Bruce v. Cockrell

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 4, 2003
_____________________
Charles R. Fulbruge III
No. 02-40795 Clerk
_____________________

KENNETH EUGENE BRUCE,

Petitioner - Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent - Appellee.
_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Texas
USDC No.: 1:00-CV-286
_________________________________________________________________

Before JOLLY, BARKSDALE, and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:1

Kenneth Eugene Bruce was convicted of capital murder in the

state courts of Texas and sentenced to death. Based on a

certificate of appealability (“COA”) granted by the district court,

he appeals that court’s denial of federal habeas relief and, in

addition, requests a COA from this court for two more issues. We

AFFIRM the district court’s judgment and DENY Bruce’s COA request.

I

The State presented evidence that Bruce and three of his

cousins robbed and shot Mr. and Mrs. Ayers, killing Mrs. Ayers and

1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
seriously injuring Mr. Ayers. The jury convicted Bruce of capital

murder and the judge sentenced him to death based on the jury’s

answers to the special punishment issues. The Texas Court of

Criminal Appeals affirmed his conviction and sentence on direct

appeal, and the Supreme Court denied certiorari. Bruce v. State,

No. 71,466 (Tex. Crim. App. Feb. 8, 1995) (unpublished), cert.

denied, 516 U.S. 991 (1995).

Bruce filed an application for state habeas relief in which he

claimed that his trial counsel rendered ineffective assistance by

failing to investigate and present mitigating evidence at the

punishment phase of trial. The Texas Court of Criminal Appeals

denied relief based on the trial court’s findings of fact and

conclusions of law. Ex parte Bruce, No. 43,165-01 (Tex. Crim. App.

Oct. 27, 1999) (unpublished).

Bruce filed a petition for federal habeas relief in November

2000. He claimed that his trial counsel rendered ineffective

assistance at the punishment phase by failing to discover and

present mitigating evidence of child abuse and neglect, and by

failing to present statistical evidence and expert testimony to

rebut the State’s evidence of future dangerousness.

The State moved for summary judgment. It argued that Bruce’s

claim that counsel was ineffective by failing to present evidence

to rebut the State’s evidence of future dangerousness was

unexhausted. Furthermore, the claim was procedurally barred

2
because it would be dismissed as an abuse of the writ if presented

in a second state habeas application. With respect to Bruce’s

other ineffective assistance claim (failing to discover and present

evidence of child abuse and neglect), the State argued that it was

reasonable trial strategy for trial counsel to present evidence of

rehabilitative potential rather than a questionable history of

abuse.

In his response to the State’s motion for summary judgment,

Bruce asserted ineffective assistance of state habeas counsel and

inadequate funding by the Texas Court of Criminal Appeals as cause

for the procedural default. Although Bruce acknowledged that his

state habeas counsel did not request additional funds with which to

retain an expert, he explained that counsel knew that such a

request would have been futile. Bruce attached to his response an

affidavit that had been filed in another inmate’s case as an

example of the type of evidence that could have been produced. He

also claimed, for the first time, that the appointment of

incompetent state habeas counsel violated his right to due process.

The district court denied habeas relief. It granted a COA for

the following issues: (1) whether Bruce has shown cause and

prejudice, because of state habeas counsel’s perceived funding

limitations, for procedurally defaulting this ineffective counsel

claim; and (2) whether it erred by applying the “reasonableness”

standard of review of state court determinations of ineffective

3
assistance of counsel claims set forth in Neal v. Puckett, 286 F.3d

230 (5th Cir. 2002) (en banc), cert. denied, 123 S.Ct. 963 (2003),

which considers only the result reached by the state court, and not

the state court’s reasoning.2 Bruce has filed a brief addressing

those two issues. In addition, he requests from this court a COA

for the following claims: (1) whether his claim based on Penry v.

Johnson, 532 U.S. 782 (2001) (“Penry II”) is procedurally

defaulted; and (2) whether he received ineffective assistance of

state habeas counsel.

II

We address first the claims for which the district court

granted a COA.

A

1

“In a habeas corpus appeal, we review the district court’s

findings of fact for clear error and review its conclusions of law

de novo, applying the same standard of review to the state court’s

decision as the district court.” Thompson v. Cain, 161 F.3d 802,

805 (5th Cir. 1998). Because Bruce filed his federal habeas

petition after the effective date of the Antiterrorism and

2
The district court also granted a COA on the issue of whether
it should have dismissed Bruce’s federal habeas petition so that
Bruce could return to state court to exhaust his ineffective
assistance of counsel claims. Bruce states that he is not
advancing that position on appeal.

4
Effective Death Penalty Act of 1996 (“AEDPA”), the district court’s

federal habeas review was governed by AEDPA.

Under AEDPA, habeas relief is not available to a state

prisoner

with respect to any claim that was adjudicated
on the merits in State court proceedings
unless the adjudication of the claim--

(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
States; or

(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.

28 U.S.C. § 2254(d). A state court decision is “contrary to ...

clearly established Federal law, as determined by the Supreme

Court” if: (1) “the state court applies a rule that contradicts

the governing law set forth in [the Supreme Court’s] cases,” or (2)

“the state court confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme] Court and

nevertheless arrives at a result different from [Supreme Court]

precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A

state court decision is “an unreasonable application of clearly

established” Supreme Court precedent if the state court “correctly

identifies the governing legal rule but applies it unreasonably to

the facts of a particular prisoner’s case.” Id. at 407-08. The

inquiry into unreasonableness is objective. Id. at 409-10. A

5
state court’s incorrect application of clearly established Supreme

Court precedent is not enough to warrant federal habeas relief; in

addition, such an application must also be unreasonable. Id. at

410-12.

The state court’s factual findings are presumed to be correct,

and the habeas petitioner has the burden of rebutting that

presumption by clear and convincing evidence. 28 U.S.C. §

2254(e)(1). Thus, to obtain habeas relief on the § 2254(d)(2)

ground that the state court’s decision was based on an

“unreasonable determination of the facts in light of the evidence

presented in the State court proceeding,” the petitioner must rebut

by clear and convincing evidence the § 2254(e)(1) presumption that

the state court’s factual findings are correct. See Dowthitt v.

Johnson, 230 F.3d 733, 741 (5th Cir. 2000).

2

Both of the claims for which the district court granted a COA

involve allegations of ineffective assistance of counsel. The

standard governing claims of ineffective assistance of counsel

established in Strickland v. Washington, 466 U.S. 668 (1984)

“qualifies as ‘clearly established Federal law, as determined by

the Supreme Court of the United States’” for the purpose of federal

habeas review under 28 U.S.C. § 2254(d). Williams, 529 U.S. at

391. Accordingly, Bruce is entitled to relief if the state court’s

adjudication of his ineffective assistance claims was either

6
contrary to or involved an unreasonable application of Strickland,

or if the state court’s decision is based on an unreasonable

determination of the facts in the light of the evidence before the

court. In Strickland, the Court held that a defendant must make

two showings to establish a violation of the Sixth Amendment right

to the effective assistance of counsel:

First, the defendant must show that counsel’s
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
“counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.

Strickland, 466 U.S. at 687. “[B]oth the performance and prejudice

components of the ineffectiveness inquiry are mixed questions of

law and fact.” Id. at 698. We now turn to discuss the specific

claims of ineffective counsel.

B

1

Bruce claimed, for the first time in his federal habeas

petition, that his trial counsel, at the punishment phase of the

trial, rendered ineffective assistance by failing to present

evidence to rebut the State’s evidence on the issue of future

dangerousness. On this issue, Bruce’s counsel presented the

testimony of Dr. Randall Price that Bruce would not constitute a

7
future danger to society if given a life sentence. On cross-

examination, the State sought to impeach Dr. Price’s opinion by

eliciting evidence of Bruce’s lack of remorse, his youthful age,

and his refusal to accept responsibility for the murder. Bruce

argues that his trial counsel rendered ineffective assistance by

failing to present rebuttal evidence, including statistical

evidence and expert testimony, to bolster Dr. Price’s opinion that

Bruce did not pose a threat of future dangerousness. In the

district court, Bruce submitted the affidavit of Dr. Mark

Cunningham, assessing the future dangerousness of another death row

inmate, as an “example” of the type of statistical evidence that

his trial counsel should have presented. In that affidavit, Dr.

Cunningham notes the inherent unreliability of expert evaluations

about whether an individual is likely to commit future acts of

violence.

Bruce further argues that the state court’s refusal to provide

adequate financial resources in state habeas proceedings

constitutes cause that excuses his failure to develop this claim.

According to an affidavit submitted by Bruce’s state habeas

counsel, the Court of Criminal Appeals approved between $15,000 and

$20,000 per case for attorneys’ fees and fees of investigators and

experts. Although Bruce’s counsel did not request additional

funds, he stated in his affidavit that it was clear that no more

funds would be provided by the Court of Criminal Appeals, so it

8
would have been futile for him to have requested additional funds.

Bruce asserts that he was prejudiced by the state courts’

predetermined funding limits, because they prevented him from

presenting the kind of data outlined in Dr. Cunningham’s affidavit.

The district court held that this claim was procedurally

defaulted, because Bruce had not raised it in the state courts.

The district court granted a COA, however, for the question whether

Bruce had shown cause and prejudice, because of state habeas

counsel’s perceived funding limitations.

2

Federal habeas relief is not available for a procedurally

defaulted claim unless the petitioner establishes cause for the

default and actual prejudice.3 Id. at 750. “[T]he existence of

cause for a procedural default must ordinarily turn on whether the

prisoner can show that some objective factor external to the

defense impeded counsel’s efforts to comply with the State’s

procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).

“Objective factors that constitute cause include interference by

officials that makes compliance with the State’s procedural rule

impracticable, and a showing that the factual or legal basis for a

claim was not reasonably available to counsel.” McCleskey v. Zant,

3
A federal habeas petitioner who cannot establish cause and
prejudice may nevertheless obtain habeas relief if he can show that
the application of the procedural bar would constitute a
miscarriage of justice -- that he is actually innocent of the
crime. Bruce does not rely on the actual innocence exception.

9
499 U.S. 467, 494 (1991) (internal quotation marks and citation

omitted).

It is well-settled that infirmities in state habeas

proceedings do not constitute cause to excuse a procedural default.

See Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir. 2001)

(ineffective state process and ineffective state habeas counsel did

not excuse petitioner from exhausting claims in state court); see

also Bolder v. Armontrout, 983 F.2d 98, 99 (8th Cir. 1992) (leave

to file successive habeas petition denied where ineffective

assistance of state habeas counsel and inadequate funding of state

habeas counsel’s public defender office were asserted as cause to

excuse procedural bar). Accordingly, the district court correctly

held that this claim is procedurally defaulted, and that the lack

of adequate resources in state habeas proceedings does not excuse

state habeas counsel’s failure to present the claim.

C

1

We now turn to consider the second claim on which the district

court granted a COA. Bruce argues that his trial counsel rendered

ineffective assistance by failing to investigate and present

evidence of parental abuse and neglect. With respect to this

claim, the district court granted a COA on the issue of whether, in

reviewing the state court decision denying the claim, it erred when

it applied the reasonableness standard of review set forth in Neal

10
v. Puckett, 286 F.3d 230 (5th Cir. 2002) (en banc). Under Neal, a

federal habeas court focuses on the ultimate legal conclusion

reached by the state court, and not on the state court’s underlying

reasoning. See id. at 246 (court’s “focus on the ‘unreasonable

application’ test under Section 2254(d) should be on the ultimate

legal conclusion that the state court reached and not on whether

the state court considered and discussed every angle of the

evidence”).

As we have noted, at the punishment phase, Bruce presented the

testimony of Dr. Randall Price, a clinical forensic psychologist.

Dr. Price testified that he interviewed Bruce for about one and

one-half hours; that although Bruce came from a “lower middle

class” background, it was “not impoverished”; that Bruce’s IQ was

above average; that Bruce had the educational abilities of a high

school senior; and that Bruce had the best potential for

rehabilitation that he had ever seen, “given the proper

motivation.” It was his opinion, based on Bruce’s potential for

rehabilitation, Bruce’s higher than average intelligence, and

Bruce’s lack of criminal history, that Bruce did not constitute a

threat of future dangerousness.

Other witnesses for Bruce at the punishment phase included his

grandmother, who raised him, and various teachers and school

principals. They testified as to his capacity to be rehabilitated,

11
his personality as a follower, his lack of violent tendencies, and

his good work habits in school and sports activities.

In the state habeas proceeding, Bruce argued that his trial

counsel rendered deficient performance because he did not locate or

call Bruce’s mother or father to testify at the punishment phase,

leaving the jury with the impression that his parents were

indifferent, and allowing the prosecution to argue that he lacked

family support and stability. He argued that counsel should have

investigated the fact that his mother, with whom he had lived for

several years as a young child, was a chronic alcoholic who

sometimes abused him while she was intoxicated. Furthermore, his

counsel should have presented evidence that Bruce was the father of

a baby girl. Bruce, however, did not present any affidavits from

any witnesses that indicated the substance of their testimony or

whether they would have been available to testify at the punishment

phase of his trial. In support of this claim, he submitted only

his own affidavit stating that he was abused by his mother.

The state habeas trial judge, who also presided over Bruce’s

criminal trial, ordered Bruce’s criminal trial counsel to submit an

affidavit addressing:

Applicant’s contention 1) that applicant was
accorded ineffective assistance of counsel,
and 2) more specifically, a) that trial
counsel failed to advise applicant to accept
the plea offer of a life sentence, b) that
trial counsel misinformed applicant regarding
his parole eligibility if he did accept the
plea offer, and c) that trial counsel

12
 incompetently advised applicant to change his
story and testify at the trial, contrary to
his previous confession.

The affidavit submitted by trial counsel addressed the subjects

identified in the trial court’s order. These subjects, however,

pertained only to the guilt-innocence phase of trial, and did not

address the allegations of ineffective assistance at the punishment

phase.

The state habeas trial court nevertheless made the following

factual findings: Trial counsel investigated the case and offered

mitigating evidence at the punishment phase; it was reasonable

trial strategy to call Bruce’s grandmother who raised him, instead

of his mother and father who had abandoned him, and to not offer

evidence that Bruce had a three-month-old daughter by his

girlfriend. The state habeas trial court concluded that Bruce had

failed to show that his trial counsel failed to investigate or

offer mitigating evidence; that, based on the amount and variety of

mitigating evidence offered at the punishment phase, trial counsel

did investigate; and that trial counsel’s section of what evidence

to offer at the punishment phase was reasonable. The court

concluded that Bruce had failed to show deficient performance or

prejudice under Strickland.

2

In his federal habeas proceeding, Bruce submitted the

affidavit of an investigator hired by his federal habeas counsel.

13
This affidavit was not presented in the state habeas proceeding.

The affidavit is unsigned and undated. Moreover, the claims are

unexhausted. Nevertheless, the investigator states in the

affidavit that she has spoken with Bruce’s mother, father, a

cousin, a friend, and an aunt. According to the affidavit, Bruce’s

mother told the investigator that she was 14 years old when she

gave birth to Bruce; she did not eat much when she was pregnant

with him; and she was “wild” when Bruce was young (drinking,

smoking, running around, and having fun); and she moved constantly,

so she sent Bruce to live in Dallas. The affidavit relates the

following statements attributed to Bruce’s father: Bruce did not

have a stable home; he did not have much contact with Bruce;

Bruce’s mother was “a drinker” and “was never there for” Bruce;

Bruce did not have a father figure in his life; and he “had heard”

that a man who was staying with Bruce’s mother had abused Bruce.

According to the affidavit, Bruce’s maternal aunt told the

investigator that she raised Bruce until he was twelve years old

because Bruce’s mother never had a steady place to live, had no

job, and was always drunk; Bruce went to live with his mother when

he was twelve years old; when a sister went to check on Bruce, she

saw him being fed dog food; and when she went to get Bruce from his

mother, the house they were living in had no furniture and it was

freezing. Bruce did not submit any affidavits from the witnesses

14
that he asserts counsel should have called to testify at the

punishment phase.

The district court held that Bruce had not rebutted the

presumption that his counsel made an objectively reasonable

strategic decision to stress the positive side of his background in

order to bolster his expert’s opinion that Bruce was a good

candidate for rehabilitation and not a future danger to society:

... Bruce testified that his participation in
the robbery/murder was solely as a result of
duress. A strategy of showing that everything
in Bruce’s background suggested that he was
not the type of person who would commit such a
crime absent duress would have been consistent
with his testimony, and so does not appear
objectively unreasonable. Of course, when the
jury did not believe Bruce’s duress testimony
at the guilt innocence phase of his trial,
counsel should have realized that the
persuasiveness of this evidence as mitigation
would not be very great. It appears that, in
light of the jury’s guilt finding, counsel
portrayed Bruce at sentencing as a basically
good kid who -- rather than forced at gunpoint
to participate -- engaged in criminal behavior
as a result of peer pressure. Counsel argued
that because of Bruce’s good background, he
was more capable of being rehabilitated and
less likely to pose a danger to society.
Bruce’s failure to take responsibility for his
crime somewhat weakened this defense, but the
jury could have credited this theory in spite
of Bruce’s testimony. Further, the defense of
bad peer pressure was -- at a superficial
level, at least -- sufficiently similar to
Bruce’s duress testimony that it could seem
consistent with his trial testimony. On
review, counsel’s strategy, far from appearing
objectively unreasonable, appears both subtle
and clever.

15
 While on hindsight a more conventional
strategy of stressing the weaknesses of
Bruce’s upbringing might have been a better
strategy, the test is not whether counsel
employed the best strategy, it is whether the
strategy employed was objectively
unreasonable. The Court finds that Bruce has
not rebutted the presumption that his
counsel’s strategic decision to stress the
positive side of his background in order to
bolster his expert’s opinion that Bruce was a
good candidate for rehabilitation and not a
future danger to society was reasonable.

Bruce v. Cockrell, No. 1:00cv286, at p. 17 (E.D. Tex. Apr. 25,

2002).

The district court stated in its order granting COA that it

had analyzed this issue in the way directed in Neal, that is,

focusing on the state court’s ultimate decision and not its

underlying reasoning, and it granted a COA for the issue of whether

it erred by applying the Neal standard.

3

(a)

Bruce argues that although the state court may have made the

findings suggested by the district court’s opinion, there was

simply no evidence to support such state court findings.

Consequently, the state habeas court’s decision 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)(2),

and no deference was owed the state court. Bruce argues that he

has met his burden of rebutting the state court findings by clear

16
and convincing evidence, as required by 28 U.S.C. § 2254(e)(1), and

that the district court thus erred by assuming that trial counsel’s

course of action was a strategy. He contends further that the

state court decision is unworthy of deference because the state

court failed to consider the “global” impact of the newly

discovered evidence of abuse and neglect. Although Bruce

acknowledges that we are bound by the en banc decision in Neal v.

Puckett, he contends that it was decided incorrectly, and that the

district court erred by applying it. Finally, he asserts that we

should remand the case to the district court for an evidentiary

hearing.

The State asserts that the district court neither deferred to

the state court’s factual findings, nor considered whether the

state court’s application of Strickland was objectively

unreasonable. Instead, according to the State, the district court

conducted its own independent review of counsel’s performance and

concluded that counsel’s performance was not objectively

unreasonable under Strickland’s deficient performance prong.

(b)

(1)

In its memorandum opinion, the relevant portions of which are

quoted above, the district court did not address whether the state

court’s application of Strickland was objectively unreasonable.4

4
Although the district court does not appear to have applied
AEDPA’s “unreasonable application” standard in adjudicating this

17
Instead, as the State notes, it conducted its own independent

analysis and held that counsel’s performance was not deficient

under Strickland. As Bruce notes, however, the district court

deferred to the state court’s factual findings that counsel

conducted an investigation and made a strategic decision as to what

evidence to present in the punishment phase.

Bruce argues that the state court’s findings that counsel

conducted an investigation and made a strategic decision not to

present evidence of abuse and neglect are not supported by the

evidence presented in the state habeas proceedings. He points out

that trial counsel’s affidavit did not address the allegations of

deficient performance at the punishment phase. The only evidence

he offered was his own affidavit in which he claims that his mother

abused him. As we have noted, in the federal habeas proceeding,

Bruce presented an unsigned statement of an investigator, but no

affidavits from any of the potential witnesses of what they might

have said at the punishment phase if counsel had called them to

testify.

It is not necessary in this case for us to decide whether the

state court’s determination of the facts is unreasonable or whether

it unreasonably applied Strickland to those facts in concluding

that counsel did not render deficient performance. Even if we

claim, instead conducting its own independent analysis under
Strickland, any error by the district court in that respect was
harmless. See Beazley v. Johnson, 242 F.3d at 256-57.

18
assume (1) that Bruce has met his burden of rebutting the

presumption that the state court’s factual findings are correct,

(2) that the state court unreasonably applied Strickland in

concluding that counsel did not render deficient performance, and

(3) that a competent investigation by counsel would have resulted

in the presentation of the testimony of abuse and neglect described

in Bruce’s affidavit and the affidavit of the investigator, Bruce

is not entitled to relief on his ineffective assistance claim

because the state court did not unreasonably apply Strickland in

concluding that he was not prejudiced by the assumed deficient

performance.

Prejudice exists only if there is a reasonable probability

that the result of the sentencing phase would have been different

if the jury had heard the evidence that Bruce claims counsel should

have presented. See Neal v. Puckett, 286 F.3d at 241 (in

determining prejudice, court compares the evidence actually

presented at sentencing with all the mitigating evidence contained

in the postconviction record and determines whether the additional

mitigating evidence is so compelling that there is a reasonable

probability that at least one juror reasonably could have

determined that death was not an appropriate sentence); Ransom v.

Johnson, 126 F.3d 716, 723 (5th Cir. 1997) (to establish prejudice,

habeas petitioner must show “evidence of sufficient quality and

force to raise a reasonable probability that, had it been presented

19
to the jury, a life sentence would have resulted.”) (internal

quotation marks and citation omitted). When considering whether

the state court unreasonably applied Strickland in concluding that

Bruce was not prejudiced, we must “reweigh the evidence in

aggravation against the totality of available mitigating evidence.”

Wiggins v. Smith, 123 S. Ct. 2527, 2542 (2003).

As we have stated, the only evidence of abuse and neglect that

Bruce presented in the state habeas proceeding is his own

affidavit, in which he stated:

From time to time when I was a young boy,
I did live with my mother, although I was
raised from the age of about eight or nine by
my grandmother, Dorothy Simms. When I did
live with my mother, she would frequently get
drunk. When she did, she was sometimes
abusive towards me. She would yell and scream
at me, call me rude names and sometimes hit
me. Also, she would sometimes get into
violent and abusive arguments with whichever
of her boyfriends might be there and I
witnessed a number of these fights.

To be sure, Bruce did not state in his affidavit that he would have

testified about his mother’s abuse at the punishment phase of

trial, which is a requisite generally necessary for a showing of

prejudice.

The only other evidence of abuse and neglect that Bruce

presented is the unsigned, undated affidavit of federal habeas

counsel’s investigator, relating statements allegedly made to her

by Bruce’s mother, father, aunt, cousin, and friend. Although that

affidavit was not submitted in the state habeas proceedings, but

20
was presented for the first time in the district court, we will

consider it for the purposes of this prejudice analysis. We first

observe, however, that Bruce did not submit any affidavits by the

uncalled witnesses themselves, or offer any evidence that they

would have been willing to testify at the punishment phase of his

trial. See Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002)

(unsupported claims regarding the testimony of uncalled witnesses

“are not favored in federal habeas corpus review because

allegations of what the witness would have testified are largely

speculative”); Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir.

1985) (to demonstrate prejudice, habeas petitioner must show not

only that testimony of uncalled witnesses would have been

favorable, “but also that the witness would have testified at

trial”). We now turn to consider and compare the aggravating and

mitigating evidence.

(2)

At the punishment phase, the State presented evidence of the

random selection of the victims, evidence that Bruce and the others

had attempted to commit other offenses on the same night, evidence

that the offense was committed for monetary gain, evidence of

Bruce’s lack of remorse and his failure to take responsibility for

the offense, and evidence that Bruce possessed a razor blade while

in jail awaiting trial. In the light of this aggravating evidence,

including the brutal, cruel and senseless nature of the murder of

21
Mrs. Ayers, we are satisfied that there is no reasonable

probability that the jury would have answered the special issues in

a different manner had counsel presented the evidence of abuse and

neglect described in Bruce’s affidavit and the unsigned affidavit

of federal habeas counsel’s investigator.

The mitigating evidence that Bruce contends counsel was

ineffective for failing to discover and present, although

unfortunate, pales in comparison to the mitigating evidence at

issue in Williams v. Taylor, 529 U.S. at 395-96 (Williams’s parents

were imprisoned for criminal neglect of Williams and his siblings;

Williams’s father repeatedly beat him severely; Williams was abused

in foster care; Williams was borderline mentally retarded) and

Wiggins v. Smith, 123 S. Ct. at 2533 (Wiggins’s mother was a

chronic alcoholic who left him alone for days at a time, forcing

him and his siblings to beg for food or eat paint chips and

garbage; his mother locked the kitchen and beat the children when

they broke into it to get food; he had to be hospitalized after his

mother pressed his hand to a hot stove burner; he was physically

and sexually abused repeatedly while in foster care and a Jobs

Corps program). In sum, the mitigating evidence that Bruce claims

that his counsel were ineffective for failing to discover and

present is not “of sufficient quality and force to raise a

reasonable probability that, had it been presented to the jury, a

life sentence would have resulted.” See Andrews v. Collins, 21

22
F.3d 612, 624 (5th Cir. 1994). Accordingly, the state court’s

ultimate conclusion that Bruce was not prejudiced by the alleged

deficient performance of his trial counsel is not an unreasonable

application of Strickland. We thus need not address whether the

challenged state court findings are worthy of deference. The

district court did not err by denying habeas relief for this claim.

To the extent that the district court applied Neal in determining

that the ultimate decision of the state court was not objectively

unreasonable, it did not err, because Neal is binding precedent in

this circuit.

III

A

We now will address Bruce’s request for an expansion of the

COA granted by the district court. Bruce requests a COA for his

Penry II claim and for his claim that he received ineffective

assistance of state habeas counsel. “[U]ntil a COA has been issued

federal courts of appeals lack jurisdiction to rule on the merits

of appeals from habeas petitioners.” Miller-El v. Cockrell, 123

S.Ct. 1029, 1039 (2003). To obtain a COA, Bruce must make “a

substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2); Miller-El, 123 S.Ct. at 1039; Slack v.

McDaniel, 529 U.S. 473, 483 (2000). To make such a showing, he

must demonstrate that “reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved

23
in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Miller-El, 123 S.Ct. at

1039 (quoting Slack, 529 U.S. at 484). When the district court has

denied relief on the merits, a habeas petitioner seeking a COA

“must demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or

wrong.” Slack, 529 U.S. at 484. When the district court denies

relief on procedural grounds, the applicant must show, “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. (emphasis added).

We address the Penry II claim first, and then the ineffective

assistance of state habeas counsel claim.

B

Bruce did not assert a Penry II claim in either his state or

federal habeas petition; nor did he object to the jury instructions

on that basis at the sentencing phase of trial. The district court

raised the Penry II issue sua sponte and directed the parties to

file supplemental briefs on that issue. In his supplemental brief,

Bruce asserted that the mitigating evidence presented at the

punishment phase of his trial -- above average intelligence,

attitude of courtesy and hard work, and personality as a follower

-- could be given only partial effect under the special issues

24
submitted to the jury. He admitted that the claim was unexhausted

and procedurally defaulted, but argued that the default would be

excused under Texas law on the ground of futility; that the claim

was novel; and, in the alternative, that exhaustion was excused on

the ground that no state remedy was available.

The district court held that Bruce’s Penry II claim was

procedurally defaulted, and that Bruce had not shown cause to

excuse the default. The district court held that the claim was not

novel because the legal basis of the claim had been available at

least since 1989, when Penry v. Lynaugh, 492 U.S. 302 (1989)

(“Penry I”) was decided, and that Penry I claims had been litigated

by other defense counsel at the time of Bruce’s trial. The

district court noted that Penry II claims had been perceived and

litigated by other defense counsel by the time of Bruce’s state

post-conviction proceedings. Citing Engle v. Issac, 456 U.S. 107,

130 (1982) (“the futility of presenting an objection to the state

courts cannot alone constitute cause for a failure to object at

trial”), the district court held that futility did not constitute

cause for not raising the claim. It therefore denied Bruce’s

request for leave to amend his federal habeas petition to assert a

Penry II claim.

Because the district court held that Bruce’s Penry II claim

was procedurally defaulted, Bruce must show, “at least, that

jurists of reason would find it debatable whether the petition

25
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.

Bruce argues that his Penry II claim is not procedurally

defaulted because, in Selvage v. Collins, 816 S.W.2d 390 (Tex.

Crim. App. 1991), the Texas Court of Criminal Appeals declined to

enforce the contemporaneous objection rule against Penry claims.

The trial in Selvage, however, occurred before Penry I was decided

in 1989. Because Bruce was tried after 1989, his trial counsel,

appellate counsel, and state habeas counsel all were aware of the

rule in Penry I and could have raised such a claim.

We therefore conclude that Bruce has not made a substantial

showing that jurists of reason would find it debatable whether the

district court’s procedural ruling was correct. Bruce did not

brief the underlying constitutional issue or make any attempt to

show that reasonable jurists would find debatable the merits of his

Penry II claim, as required under Slack, 529 U.S. at 484. We

therefore deny a COA for this claim.

C

Bruce’s final COA request is for his claim that the

appointment of incompetent state habeas counsel violated his right

to due process and that the failure of the Texas courts to appoint

competent state habeas counsel emasculates the right of federal

26
habeas review in violation of the Suspension Clause, U. S. Const.

Art. I, § 9, cl. 2. In making this claim, Bruce is not seeking to

assert ineffective assistance of state habeas counsel as cause to

excuse a procedural default. Instead, his claim is that he has a

federal constitutional right to the assistance of competent state

habeas counsel.

Bruce argues that he has a state statutory right to be

represented by competent counsel in state habeas proceedings and,

because Texas has opted to provide post-conviction review of death

sentences, and has statutorily guaranteed the appointment of

competent counsel, the State must provide them in accordance with

federal due process. He further argues that the Texas Court of

Criminal Appeals’s violation of that state statutory duty

emasculates his right to seek federal habeas relief and thus, as

applied, amounts to a suspension of the writ of habeas corpus. He

notes that Coleman v. Thompson, 501 U.S. 722 (1991), did not

resolve whether a prisoner is entitled to the effective assistance

of state habeas counsel if “state collateral review is the first

place a prisoner can present a challenge to his conviction.” Id.

at 755. Under Texas law, ineffective assistance of trial counsel

claims generally must be raised by post-conviction writ of habeas

corpus. Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App.

1997). He further notes that his state habeas proceeding was his

first practicable opportunity to raise ineffective assistance of

27
counsel because he was represented on direct appeal by trial

counsel. He therefore contends that he has not had his one and

only appeal where ineffective assistance of trial counsel could be

effectively challenged because of state habeas counsel’s

incompetence.

Reasonable jurists would not find debatable the district

court’s rejection of this claim. The claim is barred by 28 U.S.C.

§ 2254(i): “The ineffectiveness or incompetence of counsel during

Federal or State collateral post-conviction proceedings shall not

be a ground for relief in a proceeding arising under Section 2254.”

As Bruce acknowledges, it is well-settled that there is no

constitutional right to habeas counsel in state collateral

proceedings. See Barraza v. Cockrell, 330 F.3d 349, 352 (5th Cir.

2003) (“there is no constitutional right to competent habeas

counsel,” and a state statutory requirement for the appointment of

competent habeas counsel does not create a constitutionally secured

right); Beazley v. Johnson, 242 F.3d at 271 (no constitutional

right to habeas counsel in state collateral proceedings); Martinez

v. Johnson, 255 F.3d 229, 245 (5th Cir. 2001) (same); Fairman v.

Anderson, 188 F.3d 635, 643 (5th Cir. 1999) (“because appointment

of counsel on state habeas is not constitutionally required, any

error committed by an attorney in such a proceeding ‘cannot be

constitutionally ineffective’”) (quoting Coleman, 501 U.S. at 752).

Because Bruce has not made a substantial showing that he was

28
entitled to the effective assistance of state habeas counsel, we

deny a COA for this claim.

III

For the reasons set out above, the judgment of the district

court denying federal habeas relief is AFFIRMED, and Bruce’s

request for an expansion of the COA is DENIED.

AFFIRMED; COA DENIED.

29