United States v. Caro (102 F. Supp. 3d 813, 2015)

OPINION

JAMES P. JONES, District Judge.

TABLE OF CONTENTS

I. Background.............................................................823

II. Standards of Review....................................................828

III. Analysis................................................................829

A. Claim I: Strategic Delay of the Indictment..........................829

B. Claim II: Deprivation of Effective Assistance of Counsel at the Death Certification Stage.........................................831

C. Claim III: Juror Misconduct.........................................832

D. Claim IV: Ineffective Assistance of Counsel During Guilt

/Innocence Phase.................................................834

1. Cohesive Theory of Defense.......................................834

2. Impeachment of Sean Bullock ....................................835

3. Prison Culture and Cell Placement................................836

4. Self Defense, Second-Degree Murder, or Manslaughter..............837

5. Cumulative Error...............................................837

E. Claim V: Brady Violations Concerning Bullock.......................838

F. Claim VI: Ineffective Assistance of Counsel During Penalty Phase.....838

1. Failure to Challenge Delay of Indictment.......................... 838

2. Failure to Develop A Compelling Mitigation Story................C 838

3. Failure to Challenge Government’s Evidence that Caro was a Gang Leader...............:..................................841

4. Failure to Challenge Government’s Evidence Regarding BOP’s Ability to Control Improper Inmate Communications .............841

5. Failure to Present Evidence on Prison Culture and Statements of ■ Remorse.....................................'................842

6.' Failure to Challenge Conviction for Conspiracy to Commit ■ Murder Related to Benavidez Assault............................843

7. Failure to Present Skipper Evidence.. :...........................843

8. Failure to Present Evidence of BOP Negligence Regarding Decision to Place Sandoval in Caro’s Cell........................844

9. Failure to Object to Government’s Evidence on Specific Instances of Violence by Persons Other than Caro..........................845

10. Failure to Object to Improper Arguments During Government’s Closing \.......I...........’...............................845

11. Failure to Move to Strike Sleeping Juror...:................. 846

12. Cumulative Error.......................... 847

G. Claim VII: Brady Violations Concerning Future Dangerousness ......847

1. BOP Housing Information.......................................847

2. Information on Caro’s Status as a Gang Leader ....................851

3. Cumulative Violation........................................-.....853

4. Eighth Amendment Violation.....................................853

H. Claim VIII:, Minimization of Jury’s Responsibility.....................853

I. Claim IX: Ineffective Assistance of Counsel on Direct Appeal........854

1. Failure to Challenge Refused Instruction ..........................854

2. Failure to Challenge Exclusion for Cause of Qualified Jurors with Misgivings as to the Death Penalty — .....................856

3. Failure to Challenge Trial Counsel’s Failure to Object to Specific Instances of Violence Committed by Persons Other Than Caro.....857

4. ' Failure to Raise Claim That Government Improperly Minimized , Jury’s Responsibility......... 859

5. Failure to Raise Systemic Challenges to the Death Penalty......'.....859

J. Claims X-XV: Systemic Challenges to Death Penalty.................859

K. Claim XVI: Cumulative Error ..'.....................................860

IV. Conclusion.............................................................861

A jury in this court convicted Carlos David Caro of the 2003 pre-meditated murder of his federal prison cellmate, Roberto Sandoval, and fixed his punishment at death. After an unsuccessful direct appeal, Caro now seeks, relief from his conviction and sentence pursuant to 28 U.S.C. § 2255.

Caro’s § 2255 motion raises 16 claims asserting that his conviction and sentence were unconstitutionally obtained. Among these claims, Caro contends that his trial counsel was ineffective at both'the guilt and penalty phases, that his ■ appellate counsel was ineffective on direct appeal, and that the government violated his Fifth Amendment due process rights by delaying indictment in this case until after it had negotiated a plea agreement in a separate case involving a conspiracy to murder another inmate. Caro also brings claims of juror and government misconduct, asserts systemiq challenges to the death penalty, and asserts cumulative error. The United States has filed a Motion to Dismiss. Following briefing and oral argument, and after careful review of the record, I find that Caro’s claims are without legal merit. I accordingly find that the United States’ Motion to Dismiss must be granted.

I. Background.

Carlos David Caro was born into poverty in the south Texas town of Falfurrias in 1967. He grew up with three brothers, a mother, and a violent, alcoholic father. His maternal uncles introduced him at a young age to the illegal drug trade, eventually resulting in a series of federal drug convictions. He was convicted of possession of marijuana with intent to distribute and sentenced to 24 months custody in 1988, at age 21, when he and his brother were caught near the border transporting 66 pounds of marijuana. In 1992 he was found to have violated the terms of his post-imprisonment supervision and sentenced to an additional six months incarceration.

In 1994 Caro was convicted of conspiracy to possess marijuana with intent to distribute after he was found with 185 pounds of marijuana. He was sentenced to 71 months of imprisonment. Finally, in 2001 at age 34, he was convicted of possession of five kilograms of cocaine with intent to distribute and sentenced to 360 months custody, to run consecutively to a previously imposed 18-month supervised release revocation sentence.

While incarcerated, Caro became a member of a violent prison gang called the Texas Syndicate. In 2002, at the Federal Correctional Institution in Oakdale, Louisiana, Caro participatéd in an attack on newly arriving inmates who were members of a rival gang. Prison official John Gordon had talked to Caro about avoiding conflict with the new inmates about three weeks before the incident occurred, but Caro “responded that the Texas Syndicate were going to do what they had to do.” (Trial Tr. 168, Feb. 05, 2007, ECF No. 678.). After the incident, Caro admitted his involvement and stated, “I don’t give a fuck if they send me to the United States Penitentiary. My brothers follow orders. They know what they’re getting into. It doesn’t even matter if we’re prosecuted. I have 30 years to do. I certainly don’t care about myself.” (Id. at 171.)

Caro was subsequently transferred by the Bureau of Prisons (“BOP”) from FCI Oakdale to the United States Penitentiary Lee County (“USP Lee”), a high security prison located in this judicial district. On August 29, 2003, he participated in another violent attack by members of the Texas Syndicate. Caro and Juan Moréno-Marquez, a fellow inmate and gang member, ambushed inmate Ricardo Benavidez in a recreation area of the prison and stabbed him múltiple times with shanks before officers could intervene. Five other Texas Syndicate members were nearby and also armed with shanks, but had been denied admittance to the recreation area where the attack took place. Caro pleaded guilty in this court to conspiracy to commit murder and was sentenced on November 1, 2004, to 327 months imprisonment, to run consecutively to his other sentences.

The murder that is the subject of this case occurred only a few months after the attempted murder of Benavidez. After the Benavidez incident, Caro was placed in USP Lee’s Special Housing Unit (“SHU”), the segregation area of the prison. On December 16, 2003, inmate Roberto Sandoval was assigned to Caro’s cell in the SHU.

Caro initially stated that he was “not accepting a cellmate.” (Trial Tr. 101, Jan. 29, 2007, ECF No. 668.) However, he approved Sandoval as a cellmate later in the evening on December 16, 2003, stating, “That’s fine. We’re brothers. Done some time together.” (Id. at 116.) Sandoval was placed in Caro’s cell at approximately 9:00 p.m.

On December 17, 2003, Caro and Sandoval were served breakfast in their cell at approximately 6:10 a.m. They took recreation outside that evening, and were last observed in their cell by prison staff during rounds at approximately 6:17 p.m. No problems between the two were reported.

Shortly thereafter, at 6:40 p.m., a correctional officer came by on rounds. Caro called out, “[G]et this piece of shit out of here.” (Trial Tr. 19, Jan. 30, 2007, ECF No. 670.) Caro pointed at Sandoval, who was lying next to the cell door motionless, with blood visible and a towel tied with one overhand knot around his neck. Other officers arrived and handcuffed Caro. When asked whether Sandoval was still breathing, Caro replied, “No. At this time he’s stinking up the room, get him out.” (Id. at 47.)

Caro later was interviewed by FBI Special Agent Douglas Fender, after having been advised of his Miranda rights. Caro stated that he had killed Sandoval because he had eaten Sandoval’s breakfast that morning, and Sandoval had cursed him and threatened to eat his breakfast the following day. Agent Fender asked Caro whether Sandoval’s murder had something to do with the Texas Syndicate. Caro denied that it did, and when Agent Fender continued this line of questioning, Caro stated to the guards, “Get me out of here.” (Trial Tr. 26, Jan. 31, 2007, ECF No. 674.)

Caro later made multiple statements about Sandoval’s death. The day after Sandoval’s death, Caro smiled and asked when an officer was “going to assign him a new cellie.” (Trial Tr. 75, Jan. 29, 2007, ECF No. 668.) In a letter, Caro wrote, “You know, I killed a guy two weeks ago.” At the end of this sentence, he used a Spanish word that when translated suggests that he killed Sandoval “[f]or being a fool.” (Trial Tr. 58, Jan. 31, 2007, ECF No. 674.) He also stated to his wife in a telephone call that “[Sandoval] called me a mother fucker, that whore, that’s why I fucked him up.” (Id. at 49.) He later reassured her, “But I’m all right.” (Id. at 51.) Finally, Caro discussed the murder with Roel Rivas, another member of the Texas Syndicate. He told Rivas on the phone, “And I also have a death,” explaining, “It’s because they gave me a cell mate and he disrespected me, so I took him down.” (Id. at 53.) When Rivas proposed claiming self-defense, Caro said, “That is what I’m going to do.” (Id. at 54.)

On December 30, 2004, the United States Attorney for this district sent a target letter to Caro related to Sandoval’s murder, and contemporaneously requested that the court appoint counsel for him. On January 27, 2005, the court appointed James Simmons of Nashville, Tennessee, as lead counsel and Stephen J. Kalista, a member of the bar of this court, as co-counsel. In preparation for a meeting with the Attorney General’s Capital Case Review Committee (“CCRC”), the court authorized counsel to retain a mitigation specialist, a private investigator, a neuropsychologist, and a psychiatrist. The meeting with the CCRC took place on June 6, 2005.

Following the CCRC meeting, the Attorney General authorized the United States Attorney for this district to seek the death penalty against Caro. On January 3, 2006, an Indictment was returned in this court charging Caro with first-degree murder within the territorial jurisdiction of the United States for the Wiling of Sandoval, in violation of 18 U.S.C. §§ 7, 1111. Shortly thereafter, pursuant to 18 U.S.C. § 3593, the government filed its notice of intent to seek the death penalty.

Caro was tried in this court in Abingdon, Virginia, beginning January 22, 2007. Jury selection lasted five days. The guilt/innoeence phase of the trial began on January 29. The government presented evidence suggesting that Caro had strangled Sandoval from behind with a towel. Inmate Sean Bullock, who had been in the cell across from Caro’s, testified that he had seen Caro behind Sandoval, and watched them fall to the floor. The defense did not call any witnesses, conceding that Caro had Wiled Sandoval, but arguing that the killing had not been premeditated. In a verdict returned on February 1, 2007, the jury found Caro guilty of first degree murder.

The separate sentencing phase of the trial began on February 5, and lasted for six days. The jury was first asked to determine whether Caro was eligible for the death penalty. In addition to finding that Caro had committed a capital offense covered under 18 U.S.C. § 3591, the jury found that the government had established the existence of two statutory aggravating factors beyond a reasonable doubt: (1) that Caro had been previously convicted of two offenses punishable by a term of imprisonment of more than one year, committed on different occasions, and involving the distribution of a controlled substance, 18 U.S.C. § 3592(c)(10), and (2) that Caro had been previously convicted of a federal drug offense punishable by a term of imprisonment of five or more years, 18 U.S.C. § 3592(c)(12).

Following the death penalty eligibility verdict came the final phase of the trial, where the jury heard evidence on mitigating factors and non-statutory aggravating factors to determine whether to select a sentence of either death or life imprisonment. The government presented 12 witnesses and alleged three non-statutory aggravating factors: (1) the impact on Sandoval’s friends and family, (2) Caro’s future dangerousness, and (3) Caro’s lack of remorse. The defense presented eight witnesses, including six individuals from Caro’s past,- and two experts who opined that the BOP had the ability to safely house Caro if he received a life sentence. The defense asserted 22 mitigating factors.

In its verdict returned on February 13, 2007, the jury unanimously found that 12 mitigating factors proposed by the defense had been proved. It determined that Caro was (1) exposed to repeated instances of domestic violence growing up, (2) raised'in a home where education was not valued, (3) raised in an impoverished community, (4) well-behaved growing up, (5) a special education recipient who did not complete ■the ninth grade, (6) shy and respectful compared 'to his brothers, (7) brought into illegal drug trafficWng by his maternal uncles, (8) not physically abusive toward his wife or daughter, (9) not violent or aggressive until he received his 30-year sentence for drug trafficking, (10) not violent toward prison staff, (11) not an inmate who attempted escape from any correctional officer or from any correctional facility, and (12) securely housed throughout his incarceration. Some jurors found that four additional mitigating factors had been proved. The jury also found that the government’s three non-statutory factors had been proved beyond a reasonable doubt. After assessing whether the aggravating factors sufficiently outweighed the mitigating factors, the jury unanimously determined that Caro should be sentenced to death for the murder of Sandoval.

No post verdict motions were filed, and the mandated sentence of death was imposed- by the court on March 30, 2007.

A Notice of Appeal was timely filed. Nearly three years later, on March 17, 2010, after briefing and argument, the court of appeals issued a detailed opinion that addressed each of Caro’s challenges and affirmed the conviction and sentence. United States v. Caro, 597 F.3d 608, reh’g denied, 614 F.3d 101 (4th Cir.2010). The court of appeals held that this court’s refusal to offer certain voir dire questions proposed by Caro was not an abuse of discretion. It also affirmed the denial of discovery motions under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Federal Rules of Criminal Procedure 16(a)(1)(E) and 17(c). It held that (1) denial of a Brady motion was appropriate as" Caro failed to establish that the requested information would be favorable to him, (2) denial of a motion under Rule 17(c) was not an abuse of discretion since Caro could only speculate as to the contents of the requested information, and (3) denial of a motion under Rule 16(a)(1)(E) was not an abuse of discretion since Caro did not present facts indicating whether the requested information would have actually helped prove his defense.

The court of appeals addressed several additional challenges. It held that the government’s closing argument did not cause prejudice warranting reversal. It determined that the jury instruction and the government’s argument concerning lack of remorse did not violate Caro’s Fifth Amendment privilege against self-incrimination, since given this court’s cautionary instruction and evidence showing Caro’s lack of remorse, any error would have been harmless under 18 U.S.C. § 3595(c)(2). It held that the statutory aggravating factors in § 3592(e)(10) and (12) did not violate the Eighth Amendment. It ruled that the decision not to give Caro’s proposed mercy instruction was not an abuse of discretion given that the proposed instruction was legally incorrect. Finally, it held that various decisions by this court concerning the admissibility of testimony were not abuses of discretion.

On May 11, 2011, following the Fourth Circuit’s" affirmance, this court granted a motion to appoint the Federal Public Defenders for the District of Arizona and the Western District of Virginia to represent Caro in connection with post-conviction remedies, conditioned upon a denial of certiorari. On January 9, 2012, the Supreme Court denied Caro’s petition for a writ of certiorari. Caro v. United States, — U.S. -, 132 S.Ct. 996, 181 L.Ed.2d 732 (2012).

Through his appointed counsel, Caro filed a Motion for Collateral Relief Pursuant to 28 U.S.C. § 2255 on January 8, 2013. In response, the United States filed a' Motion to Dismiss. Caro subsequently filed a Response in Opposition to the United States’ Motion .to Dismiss. Caro also filed a First Motion for Leave to Conduct Discovery and Preliminary Re: quest for an Evidentiary Hearing and Expansion of the Record. On November 25, 2013, oral arguments were held on the discovery motion and on the United States’ Motion to Dismiss. The issues have been fully briefed and are now ripe for disposition.

Through present counsel, Caro also filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 in Case No. 2:03CR10115, related to the stabbing of Ricardo Benavidez. In that motion, Caro challenged the validity of his guilty plea to conspiracy’to commit murder under 18 U.S.C. § 1117, alleging ineffective assistance of counsel. The United States filed a Motion to Dismiss, asserting that the § 2255 motion was untimely filed. I have addressed and denied this § 2255 motion in a separate Opinion and Order entered this day, but I will recount the relevant underlying facts here as follows.

In Case No. 2:03CR10115, a Superseding Indictment was returned on December 11, 2003, charging Caro and six other inmates with conspiracy to commit murder and unlawful possession of a weapon, arising from the August 29, 2003, stabbing of Benavidez. Caro and his codefendant Juan Moreno-Marquez, the only inmates who actually stabbed Benavidez, were also charged with assault with the intent to commit murder.

Pursuant to a plea agreement, Caro pleaded guilty to conspiracy to commit murder, while his codefendants, including Moreno-Marquez, pleaded guilty to possession of a weapon, also pursuant to plea agreements.. Caro’s Plea Agreement provided that the other charges against Moreno-Marquez would be dismissed, and Moreno-Marquez was thereafter sentenced to 57 months imprisonment. On November 1, 2004, Caro was sentenced to 327 months imprisonment, to run consecutively to his current sentence. Caro did not appeal.

Caro’s attorney in the Benavidez matter, Louis Dene, has submitted a declaration stating that he had advised Caro that the Plea Agreement provided him no real benefit. (Mot. Collateral Relief Ex. 3 ¶5, ECF No. 790-3.) Caro responded that “ ‘he Wasn’t going anywhere,’ so the long sentence did not matter to him.” (Id. at ¶’6.) Dene then went forward with the Plea Agreement, which benefited Moreno-Marquez and which Dene understood to have been proposed by Moreno-Marquez, Caro’s fellow Texas' Syndicate member. Dene did’ not advise Caro to reject' the Plea Agreement. ’ Dene was aware that the government intended to proceed with a death, penalty case against Caro for Sandoval’s murder, but did not advise Caro that any conviction and sentence in the Benavidez assault could be used against him in thé death penalty case. (Id.)

. The government listed Caro’s conspiracy to murder Benavidez as.an aggravating factor in its. Notice ¡of Intent to Seek the Death Penalty. In addition, the government pointed out during the penalty phase of the trial that Caro’s prior federal prison sentences, totaling more than 57 years, constituted a life sentence for him. Based on that fact, the government argued, Caro would receive no punishment in the capital case unless death was imposed.

II. Standards of Review.

In his present Motion for Collateral Relief, Caro asserts 16 claims, the majority of which incorporate multiple subclaims. In support of these claims, Caro relies on the trial record and an appendix of additional evidence. Before addressing these claims, I will outline the legal principles governing his petition.

My review of Caro’s application is largely governed by 28 U.S.C. § 2255,. as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), Pub.L. No. 104-132, 110 Stat. 1214. Section 2255 provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Id. § 2255(a). Rule 4(b) of the Rules Governing § 2255 Proceedings provides that the courts must promptly review the .§ 2255 petition along with “any attached exhibits, ■ and the record of prior proceedings” to determine if the petitioner is entitled to any relief. If the court concludes that the petitioner is not entitled to relief, it must dismiss the petition. Otherwise, it must direct the United States Attorney to file a response. An evidentiary hearing is required-“[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). In the case at hand, I have considered the record and relevant authority to determine whether an evidentiary hearing is necessary. I find that the record clearly , shows that the petitioner is not entitled to relief, and that an evidentiary hearing is not needed.

An issue already considered and decided on direct appeal cannot be relitigated in a § 2255 motion. See United States v. Linder, 552 F.3d 391, 396 (4th Cir.2009) (“Linder may not circumvent a proper ruling on his Booker challenge on direct appeal " by re-raising the same challenge in a § 2255 motion.”); Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir.1976) (holding that issues previously decided on direct appeal may not be raised on collateral review).

A collateral attack under § 2255 is also not a substitute for direct appeal. Claims regarding trial or sentencing errors that could have been, but were not, raised on direct appeal are barred from review under § 2255, unless the petitioner shows both cause for the default and actual prejudice, or demonstrates actual innocence. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (“Where a defendant has,¡procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent.” (internal citations and quotation marks omitted)).

Cause for procedural default “requires a showing of some external impediment preventing counsel from constructing or raising the claim.” Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Grounds for cause include “government interference or the reasonable unavailability of the factual basis for the claim.” McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)] Attorney error can also serve as cause for default, but only if it amounts to a violation of the right to effective assistance- of counsel. Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). Prejudice requires a showing that “there is a reasonable probability that his conviction or sentence would have been different.” Strickler v. Greene, 527 U.S. 263, 296, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

Procedural default does not apply to claims of ineffective assistance of counsel or claims that rely on extra-record evidence. See, Massaro v. United States, 538 U.S. 500, 503, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (“[T]here is no procedural default for failure to raise an ineffective-assistance claim on direct appeal.”); Bousley, 523 U.S. at 622, 118 S.Ct. 1604 (recognizing an exception to procedural default for claims that cannot be presented without further factual development). Extra-record evidence is narrowly defined; not every piece of evidence introduced by the petitioner constitutes extra-record evidence. Id. (holding that there was no proper extra-record evidence because the factual basis for the claim could have been developed “fully and completely addressed on direct review based on the record created.”). Procedural default is an affirmative defense in the habeas context. Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir.1999) (“[T]he issue of procedural default generally is an affirmative defense that the [government] must plead in order to press the defense thereafter.”). Under some circumstances, however, a district court may raise the issue of procedural default sua sponte, despite the government’s failure to present the defense. See id. at 261-62. Before deciding whether to exercise its discretion, “ ‘the court should consider whether justice requires that the habeas petitioner be afforded with notice and a reasonable opportunity to present briefing and argument opposing dismissal.’ ” Id. at 262 (quoting Magouirk v. Phillips, 144 F.3d 348, 360 (5th Cir.1998)).

Several of Caro’s claims assert ineffective assistance of counsel. To prove that counsel’s representation was constitutionally defective, a petitioner must show both (1) deficient performance and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficient performance, the petitioner must demonstrate that “counsel’s representation fell below an objective standard of reasonableness,” considering circumstances as they existed at the time of the representation. Id. at 688, 104 S.Ct. 2052. The petitioner must overcome a strong presumption that counsel’s performance was within the range of competence demanded from attorneys defending criminal cases. Id. at 688-89, 104 S.Ct. 2052.

To show prejudice, the petitioner must demonstrate a “reasonable probability” that but for counsel’s errors, the outcome would have been different. Id. at 694-95, 104 S.Ct. 2052. If it is clear that the petitioner has not satisfied one prong of the Strickland test, the court need not inquire whether he has satisfied the other prong. Id. at 697, 104' S.Ct. 2052. In a § 2255 motion, the petitioner bears the burden of proving his claims by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir.1958).

III. Analysis.

A. Claim I: Strategic Delay op the Indictment.

In his first claim, Caro alleges that the government violated his Fifth Amendment due process rights by “deliberately and tactically delaying the .indictment of the capital case until after the government had negotiated a disproportionate plea agreement in the Benavidez assault.” (Mot. Collateral Relief 20, ECF No. 790.) He argues that the delay impaired his defense and enabled the government to argue that death would be' the only effective punishment since he was already serving a de facto life sentence.

This claim is procedurally defaulted, because its factual basis was available to counsel at the time of direct appeal. Bousley, 523 U.S. at 622, 118 S.Ct. 1604. The terms of Caro’s and his codefendants’ guilty pleas in the Benavidez assault, the date of Sandoval’s murder, and the dates the United States Attorney sent the target letter and obtained the Indictment for Sandoval’s murder were all available to counsel. I find no cause preventing counsel from raising this claim and must dismiss it.

Even assuming Caro could establish cause and prejudice to overcome the procedural default, he still would not be entitled to relief. To establish a due process violation due.to a pre-indictment delay, a petitioner must prove that the delay caused him actual prejudice. Howell v. Barker, 904 F.2d 889, 895 (4th Cir.1990). If actual prejudice is proved, the court must balance that prejudice against the government’s justification for the delay. Id. In conducting this balancing test, the court must determine whether the government’s actions violate “fundamental conceptions of justice or the community’s sense of fair play and decency.” Id. (internal quotation marks and citations omitted).

In United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), the respondent was indicted more than 18 months after the offenses were alleged to have occurred. Id. at 784, 97 S.Ct. 2044. The respondent argued that he had suffered prejudice because he had lost 'the testimony of two material witnesses due to the delay. Id. at 785-86, 97 S.Ct. 2044. The Court held that “to prosecute a defendant following investigative delay does not deprive him of due process, even - if his defense might have been somewhat prejudiced by the lapse of time.” Id. at 796, 97 S.Ct. 2044. The government asserted that the delay was due to efforts to identify additional defendants, and the Court reasoned, “We must assume that these statements by counsel have been made in good faith. In light of this explanation, it follows that compelling respondent to stand trial would not be fundamentally unfair.” Id. at 796, 97 S.Ct. 2044.

The situation at hand is similar. Sandoval was murdered on December 17, 2003. The government sent a target letter to Caro on December 30, 2004, and obtained the Indictment on January 3, 2006. While Caro argues that the preindictment delay was due 'to the government’s desire to obtain a strategic advantage through an ability to argue that Caro was already serving a life sentence due to previous convictions, it is clear that as the government contends, the time between the offense and the Indictment was due to the .need to investigate and adhere to the death-penalty guidelines of the Department, of Justice. Any delay in the Indictment against Caro does not offend “fundamental conceptions of justice or the community’s sense of fair play and decency.” See-Howell, 904 F.2d at 895 (internal quotation marks and citations omitted). “Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution.” United States v. Manon, 404 U.S. 307, 324-25, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Neither the year that passed between Sandoval’s murder and the target letter nor the two years that passed between Sandoval’s murder and the return of the Indictment justify vacating or setting aside Caro’s conviction and sentence.

B. Claim II: Deprivation of Effective Assistance of Counsel at the Death Certification Stage.

In his second, claim, Caro argues that his Sixth Amendment rights were violated because he was deprived of effective assistance of counsel at the “death-certification stage of the case.” (Mot. Collateral Relief 26, ECF No. 790.)

Under the Sixth Amendment, a defendant has the right to the presence of counsel at all “critical stages” of the proceedings. United States v. Wade, 388 U.S. 218, 227, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). A court is required to

scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.

Id. The “death-certification stage” to which Caro refers concerns the pre-indictment period during which the Department of Justice conducted internal proceedings in order to. determine whether to seek the death penalty. Although Caro had counsel during this period, he h'ad no constitutional right .to counsel.

The process by which the Department of Justice decides to seek the death penalty is a confidential administrative process," and the final decision is made by the Attorney General. U.S. Dep’t of Justice, U.S. Attorneys’ Manual § 9-10.050, 1998 WL 1745001 (2014). The Department normally affords defense counsel “an opportunity to present evidence and argument in mitigation” before making a final decision. United States v. Montgomery, No. 2:ll-cr-20044-JPM-l, 2014 WL 1453527, at *1 n. 5 (W.D.Tenn. Apr. 14,2014). In Caro’s case, this internal process, was conducted after he received a target letter, but before the Indictment was issued against him.

The government has the prosecutorial discretion to seek the death penalty. See 18 U.S.C. § 3593(a) (discussing notice’ requirements for" government attorneys seeking the death penalty); United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). (“In the ordinary case, ‘so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in .his discretion.’ ” (citing Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978))). A defendant has no right to, counsel during the stage where the government decides what charges to file and what sentence to seek, as the process is internal, and administrative. See United States, v. Craveiro, 907 F.2d 260, 264 (1st Cir,1990) (“[T]he internal guidelines of a federal agency, that are not mandated by statute or the constitution, do not confer substantive rights on any party-”); United States v. Le, 306-F.Supp.2d 589, 592 (E.D.Va.2004) (“[Internal DOJ guidelines do not create any substantive or procedural rights for a defendant.”). This process is precursory, when the defendant has yet to be confronted. As the court explained in United States v. McVeigh, 944 F.Supp. 1478, 1483-84 (D.Colo.1996):

[T]he decision to seek the death penalty under the Act is a matter of prosecutorial discretion. The Protocol did not create any individual right or entitlement subject to the due process protections applicable to an adjudicative or quasi-adjudicative governmental action.

The constitutional protections of the life and liberty , of a defendant are provided by the sentencing hearing following trial of the charges .in the indictment.

Because Caro had no right to counsel during the death-certification phase, he is not entitled to relief on this claim.

C. Claim III: Juror Misconduct.

Caro asserts in his third claim that juror misconduct violated his Fifth Amendment right to due process and his Sixth Amendment right to an impartial jury. He asserts that Juror No. 62 and Juror No. 32 provided factually inaccurate answers about their attitudes toward the' death penalty during voir dire. He contends that Juror No. 32 also lied about his ability to follow the instructions of the court during the penalty phase, because the juror allegedly stated after the conclusion of the trial that he decided to vote for the death penalty as soon as he decided that Caro was guilty.

The government argues that this claim is procedurally defaulted, but Caro contends that it relies on evidence outside the record. He includes an affidavit from Juror No. 62. It states:

2. It was obvious from the evidence that Carlos Caro was guilty of first-degree murder. I am now, and was at the time of the trial, strongly in favor of the death penalty in cases where evidence of guilt is obvious.

3. There is nothing that the defense offered, or could have offered, that would have changed my mind about the sentence because Caro committed the crime.

(Mot. Collateral Relief Ex. 32, ECF No. 790-32.) Caro also includes a summary of statements allegedly made by Juror No. 32:

After trial, however, [Juror No. 32] stated that the evidence was “conclusive” that Carlos Caro was guilty of first-degree murder, and once he reached that conclusion, he had made up his mind about the death penalty, noting that the Bible states “An eye for an eye.” After trial he also said nothing the defense could have offered would have changed his mind.

(Mot. Collateral Relief 42, ECF No. 790.) These two sources constitute Caro’s extra-record evidence.

After careful consideration of the record and the party’s arguments, I find that this claim is without merit. Both the juror affidavit and the alleged juror statements concern internal mental processes, and are inappropriate for this court to consider.

Unless in conflict with the Rules Governing § 2255 Proceedings, the Federal Rules of Evidence apply to § 2255 proceedings. See Fed.R.Evid. 1101(a) (“These rules apply to proceedings before ... United States district courts”), 1101(b) (“These rules apply in ... civil cases and proceedings”), and 1101(e) (“A federal statute or a rule prescribed by the Supreme Court may provide for admitting or excluding evidence independently from these rules.”). Accordingly, Rule 606(b) applies to the situation at hand. See Fullwood v. Lee, 290 F.3d 663, 679-80 (4th Cir.2002) (applying Rule 606(b) to capital habeas proceedings); Bacon v. Lee, 225 F.3d 470, 485 (4th Cir.2000) (same); Stockton v. Virginia, 852 F.2d 740, 743-44 (4th Cir.1988) (same). Rule 606(b) states:

During an inquiry into the validity of a verdict or indictment, a juror,may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit dr evidence of a juror’s statement on these matters.'

Fed.R.Evid. 606(b)(1). Caro does not assert that any exception to Rule 606(b) applies. See Fed.R.Evid. 606(b)(2) (listing extraneous prejudicial information, outside influence, or a mistake in entering the verdict on the verdict form as exceptions):

Though a criminal defendant enjoys the right to trial by an impartial jury, “the Sixth Amendment does not require that all evidence introduced by the defendant tending to impeach the jury’s verdict .be considered by the courts.” Robinson v. Polk, 438 F.3d 350, 358-60 (4th Cir.2006) (citing Tanner v. United States, 483 U.S. 107, 117, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987)). “In order to protect the finality and integrity of verdicts and to guard against the harassment of jurors, a party seeking to invalidate a verdict may not rely upon, evidence of ‘a juror’.s mental process in connection with the verdict.’ ” Fullwood, 290 F.3d at 679-80 (quoting United States v. Cheek, 94 F.3d 136, 143 (4th Cir.1996)). I cannot consider the affidavit or alleged statements .which Caro puts forth in support of this claim.

To the extent that Caro seeks to assert a claim of juror deceit under McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), his claim fails. Under McDonough, in order to receive federal habeas corpus relief on a claim of.juror deceit on jury questionnaires or during voir dire, the petitioner “must first demonstrate that a juror failed to answer honestly a material question ... and then further show that a correct response would have provided a valid basis for a challenge for cause.” Id. at 556, 104 S.Ct. 845. However, McDonough applies to instances of deceit that can be proved through objective facts that can be obtained through sources other than the juror. See United States v. Fulks, 454 F.3d 410, 431 (4th Cir.2006) (applying test where juror failed to disclose her husband’s' murder in a- timely manner); Conaway v. Polk, 453 F.3d 567, 585 (4th Cir.2006) (applying test where juror failed to disclose that he was double first cousins with the petitioner’s eodefendant); Conner v. Polk, 407 F.3d 198, 204-05 (4th Cir.2005) (applying test where juror who had covered petitioner’s first trial for a newspaper denied that she had firsthand knowledge of the facts of the crime). In contrast, Caro seeks to prove that the jurors were deceitful through their own statements. '

Finally, to the extent that Caro seeks to assert a violation of Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), his claim also fails. Morgan held that “If even one such juror [who would automatically vote for the death penalty in every case] is empaneled and the death sentence is imposed, the [government] is disentitled to execute the sentence.” Id. at 729, 112 S.Ct. 2222. Morgan concerned the adequacy of voir dire, and held that “part of the guarantee of a defendant’s right to .an impartial jury is an adequate voir dire to identify unqualified jurors.” M in the case at hand, Caro was afforded extensive opportunity to investigate all prospective jurors during voir dire. Juror No." 62 and Juror No. 32 were questioned about their beliefs regarding the death penalty in juror questionnaires and during voir dire before being selected for the jury. Caro has not alleged inadequate voir dire proceedings, and his reliance on Morgan does not salvage his juror misconduct claim.

D. Claim IV: Ineffective Assistance of Counsel During Guilt/Innocence Phase.

Caro asserts five grounds for ineffective assistance of counsel during the guilt/innocence phase of the trial. He argues that prejudicial error resulted from trial counsel’s failure to (1) develop a cohesive theory of defense, (2) adequately investigate and impeach government witness Sean Bullock, (3) adequately investigate and present evidence of the BOP’s negligence regarding the decision to place Sandoval in Caro’s cell, and (4) adequately investigate and present evidence in support of self defense, second-degree murder, or manslaughter. Finally, he argues that even if these deficiencies are individually insufficient to demonstrate prejudice, they do so when considered cumulatively. For the reasons stated below, I will deny relief on Caro’s claim of ineffective assistance of counsel during the guilt/innocence phase.

1. Cohesive Theory of Defense.

At trial, Caro’s counsel argued that he killed Sandoval “in hot blood.” (Trial Tr. 43, Jan. 29, 2007, ECF No. 668.) They argued that first-degree murder was not appropriate because there was conflict between the two .men at breakfast, they were confined in a small cell, and “this was a case of a pot boiling over.” (Id.)

Caro now claims that his trial counsel was ineffective for failing to develop a cohesive theory of defense to be presented during the guilt/innocence phase and brought out during the penalty phase. He argues that trial, counsel could, have claimed that he killed Sandoval, a Texas Syndicate member, because he feared retribution for assaulting Benavidez, a Texas Syndicate leader. He also argues that trial counsel could have presented. evidence that he suffers from a brain impairment and anxiety disorder, that their theory of a hot-blooded killing failed to account for the time between Sandoval’s death and the breakfast dispute, and that their theory did nothing to mitigate his post-offense statements dr the government’s positions on his gang leadership and future dangerousness.

It is clear that Caro’s trial counsel was faced with the difficult task of developing a theory around a conceded killing and recorded statements that did not suggest remorse. Caro stated that his impetus for killing Sandoval was that Sandoval disrespected him. (See Trial Tr. 49, 53, Jan. 31, 2007, ECF No. 674 (stating that he killed Sandoval because Sandoval- tried to call him a “mother fucker” and “disrespected” him).) Trial counsel had to consider how a jury might interpret these-statements, and develop a theory of the case that they felt would be most convincing in light of the evidence they could present and the evidence they could expect from the government. Considering the circumstances of the case, trial counsel’s theory was not unreasonable.

Caro, with the benefit of hindsight, suggests alternative arguments and points to perceived weaknesses. His critiques do not overcome the presumption that trial counsel’s decisions fell within the bounds of reasonable professional judgment. “There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Caro has not demonstrated that trial counsel’s theory of a hotblooded killing-was an unreasonable strategic decision.

2. Impeachment of Sean Bullock.

Caro claims that trial counsel was ineffective for failing to adequately investigate and impeach the government’s eyewitness, Sean Bullock, and failing to present the testimony of Bullock’s cellmate,' Joseph Bland. He argues that trial counsel overlooked Bland as a potential witness after Bullock stated in his grand jury testimony that he had a cellmate. Caro contends that trial counsel failed to pursue the issue after Bullock testified at trial that he had a cellmate, but could not recall his cellmate’s name on cross examination. He also argues that trial counsel failed to adequately cross-examine Bullock on inconsistencies between his trial testimony and previous statements. Caro claims that trial counsel’s failure to impeach Bullock prejudiced him because Bullock’s testimony was the only evidence that supported the government’s proposition that he had ambushed Sandoval from behind.

With regard to Caro’s claim that trial counsel was ineffective for failing to impeach Bullock, I find that Caro has failed’ to show that counsel’s representation fell below an objective standard of reasonableness. “Trial counsel have an obligation to investigate possible methods for impeaching a prosecution witness, and failure to do so may constitute ineffective assistance of counsel.” Tucker v. Ozmint, 350 F.3d 433, 444 (4th Cir.2003). However, there remains “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. In this situation, trial counsel did investigate and pursue several methods of impeachment. They sought to impeach Bullock with inconsistencies in his testimony at trial, his grand jury testimony, and his mass interview form. They questioned him about facets of his background, including his use of false identities. They tried to elicit a hope that he would receive benefits for his testimony, and they questioned him about why he did' not tell his cellmate what he saw. There is no indication that trial counsel’s efforts to impeach Bullock were unreasonable.

With regard to Caro’s claim that trial counsel was ineffective for overlooking Bland as a potential witness and failing to introduce his testimony, I find that Caro has not established prejudice. It is not clear that Bland’s testimony would háve changed the jury’s assessment of Bullock’s credibility. Bland’s affidavit states that he and Bullock had been playing cards on the bed for at least 30 minutes before officers opened the door to Sandoval’s cell. (Mot. Collateral Relief Ex. 2, ¶ 5, ECF No. 790-2.) He states that he and Bullock were unaware of what happened until Sandoval was removed from the cell, and that Bullock “was not standing by the door prior to inmate Sandoval being removed from cell 123.” (Id. ¶ 6.) However, Bullock testified that did not tell his cellmate about what he saw. Bullock did not say he was standing at the door when Sandoval was removed from his cell. Rather, he stated that he was at that location earlier when he observed Caro with an orange towel around Sandoval’s neck. The jury would have hád to assess the credibility of both men, and there is nothing to suggest that they would have believed Bland over Bullock. Caro has not demonstrated a reasonable probability that the outcome of the guilt/innocence phase would have been- different but for this alleged deficiency.

3. Prison Culture and Cell Placement.

Caro argues that trial counsel was ineffective for failing to adequately investigate and present evidence of prison culture in order to demonstrate that the BOP was negligent in placing Sandoval in his cell. He contends that a prison culture expert might have testified that the refusal of Sandoval as a cellmate could have been a sign that he feared retribution from the Texas Syndicate. Caro argues that such an expert could have opined that the BOP should have housed him separately from other Texas Syndicate members, and that Sandoval’s request to be placed in the same cell could have been a challenge to him. It is asserted that a prison culture expert could have laid a foundation for the fact that Sandoval was placed in the SHU for possession of a weapon, and explained the significance of that. Caro contends that the prison’s gang intelligence officers should have been consulted before he was given a cellmate. He also argues that the officer who witnessed his refusal to take a cellmate violated standard operating procedures by failing to record it in the SHU log book.

None of these arguments undermine confidence in the jury’s verdict of first-degree murder. Caro has not established prejudice. As Caro admitted to killing Sandoval and was the only possible perpetrator, the primary issue during the guilt/innocence phase was that of premeditation. The government introduced significant evidence in support of premeditation, including Bullock’s testimony, Caro’s proffered reasons for killing Sandoval, and the time that passed between then- dispute and Sandoval’s death. Caro must demonstrate a reasonable probability that counsel’s deficiencies undermined the outcome of the trial, and he has not done so. Even if trial counsel had provided testimony from a prison culture expert, there was extensive alternative evidence to support a finding of premeditation.

4. Self Defense, Second-Degree Murder, or Manslaughter.

Caro argues that trial counsel was ineffective for failing to adequately investigate and present evidence in support of self defense, second-degree murder, or manslaughter. He asserts that trial counsel should have presented a theory of self defense based on fear of retribution. He argues that trial counsel should have utilized a prison culture expert to explain the context of his post-offense statements and the impropriety of Sandoval’s request to be placed in the same cell. Caro argues that trial counsel was ineffective for raising the question of why Sandoval wanted in the cell, but failing to answer it. He claims that these deficiencies present a reasonable probability that a juror would have concluded that he acted in response to a real or perceived threat, and not with premeditation.

While Caro argues that trial counsel should have presented a fear of retribution theory which might have supported a conviction for a lesser crime, such a theory does not easily accord with Caro’s post-offense statements regarding Sandoval’s killing. {See, e.g., Trial Tr. 53, Jan. 31, 2007, ECF No. 674 (“[T]hey gave me a cell mate and he disrespected me, so I took him down.”).) Caro stated that he killed Sandoval because Sandoval disrespected him; he never stated that he was in fear of Sandoval.

Even if trial counsel had presented testimony from a prison culture expert that Caro’s post-offense statements were due to a need for bravado but his actions were in self defense, a reasonable juror still could have concluded from Caro’s statements that the killing was premeditated. Reading Caro’s post-offense statements as a guise of bravado “is quite -strained ... and is not supported by the [post-offense statements] as a whole.” Pruett v. Thompson, 996 F.2d 1560, 1571 (4th Cir.1993). For example, Caro stated on the phone to his wife, “[Sandoval] tried to call me mother fucker, that whore, that’s why I fucked him up.” (Trial Tr. 49, Jan. 81, 2007, ECF No. 674.) A need to maintain a facade of toughness around prison inmates and correctional officers would not explain this statement to his wife.

Additionally, the fact that trial counsel alluded to Sandoval’s motivation for wanting to be in Caro’s cell, but did not introduce evidence to answer that question, does not establish ineffective assistance of counsel. See Turner v. Williams, 35 F.3d 872, 904 (4th Cir.1994) (“In our view, assuming counsel does not know at the time of the opening statement that he will not produce the promised evidence, an informed change of strategy in the midst of trial is virtually unchallengeable.”) (internal quotation marks and'citation omitted), overruled on other grounds by O’Dell v. Netherlands 95 F.3d 1214 (4th Cir.1996).

5. Cumulative Error.

Caro argues that “[e]ven if a single deficiency in counsel’s performance does not result in prejudice, the cumulative impact of all failures resulted in ... an unfair trial.” (Mot. Collateral Relief -61, ECF No. 790.) This contention must fail. I have found each of Caro’s subclaims of ineffective assistance of counsel during the guilt/innocence phase without - merit. Counsel’s acts or omissions “ ‘that are not unconstitutional individually cannot be added together to create a constitutional violation.’ ” Fisher v. Angelone, 163 F.3d 835, 853 (4th Cir.1998) (quoting Wainwright v. Lockhart, 80 F.3d 1226, 1233 (8th Cir.1996)). These claims do not collectively establish a right to collateral relief.

E. Claim V: Brady Violations Concerning Bullock.

' In his fifth claim, Caro argues that the government violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights by withholding material exculpatory and impeachment evidence and misleading defense counsel. He argues that the government misrepresented the fact that Bullock had a cellmate at the time of the offense, and failed to provide a mass interview report for Bland even though it asserted that all SHU inmates had been interviewed.

While the government argues that this claim is procedurally barred, Caro asserts that it relies on extra-record evidence— Bland’s declaration. Assuming that Bland’s declaration constitutes appropriate extra-record evidence to overcome procedural default, this claim still must be dismissed.

In-order to prove a Brady violation, a defendant must demonstrate that the government failed to provide the defendant with material exculpatory evidence. Specifically, the defendant must prove: (1) there was evidence favorable to the accused, (2) the government suppressed it, and (3) the defendant suffered prejudice. Strickler, 527 U.S. at 281-82, 119 S.Ct. 1936. Additionally, “where the exculpatory information is not only available to 'the defendant but also lies in a source where a reasonable defendant would have looked, a defendant is not entitled to the benefit of the Brady doctrine.” United States v. Wilson, 901 F.2d 378, 381 (4th Cir.1990).

Trial counsel had information from which to infer that Bullock had a cellmate. The government disclosed the SHU daily logs for December 17-20, 2003, and a SHU roster for December 20, 2003. The daily log for December 19, 2003, showed that Bland was moved from cell 146 (Bullock’s cell) that day. Additionally, the government produced Bullock’s grand jury testimony, which referenced his cellmate, one month before trial.- Whether the government “never overtly corrected [trial counsel’s] misconception,” (Mot. Collateral Relief 64, ECF No. 790), is irrelevant. The government is not required to illuminate facts in this manner for the defense. Caro- has failed to establish a Brady violation.

F. Claim VI: Ineffective Assistance of Counsel During Penalty Phase.

In his -sixth claim, Caro argues that he was deprived of effective assistance of counsel during the penalty phase of the trial in violation of his Sixth Amendment rights. He asserts 12 grounds for ineffective assistance of counsel, which are addressed individually below.

1. Failure to Challenge Delay of Indictment.

Caro alleges that trial .counsel was ineffective for failing to challenge the government’s delay in obtaining the Indictment for Sandoval’s murder until after a conviction had been obtained for the Benavidez assault. This subclaim builds on Caro’s allegations in Claim I. He now argues that trial counsel should have pursued a pretrial remedy that would have prevented the government from arguing that the Benavidez assault was an aggravating factor in support of death.

2. Failure to Develop A Compelling Mitigation Story.

Caro contends that his trial counsel failed to adequately investigate, develop, and present a compelling mitigation story about his life. It is well settled that defense counsel must conduct a reasonable investigation into mitigating evidence to be presented during the penalty-phase, and that failure to present mitigating evidence cannot be justified as a tactical decision unless the duty to investigate has been fulfilled. See Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). In this case, there is no indication that trial counsel failed to conduct a reasonable investigation into Caro’s background.

Trial counsel hired many experts to investigate Caro’s background, and received mixed results. They hired a mitigation specialist whom they eventually had to replace. They hired a fact investigator, two experts to opine on future dangerousness, a neuropsychologist, a neurologist, and a psychiatrist.

.Trial counsel also presented mitigating evidence during the penalty phase. They alleged 22 mitigating factors, and put on eight witnesses over the course of three days. In addition to hearing from two future dangerousness . experts, the jury also heard testimony from three of Caro’s aunts, Caro’s wife, a former teacher, and a cousin.

As a result of trial counsel’s efforts, the jury unanimously found that 12 mitigating factors had been proved. Caro argues that his trial counsel should have done more to develop a compelling mitigation story, but he has failed to ‘demonstrate how their conduct fell below 'prevailing professional norms. Due to trial counsel’s efforts, many elements of Caro’s past were given weight as mitigating factors. While Caro asserts numerous deficiencies of trial counsel, their- overall efforts during the penalty phase were not objectively unreasonable. Caro’s subclaim is without merit, and his specific allegations of deficiency, addressed below, are without merit.

Caro argues that trial counsel should have obtained- more than two mental health experts, and points to the fact that a child psychiatrist and neonatologist were not retained despite the mitigation specialist’s recommendation to do s