Full opinion text
KING, Circuit Judge: Petitioner-Appellant Rodney Reed was convicted of capital murder in a jury trial in Texas and sentenced to death. The Texas Court of Criminal Appeals affirmed his conviction and sentence on direct appeal. Reed unsuccessfully sought state habeas relief in six petitions. He also sought federal habeas relief in district court and now seeks a certificate of appeal-ability to challenge the district court’s denial of habeas relief. Reed argues that he should be granted a certificate of appeala-bility based on his assertions of actual innocence, ineffective assistance of trial, appellate, and habeas counsel, Brady violations, and violations of his Sixth, Eighth, and Fourteenth Amendment rights. We hold that reasonable jurists could not debate the district court’s conclusions and accordingly DENY Reed’s request for a certificate of appealability. I. FACTUAL AND PROCEDURAL BACKGROUND The lengthy history of Petitioner-Appellant Rodney Reed’s conviction for the murder of Stacey Lee Stites has been aptly recounted by numerous courts, most comprehensively by the Texas Court of Criminal Appeals (“CCA”) in Reed’s 2008 post-conviction proceeding. Ex parte Reed, 271 S.W.3d 698 (Tex.Crim.App.2008). We rely on the CCA’s factual recitation, and limit our discussion to those facts most pertinent to Reed’s present application for a certificate of appealability (“COA”). A. Stacey Stites’s Murder Stites moved, along with her mother, to Bastrop, Texas in 1995 after graduating from high school, and began working at the Bastrop H.E.B. grocery store. By late December 1995, she was engaged to Jimmy Fennell, a recent police academy graduate. The following month, Stites moved to Giddings, Texas to be closer to her fiancé, who had been hired as a patrol officer with the Giddings Police Department. Stites continued working at H.E.B., but eventually transferred to the store’s produce department to earn more money in preparation for her wedding, scheduled for May 11, 1996. Stites was required to report to work daily at 3:30 a.m. to stock produce. Around 6:30 a.m. on April 23, 1996, one of Stites’s coworkers called Stites’s mother to inform her that Stites had failed to report to work. Stites’s mother called Fennell who set out looking for Stites, while Stites’s mother called the police to report her daughter missing. Earlier that morning, at 5:23 a.m., a police officer with the Bastrop Sheriffs Department had observed Fennell’s pickup truck (which Stites routinely drove to work) parked in the Bastrop High School parking lot. After confirming that the vehicle was not reported stolen, there was no broken glass, and the driver’s side door was locked, the officer returned to his patrol duties. Later, after Stites was reported missing, Officer Ed Selmala, an investigator with the Bastrop Police Department, conducted an investigation of the vehicle. Stites’s body was discovered shortly before 3:00 p.m. later that day in a ditch on the side of a road. Investigators observed that Stites was partially unclothed. She was missing a shoe. Although she wore a bra, she was otherwise shirtless. Her H.E.B. nametag was found in the crook of her leg. Additionally, Stites’s pants were undone, her pants’ zipper was broken, and her underwear was bunched around her hips. A piece of webbed belt belonging to Stites was located at the edge of the road, and matched a piece of belt discovered outside Fennell’s truck. Two beer cans lying across the road from Stites’s body were also collected. Karen Blakely, a criminalist and serologist with the Texas Department of Public Safety, took vaginal and breast swabs from Stites’s body, which showed the presence of semen. However, as a result of rigor mortis, Blakely could not determine whether Stites had been anally sodomized. Blakely observed various other injuries to Stites’s body, including an indentation in her neck, apparently caused by the piece of belt found nearby, scratches on her abdomen and arms, a cigarette burn on one arm, and shallow wounds on her wrists and back that appeared to have been caused by fire-ants. An autopsy the following day by medical examiner Dr. Roberto Bayardo revealed bruises on Stites’s arms, bruises on her head in a pattern consistent with the knuckles of a fist, and bruises on her left shoulder and abdomen consistent with a seatbelt. A wide mark across her neck matched the pattern of her belt. Dr. Bay-ardo concluded that the belt was the murder weapon, and that Stites was strangled to death. He estimated her time of death as approximately 3:00 a.m. Dr. Bayardo also took vaginal swabs and identified intact sperm, indicating that the sperm had entered Stites’s vagina “quite recently.” Dr. Bayardo also observed injuries to her anus, including dilation and superficial lacerations consistent with penile penetration inflicted at or near the time of Stites’s death. Rectal swabs showed sperm heads without visible tails leading Dr. Bayardo to report a “negative” result. Dr. Bayardo also could not rule out the possibility that the presence of sperm in the anus was the result of seepage from the vagina. Further DNA testing on Stites’s blood, the vaginal swabs, and liquid in Stites’s underwear showed that there was a single semen donor. Authorities thereafter engaged in an eleven-month-long investigation. Police interviewed hundreds of individuals and identified over twenty-eight male suspects, including Fennell (Stites’s fiancé), Officer David Hall (one of Fennell’s fellow officers), and David Lawhon (a man who, officials learned, was bragging about killing Stites and who had killed another woman, Mary Ann Arldt, a few weeks after Stites’s murder). None of the suspects’ DNA matched that recovered from Stites’s body. Eventually, Reed was identified as a suspect. Bastrop police officers frequently saw Reed in the early morning hours near Stites’s usual work route and the parking lot where Fennells pickup was found. A comparison between Reed’s DNA and that found on Stites’s body revealed that Reed could not be excluded as a suspect. Additional DNA analysis proved that Reed’s genetic profile matched that of the semen found at the crime scene. B. Reed’s Trial Reed was charged with capital murder in May 1997. At trial, state prosecutors presented evidence of the murder investigation, as well as testimony by Dr. Bayar-do, Blakely, and DNA analyst Meghan Clement. Reed’s trial defense consisted of two parts: First, Reed attempted to show that Fennell, Lawhon, or someone else could have committed the offense; and second, Reed tried to explain why his semen was in Stites’s body by evidencing a romantic relationship between himself and Stites. In furtherance of this trial strategy, Reed’s defense team called multiple witnesses, including a DNA expert, Dr. Elizabeth Ann Johnson. A jury ultimately rejected Reed’s defense and found him guilty. During the trial’s punishment phase, state prosecutors introduced evidence that Reed had committed numerous other sexual assaults. The jury, after weighing the evidence, answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and sentenced Reed to death. C. State Post-Conviction Proceedings On direct appeal, the CCA affirmed Reed’s conviction and sentence. While his direct appeal was pending, Reed filed the first of six state habeas applications. Based on the state trial court’s recommended findings of fact and conclusions of law, and the CCA’s own review of the record, the CCA denied Reed’s petition on February 13, 2002. Before the CCA ruled on Reed’s state habeas petition, Reed filed a supplemental habeas claim, which the CCA interpreted as a subsequent application. In his second application, Reed argued that the State failed to turn over a letter containing DNA results from the beer cans found near the crime scene in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Edüd 215 (1963). The CCA dismissed Reed’s subsequent habeas petition as an abuse of the writ for not meeting any of the exceptions listed in Article 11.071 of the Texas Code of Criminal Procedure. In March 2005, Reed filed his third state habeas petition, again arguing that the State suppressed evidence in violation of Brady. Reed also added other claims, including a freestanding actual innocence claim, ineffective assistance of trial and appellate counsel claims, and a claim that Texas’s capital sentencing statute unconstitutionally prohibits jury instructions on the effect of a juror’s “no” vote. The CCA directed the trial court to hold a hearing as to some of the allegedly suppressed evidence, and dismissed the remaining claims as abuses of the writ. After conducting an evidentiary hearing, the trial judge recommended that Reed’s third state habeas petition be denied. The CCA ordered supplemental briefing and held oral argument. It then issued a lengthy, detailed opinion holding that the record did not support Reed’s Brady claims, and further that Reed had failed to make a prima facie showing of innocence by a preponderance of the evidence, foreclosing review of the other claims raised in his third state habe-as petition. Reed filed a fourth habeas petition in February 2007, again raising Brady claims. A fifth state habeas petition followed in July 2008, raising still more Brady claims. On January 14, 2009, the CCA rejected the claims raised in Reed’s fourth and fifth petitions as abuses of the writ. Reed filed a sixth state habeas petition on April 21, 2009, but this too was dismissed by the CCA as an abuse of the writ. D. Federal Post-Conviction Proceedings Following the CCA’s denial of Reed’s second state habeas petition, Reed sought federal habeas relief under 28 U.S.C. § 2254. The district court allowed limited discovery and depositions, and determined that Reed had failed to exhaust in state court several of his claims arising out of evidence that was not discovered until after the federal writ was filed. The district court entered a stay of the federal writ in March 2004 to allow Reed to pursue his claims in state court. On August 5, 2009, after the last of Reed’s state habeas petitions was denied, Reed moved the district court to lift its stay. Reed filed a corrected second amended petition on February 12, 2010, and the State moved for summary judgment. The district court referred Reed’s petition to a magistrate judge who issued a comprehensive report and recommendation exhaustively listing each of Reed’s claims, and recommending that federal habeas relief be denied. On September 26, 2012, after reviewing objections by both parties, the district court issued a lengthy order largely adopting the magistrate judge’s report and recommendation, denying habeas relief, and denying a COA. Reed subsequently filed a motion to alter or amend judgment on October 23, and a motion for leave to amend his petition and abate proceedings on November 30. In these two motions, Reed asked the district court to reopen his case, vacate its prior judgment, grant him leave to add an additional due process claim, and abate all further proceedings until he exhausted the due process claim in state court. The district court denied Reed’s motions on February 4, 2013. Reed timely filed his application for a COA to appeal the district court’s decision on March 1, 2013. II. STANDARD OF REVIEW Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), §§ 101-108, Pub.L. No. 104-132, 110 Stat. 1214 (codified as amended at 28 U.S.C. §§ 2244, 2253-2266), a state habeas petitioner may appeal a district court’s dismissal of his petition only if he first obtains a COA from the district court or the court of appeals. 28 U.S.C. § 2253(c)(1)(A). To obtain a COA, the petitioner must make “a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). By contrast: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Id. In reviewing Reed’s request for a COA, we only conduct a threshold inquiry into the merits of the claims Reed raised in his underlying habeas petition. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. In death penalty cases, “any doubts as to whether a COA should issue must be resolved in [the petitioner’s] favor.” Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir.2005) (alteration in original) (internal quotation marks and citation omitted). AEDPA provides that a district court may not grant habeas relief with respect to any claim that was adjudicated on the merits in the state court proceedings, unless the state habeas court’s denial: (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. 28 U.S.C. § 2254(d). “A state court’s decision is contrary to Supreme Court precedent if: (1) ‘the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law*; or (2) ‘the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that of the Supreme Court].’ ” Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005) (alterations in original) (quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)), cert. denied, 549 U.S. 828, 127 S.Ct. 351, 166 L.Ed.2d 49 (2006). “A state court’s decision is an unreasonable application of clearly established federal law whenever the state court identifies the correct governing legal principle from the Supreme Court’s decisions but applies that principle to the facts of the prisoner’s case in an objectively unreasonable manner.” Id. (quoting Young v. Dretke, 356 F.3d 616, 623 (5th Cir.2004)). “An unreasonable application may also occur if ‘the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.’ ” Id. at 787-88 (alteration in original) (quoting Young, 356 F.3d at 623). In evaluating the evidence presented in state court, we presume the state court’s factual findings correct unless a petitioner “rebuffs] the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). III. DISCUSSION Reed broadly can be understood as seeking a COA on his that (1) he was actually innocent of Stites’s murder; (2) he received ineffective assistance of trial counsel; (3) he received ineffective assistance of appellate counsel; (4) his appellate counsel labored under a conflict-of-interest in violation of the Sixth Amendment; (5) the State suppressed evidence in violation of Brady, and (6) his Eighth and Fourteenth Amendment rights were violated when the State presented evidence during the trial’s punishment phase of an alleged sexual assault of which he had been acquitted. The substance of the arguments he presents in support of these claims follows the principle themes of his defense at trial. These were, first, that someone other than him murdered Stites, and, second, that he had a romantic relationship with Stites. As to the first, Reed posited that there were numerous other individuals who could have murdered Stites. These included Fennell, Stites’s fiancé; Lawhon, who actually bragged of killing Stites; and Officer Hall, another Giddings police officer. As to the second, Reed attempted to explain the presence of his semen in Stites as the result of a consensual sexual relationship between him and Stites. Reed presented evidence during trial in support of both theories. A jury considered the evidence, and rejected it, finding Reed guilty of Stites’s murder. Throughout his habeas petitions, Reed presented additional evidence to show that one of the other suspects committed the murder, and that he and Stites were dating. The CCA ordered an evidentiary hearing, requested supplemental briefing, and ultimately rejected Reed’s arguments. Including the trial jury and, on habeas, the state trial court and the CCA, three fact-finders thus have considered the very theories and much of the evidence Reed pursued in federal court. Reed’s request for a COA is further distinguished based on the DNA evidence in this case. DNA evidence is sometimes claimed to be relevant because it may exculpate the defendant. Here, by contrast, the fact that Reed’s sperm was in Stites is undisputed. The need to explain that fact drives Reed’s efforts to show that he and Stites were engaged in a clandestine sexual affair. Against this backdrop, we turn to consider Reed’s multiple requests for a COA. As we discuss, the district court denied habeas relief under AEDPA’s deferential framework, after largely adopting a magistrate judge’s report and recommendation. Our task is to consider whether the district court’s conclusions are debatable. We note that although many of Reed’s claims were procedurally defaulted, a COA should still issue as to them if Reed can show “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. Because Reed’s ability to show constitutional and procedural debatability determines whether he is entitled to have his procedurally defaulted claims reviewed on the merits, we consider first his reasons for overcoming the procedural bar — actual innocence under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), and ineffective assistance of counsel under Martinez v. Ryan, — U.S.-, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). Other than prioritizing our review of his Schlup and Martinez arguments, we consider Reed’s other claims in turn. A. Actual Innocence Reed asks for two separate COAs arising out of his assertion that he is actually innocent of murdering Stites. First, he asks that we grant a COA on his freestanding actual innocence claim. Second, he asks that we grant a COA to review whether he satisfies Schlup’s actual innocence standard, which would permit a federal court to review the merits of his otherwise procedurally defaulted claims. Of his two actual innocence arguments, the first is easily resolved. Reed raised his freestanding actual innocence claim in his third state habeas petition. The CCA dismissed the claim pursuant to its abuse-of-the-writ doctrine. Under that doctrine, the CCA will not consider an argument not raised in an initial state habeas petition unless one of a narrow set of exceptions applies. See Tex. Code Crim. Proc. Ann. art. 11.071 § 5(a). We previously have held that “since 1994, the Texas abuse of the writ doctrine has been consistently applied as a procedural bar, and that it is an independent and adequate state ground for the purpose of imposing a procedural bar.” Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir.2008). The district court does not appear to have considered whether this claim was procedurally barred, rejecting it instead on the ground that this circuit does not recognize freestanding actual innocence claims. Reed concedes that our precedent precludes his freestanding actual innocence claim. See In re Swearingen, 556 F.3d 344, 348 (5th Cir.2009); see also Foster v. Quarterman, 466 F.3d 359, 367 (5th Cir.2006) (“[A]etual-innocence is not an independently cognizable federal-habeas claim.”); see, e.g., Matheson v. United States, 440 Fed.Appx. 420, 421 (5th Cir.2011). Reasonable jurists thus would not debate the district court’s denial of habeas relief on this claim, and we similarly deny a COA. Reed’s other actual innocence argument requires more detailed consideration. Reed argues that reasonable jurists would debate the district court’s decision not to consider his procedurally defaulted claims because he has shown that he is actually innocent of Stites’s murder under Schlup, 513 U.S. 298, 115 S.Ct. 851. As he did at trial, Reed argues that he did not sexually assault and murder Stites, but rather that he was in a relationship with her, and that the semen present in her vagina was the result of consensual sexual intercourse. Reed attempted to establish such a relationship through testimony that he and Stites were seen together. He now argues his consensual relationship with Stites is demonstrated by forensic evidence showing that his sperm entered Stites’s body more than twenty-four hours before the murder. This is significant, Reed claims, because Stites’s failure to report non-consensual sex to law enforcement indicates that the encounter was the product of their romantic relationship. In support of the part of this theory relating to the age of the sperm found in Stites, he primarily relies on affidavits by Dr. Bayardo and Dr. Leroy Riddick. A district court must deny federal habeas relief on procedurally defaulted claims dismissed “pursuant to an independent and adequate state procedural rule,” such as Texas’s abuse-of-the-writ doctrine. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see Maples v. Thomas, — U.S. -, 132 S.Ct. 912, 922, 181 L.Ed.2d 807 (2012); Finley v. Johnson, 243 F.3d 215, 218 (5th Cir.2001). Schlup held that, in “rare” and “extraordinary case[s],” a federal habeas petitioner may overcome a procedural default in state court by demonstrating a “fundamental miscarriage of justice.” 513 U.S. at 321, 115 S.Ct. 851. A petitioner makes such a showing where he establishes that he is “actually innocent” of the offense for which he was convicted. Williams v. Thaler, 602 F.3d 291, 307 (5th Cir.2010) (citing Schlup, 513 U.S. at 326-27, 115 S.Ct. 851). To do so, a petitioner must “establish through new and reliable evidence that it was more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Woodfox v. Cain, 609 F.3d 774, 794 (5th Cir.2010) (internal quotation marks and citation omitted). This evidence may include “exculpatory scientific evidence, credible declarations of guilt by another, trustworthy eyewitness accounts, and certain physical evidence.” Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir.1999). But “the habeas court’s analysis is not limited to such evidence.” House v. Bell, 547 U.S. 518, 537, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). Rather, “the habeas court must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial.” Id. at 538, 126 S.Ct. 2064 (internal quotation marks and citation omitted). “Based on this total record, the court must make ‘a probabilistic determination about what reasonable, properly instructed jurors would do.’ ” Id. (quoting Schlup, 513 U.S. at 329, 115 S.Ct. 851). The actual-innocence standard “does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror wpuld have found the defendant guilty.” Schlup, 513 U.S. at 329, 115 S.Ct. 851. Put differently, “a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. We observe that this is not the first time Reed has argued actual innocence. Reed raised the same argument before the CCA. The CCA considered his argument under Article 11.071 § 5(a)(2), which provides that the CCA will consider an argument not raised in an initial state habeas petition if “by a preponderance of the evidence, but for a violation of the United States Constitution!,] no rational juror could have found the applicant guilty beyond a reasonable doubt.” See Reed, 271 S.W.3d at 733-34, 746-47. Because Article 11.071 § 5(a)(2) was enacted in response to Schlup, the CCA concluded that the “standards set forth for evaluating a gateway-actual-innocence claim announced by the Supreme Court should guide our consideration of such claims under Section 5(a)(2).” Id. at 733. The CCA proceeded to engage in a voluminous discussion of all the evidence, “old and new,” before concluding that “Reed [had] not made a threshold, prima facie showing of innocence by a preponderance of the evidence.” Id. at 751. The CCA considered — and dismissed as insufficient — evidence that: DNA test results from the beer cans found at the crime scene showed that Officer Hall was a potential suspect; Fennell and the Giddings Police Department had a reputation for violence; Reed and Stites had a consensual sexual relationship prior to her death; and unidentified men were seen in Stites’s company the morning of the murder. Id. at 746-51. It rejected as unreliable and not credible a host of additional evidence, including from the many witnesses Reed contends knew of his purported relationship with Stites. Id. at 747. Because Reed had not shown that he was actually innocent of Stites’s murder, the CCA “refuse[d] to consider the merits of Reed’s other constitutional claims.” Id. The magistrate judge deferred to the CCA’s findings of fact after adopting the Fourth Circuit’s reasoning in Sharpe v. Bell, 593 F.3d 372, 379 (4th Cir.2010), that “[w]here a state court looks at the same body of relevant evidence and applies essentially the same legal standard to that evidence that the federal court does under Schlup, [§] 2254(e)(1) requires that the state court’s findings of fact not be casually set aside.” In particular, the magistrate judge remarked that “[a] detailed explanation of why the CCA’s decision on actual innocence is worthy of deference from this Court would entail simply repeating what the CCA itself has already stated in great detail.” However, the magistrate judge nevertheless reviewed the CCA’s analysis, focusing on the alleged consensual relationship between Reed and Stites that would explain the presence of Reed’s semen. The magistrate judge concluded that “[e]ven if the Court were not required to defer to the CCA’s determinations, the Court would reach the same conclusion the CCA did for the same reasons.” The district court was similarly unpersuaded by Reed’s arguments because the evidence Reed submitted only created the possibility that the sperm was deposited at an earlier time. The court found that the lack of evidence of an actual relationship between Stites and Reed, combined with the condition in which Stites’s body was found (which strongly indicated a violent sexual assault), defeated Reed’s assertion of actual innocence. The district court found that the magistrate judge did not err in adopting the Sharpe standard, and rejected Reed’s contention that the magistrate judge improperly failed to consider certain evidence. Addressing Dr. Bayar-do’s affidavit, the district court refused to accept it, finding the “timing and content” of Reed’s submission, after the magistrate judge issued his report and recommendation, “extremely suspect.” The court further found, however, that even substantively considered, Dr. Bayardo’s affidavit would have “little probative value.” As to Dr. Riddick’s affidavit, the district court found that the “evidence strongly suggested] that Stites was sexually assaulted,” and that evidence like Dr. Riddick’s affidavit “would not exculpate Reed absent evidence that Reed and Stites were involved in a consensual sexual relationship.” We conclude that the district court did not err in its analysis under AEDPA, and that its conclusion is not debatable by reasonable jurists. Reed primarily faults the district court for not giving sufficient weight to the affidavits of Dr. Bayardo and Dr. Riddick, which he argues show “that Stites and Reed likely had intercourse more than 24 hours before Stites’s murder.” In Reed’s view, “[b]e-cause the forensic testimony offered in this habeas proceeding is itself persuasive evidence of a consensual relationship [between Reed and Stites], a COA should issue.” We disagree. Dr. Bayardo testified at trial and estimated that Stites died on April 23,1996, at approximately 3:00 a.m., give or take a few hours. He further determined that the presence of intact sperm indicated that the sperm entered Stites’s body “quite recently.” In an affidavit submitted by Reed’s counsel after the magistrate judge recommended denying habeas relief, Dr. Bayar-do sought to distance himself from the State’s interpretation of his trial testimony- The affidavit clarifies that the estimated time of death was a mere “estimate” and should not have been used as an accurate statement of when Stites died. Dr. Bayar-do also questions the qualifications of other State experts who testified that spermatozoa could remain intact in a vagina for no more than twenty-four or twenty-six hours. He adds that “the spermatozoa [he] found in Ms. Stites’s vaginal cavity could have been deposited days before her death” and that the few spermatozoa that were found suggested that they were deposited more than twenty-four hours before Stites’s death. Dr. Bayardo further opines that, although having testified that Stites “was sexually assaulted,” the “presence of spermatozoa in Ms. Stites’s vaginal cavity was not evidence of sexual assault.” Further, “[t]here was no indication that the spermatozoa in Ms. Stites’s vaginal cavity was placed there in any fashion other than eonsensually.” Dr. Bayardo instead believes that Stites was sexually assaulted in her anal cavity, but that the assault “did not result in the deposit of any spermatozoa.” Although conceding that the injuries to Stites’s anus were consistent with penile penetration, Dr. Bayardo believes the injuries “are more consistent with penetration by a rod-like instrument, such as a police baton,” an apparent attempt to implicate Stites’s fiancé, Fennell, a former police officer, in the murder. Like the district court, we conclude that Dr. Bayardo’s affidavit contributes little to the evidence already in the record. Dr. Bayardo’s affidavit is largely bereft of scientific evidence supporting his belief that Reed’s sperm was deposited in Stites more than twenty-four hours before the murder or that the forensic evidence points more strongly to someone else having committed the sexual assault. In particular, his contention that, despite Stites having been the victim of a sexual assault, there is no indication that the sperm found in her vaginal cavity “was placed there in any fashion other than eonsensually” is blatantly contradicted by the condition in which Stites’s body was found. Dr. Bayardo’s purported “disavowal” of his trial testimony also does not contradict much of his original testimony. The jury was well aware that the time of death proffered at trial was only an “estimate.” Asked whether time-of-death determinations were “an exact science,” Dr. Bayardo responded at trial “[n]o, it’s not a precise scientific way of making a determination of the time of death, we only can make estimates.” Other facts and opinions in Dr. Bayardo’s affidavit were put before the jury through other witnesses. The jury heard from Reed’s DNA expert, Dr. Johnson, that sperm could remain present in a vaginal cavity for more than twenty-four hours after death. Likewise, Dr. Bayardo only states that the “very few” spermatozoa found “suggest! ]” that the sperm was deposited in Stites more than a day before the murder. Dr. Riddick’s affidavit likewise offers Reed less support than he believes. Dr. Riddick’s affidavit disputes the State experts’ testimony that spermatozoa would not be found more than twenty-four hours after a sexual encounter, and Dr. Bayar-do’s trial testimony that the sperm was introduced into Stites’s vagina a day or two before the autopsy exam. Dr. Riddick opines that “it is impossible to conclude with any degree of scientific certainty, or even probability, that Rodney Reed had sexual intercourse with Stacey Stites less than 24 hours before her death, or even less than 48 hours before her death,” and, in fact, “it is possible to conclude that Rodney Reed and Stacey Stites had sexual intercourse as long as a week before Ms. Stites’s death, and perhaps even more than a week before.” In Dr. Riddick’s opinion, “it is highly unlikely that Mr. Reed and Ms. Stites had sexual intercourse within 24 or even 48 hours of Ms. Stites’s death” because if they had “there likely would have been a large amount of semen present.” Notably, Dr. Riddick’s affidavit says nothing about the condition in which Stites was found. Furthermore, the significance of Dr. Riddick’s affidavit, like Dr. Bayar-do’s affidavit, is strongly undercut by the fact that the information contained therein only presents the jury with an alternative scenario it could consider, namely that Reed’s sperm entered Stites hours or days before her death. But the jury had evidence in support of such a scenario and evidently chose to reject it. Dr. Riddick’s affidavit merely presents the possibility that Reed could have had sex with Stites earlier. A reasonable juror would not be swayed by Dr. Riddick’s affidavit, and the district court’s conclusion to that effect is not debatable. Our evaluation of both affidavits is unaltered by Reed’s reliance on the Supreme Court’s House decision, which he contends is factually analogous to this case. In House, the defendant was found guilty of murder based in part on the fact that blood consistent with that of the victim was found on his clothes, and semen consistent with that of the defendant was found on the victim’s clothing. 547 U.S. at 528-30, 126 S.Ct. 2064. The defendant in House was able to meet Schlup’s actual innocence standard by proving that the semen actually came from the victim’s husband, and that blood from the victim’s autopsy had spilled while stored with House’s clothing. Id, at 540-48, 126 S.Ct. 2064. Reed argues that, similarly here, “the State’s forensic proof purportedly connecting Reed (by his sperm) to Stites’s murder has been debunked by Drs. Riddick and Bayardo.” Contrary to Reed’s description, Dr. Bay-ardo’s and Dr. Riddick’s affidavits have not “debunked” the State’s DNA evidence. Instead, they merely reinforce evidence already in the record. There is trial testimony that sperm could be discovered up to three weeks after a victim’s death, and that in one case sperm had been discovered sixteen days after death. The jury also was aware that the intact sperm in Stites were discovered almost thirty-six hours after the estimated time of death. Consequently, to the extent Reed’s new evidence is limited to these affidavits, the district court’s rejection of Reed’s gateway-innocence argument is not debatable. See Moore, 534 F.3d at 465 n. 17 (actual innocence showing “requires something more than pointing to ‘[a] mere possibility of prejudice,’ because a speculative claim ‘will not satisfy the actual prejudice prong of the cause and prejudice test, much less demonstrate actual innocence ’ ” (emphasis in original) (citation omitted)). Our conclusion is reinforced by the other evidence in this case, which the district court took note of, but which Reed largely ignores. The affidavits Reed submits create, at best, the possibility that Reed’s sperm entered Stites more than a day before her death, leading to the inference that Reed did not sexually assault Stites, who presumably would have reported such a crime. By contrast, the evidence that Reed forced himself on Stites and subsequently murdered her is extensive. Apart from the DNA evidence itself, there is the condition of Stites’s body. Stites was found shirtless. Her pants were undone, the zipper broken, and her underwear bunched around her hips. There were fresh bruises along her arms, and marks that appeared to be fingernails dug into flesh. There were bruises on her head in a pattern consistent with the knuckles of a fist, bruises on her left shoulder and abdomen consistent with a seat-belt, and a wide mark across her neck matching the pattern of her belt. All this strongly supports the conclusion that Stites was the victim of a sexual assault and that the sperm inside her did not result from a consensual encounter. Along with this evidence, Reed was known to frequent the route along which Stites drove to work. He also was known to do so almost every night between 9:00 p.m. and 3:00 or 4:00 a.m. — overlapping with the hours Stites would be driving to work. Furthermore, there was no credible evidence that Reed was in a relationship with Stites. Reed himself denied knowing Stites when police first approached him about her murder. To be sure, many witnesses, at trial and in the course of Reed’s state habeas proceedings, testified or submitted evidence that Reed had some kind of a relationship with Stites. But these witnesses were found, in the words of the CCA, “unreliable.” Reed, 271 S.W.3d at 747. At oral argument, Reed suggested that the witnesses’ statements were rejected because the only theory the trial DNA evidence supported was that Reed’s sperm likely entered Stites’s body close to when she died. But as the magistrate judge ably summarized, Reed’s witnesses were found not credible for a host of reasons independent of the DNA evidence: Most of [Reed’s] witnesses did not know Stacey Stites, and identified her from memory by viewing her photograph. Those who claimed to have known her were proven to be badly mistaken. All of these witnesses were family, friends, or associates of Reed’s. Reed was never able to identify anyone who was a friend, family member, or associate of Stacey Stites who claimed to have been aware of a relationship between Reed and Stites. In short, there is no reliable evidence that ties Reed to Stites before her murder. (footnote omitted). For example, one witness who claimed to know Stites from school stated that he saw Stites and Reed together several times, and that they kissed and called each other “baby.” The witness further stated that while the witness was in Bastrop County jail, Reed told him that he did not kill Stites. The CCA found these statements not credible because the evidence at trial showed that the witness could not have known Stites from school because Stites moved to Bastrop only after graduating. The witness’s general statements also offered no specific facts to be corroborated and did not comport with other evidence. Two trial witnesses also were found not reliable by the CCA. Julia Estes testified at trial that she once saw Stites and Reed talking at H.E.B. Estes’s testimony was impeached by the fact that Reed and his family frequented Estes’s bar. Iris Lind-ley, a longtime friend of Reed’s parents, also testified that Stites came by Reed’s home looking for him. But Lindley initially misidentified Stites as “Stephanie,” and also admitted to not knowing whether Reed and Stites were dating. These witnesses are but a short selection of the many individuals who submitted evidence purportedly showing Reed’s relationship with Stites. As we have noted, the CCA concluded that the evidence as to all the “witnesses who affirmed a relationship between Reed and [Stites]” was “unreliable.” Reed, 271 S.W.3d at 747. Reed provides no discussion of the individual witnesses’ testimonies. The district court saw no reason not to defer to the CCA’s credibility determination, and we see none. See 28 U.S.C. § 2254(e)(1). As a result, Reed’s forensic evidence exists in a vacuum and only presents a possible factual scenario that is not borne out by any of the other evidence. To the extent Reed relies on other evidence not included in the relevant portion of his brief, we discuss that evidence in the course of addressing the claim under which it arises. We conclude that reasonable jurists would not debate the district court’s determination that Reed has failed to establish his actual innocence under Schlup and deny a COA on this basis. B. Ineffective Assistance of Trial Counsel Reed argues that his trial counsel was constitutionally deficient for failing to (1) refute the State’s forensic evidence; (2) present evidence of Stites’s and Reed’s alleged relationship; and (3) present evidence of Fennell’s bad character. He contends that reasonable jurists would debate the correctness of the district court’s decision to deny relief. The State responds that all his ineffective-assistance-of-trial-counsel claims were procedurally barred. The standard for evaluating whether a counsel’s performance was constitutionally adequate is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “First, the defendant must show that counsel’s performance was deficient.” Id. at 687, 104 S.Ct. 2052. “Second, the defendant must show that the deficient performance prejudiced the defense.” Id. To show deficient performance, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. To demonstrate prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687, 104 S.Ct. 2052. Reed raised his ineffective assistance claims in his third state habeas petition. Because Reed did not raise these claims in his initial petition, and because it concluded that none of the exceptions under Article 11.071 § 5(a)(2) applied, the CCA dismissed Reed’s ineffective assistance claims “as an abuse of the writ.” Ex parte Reed, No. WR-50961-03, 2005 WL 2659440 (Tex. Crim.App. Oct. 19, 2005). As Texas’s abuse-of-the-writ doctrine is an “independent and adequate state procedural rule,” Coleman, 501 U.S. at 750, 111 S.Ct. 2546, the district court found Reed’s ineffective assistance claims procedurally defaulted and did not consider them on the merits. It did, however, briefly consider whether procedural default as to those claims could be excused following the Supreme Court’s Martinez decision. In Martinez, the Supreme Court held that a petitioner may establish cause to excuse a procedural default as to an ineffective-assistance-of-trial-counsel claim by showing that (1) his state habeas counsel was constitutionally deficient in failing to include the claim in his first state habeas application; and (2) the underlying ineffective-assistance-of-trial-counsel claim is “substantial.” 132 S.Ct. at 1318; see Pre-yor v. Stephens, 537 Fed.Appx. 412, 420-21, 2013 WL 3830160, at *8 (5th Cir. July 25, 2013); Sells v. Stephens, 536 Fed.Appx. 483, 492-93, 2013 WL 3784348, at *8 (5th Cir. July 22, 2013). For a claim to be “substantial,” a “prisoner must demonstrate that the claim has some merit.” Martinez, 132 S.Ct. at 1318. Conversely, an “insubstantial” ineffective assistance claim is one that “does not have any merit” or that is “wholly without factual support.” Id. at 1319. The district court concluded that it was not required to review Reed’s ineffective assistance claims under Martinez in light of our decision in Ibarra v. Thaler, 687 F.3d 222, 227 (5th Cir.2012) (holding that Martinez does not apply to Texas court decisions). Ibarra has since been overruled by Trevino v. Thaler, in which the Supreme Court expanded Martinez’s reach because “the Texas procedural system — as a matter of its structure, design, and operation — does not offer most defendants a meaningful opportunity to present a claim of ineffective assistance of trial counsel on direct appeal.” — U.S.-, 133 S.Ct. 1911, 1921, 185 L.Ed.2d 1044 (2013). Reed’s Martinez argument thus is no longer foreclosed. However, although the district court’s reliance on Ibarra is incorrect following Trevino, and thus its procedural ruling is, at the very least, debatable, to obtain a COA Reed must still demonstrate that reasonable jurists would debate “whether the petition states a valid claim of the denial of a constitutional right.” Slack, 529 U.S. at 478, 484, 120 S.Ct. 1595; see also Womack v. Thaler, 591 F.3d 757, 758 (5th Cir.2009); Blanton v. Quarterman, 287 FedAppx. 407, 408 n. 1 (5th Cir.2008). Concluding that Reed has failed to state any debatable ineffective-assistance-of-counsel claims, we deny a COA. We address each of the purported deficiencies of counsel below. 1. Failure to refute State’s forensic proof Reed asserts that his “trial counsel was deficient for not using competent experts to rebut the State’s plainly false inference that Stites’s death and intercourse with Reed coincided,” and contradict the State’s anal rape theory. He draws attention to the fact that his trial jury clearly was concerned about the sperm found in Stites’s body, as evidenced by the fact that during its deliberations the jury asked questions about the sperm’s presence, condition, and durability. Reed relies on affidavits by Dr. Bayardo, Dr. Riddick, and criminal laboratory director Ronald Singer.' The State argues that Reed can show neither deficiency nor prejudice as relating to trial counsel’s failure to submit evidence of the kind included in the affidavits. This is because his trial counsel actually retained a court-qualified expert in criminalistics and DNA analysis — Dr. Johnson. Moreover, the State contends that any evidence in the affidavits of Dr. Bayardo, Dr. Riddick,- and Singer is cumulative, and does not alter the fact that Reed’s' sperm was found in Stites’s body. The CCA did not consider this claim because it was not raised in Reed’s initial state habeas petition. The district court concluded that the claim was procedurally barred and that our Ibarra decision foreclosed the possibility of review under Martinez. Although, as discussed, the district court’s procedural decision is debatable following Trevino, we conclude that Reed’s claim that trial counsel was ineffective for not adequately refuting the state’s forensic proof is not debatable, and thus does not require issuance of a COA. Considering the first Strickland prong, Reed admits that his DNA expert Dr. Johnson testified at trial that sperm could survive longer than twenty-four hours, and only protests trial counsel’s reliance on Dr. Johnson because of her purported lack of credentials and first-hand criminal experience. Contrary to Reed’s apparent belief, his trial counsel’s representation does not fall below an “objective standard of reasonableness” merely because the retained expert is not the best or most knowledgeable in her field. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. This is not a case of counsel failing to retain an expert or retaining an expert who could not address the issues disputed at trial. See Cox v. Cockrell, 62 Fed.Appx. 557, 2003 WL 1202920, at *6 (5th Cir.2003) (unpublished table decision) (counsel not deficient for calling expert who performed poorly, but because expert could not testify as to disputed issue). Comparing the affidavits Reed presents and the testimony of Dr. Johnson demonstrates that the crux of Reed’s argument — that sperm could remain intact for longer than twenty-four hours and that therefore the presence of Reed’s sperm could have been the product of a consensual sexual encounter between Reed and Stites — was presented at trial. Reed’s contention that his case is similar to State v. Fitzpatrick, 118 So.3d 737 (Fla.2013), is unpersuasive. Fitzpatrick was a case in which sperm evidence linked the defendant to the murder victim, and the key question was how long the sperm had been present in the victim. Id. at 748-49. The Florida Supreme Court affirmed the lower court’s decision to grant defendant a new trial based on counsel’s deficient performance. Id. at 741. The court found that “[t]he record repeatedly demonstrates that counsel did not adequately prepare himself to present an intelligent or knowledgeable defense with respect to the most important issue of [defendant’s] trial: the timing of the alleged sexual encounter between [him] and [the victim].” Id. at 754. Most glaringly, “counsel failed to retain any forensic or medical experts,” and failed to challenge the State’s experts or the physical evidence. Id. at 754-55. Unlike trial counsel in Fitzpatrick, Reed’s defense team scrutinized the DNA evidence and the State’s experts. Reed’s assertion that a COA should issue because his “trial counsel failed to prepare for, or rebut through cross-examination or contradict by affirmative expert testimony, the State’s misleading forensics” ignores that Dr. Johnson testified as a DNA expert for the defense and provided testimony on the very issue Reed now challenges. It also is not debatable that Reed fails to state a valid constitutional claim based on Strickland’s second prong — prejudice. Just as the affidavits do not establish Reed’s actual innocence they also do not make it “reasonably likely” that the result of Reed’s trial would have been different. Harrington v. Richter, — U.S. -, -, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011) (“[T]he difference between Strickland’s prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.’ ” (citation omitted)). The addition of Singer’s affidavit to that of Dr. Bayardo’s and Dr. Riddick’s does nothing to change this outcome. In his affidavit, Singer challenges the nature of the substance (which appeared to be saliva) found on Stites’s brassiere and breasts, and the DNA evidence recovered from that substance. Specifically, Singer states that amylase testing of the type performed on the substance “cannot be relied upon to identify a specific body fluid such as saliva with accuracy.” Singer further states that “there is no evidence [that the crime scene examiner] changed gloves between the taking of evidentiary samples,” and thus “it is probable that [she] contaminated Ms. Stites’ brassiere and breasts with trace evidence ... after having probed Ms. Stites’ genital area with her fingers and taking swabs and tape lists from Ms. Stites’ pubic area.” We note that Singer’s affidavit merely recounts deficiencies in how the crime scene was secured and then infers, without further support, that the examiner did not change gloves while inspecting Stites’s body. But Singer himself states that “[t]he videotape of the crime scene ... was poorly done,” and “does not completely record the activities at the crime scene.” A review of the video also reveals no unbroken sequence in which the examiner collected evidence from Stites’s genital area and then touched Stites’s chest. Reed also nowhere suggests that the presence of his sperm inside Stites was the result of improper crime scene investigation. Given this, there is nothing to support the contention that the alleged incompetence by police personnel at the- crime scene prejudiced Reed. We conclude that Reed has failed to present a debatable ineffective-assistance-of-trial claim as to his trial counsels’ handling of the State’s forensic evidence. 2. Trial counsel’s failure to present witnesses substantiating Stites’s and Reed’s alleged relationship Reed next argues that trial counsel should have presented additional witnesses who could testify as to his relationship with Stites. In support, he lists the affidavits of multiple witnesses who purportedly knew about the alleged relationship. In response, the State argues that the decision not to call the various witnesses Reed identifies was “a quintessential strategic decision that cannot be undone through the benefit of hindsight.” It further argues that any prejudice resulting from trial counsel’s failure to present these witnesses was speculative. The CCA did not address the witnesses Reed points to in the context of his ineffective-assistance-of-trial-counsel claim because Reed did not include that claim in his initial habeas petition. However, as we have noted supra, in considering whether Reed’s ineffective assistance claim should be considered because he met Article 11.071 § 5(a)(2)’s actual-innocence standard, the CCA concluded that the evidence as to all the “witnesses who affirmed a relationship between Reed and [Stites]” was “unreliable.” Reed, 271 S.W.3d at 747. The district court refused to consider the merits of this claim, finding it procedurally barred. Although, as discussed, the district court’s procedural ruling is debatable, Reed’s failure to actually discuss any of the affidavits he identifies, much less show how he was prejudiced by their omission at trial, means that he has failed to state a reasonably debatable claim under Strickland. We further note that, to'the extent the CCA also made a credibility determination as to the witnesses Reed' identifies, we defer to that factual finding unless Reed presents clear and convincing evidence to’ the ■ contrary. See 28 U.S.C. § 2254(e)(1). Having not done so, Reed’s request for á COA on this claim is denied. See Harrington, 131 S.Ct. at 792. 3. Trial counsel’s failure to present evi- . - dence of Fennell’s abuses against women and minorities In the last of his ineffeetive-assistance-of-trial-counsel claims, Reed contends that trial counsel was deficient for not conducting a proper pretrial investigation. Such an investigation, Reed asserts, would have revealed that Fennell was a jealous, abusive, and racist individual, against whom civil lawsuits alleging violence and racism had been filed.., The State asks that we find this argument waived for inadequate briefing. The CCA found this claim barred under its abuse-of-the-writ doctrine. The district court denied relief, holding that the claim was procedurally barred. ' As before, although the procedural part of the district court’s ruling is debatable, Reed’s failure to adequately brief his claim means that he has failed to state a debatable claim of the denial of a constitutional right. We agree with the State that Reed has waived his request for a COA. Instead of fully briefing this issue, Reed instead relies on his federal habeas petition to fill in the gaps of his argument. We previously have declined to grant a COA in similar circumstances. See McGowen v. Thaler, 675 F.3d 482, 497 (5th Cir.2012) (“We have held that a COA applicant waives claims by directing the appellate court to briefing before the district court to support his request for a COA. [Petitioner’s] reference to his habeas petition therefore does not preserve his claims.” (footnote omitted)). As the State correctly argues, waiver is especially appropriate where, as here, the admissibility of much of the evidence Reed refers to is questionable, and Reed provides no defense of its admissibility. See Clark v. Thaler, 673 F.3d 410, 429 (5th Cir.2012) (failure to assert meritless objection is not grounds for deficient performance); Thompson v. Thaler, 432 Fed.Appx. 376, 379 (5th Cir.2011). His request for a COA on this claim is denied. C. Ineffective Assistance of Appellate Counsel Reed identifies three challenges that his appellate counsel should have raised on direct appeal: (1) a jury instruction that allowed jurors to consider “good conduct time” against the forty years Reed would serve if sentenced to life in prison; (2) the jury not being instructed that a lack of unanimity on special issues during the penalty phase would result in a life sentence; and (3) the denial of a continuance motion to give Reed’s trial counsel additional time to prepare. Reed argues that his appellate counsel’s failure to raise these issues rendered his appellate counsel’s representation constitutionally deficient under Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). The State argues that Reed’s ineffective-assistance-of-appellate-counsel claim is waived for inadequate briefing. Alternatively, the State contends that the claim is procedurally defaulted. Reed detailed his ineffective-assistance-of-appellate-counsel claims in his third state habeas petition. The CCA dismissed these claims as abuses of the writ. The magistrate judge accordingly recommended that the claim be found procedurally defaulted. The district court adopted the magistrate judge’s recommendation. Reed does not appear to challenge the district court’s procedural ruling other than through his assertion of actual innocence under Schlup, which, as we have discussed, is unavailing. For the same reasons, the district court’s denial of habe-as relief is not debatable. Even if we looked beyond the district court’s non-debatable procedural ruling to inquire into whether Reed has stated a valid claim of the denial of a constitutional right, we would find that Reed’s claims would fare no better. Reed’s “good conduct time” instruction argument fails because the relevant statutory provision — Article 37.071 § 2(e)(2)(B) (court shall “charge the jury that a defendant sentenced to confinement for life without parole ... is ineligible for release ... on parole”) — does not appear to have come into effect until after Reed’s trial. See 1999 Tex. Sess. Law Serv. Ch. 140, § 1 (S.B.39) (amending Tex.Code Crim. Proc. Ann. art. 37.071). Additionally, Reed’s argument fails to show how Reed suffered harm as a result of the jury instruction. See Ross v. State, 133 S.W.3d 618, 623 (Tex.Crim.App.2004) (dispositive issue is “whether the jury was so misled or whether there is a reasonable likelihood that the jury applied the misleading parole charge in a way that prevented it from considering that a life-sentenced appellant would not be eligible for parole for forty years”). Reed’s second argument, that the jury should have been informed that a lack of unanimity during the penalty phase would result in a life sentence, is a challenge to Texas’s so-called “12-10 Rule.” Arguments similar to Reed’s repeatedly have been rejected by this court and Texas courts, most recently in Parr v. Thaler, 481 Fed.Appx. 872, 878-79 (5th Cir.2012). See, e.g., Druery v. Thaler, 647 F.3d 535, 542-45 (5th Cir.2011); Greer v. Thaler, 380 Fed.Appx. 373, 389 (5th Cir.2010); Gonzales v. State, 353 S.W.3d 826, 837 (Tex.Crim.App.2011). Reed presents no grounds to revisit those decisions. Reed’s third argument is equally unavailing. He contends that his appellate counsel should have challenged the trial court’s denial of Reed’s continuance motion, and more broadly argues that his trial attorneys devoted too little time to preparing his defense. “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case .... ” Hall v. Thaler, 504 Fed.Appx. 269, 283 (5th Cir.2012) (quoting Ungar v. Sarafite, 376 U.