disclose evidence could result in the exclusion of the evidence. Defense counsel Wood’s own statements leave no doubt that he deliberately withheld the evidence in order to surprise the State at trial, and Petitioner has not demonstrated unreasonableness in the Mississippi Supreme Court’s rejection of this claim. See Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (finding that exclusion of evidence proper where counsel’s explanation for intentionally failing to disclose evidence was “motivated by a desire to obtain a tactical advantage” that would “minimize the effectiveness” of the other party’s examination and their ability to adduce evidence in rebuttal). The Court notes that Petitioner’s argument, while relying on the Mississippi Supreme Court’s citation to Taylor, involves whether Petitioner was provided an opportunity to effectively cross-examine Junior. The Court would observe that Petitioner’s right under the Confrontation Clause of the Sixth Amendment is to the “opportunity for effective cross-examination.” See United States v. Whitfield, 590 F.3d 325, 363 (5th Cir.2009) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)) (emphasis in original). To the extent that Petitioner’s opportunity was at all curtailed, it was because of the decision of the defense not to heed the court’s warnings or otherwise follow the discovery rules.

The Court also finds that, even if it was error to exclude the letters, the error did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 687, 118 S.Ct. 1710, 123 L.Ed.2d 353 (1993). While he did deny making some statements where he gave details as to how the murder transpired, Junior admitted telling his mother and others that there was no conspiracy and that he committed the murder. He also admitted that the letters referenced by defense counsel were some of the letters that were written with the intent that they be intercepted by law enforcement officials in hopes of keeping his mother from being charged with a crime. Despite admitting that he had told lies to various people, Junior stated that he had never told law enforcement officials or the State that he shot his father. The trial court allowed the defense a remedy for its discovery violation that still allowed it to present its theory, and it allowed the defense to question Junior extensively from the letters in order to provide the defense with the opportunity to present its theory of the murder. In fact, trial counsel read exact quotes from the letters in many instances. The introduction of the actual letters themselves into evidence at most raises a possibility that a juror could have been influenced by reading them. See, e.g., Woods v. Johnson, 75 F.3d 1017, 1026 (5th Cir.1996) (noting that a trial error does not entitle one to habeas relief “unless there is more than a mere reasonable possibility that it contributed to the verdict”).

Finally, the Court notes that Petitioner has never presented a State court with the argument that trial counsel performed ineffectively in failing to properly follow the rules. Under the exhaustion doctrine, she was required to argue counsel’s ineffectiveness to the State court before attempting to introduce it here as additional grounds to prevail on her claim. See Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.2001) (“[W]here petitioner advances in federal court an argument based on a legal theory distinct from that relied upon in the state court, he fails to satisfy the exhaustion requirement.”). Therefore, the Court will not consider the claim.

Petitioner has failed to demonstrate that the decision of the Mississippi Supreme Court with regard to this issue involves an unreasonable application of law or determination of fact, and this claim will be dismissed.

III. Denial of Jury Instruction

During the jury instruction conference, defense counsel Wood presented an instruction that provided that the jury should find Petitioner guilty of accessory after the fact if it found that she knew that Junior had killed Edward but provided law enforcement with untrue information in order to help Junior escape arrest or punishment. (See Trial Tr. Vol. 16, 929; SCP Vol. 4, 455). The judge refused the instruction as not founded on the evidence in the case. (Trial Tr. Vol. 16, 933). Petitioner challenged the denial of the instruction on direct appeal. Byrom I, 863 So.2d at 873-74. Citing to Miss.Code Ann. § 97-1-5, the court noted:

The elements of accessory after the fact are that: (1) a completed felony has been committed; (2) the accused concealed, received, relieved, aided, or assisted a felon, knowing that such person had committed a felony; and (3) such assistance or aid was rendered with the intent to enable such felon to escape or avoid arrest, trial, conviction or punishment after the commission of such felony.

Id. at 874-75. After noting that accessory after the fact is not a lesser included offense of capital murder, as the two are separate crimes, the court considered whether Petitioner was nonetheless entitled to a “lesser offense” instruction. See id. at 874. The court found that the record evidence demonstrated Petitioner’s involvement in the crime prior to Edward’s death, which made her a principal in the crime and precluded the grant of the instruction. See id. at 875-76.

On habeas review, Petitioner maintains that there was sufficient evidence presented at trial to support her contention that her confessions were made to keep her son from being charged with murder, and that the refusal of the instruction unconstitutionally limited the jury’s options to acquit her or convict her of capital murder in violation of the precedent of Beck v. Alabama, 447 U.S. 625, 642-43, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). She argues that the Mississippi Supreme Court’s decision fails to apply the authority in Beck and otherwise unreasonably determines the facts in light of the evidence presented at trial. She also maintains that her right to present a meaningful defense was violated by the court’s refusal to grant the instruction.

At trial, the jury heard evidence that Junior admitted that he wrote a letter confessing to the murder, that he told his mother that he shot his father in anger, that he told his jail mate that there was no conspiracy, and that Petitioner appeared not to understand what he was talking about when he first went to the hospital on June 4 to tell his mother that “it was done.” (See, e.g., Trial Tr. Vol. 14, 674-90; 748-49). Evidence was presented that Junior had a history of violent behavior, a volatile relationship with his father, and that he argued with him the day of the murder. (See id. at 650-73; see also Trial Tr. Vol. 15, 791, 817). Petitioner notes that Junior’s statement to police on June 6 implicates Gillis, but not her, in the murder. (See id. at 674-77). Additionally, she notes that the forensic evidence showed that Junior could have been the murderer, as he had gunpowder on his hands, while there was no gunpowder on Gillis’ hands or shirt. (Trial Tr. Vol. 14, 699-700). There was also testimony that Petitioner repeatedly told officers that her son had nothing to do with the murder and that she would take the blame. (Trial Tr. Vol. 15, 861-62).

Petitioner argues that the totality of the evidence implicating Junior in the crime makes it probable that some jurors would believe that (1) Petitioner asked Gillis to murder Edward, but that Junior preempted it by shooting his father in anger; or (2) Petitioner made up the story about the conspiracy in order to protect her son. Petitioner argues that either version would have corresponded to the accessory after the fact instruction that defense counsel requested and would have fulfilled Beck’s standard that a defendant is entitled to a lesser included offense instruction where she can show that contradicting evidence “leaves some doubt with respect to an element that would justify conviction of the capital crime.” Beck, 447 U.S. at 637, 100 S.Ct. 2382. She acknowledges that accessory after the fact is not technically a lesser included offense of capital murder but argues that the distinction between lesser included offense and simple lesser offense does not negate the Beck principle requiring an instruction on a lesser offense supported by the evidence, or the principle that a defendant has the right to present a meaningful defense.

Respondents argue that this claim was not presented to the State court in the context of a federal constitutional violation, and that it is therefore barred from federal habeas review. They otherwise