Rodney Reed v. William Stephens, Director

Case: 13-70009 Document: 00512527115 Page: 1 Date Filed: 02/10/2014

REVISED FEBRUARY 7, 2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 13-70009 January 10, 2014
Lyle W. Cayce
RODNEY REED, Clerk

Petitioner-Appellant
v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court
for the Western District of Texas

Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
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
appealability to challenge the district court’s denial of habeas relief. Reed
argues that he should be granted a certificate of appealability based on his
assertions of actual innocence, ineffective assistance of trial, appellate, and
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No. 13-70009
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
Sheriff’s Department had observed Fennell’s pickup truck (which Stites
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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. Bayardo concluded that the belt was the murder weapon, and

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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 Fennell’s 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. Bayardo, Blakely, and DNA analyst Meghan Clement. Reed’s
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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. 1
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

1Article 37.071 § 2 provides that on conclusion of the presentation of the evidence in
a capital murder case, the court shall submit the following issues to the jury:
(1) whether there is a probability that the defendant would commit criminal
acts of violence that would constitute a continuing threat to society; and
(2) in cases in which the jury charge at the guilt or innocence stage permitted
the jury to find the defendant guilty as a party under Sections 7.01 and 7.02,
Penal Code, whether the defendant actually caused the death of the deceased
or did not actually cause the death of the deceased but intended to kill the
deceased or another or anticipated that a human life would be taken.
Tex. Code Crim. Proc. Ann. art. 37.071 § 2(b).
If the answers to these questions are in the affirmative, the court will submit
the following issue:
[(3)] [w]hether, taking into consideration all of the evidence, including the
circumstances of the offense, the defendant’s character and background, and
the personal moral culpability of the defendant, there is a sufficient mitigating
circumstance or circumstances to warrant that a sentence of life imprisonment
without parole rather than a death sentence be imposed.
Id. § 2(e)(1).
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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 (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. 2
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

2 Article 11.071 § 5(a) provides in relevant part that:
If a subsequent application for a writ of habeas corpus is filed after filing an
initial application, a court may not consider the merits of or grant relief based
on the subsequent application unless the application contains sufficient
specific facts establishing that:
(1) the current claims and issues have not been and could not have been
presented previously in a timely initial application or in a previously
considered application . . . because the factual or legal basis for the
claim was unavailable on the date the applicant filed the previous
application;
(2) 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; or
(3) by clear and convincing evidence, but for a violation of the United
States Constitution no rational juror would have answered in the state’s
favor one or more of the special issues that were submitted to the
jury . . . .
Tex. Code Crim. Proc. Ann. art. 11.071 § 5(a).

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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 habeas 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
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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 (2000). By contrast:
When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional

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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 (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 (2000)), cert. denied, 549 U.S. 828 (2006). “A state
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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 “rebut[s] 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 claims 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
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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. 3
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

3 In Texas, “[o]n postconviction review of habeas corpus applications, the convicting
court is the ‘original factfinder,’ and [the CCA] is the ultimate factfinder.” Ex parte Chavez,
371 S.W.3d 200, 207 (Tex. Crim. App. 2012). Although the CCA will “generally defer to and
accept the convicting court’s findings of fact and conclusions of law,” the CCA may exercise
its authority “to make contrary or alternative findings and conclusions” when its
“independent review of the record reveals that the trial judge’s findings and conclusions are
not supported by the record.” Id. (internal quotation marks and citations omitted); see also
Ex parte Flores, 387 S.W.3d 626, 634–35 (Tex. Crim. App. 2012) (CCA acts as “the ultimate
fact finder” when the lower court’s findings “do not resolve the necessary factual issues”).
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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. 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 (1995), and ineffective assistance of counsel under Martinez
v. Ryan, 132 S. Ct. 1309 (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.”

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Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir. 2008). 4 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]ctual-
innocence is not an independently cognizable federal-habeas claim.”); see, e.g.,
Matheson v. United States, 440 F. App’x 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. 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

4 We deny Reed a COA as to his assertion that Texas’s abuse-of-the-writ doctrine is
not an independent and adequate state procedural bar. See Hughes, 530 F.3d at 342.
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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 (1991); see Maples v. Thomas, 132 S. Ct. 912, 922
(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. 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). 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 (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 (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). The actual-innocence standard “does not
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merely require a showing that a reasonable doubt exists in the light of the new
evidence, but rather that no reasonable juror would have found the defendant
guilty.” Schlup, 513 U.S. at 329. 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.
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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. Bayardo’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,
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No. 13-70009
“extremely suspect.” The court further found, however, that even
substantively considered, Dr. Bayardo’s affidavit would have “little probative
value.” 5 As to Dr. Riddick’s affidavit, the district court found that the “evidence
strongly suggest[ed] 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]ecause 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.

5 In its order denying Reed’s motion to alter or amend judgment, the district court
clarified that it “ha[d] considered Reed’s arguments with respect to [Dr. Bayardo’s] . . .
affidavit, despite Reed’s delay in presenting [Dr.] Bayardo’s statements.” Regardless, we find
that even had the district court not considered Dr. Bayardo’s affidavit, it would have acted
within its discretion because the affidavit was untimely. Reed has provided no persuasive
reason for waiting well over a decade to revisit Dr. Bayardo’s testimony. Although “the
district court need not reject newly-proffered evidence simply because it was not presented
to the magistrate judge,” it also is true that “[l]itigants may not . . . use the magistrate judge
as a mere sounding-board for the sufficiency of the evidence.” Freeman v. Cnty. of Bexar, 142
F.3d 848, 852 (5th Cir. 1998); see also Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002). We
consider whether the affidavit would alter our conclusion, assuming it properly is before us.
In so doing, we do not reach the question of whether evidence like Dr. Bayardo’s affidavit is
“new” within the meaning of Schlup. See In re Warren, – F. App’x —, 2013 WL 3870423, at
*4 n.2 (5th Cir. July 29, 2013) (Dennis, J., dissenting in part and concurring in part) (citing
Wright v. Quarterman, 470 F.3d 581 (5th Cir. 2006)) (noting circuit split “as to whether, under
Schlup, the evidence was not discoverable at the time of trial or whether it is sufficient that
the evidence be newly presented,” and declining to resolve issue). But see Moore v.
Quarterman, 534 F.3d 454, 465 (5th Cir. 2008) (describing evidence as not “new” where “it
was always within the reach of [petitioner’s] personal knowledge or reasonable
investigation”).
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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. Bayardo 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. Bayardo 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 consensually.” 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
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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 consensually”
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. Bayardo’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
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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. Bayardo’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. 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. 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. Bayardo’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
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No. 13-70009
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. 6 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 seatbelt, and a wide

6 In his Rule 59(e) motion to alter or amend judgment, Reed also attached the affidavit
of Dr. Joseph Warren. That affidavit, like Dr. Bayardo’s and Dr. Riddick’s, contends that
“intact sperm can be found inside a human woman more than 24 hours after intercourse.” In
Dr. Warren’s experience, “a period of twenty-four to seventy-two hours post coitus, is a good
rule of thumb for how long a forensic biologist can expect to identify intact sperm after
intercourse.” Assuming Dr. Warren’s affidavit is properly before us, we find the district
court’s conclusion that Dr. Warren’s affidavit does not invalidate the State’s theory of guilt
because it “merely establishes the possibility of earlier sexual intercourse” not debatable.
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No. 13-70009
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. 7 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

7 Reed asserts that the district court held him to an unreasonably high standard by
requiring him to submit “compelling eyewitness evidence of Stites and Reed’s affair.” In fact,
the district court simply required Reed to evidence the existence of a relationship between
himself and Stites. Reed’s failure to do so is simply a reflection of the complete lack of credible
evidence that such a relationship existed, rather than the product of an improper evidentiary
burden.
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No. 13-70009
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 Lindley, 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). 8 As a

8 Reed urges us not to apply § 2254(e)(1)’s presumption of correctness to the CCA’s
review of his actual innocence claim under Schlup. The only authority he presents in support
is the Supreme Court’s decision in House, 547 U.S. 518. But that decision discussed
§ 2254(e)(2), not (e)(1), id. at 539, and we previously have applied § 2254(e)(1) in the context
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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. 9 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 (1984). “First, the defendant must show that counsel’s performance was
deficient.” Id. at 687. “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

of an actual innocence claim, see In re Wright, 298 F. App’x 342, 344 (5th Cir. 2008); cf. Graves
v. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003) (applying § 2254(e)(1)’s presumption in the
context of a freestanding actual innocence claim). Other courts have done likewise. See, e.g.,
Carr v. Warden, Leb. Corr. Inst., 401 F. App’x 34, 38–39 (6th Cir. 2010); Sharpe, 593 F.3d at
379; Storey v. Roper, 603 F.3d 507, 524 (8th Cir. 2010); Love v. Roberts, 259 F. App’x 58, 63
(10th Cir. 2007); Goldblum v. Klem, 510 F.3d 204, 221 n.13 (3d Cir. 2007); Johnson v. Hooks,
138 F. App’x 207, 208 (11th Cir. 2005); Madrid v. Gregoire, 187 F.3d 648, 1999 WL 439460,
at *2 (9th Cir. 1999) (unpublished table decision).
9 Reed also argues that his habeas counsel was constitutionally deficient for failing to

investigate and present expert forensic evidence in response to the State’s forensic proof.
This argument appears to relate only to his contention that his ineffective-assistance-of-trial-
counsel claims should be considered despite being otherwise procedurally defaulted.
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No. 13-70009
standard of reasonableness.” Id. at 688. 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. “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.
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, 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. 10
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 Preyor v. Stephens, – F. App’x —, 2013

10The district court also considered whether procedurally defaulted claims like Reed’s
ineffective-assistance-of-trial-counsel claims could be considered because Reed had
demonstrated that he was actually innocent. As discussed supra, this argument also fails.
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No. 13-70009
WL 3830160, at *8 (5th Cir. July 25, 2013); Sells v. Stephens, – F. App’x —,
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.” 133 S. Ct. 1911, 1921
(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; see also Womack v. Thaler,
591 F.3d 757, 758 (5th Cir. 2009); Blanton v. Quarterman, 287 F. App’x 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. 11

11 Reed asks that we remand this issue to the district court, citing our decision in
Cantu v. Thaler, 682 F.3d 1053, 1054 (5th Cir. 2012) (remanding “so that the district court
may decide in the first instance the impact of Martinez”). But as we explain, Reed has not
presented a debatable ineffective assistance claim. See Amos v. Thornton, 646 F.3d 199, 203
n.4 (5th Cir. 2011) (“In light of our determination that [petitioner] is not entitled to relief on
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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

his speedy-trial claim, . . . the district court’s error in dismissing that claim as procedurally
barred was harmless, and remand is unnecessary.”); cf. Wright v. Quarterman, 470 F.3d 581,
591 (5th Cir. 2006) (declining to determine whether petitioner established actual innocence
where merits of underlying claim were not debatable); Nelson v. Cockrell, 77 F. App’x 209,
216 (5th Cir. 2003) (granting COA with respect to ineffective assistance claim, but not
remanding case because district court did not err in denying habeas relief because state
courts’ application of clearly established federal law was not objectively unreasonable),
vacated on other grounds by Nelson v. Dretke, 542 U.S. 934 (2004). Under these
circumstances, we cannot grant a COA. See Jimenez v. Quarterman, 555 U.S. 113, 118 n.3
(2009) (COA should issue on district court’s denial of habeas relief on procedural grounds
only where jurists of reason would debate both the procedural ruling and that petition stated
valid claim of denial of a constitutional right). As a practical matter, we also observe that
although the district court did not review Reed’s ineffective assistance claims under
Martinez, the district court did review Reed’s assertions of actual innocence, which included
much of the evidence Reed relies on to show that his counsel acted deficiently.
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No. 13-70009
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.
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 F.
App’x 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
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No. 13-70009
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. 12 Harrington
v. Richter, 131 S. Ct. 770, 792 (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

12 Likewise, we are unmoved by Reed’s reliance on an email by Clement agreeing that
sperm can remain intact longer than 24 hours, and Blakely’s refusal to comment further on
this case. This evidence is untimely and does not lend Reed any support beyond that already
provided by the affidavits of Dr. Bayardo and Dr. Riddick.
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No. 13-70009
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. 13
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.

13Reed also argues that effective trial counsel would have used the video recording of
the crime scene to show that evidence was contaminated, destroyed, and overlooked. This
argument fails for the same reasons detailed above. Further, we reject Reed’s suggestion
that, but for the police’s incompetence, other evidence might have been uncovered. “Such
speculation does not show prejudice.” Paz v. Scott, 68 F.3d 471, 1995 WL 581882, at *2 (5th
Cir. 1995) (unpublished table decision).
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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 a COA on this claim is
denied. See Harrington, 131 S. Ct. at 792.

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3. Trial counsel’s failure to present evidence of Fennell’s abuses
against women and minorities
In the last of his ineffective-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, 14 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

14 Reed is African-American. Fennell is Caucasian, as was Stites.
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No. 13-70009
v. Thaler, 432 F. App’x 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. 15 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 (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 habeas relief is not debatable. 16

15 Reed also argues that appellate counsel was deficient for failing to challenge the
exclusion of a witness’s statement relating to Lawhon confessing to Stites’s murder. This
claim is discussed infra in connection with Reed’s conflict-of-interest claim.
16 To the extent Reed suggests that his ineffective-assistance-of-appellate-counsel

claims also should be considered under Martinez, we decline to do so. See In re Sepulvado,
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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.” 17 Arguments similar to Reed’s

707 F.3d 550, 554 & n.8 (5th Cir. 2013); see also Hodges v. Colson, 727 F.3d 517, 531 (6th Cir.
2013) (“Under Martinez’s unambiguous holding our previous understanding of Coleman in
this regard is still the law—ineffective assistance of post-conviction counsel cannot supply
cause for procedural default of a claim of ineffective assistance of appellate counsel.”); Banks
v. Workman, 692 F.3d 1133, 1148 (10th Cir. 2012); Dansby v. Norris, 682 F.3d 711, 728–29
(8th Cir. 2012), vacated sub nom. Dansby v. Hobbs, 133 S. Ct. 2767 (2013). But see Ha Van
Nguyen v. Curry, 736 F.3d 1287, 1296 (9th Cir. 2013) (holding that Martinez extends to Sixth
Amendment ineffective-assistance-of-appellate-counsel claims).
17 Under Texas law, a life sentence will be imposed if at least ten jurors agree that
there is not “a probability that the defendant would commit criminal acts of violence that
would constitute a continuing threat to society.” Tex. Code Crim. Proc. Ann. art. 37.071
§ 2(b)(1). If the jurors unanimously agree that there is such a probability, they must then
determine whether “taking into consideration all of the evidence, including the circumstances
of the offense, the defendant’s character and background, and the personal moral culpability
of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant
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No. 13-70009
repeatedly have been rejected by this court and Texas courts, most recently in
Parr v. Thaler, 481 F. App’x 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 F. App’x 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 F. App’x 269, 283 (5th Cir. 2012) (quoting Ungar
v. Sarafite, 376 U.S. 575, 589 (1964)).
The district court adopted the magistrate judge’s recommendation to
deny relief on this claim. The magistrate judge observed that “although Reed
makes general allegations in his pleadings before this Court that having
sufficient time is essential to preparing a defense to a capital case, he does not
demonstrate with any specificity how his counsel was unprepared to move
forward with trial in his case in March 1998.” Likewise in his brief to this
court, Reed provides little explanation, and we therefore find it waived. See
McGowen, 675 F.3d at 497. A brief review of the attorney billing records
identified by the State also dispels any concerns that Reed’s defense team did
not spend enough time preparing for trial.

that a sentence of life imprisonment without parole rather than a death sentence be
imposed.” Id. § 2(e)(1). If jurors unanimously agree that there are not such mitigating
circumstances, the defendant is sentenced to death. Id. § 2(g). If ten jurors agree that there
are requisite mitigating circumstances, the defendant is sentenced to life imprisonment. Id.
In the event jurors cannot agree on answers to either special issue, the court imposes a life
sentence. Id.
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Upon review of Reed’s ineffective-assistance-of-appellate-counsel claims,
we conclude that even if the district court’s finding of procedural default is
debatable, Reed’s underlying constitutional claims are not.
D. Appellate Counsel’s Conflict of Interest
Reed seeks a COA on his Sixth Amendment claim that his appellate
counsel suffered from an actual conflict of interest because, while his appellate
counsel represented him on direct appeal, his appellate counsel also
represented Lawhon (who boasted of killing Stites) in a separate state habeas
proceeding. Because of that dual-representation, Reed posits that his
appellate counsel did not appeal the trial court’s exclusion of certain testimony
concerning Lawhon’s confession. The State points out that Reed’s argument
has changed from that which was presented in state court, and that we should
not now consider Reed’s claim other than how it was presented there. The
State adds that Reed’s conflict-of-interest claim lacks merit as evidenced by
the fact that Reed can offer no supporting caselaw granting habeas relief in
similar circumstances.
Reed raised his conflict-of-interest claim in his first state habeas
petition, where he asserted prejudice resulting from the fact that his appellate
counsel would not testify about conversations he had with Lawhon that might
inculpate Lawhon in Stites’s murder. The CCA rejected this argument. In
district court, Reed argued that his appellate counsel’s dual representation had
an adverse effect because it resulted in appellate counsel not objecting to the
exclusion of certain evidence of Lawhon’s alleged confession. The district court
correctly observed that this was not the argument Reed raised in state court,
and declined to consider it.
We agree with the district court and conclude that reasonable jurists
would not disagree with that court’s disposal of the claim. Reed’s claim, albeit
not procedurally barred on the basis of an independent and adequate state
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No. 13-70009
procedural rule, is unexhausted. 18 See Kittelson v. Dretke, 426 F.3d 306, 315–
16 (5th Cir. 2005). Section 2254(b)(1) requires that a petitioner first exhaust
his state court remedies before proceeding in federal court. See 28 U.S.C.
§ 2254(b)(1)(A). AEDPA’s exhaustion requirement is “not satisfied if the
petitioner presents new legal theories or factual claims in his federal habeas
petition.” Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003).
Even if Reed’s conflict-of-interest claim were considered on the merits, it
would not be entitled to habeas relief. See 28 U.S.C. § 2254(b)(2) (habeas relief
may be denied on the merits, notwithstanding petitioner’s failure to exhaust
state court remedies); cf. Miller v. Dretke, 431 F.3d 241, 245 (5th Cir. 2005)
(“Because we hold [petitioner] is not entitled to habeas relief on the Brady-
claim, we need not decide whether the district court erred in considering it.”).
The jury heard evidence that Lawhon bragged about killing Stites, so any
additional testimony to that effect would be cumulative. Reed’s description of
the circumstances leading to the witnesses at issue not testifying is also
misleading. It was not the case, as Reed asserts, that “[t]he Trial Court refused
to allow [the two witnesses] to testify.” Instead, although they initially
expressed their willingness to testify, after consulting with a court-appointed
attorney, both witnesses decided to exercise their rights under the Fifth
Amendment and not testify. Reed’s suggestion that the trial court acted
improperly in ensuring that the witnesses were advised by counsel and fully
understood their constitutional rights is baseless.
E. Brady
Reed seeks a COA with respect to the district court’s denial of his Brady
claims. Reed contends that the State suppressed: (1) DNA evidence of the beer

18We reject Reed’s suggestion that his failure to present this argument should be
excused under Trevino because of deficient state habeas counsel. See Sepulvado, 707 F.3d at
554–55 & n.8.
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No. 13-70009
cans found at the murder scene; (2) witness testimony that Stites and Fennell
were arguing the morning of the murder; (3) testimony by a witness who
allegedly remembered Fennell threatening to kill Stites with a belt;
(4) statements by two witnesses who claimed to have seen Stites driving
around with one or two men the morning of the murder; (5) an affidavit by
Fennell’s former girlfriend; (6) evidence of lawsuits filed against Fennell and
the Giddings Police Department; (7) a letter by Fennell to the Giddings city
manager; and (8) evidence of criminal corruption by the Bastrop county
sheriff. 19
To establish a Brady violation as to any of these claims, Reed had to
prove that (1) the prosecution actually suppressed the statements, (2) the
statements were favorable to him, and (3) the statements were material. See
Kyles, 514 U.S. at 434; Brady, 373 U.S. at 87; see also Trottie v. Stephens, 720
F.3d 231, 251 (5th Cir. 2013). A petitioner’s Brady claim fails if the suppressed
evidence was discoverable through reasonable due diligence. See United States
v. Brown, 650 F.3d 581, 588 (5th Cir. 2011), cert. denied, 132 S. Ct. 1969 (2012).
Suppressed evidence is material if “there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would
have been different. A ‘reasonable probability’ is a probability sufficient to
undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667,
682 (1985); see United States v. Sipe, 388 F.3d 471, 485 (5th Cir. 2004).
Although we address Reed’s request for a COA as to each of his Brady
claims below, we note that many of them are procedurally defaulted because
Reed has failed to establish actual innocence under Schlup and does not

19 Reed also argues that pursuant to Kyles v. Whitley, 514 U.S. 419, 436 (1995), we
should collectively review the suppressed evidence together with whatever prejudice Reed
suffered as a result of his ineffective assistance of counsel. We find that none of Reed’s Brady
claims, procedurally barred or otherwise, individually or collectively, are worthy of further
consideration under AEDPA’s standard as correctly applied by the district court.
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separately argue that he has shown cause and prejudice to excuse procedural
default as to any particular Brady claim. 20
1. Beer-can-DNA evidence
Reed contends that the State suppressed a letter containing a DNA
report that revealed a mixture of profiles from which Stites, Officer Hall, and
Officer Selmala (the officer who investigated Fennell’s pickup truck) could not
be excluded. He argues that “[i]t is uncontested that the State’s DNA report is
exculpatory because it suggests that two officers (one closely associated with
Fennell) were with Stites, drinking beer at the crime scene.” The State
maintains that this claim is procedurally barred, and that Reed cannot show
cause and prejudice to excuse the default. It further submits that even if the
claim were considered on its merits, Reed cannot show prejudice because, at
trial, Reed had access to the same DNA evidence and his DNA expert initially
reached the same conclusion before conducting more refined Polymarker
testing, which excluded Stites and the two police officers.
The CCA dismissed Reed’s Brady claim as an abuse of the writ. But
although dismissing the claim, the CCA did consider the beer-can-DNA
evidence, together with other evidence, in the context of Reed’s actual
innocence claim. It found that “[a]lthough this new evidence may indeed
arouse a healthy suspicion that Fennell had some involvement in Stacey’s
death, [the court was] not convinced that Reed ha[d] shown by a preponderance
of the evidence that no reasonable juror, confronted with this evidence, would
have found him guilty beyond a reasonable doubt.”

20 We decline Reed’s suggestion that his procedurally defaulted claims may be
considered under Martinez. Reed has insufficiently briefed this issue, and we consider this
argument waived. We note that at least one other court has found this argument
unpersuasive. See Hunton v. Sinclair, 732 F.3d 1124, 1126–27 (9th Cir. 2013) (rejecting
petitioner’s attempt to excuse procedurally defaulted Brady claim under Martinez).
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The magistrate judge, giving Reed the benefit of the doubt,
recommended that the district court conclude that Reed had shown cause for
the late filing of this Brady claim because it was unclear whether his defense
team actually had received the State’s DNA report. But the magistrate judge
also recommended that the district court find that Reed had not made a
sufficient showing as to prejudice because Reed’s DNA expert, Dr. Johnson,
initially reached the same result as the prosecution—that Reed was not a
donor, but that Stites, Officer Hall, and Officer Selmala could not be excluded.
The district court adopted the magistrate judge’s report and recommendation.
Reed does not argue that the district court improperly found this claim
procedurally defaulted. Instead, he only argues that his claim should be
considered because he has satisfied his burden under Schlup or Martinez, or
alternatively, that he has shown cause for not filing this Brady claim in his
initial habeas petition and resulting prejudice. We already have concluded
that a COA should not issue as to Reed’s Schlup actual innocence claim, see
our discussion supra, and that he has insufficiently briefed his contention that
Martinez should apply to his Brady claims. See In re Sepulvado, 707 F.3d at
554 & n.8; cf. Hunton, 732 F.3d at 1126–27.
Turning to whether Reed has sufficiently shown cause and default such
that the district court’s procedural ruling is debatable, we note that, as an
initial matter, it is unclear whether the State actually suppressed the report.
The attorney responsible for handling the DNA evidence on Reed’s defense
team simply could not recall whether the DNA report had been received. The
fact that four copies of the report were made, only one of which was
unaccounted for, suggests that it was. That aside, there are many other
problems with this claim.
Most importantly, Reed cannot show that he was prejudiced by the
State’s DNA report given that Reed’s own DNA expert, Dr. Johnson, reached
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No. 13-70009
the same result—namely, that Reed was not a donor, but that Stites, Officer
Hall, and Officer Selmala could not be excluded from the beer-can DNA. See
Holly v. Collins, 9 F.3d 103, 1993 WL 481732, at *4 (5th Cir. 1993)
(unpublished table decision) (“Awareness of the information purportedly
suppressed neutralizes any . . . impropriety for purposes of a Brady claim
implicating evidence of that information.”). Dr. Johnson subsequently
conducted Polymarker testing, which excluded all three individuals. The State
declined to conduct further DNA testing in light of Dr. Johnson’s more refined
results.
Reed’s Brady claim therefore does not arise out of the purported
suppression of the State’s DNA evidence, but out of his own expert
subsequently conducting additional testing that reached a contrary conclusion,
which the State then adopted. In an apparent effort to strengthen the State’s
and Dr. Johnson’s original DNA results (which could not exclude Stites, Officer
Hall, and Officer Selmala), Reed points to testimony by Dr. Arthur Eisenberg.
Dr. Eisenberg opines that the beer can contained DNA from as many as four
individuals, one of whom probably was female. Although Stites, Fennell, and
Officer Selmala were excluded, Dr. Eisenberg could not exclude Officer Hall as
a contributor from the beer-can-DNA evidence. Importantly, Dr. Eisenberg’s
review of the beer-can-DNA evidence is completely divorced in time from
Reed’s trial. To prevail under Brady, Reed must show that the purported
suppression of the State’s DNA report at trial materially affected the trial’s
outcome, not that years later another DNA expert would opine that Officer
Hall could not be excluded from the DNA mixture. See Lawrence v. Lensing,
42 F.3d 255, 257 (5th Cir. 1994) (“Brady claims involve ‘the discovery, after
trial of information which had been known to the prosecution but unknown to
the defense.’” (citation omitted)).

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No. 13-70009
Reasonable jurists thus would not debate the district court’s procedural
ruling denying habeas relief on this Brady claim.
2. Martha Barnett’s testimony
Reed argues that the district court effectively abdicated its duty under
AEDPA to review his claim by failing to credit the testimony of Martha
Barnett. In her affidavit, Barnett attests to seeing Stites and a man she later
recognized as Fennell together in a loud confrontation between approximately
5:00 and 5:30 a.m. on the day of the murder. Barnett testified that the two
were gesturing “like there was some kind of conflict.” Reed contends that a
review of the relevant evidence shows that Barnett’s testimony should not have
been discounted. The State counters that Reed has not overcome the state
habeas court’s credibility determination.
Reed included his Brady claim relating to Barnett’s testimony in his
third state habeas petition. The CCA concluded that Reed’s claim satisfied the
requirements of Article 11.071 § 5(a), and remanded it to the state trial court
for a live evidentiary hearing. The state trial court entered findings of fact and
conclusions of law finding Barnett not credible for multiple reasons. These
included that Barnett failed to satisfactorily explain why she did not report her
sighting until over a year and a half after the murder; the disclosure occurred
shortly after Fennell arrested her for driving under the influence; and Barnett
claimed to have recognized Fennell from a newspaper article, despite the fact
that no newspaper carried such a photograph. The trial court also found
Barnett not credible because she changed the time she reported seeing Stites
and Fennell from between 5:00 to 5:30 a.m. in her affidavit to approximately
4:45 a.m. during the evidentiary hearing. Additionally, Barnett’s alleged
sighting did not comport with Stites’s usual schedule of reporting for work by
3:30 a.m., nor the fact that Stites evidently was on her way to work when she
was murdered. Fennell’s truck, which Stites drove to work, also was found at
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No. 13-70009
5:23 a.m., by which time Stites had already been killed. Lastly, Stites’s mother
woke Fennell at 6:45 a.m.
The CCA similarly found Barnett’s testimony unreliable. Although
finding parts of the trial court’s findings inconsistent with the record and
“somewhat misleading,” it concluded that they were “largely supported by the
record.” It determined that Reed had failed to show that the State was in
possession of the information regarding Barnett prior to or during trial.
Central to this determination was the chain of events by which Barnett first
informed her attorney, Steven Keng, about seeing Stites and Fennell, and by
which Keng then informed the Bastrop district attorney. After reviewing all
the evidence of who told what when, the CCA upheld the state trial court’s
credibility finding that Keng did not inform the Bastrop district attorney until
after Reed’s trial. Discussing whether Reed had met his burden of showing
actual innocence, the CCA also found the information provided by Barnett
“unreliable” and “not credible.”
The district court adopted the magistrate judge’s recommendation that
there was “nothing inconsistent with established federal law in the CCA’s
reasoning,” and that Reed also had not “succeeded in demonstrating by clear
and convincing evidence that any of the trial court’s or CCA’s findings of fact
were unreasonable in light of the record before them.”
The district court appropriately deferred to the state habeas court’s
credibility determination under 28 U.S.C. § 2254(e)(1). Reed attempts to
overcome § 2254(e)(1)’s presumption of correctness by again arguing that
Barnett disclosed her statements to Keng, who then passed them on to the
Bastrop district attorney. It was the Bastrop district attorney, Reed alleges,
who failed to disclose the statements to the defense team. According to Reed,
the Bastrop district attorney “had professional and financial motives to deny
his misconduct,” because “a prosecutor’s failure to disclose exculpatory
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No. 13-70009
evidence can lead to professional discipline or even criminal liability,” and “[a]t
the time of the habeas hearing, [the district attorney] had a pending lawsuit
against [a newspaper] for defamation arising from the paper’s coverage of the
Reed case.” Assuming Reed is correct and the State suppressed Barnett’s
statement, Reed still cannot show prejudice because the CCA’s determination
that Barnett was not a credible witness is supported by unrebutted evidence.
Reed points out that Fennell was not called by the state trial court to dispute
Barnett’s testimony, and that the only motive Barnett had for implicating
Fennell was his arrest of her for driving while intoxicated. But Reed’s
arguments implicate exactly the type of credibility determination we, as a
federal court, leave to the state court that was on-hand to observe the witnesses
at issue. The district court’s conclusion that the CCA’s decision was not based
on an unreasonable determination of the facts thus is not debatable, nor is its
determination that Reed has failed to present clear and convincing evidence
that the CCA’s credibility determination was erroneous.
3. Mary Blackwell’s testimony
Reed claims that the State suppressed a statement by Mary Blackwell.
Blackwell’s affidavit states that in 1995, during a police academy training
class, she overheard Fennell say to another attendee that if he ever discovered
Stites (his then-girlfriend) cheating on him he would strangle her. Blackwell
states that she then told Fennell that he would be caught because he would
leave fingerprints, to which Fennell responded that he would use a belt.
Blackwell also recalled Fennell yelling at Stites. The State responds that the
prosecution indisputably did not learn of Blackwell’s statement, if at all, until
after Reed’s trial, and thus Brady should not apply. Additionally, the State
points out that Reed’s defense team had as much access to the evidence as the
prosecution because one of Reed’s state habeas investigators was told about
Blackwell’s statement. Finally, the State asks that the panel defer to the
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CCA’s determination that Blackwell’s statement was unreliable and not
credible.
Reed included his claim that the State suppressed Blackwell’s statement
in his third state habeas petition. As with Reed’s Brady claim relating to
Barnett’s testimony, the CCA remanded this claim to the state trial court to
conduct a live evidentiary hearing. The state trial court found Blackwell not
credible. The trial court based its determination on the fact that other
testimony showed Fennell was emotionally upset after Stites’s death; the
attendee to whom Fennell allegedly made the remarks had no recollection of
them, and no other attendee heard the alleged statements; Blackwell failed to
report information relevant to the homicide investigation despite being a peace
officer; Blackwell originally described Fennell as joking; and Blackwell claimed
to be entirely unaware of the circumstances of Stites’s death despite attending
Stites’s funeral, living in the area, and knowing Fennell. The CCA adopted the
trial court’s findings. It specifically held that “although we question whether
Fennell’s statement to Blackwell falls within Brady’s ambit because it was not
alleged to have been disclosed until after Reed’s trial and therefore may be
more properly characterized as newly discovered evidence, we will
nevertheless defer to the trial judge’s credibility determinations and
factfindings because our independent review of the record establishes that they
are supported by the record.” (footnote omitted).
The magistrate judge determined that “the Texas courts’ conclusions on
this claim are consistent with established federal law, and are based on a
reasonable determination of the facts in light of the record,” and accordingly
recommended that the district court defer to those findings. The district court
held that there was insufficient evidence “to rebut the presumption of
correctness of the state court’s credibility determination,” and denied habeas
relief.
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“As a federal habeas court, ‘we must defer to the factual findings in the
state court proceedings’ and ‘respect the ability of the fact-finder to evaluate
the credibility of the witnesses.’” Jackson v. Miss. Dep’t of Corr., 359 F. App’x
499, 502 (5th Cir. 2010) (citation omitted). Reed fails to offer any reason why
the state court’s credibility determination as to Blackwell is erroneous.
Instead, Reed argues that the district court failed to consider “the State’s
pattern of suppressing exculpatory evidence” and that the assistant district
attorney who allegedly learned of Blackwell’s statements had a motive “to deny
misconduct and thereby avoid professional or even criminal liability.” As with
Barnett’s testimony, Reed’s argument does not strike at the CCA’s underlying
credibility determination, to which the district court correctly deferred.
Reasonable jurists thus would not find the district court’s assessment of Reed’s
Brady claim as it relates to Blackwell’s testimony debatable or wrong.
4. Brenda and Jennifer Praters’ statements
Reed argues that the State suppressed the written statements of Brenda
and Jennifer Prater. The statements separately describe the Praters seeing
Stites the day of the murder. Jennifer stated that she saw two people inside a
car behind her house early that morning. She described the person in the
driver’s seat as “dark complected, but not black” (possibly of “middle eastern
descent”), and the person in the passenger seat as a “pale complected” woman
with “big hair.” Jennifer asserts she was able to get a good look at the
individuals because the car’s interior light was on. She was certain that Reed
was not the man in the car. She subsequently recognized the woman as Stites,
after seeing Stites’s picture in a newspaper. When confronted by police,
however, Jennifer lied and told police she “didn’t know anything about” seeing
a car the day of the murder.
Brenda stated that early on April 23, 1996, she saw a car go past her
house twice. She saw three individuals in the car, the interior lights of which
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were on—a driver of darker complexion, but not black (possibly “Mexican”); a
woman in the passenger seat with light complexion and “big dark hair”; and a
white male in the back seat. Like Jennifer, Brenda claims later to have
recognized the woman in the passenger seat as Stites from a newspaper article.
When police came to speak with her, Brenda related what she saw.
The State argues that Reed’s Brady claim is procedurally defaulted. It
further points out that there was no evidence, other than the Praters’
statements, that any police officers actually talked with Brenda and Jennifer
Prater. The only notes in the State’s possession that possibly related to the
statements referred to a “Mary Fisher,” and were available to Reed. Finally,
the State asserts that even if the statements are taken at face value, they are
not material under Brady.
Reed’s Brady claim relating to Brenda and Jennifer Prater was included
in his third state habeas petition. The CCA dismissed the claim as an abuse
of the writ. The CCA subsequently discussed the Praters’ statements in the
context of its actual innocence discussion. The CCA questioned the Praters’
credibility because they did not come forward with their information until
September 2002. Jennifer’s credibility was suspect because her husband failed
to corroborate her account. The CCA further observed that the Praters’
statements had “no continuity with any of the other new evidence offered by
Reed and [did] not fit within the chronicle of events that the trial evidence
support[ed].” Finding that Reed had failed to establish his actual innocence,
the CCA refused to consider the merits of Reed’s Brady claim as to the Praters’
statements.
The district court concluded that the CCA’s credibility determination
“was unreasonable in light of other record evidence,” because Brenda reported
her sighting to the police and because there was no basis for requiring an
additional affidavit from Jennifer’s husband to find her account credible.
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Having determined that Reed established cause, the district court assumed
actual prejudice to excuse the default. But it proceeded to find that Reed’s
Brady claim failed on the merits. The court reasoned that “[t]here is nothing
linking the eyewitness testimony by the Praters to Fennell, and the inferences
Reed urges the court to draw from the Praters’ statements are far too
speculative to have a meaningful impact on a reasonable juror’s assessment of
the evidence.”
We find that the district court’s ultimate conclusion to deny habeas relief
as to Reed’s Brady claim is not debatable. Although the district court found
that Reed could show cause to excuse procedural default, and assumed
resulting prejudice, it appears to us that Reed cannot meet this burden.
Considering Jennifer’s statement first, Reed has failed to show cause. The
CCA found her credibility suspect because she did not come forward with the
information until several years after Stites’s murder. This is sufficient
evidence on which to defer to the CCA’s credibility determination under 28
U.S.C. § 2254(e)(1). Jennifer did not approach authorities with the information
she held. She also admitted lying to the police because she “knew that being a
witness in a criminal investigation would be a hassle.” Reed has not disputed
these facts. We thus defer to the CCA’s credibility determination as to Jennifer
and conclude that there was no cause to excuse default because the State did
not suppress the statement. We also find that Reed had failed to show
prejudice as to the alleged suppression of Jennifer’s statement for the same
reason we find no prejudice resulting from the purported suppression of
Brenda’s statement.
As to Brenda’s statement, we agree with the district court that Reed has
shown cause for excusing default because Brenda testified to having spoken
with police authorities two days after the incident. Reed has not, however,
shown actual prejudice, rendering the district court’s final disposition of the
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claim non-debatable. Although Brenda states that she saw Stites with two
other men, Reed provides no explanation for who these individuals were.
Instead, Reed asserts that the Praters’ accounts “fit” with Barnett’s testimony
because they “likely observed Stites earlier than Barnett did.” As he puts it,
“[i]f Stites was with other men just prior to her murder, that comports with the
Fennell-Stites confrontation witnessed by Barnett and provides motive for
Fennell to strangle Stites.” Reed’s argument fails partly because we defer to
the CCA’s finding that Barnett’s testimony is not credible. Additionally,
Brenda’s statement is not exculpatory. To the extent there was enough time
for an individual to sexually assault Stites after she was seen by the Praters,
a reasonable juror could just as easily believe that Reed, and not Fennell,
committed the deed. The district court’s conclusion that “[i]n light of the other
evidence inculpatory of Reed and the lack of credible evidence that Reed had
consensual sex with Stites before her death, the Praters’ statements . . . do not
undermine confidence in the verdict” is not debatable.
5. Pamela Duncan’s affidavit
Reed contends that Fennell’s former girlfriend, Pamela Duncan,
reported Fennell’s abusive behavior to authorities. According to Duncan’s
affidavit, Fennell was “extremely possessive and jealous,” an abusive partner,
and hostile toward African-Americans. Reed asserts a Brady violation on the
basis of the State’s suppression of Duncan’s statement. The State argues that
this claim is procedurally defaulted.
Reed presented his suppression-of-evidence claim concerning Duncan in
his fourth state habeas petition. The CCA dismissed the claim as an abuse of
the writ, but also considered the substance of Duncan’s affidavit as part of its
Schlup analysis. The CCA concluded that this evidence did not undermine the
jury’s verdict. The district court accepted the magistrate judge’s
recommendation that this claim be found procedurally defaulted.
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The district court’s treatment of this Brady claim is not debatable. Reed
does not discuss how Duncan’s affidavit would have been material at trial, and
thus he does not show prejudice to excuse the default. Likewise, there are
substantial questions as to whether Duncan’s account actually was
suppressed. The affidavit does not make clear which authorities she
approached concerning Fennell’s behavior, and there is no other record of her
doing so. It thus appears that Duncan’s statements would have been as
accessible to Reed as they were to the prosecution. See Kutzner v. Cockrell, 303
F.3d 333, 336 (5th Cir. 2002) (“Brady does not obligate the State to furnish a
defendant with exculpatory evidence that is fully available to the defendant
through the exercise of reasonable diligence.”). As we have already concluded
that Reed cannot show actual innocence under Schlup, Reed’s failure to
establish cause for defaulting this claim and resulting prejudice renders the
district court’s denial of habeas relief as to this Brady claim not debatable.
6. Lawsuits against Fennell and the Giddings Police Department
Reed complains that the State suppressed evidence of two lawsuits filed
against Fennell and the Giddings Police Department, which alleged violence
and lawlessness, including against minorities. The State contends that
information relating to the suits was contained in public documents accessible
to Reed.
Reed included this Brady claim in his third state habeas petition. The
CCA dismissed it as an abuse of the writ. The district court found the claim
procedurally defaulted.
We find the district court’s procedural ruling is not debatable. We agree
with the State that the fact that lawsuits had been filed against Fennell and
the Giddings Police Department was public information Reed could have
discovered through reasonable diligence. See id. Additionally, Reed spends no

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time discussing the substance of his claim, and thus he has not shown that he
suffered prejudice as a result of it being held procedurally barred.
7. Fennell’s letter to the Giddings city manager
The record contains a letter Fennell wrote to the Giddings city manager
in which he states that “[Officer] Hall made several comments during the
murder investigation of my fiancé[e]. I have learned to forgive and forget.”
Reed characterizes this statement as inculpating Fennell in Stites’s murder
because Fennell also described Officer Hall as being someone who would “burn
anyone” to get a position. Reed states that the State suppressed Fennell’s
letter. The State responds that the claim is procedurally defaulted, Reed has
not proven the substance of Officer Hall’s comments, and the letter was not
written until after trial.
Reed’s Brady claim as it relates to Fennell’s letter appeared in his fifth
state habeas petition. The CCA dismissed the claim as an abuse of the writ.
The district court accordingly found the claim procedurally defaulted.
Other than his assertion of actual innocence, Reed presents no reasons
why the district court should have considered his procedurally defaulted Brady
claim on the merits. In any event, a brief review of the letter confirms that
Reed’s theory is wholly speculative, precluding habeas relief under Brady. See
Moore, 534 F.3d at 462–63 (“highly speculative theory” insufficient to satisfy
Brady’s materiality requirement). There is no cause to debate the district
court’s procedural dismissal of this claim.
8. Corruption in the Bastrop Sheriff’s Department
Reed argues that “[t]he State’s failure to disclose the known corruption
within the Bastrop County Sheriff Department deprived Reed of powerful
evidence impeaching the credibility of the investigation.” The corruption Reed
refers to is the indictment of a former Bastrop county sheriff for several
offenses regarding the improper sale of county property and the wrongful use
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of inmate labor for personal benefit. The State dismisses Reed’s Brady claim
as entirely failing to demonstrate how the former sheriff’s offenses were
favorable to Reed’s defense, how this evidence was suppressed, or why it was
material.
Reed included his claim that the State suppressed evidence of criminal
misconduct by the former Bastrop county sheriff in his fifth state habeas
petition. The CCA dismissed the claim as an abuse of the writ. The district
court found the claim procedurally defaulted, and further found that even if
Reed were able to establish cause and prejudice to overcome the state
procedural default, his claim would fail on the merits.
Reed’s discussion of this Brady claim is limited to asserting that the
State’s failure to disclose the information deprived him of powerful evidence to
impeach the credibility of the investigation. As the State observes, however,
Reed has not shown that this information could have been used to impeach
anyone who actually participated in the investigation. We thus conclude that
the district court’s procedural ruling is not debatable.
F. Eighth and Fourteenth Amendment violations
Reed alleges that his rights under the Eighth and Fourteenth
Amendment were violated when the jury was allowed to consider extraneous
criminal allegations relating to a sexual assault committed in 1987, of which
he was acquitted. In Reed’s view, the State was allowed during the penalty
phase of trial to effectively retry the 1987 case and make closing remarks
“designed to inflame and elicit fears in the jury.” The State counters that
Reed’s argument is unsupported by any Supreme Court precedent, and would
run against our own circuit precedent.
Reed raised this claim on direct appeal and in his first state habeas
petition. It was denied on the merits in both proceedings. The district court
adopted the magistrate judge’s recommendation that Reed’s constitutional
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claim be denied based on Supreme Court and circuit precedent. We likewise
deny a COA as to this claim.
In Harris v. Cockrell, 313 F.3d 238, 245–46 (5th Cir. 2002), this court
addressed the question of whether a defendant’s right to fair sentencing is
compromised “by the introduction of evidence concerning a crime for which he
had been indicted but acquitted.” The Harris court expressly found that “[t]he
introduction of evidence of extraneous offenses of which the defendant has been
acquitted is consistent with due process,” because “[a]lthough due process
requires the application of collateral estoppel, that doctrine does not preclude
[the State] from relitigating an issue when it is presented in a subsequent
action governed by a lower standard of proof.” Id. at 246 (quoting Dowling v.
United States, 493 U.S. 342, 349 (1990)) (internal quotation marks omitted).
The Harris court further reasoned that, “[b]ecause ‘extraneous offenses offered
at the punishment phase of a capital trial need not be proven beyond a
reasonable doubt,’ the relevant standard of proof necessarily was lower than
that at [the defendant’s] criminal trial.” Id. (citation omitted). “Collateral
estoppel therefore did not preclude the introduction of evidence pertaining to
these charges . . . .” Id.
Harris is dispositive of Reed’s claim, and we conclude that the district
court’s decision to deny habeas relief on this claim is not debatable.
IV. Conclusion
For the reasons discussed, we DENY a COA as to all of Reed’s claims.

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