Full opinion text
PATRICK E. HIGGINBOTHAM, Circuit Judge: A jury in the 207th Judicial District Court for Comal County, Texas, on September 25, 1985, convicted Rodolfo Baiza Hernandez of the capital murder of Victor Cervan. The jury gave affirmative answers to the questions required in Texas at the sentencing phase of the trial, and he was sentenced to death. After direct and collateral review by the state courts of his conviction and sentence, Hernandez brings this appeal from a denial of federal habeas relief by the United States District Court. He urges two points. First, he urges that he was denied his Sixth Amendment right to counsel because a court-appointed psychiatrist testified at the sentencing phase of this trial regarding his future dangerousness, although the State refused to allow his counsel to be present at the doctor’s examination of Hernandez. Second, he urges that the statutory questions asked the jury in the sentencing phase did not allow the jury to consider in mitigation his evidence that he was abused as a child and suffered chronic paranoid schizophrenia. We find these two contentions to be without merit and affirm dismissal of his federal petition. I Victor Cervan was one of five Mexican nationals attempting to make their way into this country by illegal passage across the Rio Grande northward to the area of Denton, Texas, in search of jobs on local ranches. There is little dispute about their encounter with Hernandez, who happened upon them as they left a boxcar in the rail yard in San Antonio. He offered to give them a ride north, for a fee. Instead, assisted by Jesse Garibay, his brother-in-law, Hernandez took them to a remote area where he robbed them and shot them at close range, execution style. All but Cervan survived, and two of them testified against Hernandez at trial. The Texas Court of Criminal Appeals affirmed on direct review and the Supreme Court denied certiorari. In 1991 Hernandez filed a state petition for habeas relief, and in 1993 a special master filed proposed findings of fact and conclusions of law. The state trial court adopted the master’s proposals and recommended denial of all relief. The Texas Court of Criminal Appeals determined that the findings of fact were supported by the record and denied relief. The Supreme Court declined review a second time. The federal petition followed. Two and one-half years later the district denied relief and granted a certificate of appealability on the two issues now before us. II Since Hernandez filed his federal petition for habeas relief after the effective date of the AEDPA, his petition is controlled by that act. Its most immediate provision limits the authority of federal courts in habeas proceedings as follows: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. In Williams v. Taylor, the Supreme Court explained 2254(d)(1) as follows: Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case. Ill Before trial Hernandez’s counsel filed a motion requesting Judge R.T. Pfeuffer, the state trial judge, to appoint a “qualified disinterested expert at County expense to conduct a mental examination of the Defendant with regard to the Defendant’s competency to stand trial, to file a written report in this Court within 30 days of the Order of Examination, and to testify regarding same at any trial or hearing upon such issue ... [and] that this Court furnish defense counsel with copies of said report as soon as it becomes available.” The motion also requested money to “enable the Defendant to select an expert of his own choice to examine the Defendant relative to his competency to stand trial” and “that Hernandez’s counsel be notified of the time and place of the examination and he be allowed to attend, alternatively, that the examination be video taped and he be furnished a copy of the tape.” Significantly, the motion also requested that the examiner file separate reports regarding the examiner’s opinion of whether Hernandez was mentally ill or retarded and whether he required treatment. The latter request plainly looks beyond questions of competency to stand trial to the sentencing phase of the trial. The motion also requested that the examiner testify at trial or at a hearing on the issues. Judge Pfeuffer granted the motion in part, appointing Dr. John Sparks with instruction to examine for competency to stand trial and for sanity at the time of the offense. He denied the request for appointment of an “independent” doctor, the request that counsel be notified and be allowed to be present, as well as the alternative request for videotaping. Dr. Sparks conducted the examination. He gave Hernandez the required warnings that his statements could be used against him at trial, except, apparently, a specific caution that any statements could be used in the sentencing phase of a trial. Dr. Sparks gave no notice to defense counsel, and counsel was not present during the examination. The following month, in September, the trial judge convened a competency hearing before a jury at which both sides offered evidence and Dr. Sparks testified regarding competency. The jury-found that Hernandez was competent to stand trial. Defense counsel made no further requests for psychiatric assistance and did not attempt an insanity defense at trial. Dr. Sparks made no appearance until the punishment phase of the trial, when the State called him as a witness. The State’s direct examination made no mention of any examination by Dr. Sparks. Rather, the State proceeded by asking a narrative hypothetical question as a basis for Dr. Sparks’ opinion as to whether a person with a similar history would be a danger to society. Dr. Sparks expressed the opinion that such conduct reflected an anti-social personality and that a person with this history would likely continue to be a danger to society. The difficulties began when defense counsel seized the opportunity to develop on cross-examination a mitigation theory that rested on an old diagnosis of chronic schizophrenia made of Hernandez during an earlier prison stay for robbery. He presented prison records to Dr. Sparks reflecting the diagnosis, eliciting testimony about periods of remission and its responsiveness to drugs and therapy. Dr. Sparks acknowledged the differences in the illnesses but maintained that nonetheless his earlier answers in response to the hypothetical “appear[ ] to be closest to a description that is labeled the anti-social personalty.” He argued that such an afflicted person can experience periods of remission and with proper treatment live a productive life. On redirect the State demonstrated that Dr. Sparks also had the benefit of the examination of Hernandez ordered by the court at Hernandez’s request; and that in concluding that Hernandez was competent to stand trial, Dr. Sparks had decided that Hernandez had an anti-social personality. The Texas Court of Criminal Appeals described this exchange at trial as follows: [T]he State elicited redirect testimony from Dr. Sparks concerning appellant’s competency evaluation in response to appellant’s introduction of psychiatric evidence on cross-examination. By introducing appellant’s TDC psychiatric records and soliciting Dr. Sparks’ opinion concerning those records, appellant “opened the door” to the State’s use of the results of his competency exam for rebuttal purposes.... By creating the impression that appellant may have been suffering from paranoid schizophrenia, appellant paved the way for the State to rebut that impression with psychiatric testimony tending to show that appellant was instead suffering from an anti-social personality disorder. The Texas court also concluded that Dr. Sparks did not express an opinion regarding future dangerousness, and that the trial court had specifically instructed the prosecutor that he could not do so. The Texas court explained: When the State began to elicit testimony concerning Dr. Sparks’ competency examination, appellant immediately objected. At the subsequent hearing outside the jury’s presence, the trial court ruled that the witness could testify as to his medical findings, but not as to whether appellant would likely commit future acts of violence that would constitute a danger to society. The essence of Dr. Sparks’f ] testimony before the jury was his diagnosis of anti-social personality disorder, along with a comment that had he been informed of appellant’s prison psychiatric records, his diagnosis would have been a primary finding of paranoid schizophrenia in remission along with a secondary finding of an anti-social personality disorder. This testimony, while relevant to the issue of future dangerousness, was not a direct assertion of an expert opinion concerning future dangerousness. We agree with this reading of the record by the Texas court. At the least, it is both an objectively reasonable interpretation of the relevant events at trial and reasonable application of the decision of the Supreme Court in Buchanan v. Kentucky. The primary contention here is that the introduction of Dr. Sparks’ testimony that he had examined Hernandez before the competency hearing denied Hernandez’s right to counsel secured by the Sixth Amendment. Hernandez initiated the examination for competency and other evidence of mental illness through his counsel and had a full opportunity to cross-examine Dr. Sparks at the competency hearing before trial. There is no suggestion that Hernandez did not have a full opportunity to consult with counsel about the scope of the examination, both with regard to its use to demonstrate competency and to develop possible mitigating evidence. As Buchanan teaches, defense counsel was on notice that if he attempted to put mental status in play, the State might draw upon the examination in rebuttal. At the sentencing phase of trial on direct examination by the State’s attorney, Dr. Sparks expressed an opinion based upon a hypothetical question and not upon his prior examination. The defense lodged no objection to the use of the hypothetical, apart from an error in the recitation, which was promptly corrected. The only deviation from that presentation came on redirect examination where Dr. Sparks’ prior examination was disclosed in a shoring of Dr. Sparks’ opinions regarding the relative play of schizophrenia, in remission and when treated by drugs, as compared to the diagnosis of anti-social disorder. We find no violation of the Fifth or Sixth Amendment in this circumstance. These events differ from those of White v. Estelle, and Hernandez’s reliance upon it is misplaced. It is true that, as here, the examiner of White testified in the sentencing phase in response to hypothetical questions, but little else of importance is similar. Defense counsel in White objected to the testimony, urging the trial court that the tailoring of the hypothetical was calculated to inform the jury of the earlier examination ordered on a motion by the State, not the defendant. The federal habeas trial court later found that the examination “reasonably indicated that the psychiatric prognosis of White’s future dangerousness was influenced by and derived from the court-ordered pretrial psychiatric examinations.” This was not the case with the hypothetical put to. Dr. Sparks. Indeed, sensitive to Estelle, Judge Pfeuffer here instructed the prosecutor that he was to not ask Dr. Sparks “whether [Hernandez] would likely commit future acts of violence that would constitute a danger to society,” for the reason that Judge Pfeuffer had not allowed defense counsel to be present when Dr. Sparks conducted the ordered examination of Hernandez. Disclosure of the court-ordered examination came here only in response to defense counsel’s cross-examination which opened the door for its receipt. As applied here, this trial court ruling was no mechanical application of the familiar “you opened the door.” Rather, it was a practical necessity to avoid the unfairness of tying the prosecutor’s hands while leaving defense counsel free to attack Dr. Sparks’ opinions as lacking an informed basis. IV Hernandez contends that the jury could not give effect to evidence that he was subjected to sustained child abuse and chronic mental disease. The argument is that the jury could not give effect to these mitigating circumstances under the questions asked them as explained in Penry v. Lynaugh. , As demonstrated by defense counsel in closing argument, the evidence of chronic schizophrenia could be considered by the jury in answering the question of future dangerousness, an argument counsel had carefully laid the support for in his cross-examination of Dr. Sparks. With medication and treatment, remission can be sustained. We have repeatedly held that evidence of child abuse alone, unlinked to the offense, is not mitigating. V We have heard argument in this case and carefully considered the opinions of the courts that have previously decided these questions, including a detailed opinion by the district court below, and find no error. We affirm the dismissal of the writ of habeas corpus and dissolve the stay of execution. AFFIRMED. . See Hernandez v. State, 805 S.W.2d 409, 410-11 (Tex.Crim.App.1990). . See id.; Hernandez v. Texas, 500 U.S. 960, 111 S.Ct. 2275, 114 L.Ed.2d726 (1991). . Hernandez v. Texas, 513 U.S. 1086, 115 S.Ct. 743, 130 L.Ed.2d 644 (1995). . 28 U.S.C. § 2254(d) (2000). . 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). . Hernandez v. State, 805 S.W.2d 409, 412 (Tex.Crim.App.1990) (en banc). . Id. at 412 n. 3. . 483 U.S. 402, 424-25, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987) (stating that the focus of the Sixth Amendment right is not on the use of the doctor's report and that "the proper concern of this amendment [is] the consultation with counsel, which petitioner undoubtedly had. Such consultation, to be effective, must be based on counsel's being informed about the scope and nature of the proceeding .... Given our decision in Smith, however, counsel was certainly on notice that if ... he intended to put on a 'mental status’ defense ... he would have to anticipate the use of psychological evidence by the prosecution in rebuttal.”) .There are suggestions that these events also violated Hernandez’s right to not incriminate himself under the Fifth Amendment, although that separate contention has not been made to us. Regardless, neither contention, although resting upon distinct doctrines, can survive the analysis oí Buchanan. . 720 F.2d 415 (5th Cir.1983). . See id. at 417 & n. 1. . Id. at 417. . Hernandez, 805 S.W.2d at 412 n. 3. . 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). . See Davis v. Scott, 51 F.3d 457, 461-62 (5th Cir.1995) (evidence of child abuse, alone, without demonstrating any link to the crime, does not constitute “constitutionally relevant mitigating evidence”); Madden v. Collins, 18 F.3d 304, 308 (5th Cir.1994) (evidence of troubled childhood not constitutionally relevant mitigating evidence when not linked in any way to the crime); Barnard v. Collins, 958 F.2d 634, 638-39 (5th Cir.1992) (rejecting Penry claim where crime not attributable to the proffered evidence of troubled childhood).
DENNIS, Circuit Judge, dissenting: The questions presented are whether Rodolfo Baiza Hernandez’s Sixth Amendment right to counsel, as defined in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), was violated; whether he was sentenced to death in violation of the Eighth Amendment because the jury was not instructed that it could consider and give effect to the mitigating evidence of his abused childhood by declining to impose the death penalty, as required by Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); and whether the judgment of the Texas Court of Criminal Appeals refusing to set aside his death sentence “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” within the meaning of 28 U.S.C. § 2254(d)(1) (1994 & Supp.2000). Because these questions should be answered affirmatively, instead of negatively as in the majority opinion, I respectfully dissent. I. The majority opinion’s analysis is flawed because of its failure to recognize that the state habeas trial court made no ruling on Hernandez’s Sixth Amendment claim; and that the Texas Court of Criminal Appeals’s per curiam order adopting the state habe-as trial court’s “findings and conclusions” therefore either had no legal basis whatsoever or else unconstitutionally conflated its analysis of the defendant’s Fifth and Sixth Amendment rights, contrary to the clearly established Federal law as determined by the Supreme Court of the United States. The majority opinion mistakenly relies on the opinion of the Texas Court of Criminal Appeals on direct appeal in Hernandez v. State, 805 S.W.2d 409 (Tex.Crim.App.1990), as if it were the factual findings and rulings of law of that court with respect to Hernandez’s Sixth Amendment habeas corpus claim. On direct appeal, the Texas Court of Criminal Appeals reviewed only Hernandez’s Fifth Amendment claim. Regarding his Sixth Amendment state habeas claim, the state habeas trial court and the special master found additional facts relating specifically to the Sixth Amendment claim. But the trial court clearly deferred any ruling on that claim, noting that “the question is presented as to whether or not the decisions of Estelle v. Smith ... and Powell v. Texas [492 U.S. 680, 109 S.Ct. 3146, 106 L.Ed.2d 551 (1989) ] require the presence of counsel where the state’s mental health expert’s testimony is ‘not a direct assertion of an expert’s opinion concerning future dangerousness’, but rather, some other form of mental health diagnosis harmful to the defendant’s case.” The special master and the state habeas trial court did not-as the majority opinion expresses-recommend the denial of relief, but recommended that “the Texas Court of Criminal Appeals should review this issue closely to determine if there is such a requirement.” The Texas Court of Criminal Appeals, on the state habeas appeal, did not review the issue or make any additional factual findings from the record. That court, without oral argument, merely issued a per curiam order holding that “[t]he findings and conclusions [of the special master adopted by the trial court] are supported by the record and upon such basis the relief sought is denied.” Accordingly, the majority opinion of this court mistakenly assumes that the full opinion of the Texas Court of Criminal Appeals on direct appeal, which pertained only to Hernandez’s Fifth Amendment argument on appeal, was that court’s ruling on Hernandez’s Sixth Amendment habeas claim. Of course, it was not. On Hernandez’s habeas appeal, the Texas Court of Criminal Appeals said it was denying relief based on the findings of fact and conclusions of the habeas trial court. But because the trial court did not make any ruling or reach any conclusion, the decision of the Texas Court of Criminal Appeals presently under review really has no tangible legal basis. Only by a highly creative assumption can this court read into the Texas Court of Criminal Appeals’s terse per curiam order any kind of a reasoned disposition of Hernandez’s Sixth Amendment habeas claim. The only reasonable creative assumption would be that the per curiam represents a conflation of analysis of Hernandez’s Fifth and Sixth Amendment claims and a conclusion that they can both be rejected constitutionally for the same reason. That decision, however, is one that is contrary to, and an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. This issue, and the reasons that the majority opinion also misapprehends Hernandez’s Eighth Amendment claim, are addressed in detail below. Before addressing these major legal issues in more detail, however, it is first necessary to point out the majority’s errors in misconstruing the procedural and factual context of this case. The majority opinion quotes a small, selected portion of the defense counsel’s pretrial motion for a qualified disinterested expert to conduct a mental examination of the defendant with regard to his competency to stand trial and his sanity at the time of the offense. The majority opinion then mischaracterizes the defense motion as containing a request that “looks beyond questions of competency to stand trial to the sentencing phase of the trial. The motion also requested that the examiner testify at trial or at a hearing on the issues.” Maj. Op. at 347. The defense motion, however, contains no reference to the sentencing phase but is clearly aimed only at gaining expert assistance to evaluate whether Hernandez was competent to stand trial or whether to advise him to plead not guilty by reason of insanity. The state habeas trial court made the factual . finding that Hernandez’s counsel’s “request for the appointment of an expert was made solely for the purposes of examining the defendant relative to his competency, filing a report, and testifying regarding competency at any trial or hearing.” (Emphasis in original) (internal quotations and brackets omitted). And, contrary to the majority opinion’s characterization of the defense motion as a request for testimony at trial on the issues, the defense motion specifically limited the request for testimony on Hernandez’s competency to stand trial-not for testimony at the guilt or penalty phases of a capital murder trial. The majority opinion mischaracterizes the state trial court’s ruling on the defense pretrial motion as “granting] the motion in part.” Maj. Op. at 347. The court, in fact, denied the defense counsel’s motion entirely and sua sponte entered an order sharply inconsistent with the objects of the motion. The state habeas trial court made this clear when it found as a fact that the “trial court den[ied] this motion.” (Emphasis in original). The majority opinion’s statement that “[t]he State’s direct examination made no mention of any examination by Dr. Sparks ..Maj. Op. at 347, is misleading. Dr. Sparks, in presenting his qualifications as an expert in predicting future dangerousness of criminals, told the jury that he had examined and testified with respect to approximately 1500 persons charged with crimes to evaluate their competency to stand trial and their sanity at the time of their alleged offenses. The prosecutor, in his “hypothetical” question, described a criminal and a crime matching in minute detail Hernandez and the evidence introduced against him at the guilt phase of the trial. It is almost certain that reasonable jurors would have understood that Dr. Sparks’s prediction of future dangerousness referred to Hernandez or someone identical to him who had committed a crime identical to his. It is also highly probable that reasonable jurors would have inferred that Hernandez was one of the 1500 persons charged with crimes who had been examined psychiatrieally by Dr. Sparks. The majority opinion does not present the facts objectively or impartially when it states that “[t]he difficulties began when defense counsel seized the opportunity to develop on cross-examination a mitigation theory that rested on an old diagnosis of chronic schizophrenia made of Hernandez during an earlier prison stay for robbery.” Maj. Op. at 347. It is easy to understand why the prosecution would advocate this view. But in truth the difficulties began when the prosecution called Dr. Sparks, who had examined Hernandez without giving notice to his enrolled defense counsel, and had the doctor, under the guise of a transparent hypothetical, diagnose Hernandez as a person having an “antisocial personality” and predict that “there’s a high likelihood that he would continue to perform acts that are a danger to society.” Defense counsel introduced Hernandez’s prior medical records without any objection by the prosecution. Defense counsel properly used these records to impeach the testimony of Dr. Sparks that Hernandez was a sociopathic menace to society as erroneous because he had not taken into account the reliable diagnoses of Hernandez as a chronic paranoid schizophrenic. The prosecutor then aggravated those “difficulties” by attempting to rehabilitate his witness on redirect by asking Dr. Sparks about his pretrial psychiatric examination of Hernandez and the doctor’s diagnosis of Hernandez’s mental condition at that time. There is no legal or factual basis for the majority’s assertion that, “There is no suggestion that Hernandez did not have a full opportunity to consult with counsel about the scope of the examination, both with regard to its use to demonstrate competency and to develop possible mitigating evidence.” Maj. Op. at 348. The burden is on the State to prove its defense to Hernandez’s Sixth Amendment claim-that Hernandez had actual notice of the scope of the pretrial psychiatric examination-not. on Hernandez to prove his lack of knowledge. 2 James s. Liebman & Randy HeRtz, FedeRal Habeas CoRpus PRACTICE and Procedure § 31.2, at 1322 (1998 & Supp.2000) (“[T]he state ... bears the burden of proving by a preponderance of the evidence all dispositive facts necessary to establish the prerequisites for a defense on which it relies.”); see, e.g., Satterwhite v. Texas, 486 U.S. 249, 255, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988) (rejecting State’s argument that a defendant may be constructively notified of the scope of a pretrial examination). Factually, the assertion that there has been “no suggestion” that Hernandez was not given the opportunity to consult with his counsel about the possibility that the pretrial psychiatric examination might encompass the penalty phase future dangerousness issue is also incorrect. The Texas Court of Criminal Appeals found unequivocally that “[t]he record does not demonstrate that Dr. Sparks warned [Hernandez] that anything [he] said could be used against him at a sentencing proceeding.” Hernandez v. State, 805 S.W.2d 409, 411 n. 2 (Tex.Crim.App.1990) (en banc). And, as recognized by the federal district court in these proceedings, “it is uncontested petitioner’s trial counsel w[ere] never advised Dr. Sparks’[s] competency evaluation would also address the issue of petitioner’s future dangerousness.” Memorandum Opinion and Order at 103. Indeed, there was ample evidence that neither Hernandez nor his counsel were informed that his statements could be used by Dr. Sparks at a capital penalty trial to predict his future dangerousness. The state trial court, in its pretrial psychiatric examination order, did not give Hernandez or his counsel such notice. Dr. Sparks testified that he did not give Hernandez notice prior to the psychiatric examination that the examination data could be used by the doctor to testify against him at the death penalty hearing. The state courts never found that Hernandez or his ^counsel had notice that the pretrial psychiatric examination could encompass the future dangerousness issue, and it is error for the majority to make such an inference from the record here. The majority opinion also mischaracterize the facts of the state proceedings when it states that “[t]he defense lodged no objection to the use of the hypothetical, apart from an error in the recitation.” Maj. Op. at 348. Defense counsel also objected to the hypothetical question on the grounds that it called for Dr. Sparks to express an expert opinion on future dangerousness without first establishing the medical knowledge, techniques, and data in the particular case upon which his opinion was based; and to Dr. Sparks’s testimony to whether Hernandez will have a future mental state or condition because that is an ultimate issue for the jury alone. In order to understand the significance of the legal errors the majority opinion leaves uncorrected, the factual and procedural background of Hernandez’s claims must be fully and accurately set forth. II. A. On May 15,1985, Rodolfo Baiza Hernandez was charged by indictment with the March 7, 1985, murder of Victor Cervan, one of five Mexican nationals whom he had robbed, shot, and abandoned in a remote area of Comal County, Texas. On April 8, 1985, the 207th Judicial District Court for Comal County, Texas, in New Braunfels, appointed two attorneys in private practice to represent him. At his arraignment, Hernandez pleaded not guilty. The State announced its intention to seek the death penalty. On August 23, 1985, defense counsel for Hernandez filed a motion alleging that (1) the defendant was not competent to stand trial due to his inability to understand the proceedings or to rationally consult with counsel; (2) the defendant had been examined and treated for mental disorders from 1969 to 1985 by medical experts of the United States Army, the Texas Department of Corrections (“TDC”), and Bexar County, Texas; and (3) counsel had not been able to determine whether to present an insanity defense. The defense counsel’s motion requested that the court (1) appoint a “qualified disinterested expert at County expense to conduct a mental examination of the Defendant with regard to [his] competency to stand trial,” and to file a written report of the examination with the court and counsel; (2) grant defense counsel funds and permission to select an expert to examine the defendant relative to his competency to stand trial; (3) notify defense counsel as to the date, time, and place of the examination to enable counsel to attend the examination; (4) take notice that defense counsel “specifically objects to any such examination unless the defense counsel are afforded an opportunity to be present”; (5) alternatively, order the entire examination video-recorded for defense counsel’s use and benefit; (6) order the medical examiner to include in his report observations and findings regarding Hernandez’s competence to stand trial, his status as to mental illness and retardation, and required or recommended observation, treatment, or hospitalization; and (7) schedule a hearing to determine whether the defendant was competent to stand trial. The state trial court on August 23, 1985, entered an order (1) denying defense counsel’s requests for funds with which to employ an independent psychiatrist to examine and report on Hernandez’s mental capacity, advance notice of the time and location of the examination, the right to attend the examination, and the right to select a court-appointed expert; (2) appointing Dr. John C. Sparks, a psychiatrist employed by the Bexar County, Texas, courts, “whose address is 2nd Floor, Bex-ar County Jail, San Antonio, Texas,” to conduct a mental examination of Hernandez regarding competency to stand trial, file a written report with the court, and furnish a copy to defense counsel no later than August 30, 1985; (3) ordering the Comal County Sheriffs Department to transport Hernandez to Dr. Sparks’s office for the examination; (4) declaring that Dr. Sparks would be advised by the court of the facts and circumstances of Hernandez’s charged offense “and the meaning of incompetency to stand trial”; (5) ordering Dr. Sparks to include in his written report a description of the examinations and procedures used, the doctor’s observations and findings pertaining to competence to stand trial, the doctor’s opinion as to Hernandez’s mental illness or retardation, and the doctor’s prescription of needed observation, treatment, or hospitalization; (6) ordering Dr. Sparks to complete and submit a Certificate of Medical Examination for Mental Illness, if necessary; (7) ordering Dr. Sparks to conduct a mental examination of Hernandez as to the issue of insanity at the time of the alleged offense and file a written report in this regard with the court and counsel, containing a description of the examination procedures, observations and findings pertaining to the insanity defense; (8) ordering that a pretrial hearing on the defendant’s mental competency to stand trial be held by the trial court on September 9, 1985, at the Comal County Courthouse, New Braun-fels, Texas; and (9) ordering that the defendant be permitted to notify the court and the State whether he intended to offer evidence of the insanity defense within twenty-four hours after receipt of the expert’s report. Hernandez was transported to San Antonio, Texas, by the Comal County Sheriffs Department, where, on August 26, 1985, Dr. Sparks, a forensic psychiatrist employed full-time by the Bexar County courts, interviewed Hernandez in custody at the Bexar County jail in San Antonio for approximately eighty minutes and concluded that he was competent to stand trial. Dr. Sparks did not obtain or review Hernandez’s U.S. Army or TDC psychiatric or medical records, although defense counsel’s motion put the court and Dr. Sparks on notice of them. Dr. Sparks obtained and reviewed a single report by Dr. Richard Cameron, an employee of the Bexar County courts, dated April 2,1974, regarding a psychiatric examination conducted for the purposes of determining Hernandez’s competency to stand trial for two aggravated robbery charges. Dr. Cameron’s report concluded that Hernandez “present[ed] the clinical picture of schizophrenia, schizo-affective type, with paranoid ideation.” In a letter to the trial judge attached to his official report, Dr. Sparks reported his findings that Hernandez was mentally competent to stand trial and probably had been since March 7, 1985; that Hernandez was neither mentally ill nor mentally retarded; and that Hernandez suffered from an antisocial personality disorder. In the body of the report itself, Dr. Sparks observed that he “found no evidences [sic] from []his examination to suggest the presence of the psychosis described in 1974”; but he did not otherwise refer to or discuss Dr. Cameron’s 1974 diagnosis of Hernandez’s schizophrenia. The record reflects that Dr. Sparks’s report was mailed to defense counsel on August 27,1985. Hernandez’s defense counsel were not informed that the scope of the psychiatric examination of Hernandez by Dr. Sparks on August 26, 1985, would encompass the issue of Hernandez’s future dangerousness. The court’s August 28, 1985, order did not notify defense counsel that the examination would include an inquiry into Hernandez’s future dangerousness. Defense counsel’s motion had not asked for an inquiry into future dangerousness, and they had specifically objected to any examination unless they were afforded notice and an opportunity to be present. The trial court denied the defense counsel’s motion entirely. Therefore, the pretrial psychiatric examination of Hernandez was not the kind of examination his counsel had requested. Instead, it was the type of examination to which defense counsel had expressly objected. Moreover, contrary to the majority’s assertion, Hernandez’s counsel’s original request for a separate report regarding mental illness or retardation did not in any way indicate that they expected, were given notice, or agreed that future dangerousness would be within the scope of the pretrial examination by a disinterested expert that they requested. Defense counsel’s motion cited its uncertainty about whether to pursue an insanity defense at trial, and made no mention of sentencing issues; therefore, the record only supports reading the request for a separate report on mental illness and retardation as preparation of a mental status defense at trial, and not as an anticipation of the sentencing issue of future dangerousness. By reading such anticipation into the defense counsel’s motion, the majority jumps to a conclusion that has no support in the record. Indeed, the state habeas trial court’s fact-findings, to which we are bound to accord a presumption of correctness, 28 U.S.C. § 2254(e)(1) (2000), state clearly that the ‘'request for the appointment of an expert was made solely for the purposes of examining the defendant relative to his competency, filing a report, and testifying regarding competency at any trial or hearing.” (Emphasis in original) (internal quotations and brackets omitted). Furthermore, Dr. Sparks testified that he did not warn Hernandez before the examination that anything he said could be used against him at a sentencing phase. See Hernandez v. State, 805 S.W.2d 409, 411 n. 2 (Tex.Crim.App.1990) (en banc) (noting that deficiency in the record, and citing Powell, 492 U.S. at 681, 109 S.Ct. 3146 (in turn citing Estelle v. Smith, supra, which precludes a State’s psychiatric examination of a capital defendant encompassing the issue of his future dangerousness unless his counsel is notified in advance of the scope of the examination and the defendant is also forewarned)). At the competency trial, Dr. Sparks testified that he had examined Hernandez on August 26,1985. Dr. Sparks testified that, despite suffering from an antisocial personality disorder, Hernandez was mentally competent to stand trial. In the report filed by Dr. Sparks and introduced into evidence at the competency hearing, he concluded that Hernandez was neither mentally ill nor retarded. The defense counsel agreed to the introduction of the report “for the purposes of [the competency] hearing only.” The majority incorrectly faults Hernandez’s counsel for not objecting to Dr. Sparks’s testimony during the competency hearing. The hearing was limited to Hernandez’s competency to stand trial. That is all Dr. Sparks testified to at that hearing; he said nothing about Hernandez’s future dangerousness. Therefore, Dr. Sparks’s testimony regarding the pretrial psychiatric examination was not objectionable, and Hernandez’s counsel had no reason to believe that that examination would later be used improperly during Dr. Sparks’s penalty phase testimony. On September 12, 1985, the competency trial jury found Hernandez competent to stand trial, and the trial court rendered judgment to that effect, which was signed on September 16,1985. B. After a three-day guilt-phase trial, Hernandez was convicted by a jury of capital murder on September 25,1985. At Hernandez’s capital punishment sentencing hearing on September 26, 1985, the prosecution introduced additional evidence: (1) the testimony of two law enforcement officers that Hernandez had a bad reputation in the community regarding peace and law-breaking; (2) a “pen packet” identifying Hernandez as having-been convicted in 1974 for two separate armed robberies; (3) testimony of Hernandez’s former parole officer that Hernandez’s parole from his prison sentence for the armed robbery convictions had been revoked in 1983 for possession of two handguns; and (4) the testimony of Dr. Sparks. Dr. Sparks was called as an expert witness in the field of forensic psychiatry by the prosecution. He testified that he was a psychiatrist employed by Bexar County, Texas; that he graduated from the University of Illinois College of Medicine in 1953 and had completed a residency in psychiatry at the Illinois Psychiatrist Institute in 1960; that he was licensed in Michigan and Texas and certified by the American Board of Psychiatry; that he had worked in the military as a psychiatrist for 'twenty years; and that for the past five years he had worked for the state courts in Bexar County as a forensic psychiatrist engaged in examining and testifying with respect to approximately 1500 persons charged with crimes to evaluate their competency to stand trial and their sanity at the time of their alleged offenses. Dr. Sparks was not tendered to defense counsel for cross-examination on his qualifications or on the relevance and reliability of his opinion; nor does the record show that the court found him to be qualified or his opinion reliably and relevantly based on the methodology of his field of expertise and the facts and data in the particular case. Defense counsel, however, did not make any threshold objection to Dr. Sparks’s testimony. On direct examination, the prosecution asked Dr. Sparks what it termed a “hypothetical” question. First, the prosecutor asked Dr. Sparks to assume as true a detailed description of a capital murder by a so-called “hypothetical” offender, as well as a detailed description of the prior criminal record of that offender. Second, Dr. Sparks was asked to express his opinion as to whether the offender would commit criminal acts of violence that would constitute a continuing threat to society. The defense counsel objected that the prosecution had failed to establish an evidentiary or medical basis for such an opinion; that the opinion would either be a baseless conclusion or else would be based on extrajudicial evidence in violation of Hernandez’s right to confront the witnesses against him; and that Dr. Sparks’s answer would constitute an opinion upon the ultimate issue of future dangerousness and thus an invasion of the province of the jury. After the trial court overruled the objection, defense counsel moved for a mistrial on grounds that the jury would be unfairly and unduly prejudiced by Dr. Sparks’s opinion as to future dangerousness for which the prosecution had established no evidentiary basis, but the court overruled that objection also. Pursuant to the trial court’s rulings, Dr. Sparks testified that, in his opinion, “there’s a high likelihood that he would continue to perform acts that are a danger to society.” The prosecution’s question plainly referred to the particular evidence that had been presented against Hernandez in both the guilt and penalty phases of the trial. The criminal record Dr. Sparks was asked to assume mirrored Hernandez’s “pen packet,” introduced into evidence at the penalty phase. The detailed description of the so-called “hypothetical” murder identically matched the unique details and circumstances of the capital murder of which the jury had found Hernandez guilty. Consequently, the jury must have understood that Dr. Sparks was referring to Hernandez or an offender identical to him when he said “there’s a high likelihood that he would continue to perform acts that are a danger to society.” Also, it is likely that the jurors reasonably assumed that a psychiatrist possessing Dr. Sparks’s qualifications must have had an adequate basis in fact and medical knowledge to support such an opinion. See, e.g., Satterwhite v. Texas, 486 U.S. 249, 259, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). On cross-examination, without objection by the prosecution, defense counsel introduced Hernandez’s TDC medical records showing that he had been diagnosed and treated while in prison, for chronic paranoid schizophrenia; and that Hernandez’s treatment had included antipsychotic drugs (Stelazine and Thorazine), electro-convulsive treatments, neurotone treatments, and psychotherapy. Further, defense counsel elicited testimony from Dr. Sparks that chronic paranoid schizophrenia fluctuates between stages of acuteness and remission, but is considered to be a lifelong illness; that the symptoms of the disease can be reversed or controlled, however, by medication, psychotherapy, and environmental changes; that unrealistic or illogical thinking and auditory hallucinations, as, for example, a belief in hearing spoken commands or instructions by an authority figure, such as the President, are common symptoms of the disease; and that, if Hernandez had been correctly diagnosed as having chronic paranoid schizophrenia, it was possible that he was besieged by hallucinations before, during, and after his commission of the capital murder and related offenses. With this evidence, defense counsel sought to demonstrate that Dr. Sparks’s opinion could not relevantly or reliably assist the jury in deciding whether there was a probability that Hernandez would commit criminal acts of violence that would constitute a continuing threat to society, because in forming his opinion Dr. Sparks had been asked to assume only the offender’s criminal acts and had not been asked to assume the significant factor of chronic paranoid schizophrenia that was present in Hernandez’s medical history. Also, when asked by defense counsel whether forensic psychiatry was an exact science like mathematics, Dr. Sparks replied that it was “[n]ot exactly guesswork but experience and use of what contacts we’ve had .with the person.” Thus, the jury may have gathered that Dr. Sparks's opinion regarding Hernandez’s future dangerousness was based on actual contacts with Hernandez. On redirect examination, the prosecutor asked Dr. Sparks for his opinion as to the type of “personality behavioral problem!] of] the man that was described in my hypothetical to you ... would have?” Dr. Sparks testified: “Assuming a great deal, because it did not describe him but it described certain things in his life, the behavior appears to be closest to a description that is labeled the antisocial personality.” Thus, at this point, Dr. Sparks, by “assuming a great deal” that had not been introduced into evidence, made a psychiatric diagnosis of the “hypothetical” offender as having an antisocial personality. Accepting the prosecutor’s invitation to elaborate on “love and compassion relative to these individuals,” Dr. Sparks added, “they have very little concern about others. They tend to be focused on their own desires and forget any consequences that might occur or the effect on other people.” Further, Dr. Sparks agreed with the prosecutor’s suggestion that it would “be fair to say then that this type of person could kill without any problem whatsoever.” On recross examination, Dr. Sparks agreed with defense counsel that a person with paranoid schizophrenia can have problems with love, marriage, legal violations, fear of other people, and bizarre behavior. At defense counsel’s request, Dr. Sparks examined Hernandez’s TDC medical records and testified that Hernandez appeared to have been confined in the prison’s psychiatric treatment unit between September 10 and November 11, 1975; that Hernandez was on medication during his confinement there; and that, “at that time [ ][h]is diagnosis was schizophrenic, paranoid type, chronic, moderately severe; and his prognosis ... was guarded, meaning that the doctor did not know whether he would continue to function well or would again have an illness as severe as he had had.” On redirect examination, the prosecutor abruptly abandoned the posture of asking hypothetical questions and immediately asked Dr. Sparks if he had examined Hernandez in August 1985. When the doctor answered in the affirmative, the prosecutor asked: “Based on that examination what was your impression?” The court interrupted and asked counsel to approach the bench. In the bench conference, the defense counsel stated that he would object to “all of this[.]” The prosecutor argued that the defense counsel had “opened the door” by going “into his medical past which we didn’t touch.” The jury was sent out. Out of the presence of the jury, defense counsel objected to the question on the grounds that Hernandez had made statements prejudicial to his penalty phase defense during the examination without valid waivers of Hernandez’s rights under the Fifth and Sixth Amendments. The court invited the prosecutor to examine the doctor concerning the advice of rights. Dr. Sparks testified that, prior to the examination, he reviewed with Hernandez an outline of the advice of rights, had him read it, and Hernandez signed it. The doctor further testified that the rights as he had them listed were the right to remain silent, to have his attorney present during the examination, and to terminate the examination, but that the rights did not include a warning that anything Hernandez said during the examination could be used against him at the penalty phase of the trial; and that “Mr. Hernandez read it through and he signed a form that I have provided for that purpose indicating that he understood what was on the form.” During these proceedings, the State did not offer any evidence to show that defense counsel had been notified or given an opportunity to confer with Hernandez pri- or to Dr. Sparks’s psychiatric examination of him. The court ruled that the witness would be allowed “to testify as to his medical findings, all of which have been opened up by questions presented by” defense counsel. However, the court also ruled that, because it had denied the defense counsel’s request to be present during the examination, “this witness will not be allowed to testify about any probabilities that Hernandez would be a continuing threat to society based upon the interview.” The court noted that defense counsel had re-urged his objection and would have a continuing bill of exception. When the jury returned, Dr. Sparks, on redirect examination, testified that he had examined Hernandez in August 1985 and diagnosed “the type of personality or type of problem” he had as “301.70 antisocial personality disorder.” On recross, he testified that he conducted a “mental status examination” of Hernandez for eighty minutes; that a mental status examination does not cover any family history; that he asked for but did not obtain or review Hernandez’s TDC medical records for purposes of his examination, report, and competency hearing testimony; that he would like to have had them during the examination because they were important; that he would like to have known if Hernandez was taking a drug like Doxepin at that time because that was important; and that he did not examine Hernandez physically or perform any medical tests on him. On redirect, Dr. Sparks testified that, if he had reviewed Hernandez’s prison medical records prior to his examination, rather than for the first time during the penalty hearing, he would have made two diagnoses instead of one: “The initial diagnosis would have been paranoid schizophrenia in remission, the second diagnosis would be antisocial personality disorder.” On recross, Dr. Sparks testified that Hernandez’s chronic paranoid schizophrenia could have been in an acute stage, rather than in remission, at the time of the crime on March 7, 1985. On redirect, the court overruled defense counsel’s objection to lack of proper predicate and allowed the prosecutor to elicit the following testimony from Dr. Sparks: People who have [chronic paranoid schizophrenia] ... are generally well organized, are generally reasonably intelligent, and although the plans may be part of the illness, they can make and do make plans. When they’re free of the illness the plans deal with a real situation, during the illness they frequently deal with delusional ideas. He also testified, “In the description given to me in the [prosecutor’s initial hypothetical question,] there was no indication of any illness; there was indication of a particular kind of behavior, and that is the type of behavior found in antisocial person [sic] disorder.” On final recross, the doctor agreed with defense counsel that it’s possible for someone [with paranoid schizophrenia] to think or believe that they’re President Reagan’s right-hand man, a gun-slinger, and they have heard voices of President Reagan and carry out a plan for [him] and still be able to do other things that would seem to be normal ... and be suffering from the disease of paranoid schizophrenia. In summary, Dr. Sparks testified that he had previously examined Hernandez for mental competency and, based on that examination and Hernandez’s TDC medical records introduced at the penalty hearing, was of the opinion that (1) Hernandez had an antisocial personality; (2) Hernandez also had chronic paranoid schizophrenia; (3) chronic paranoid schizophrenia is a continuing, fluctuating, incurable mental illness that can be controlled by antipsychotic medication, therapy, and environmental changes; (4) an antisocial personality is a permanent mental condition that cannot be cured by any treatment or medication; (5) at the time of Dr. Sparks’s mental competency examination, Hernandez’s chronic paranoid schizophrenia was in remission and was not being suppressed by medication; (6) at the time of the crime it is possible that Hernandez’s chronic paranoid schizophrenia was active, rather than in remission, although Dr. Sparks could not opine as to which; and (7) anyone having an antisocial personality such as Hernandez’s, as determined by Dr. Sparks from his examination of Hernandez and the information supplied him about Hernandez’s criminal activity, probably would present a continuing threat to society. In Hernandez’s defense at the penalty hearing, his attorney elicited the testimony of his cousin, who had lived with his family while he was a child. She testified that Hernandez had been the victim of severe physical and mental abuse between the ages of three and thirteen years. The cousin indicated that Hernandez, as the oldest child, received the brunt of his mother’s physical abuse, which in turn stemmed from her own continual physical abuse by her husband. The cousin testified to two particular incidents she had witnessed. When Hernandez was still a small child, she said, his mother had beaten him with a broom, breaking the broom handle over his head and leaving him lying on the floor. In another incident, she testified, he had been taken into a bedroom by his parents and beaten severely with a large-buckled belt. Defense counsel also introduced drug records from the county jail, which showed that Hernandez had regularly signed receipts for doses of Doxepin, a tranquilizer and antidepressant, for five days prior to his mental examination by Dr. Sparks. In accord with the capital sentencing statute then in effect, Hernandez’s jury was instructed that it was to answer two “special issues”: [1] Was the conduct of the Defendant, RODOLFO BAIZA HERNANDEZ, that caused the death of the deceased, VICTOR MANUEL SERRANO CER-VAN, committed deliberately and with the reasonable expectation that the death of the deceased or another would result? [2] Is there a probability that the Defendant, RODOLFO BAIZA HERNANDEZ, would commit criminal acts of violence that would constitute a continuing threat to society? The jury was also instructed that in determining each of these Special Issues you may take into consideration all of the evidence submitted to you in the full trial of the case, that is, all of the evidence submitted to you in the first part of this case wherein you were called upon to determine the guilt or innocence of the Defendant, and all of the evidence, if any, admitted before you in the second part of the trial wherein you are called upon to determine the answers to Special Issues hereby submitted to you. The jury was not specifically instructed that it could consider or give effect to “mitigating evidence.” The jury unanimously answered “yes” to the two requisite questions, and, as required by Texas law, the trial court sentenced Hernandez to death. The Texas Court of Criminal Appeals affirmed Hernandez’s conviction and death sentence. Hernandez v. State, 805 S.W.2d 409 (Tex.Crim.App.1990) (en banc). On motion for rehearing, Hernandez objected to the court’s failure to address the issue of whether he had been deprived of his Sixth Amendment right to counsel, although it arose from the same conduct complained of in his Fifth Amendment claim based on Estelle v. Smith. The court of criminal appeals denied rehearing without comment. The United States Supreme Court denied Hernandez’s petition for a writ of certiorari on June 3, 1991. Hernandez v. Texas, 500 U.S. 960, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991). III. A. After unsuccessfully seeking a writ of habeas corpus in the Texas state courts, Hernandez filed the instant petition for federal habeas relief in the United States District for the Western District of Texas. Because Hernandez filed his petition on April 16, 1997, his case is governed by the habeas statute as amended by the Antiter-rorism and Effective Death Penalty Act of 1996 (“AEDPA”). Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Section 2254 of the habeas statute, in pertinent part, now provides: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d)(1) (1994 & Supp.2000). A state prisoner may obtain federal ha-beas relief with respect to a claim adjudicated on the merits in two categories of cases defined by subsection (d)(1): cases in which “the relevant state-court decision was either (1) contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States, or (2) involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O’Connor, J., delivering the opinion of the Court with respect to Part II (except as to the footnote)). A state-court decision will be contrary to the Supreme Court’s clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the Supreme Court’s cases. Id. at 405, 120 S.Ct. 1495. Also, a state-court decision will be contrary to the Court’s clearly established precedent if the state court “confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court’s] precedent.” Id. “Accordingly, in either of these two scenarios, a federal court will be unconstrained by § 2254(d)(1) because the state-court decision falls within that provision’s ‘contrary to’ clause.” Id. at 406,120 S.Ct. 1495. In general, a state-court decision involves an unreasonable application of the Court’s precedent if the state court “identifies the correct governing legal rule from the [Supreme Court’s] cases but unreasonably applies it to the facts of the particular state prisoner’s case.” Id. at 407, 120 S.Ct. 1495. The majority correctly identifies this standard, but neglected to note that a state-court decision also involves an unreasonable application of Supreme Court precedent if the state court either unreasonably extends a legal principle from that precedent to a context where it should not apply or unreasonably refuses to extend that principle to a context where it should apply. Id. [A] federal habeas court making the “unreasonable application” inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable. The federal habeas court