United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 10, 2004
_____________________
Charles R. Fulbruge III
No. 03-41626 Clerk
_____________________
BRYAN ERIC WOLFE,
Petitioner - Appellant,
versus
DOUG DRETKE,
Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
District Court Cause No. 98-CV-210
_________________________________________________________________
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1
PRADO, Circuit Judge.
Petitioner Bryan Eric Wolfe was convicted of capital murder
in Texas state court and sentenced to death. After exhausting
his state remedies, Wolfe applied for federal habeas relief. The
district court denied Wolfe’s application for a writ of habeas
corpus, but it granted Wolfe a certificate of appealability (COA)
for his ineffective assistance of counsel claim. As part of this
appeal, Wolfe asks this court for a COA on an additional issue:
1
Pursuant to 5TH CIRCUIT RULE 47.5.4, this court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
1
whether his ineffective assistance claim falls within the
presumed prejudice exception. After considering these issues on
appeal, this court denies Wolfe’s request for a COA and affirms
the judgment of the district court.
Background of Wolfe’s Appeal
The Texas Court of Criminal Appeals summarized the evidence
presented during trial in its opinion on direct appeal:
The body of 84 year old Bertha Lemell was found on the
floor of her home, along with a change purse and some
scattered coins. A number of black-eyed peas were also
strewn on the floor. According to the testimony of a
medical examiner, the victim had twenty-six stab wounds
to the head, trunk, and abdomen. Blood found at the
crime scene was subjected to serology and DNA tests. A
serologist testified that the physical characteristics
found in [Wolfe’s] blood matched blood found at the
crime scene and that those characteristics occurred in
only 0.2 percent of the African-American population.
[Wolfe is African-American.] The DNA test results
showed that [Wolfe’s] blood and the blood found at the
crime scene shared a DNA pattern that was estimated to
appear in approximately 1 in 10 million Caucasians, in
approximately 1 in 1.7 million African-Americans, and
in approximately 1 in 8.2 million Hispanics. Testimony
at trial showed that Lemell was a close friend of
[Wolfe’s] wife, that [Wolfe] lived in the same
neighborhood, and that he was seen within a few blocks
of the crime scene shortly before and shortly after the
murder. The residence showed no sign of forced entry.
The evidence also showed that [Wolfe] had a cut on his
fingers shortly after the murder.
....Testimony showed that Lemell routinely kept money
in a coin purse. She also kept black-eyed peas in her
purse for good luck. Brenda Vallian, a friend of the
victim, testified that she took Lemell shopping on the
day of the offense and that she saw Lemell pull out
sixty dollars in cash, pay for groceries with less than
twenty dollars, and put the remaining money back into
her coin purse. After the murder, police officers
arriving at the scene found the coin purse on the
2
floor, unlatched, and containing only a single coin.2
Because no one witnessed the crime, the State obtained Wolfe’s
conviction based on DNA analysis of the blood collected at the
crime scene.
During the sentencing portion of Wolfe’s trial, the
prosecutor presented evidence that: Wolfe confessed to committing
armed robbery in 1983; Wolfe was convicted for committing another
robbery in 1989; after serving time in prison for the robbery,
Wolfe was paroled on work release; and Wolfe absconded from the
work release center. In defense, Wolfe’s trial attorney, Harold
Laine, presented evidence from a psychologist who opined that
Wolfe would not be dangerous in an institutional setting and
attributed Wolfe’s actions to intoxication. Laine also called a
correctional officer who testified that Wolfe had been assaulted
while in custody awaiting trial. After considering this
evidence, the jury determined that a probability existed that
Wolfe would commit criminal acts of violence that would
constitute a continuing threat to society, and insufficient
mitigating circumstances existed to warrant a sentence of life
imprisonment rather than death.3 Accordingly, the state trial
court entered a judgment sentencing Wolfe to death. The Texas
2
Wolfe v. State, 917 S.W.2d 270, 274-75 (Tex. Crim. App.
1996).
3
See TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2 (Vernon Supp.
2004) (instructing court on questions to be submitted to jury
during punishment phase of capital case).
3
Court of Criminal Appeals affirmed that judgment on direct
appeal.
Wolfe then moved for habeas relief in state court. As part
of his state habeas proceeding, Wolfe argued that Laine was
ineffective because he failed to prepare for trial. In
particular, Wolfe complained that Laine did not prepare to
challenge the State’s DNA evidence. Wolfe contended that Laine’s
failures substantially impaired his defense and should be
considered the only reason he received the death penalty. The
state habeas judge, who was also the trial judge, however,
determined that Laine’s performance was not deficient. After
reviewing the record and the habeas judge’s findings, the Texas
Court of Criminal Appeals denied Wolfe’s application for habeas
relief.
Wolfe then applied for federal habeas relief on various
grounds to include ineffective assistance of counsel. The United
States Magistrate Judge presided over pretrial proceedings.
Initially, the magistrate judge granted Wolfe’s request for
discovery concerning biological evidence and DNA testing
conducted prior to trial. The magistrate judge also authorized
funding for DNA testing and an evidentiary hearing. Later,
however, the magistrate judge stayed further proceedings so Wolfe
could take advantage of a newly-enacted state DNA testing
statute. The results of further testing did not favor Wolfe.
The magistrate judge then proceeded to consider Wolfe’s
4
application for habeas relief and issued a report that
recommended denying Wolfe’s application. Because Wolfe objected
to the report, the district court conducted a de novo review.
After its review, the district court denied Wolfe’s application.
In regard to Wolfe’s ineffective assistance of counsel
claim, the district court found that Wolfe had not shown he was
prejudiced by his attorney’s failure to better prepare himself
for challenging the State’s DNA evidence. Although not
explicitly stated, the district court implicitly determined that
the state court’s disposition of the claim was not an
unreasonable application of clearly established federal law.
After denying Wolfe’s application, the district court granted
Wolfe a COA for his ineffective assistance claim, but denied his
request for a COA for the presumed prejudice issue. In this
appeal, Wolfe asks this court for a COA on the latter claim.
This court first considers that request.
Standard for Obtaining a COA
To obtain a COA, Wolfe must make “a substantial showing of
the denial of a constitutional right.”4 To make this showing,
Wolfe must demonstrate that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues
4
28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 123 S.
Ct. 1029, 1039 (2003); Slack v. McDaniel, 529 U.S. 473, 483
(2000).
5
presented were adequate to deserve encouragement to proceed
further.”5 Because the district court denied relief on the
merits, rather than on procedural grounds, Wolfe “must
demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or
wrong.”6
In determining whether to grant a COA, this court’s
examination is limited “to a threshold inquiry into the
underlying merit of [Wolfe’s] claim[].”7 “This threshold inquiry
does not require full consideration of the factual or legal bases
adduced in support of the claims.”8 Instead, this court’s
determination is based on “an overview of the claims in the
habeas petition and a general assessment of their merits.”9 “Any
doubt regarding whether to grant a COA is resolved in favor of
the petitioner, and the severity of the penalty may be considered
in making this determination.”10
Wolfe’s Presumed Prejudice Argument
5
Miller-El, 123 S. Ct. at 1039 (quoting Slack, 529 U.S. at
484).
6
Slack, 529 U.S. at 484.
7
Miller-El, 123 S. Ct. at 1034.
8
Id. at 1039.
9
Id.
10
Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir. 2003).
6
In his federal habeas proceeding, Wolfe maintained that
Laine’s pretrial and trial failures rendered his criminal
proceeding non-adversarial. Based on this characterization,
Wolfe asked the district court to presume prejudice in assessing
Laine’s performance. Although Wolfe relied on the standards set
out in Strickland v. Washington11 in making his ineffective
assistance claim, the district court considered the applicability
of the United States Supreme Court’s decision in United States v.
Cronic,12 but determined it did not apply. On appeal, Wolfe
relies on Cronic.
In Cronic, the Supreme Court stated that, in order to
prevail on an ineffective assistance of counsel claim, a criminal
defendant must ordinarily prove that the results of his criminal
proceeding would have been different absent his attorney’s
deficiencies.13 The Court explained, however, that if an
attorney entirely fails to subject the prosecution’s case to
meaningful adversarial testing, a denial of the Sixth Amendment
right to counsel occurs, making the adversary process itself
presumptively unreliable.14 In that circumstance, a court
presumes the defendant was prejudiced by his attorney’s
11
Strickland v. Washington, 466 U.S. 668 (1984).
12
United States v. Cronic, 466 U.S. 648, 659 (1984).
13
See Cronic, 466 U.S. at 658.
14
See id. at 659.
7
deficiencies. But in order for a court to presume prejudice, an
attorney’s failure must be complete.15 Failures “of the same ilk
as other specific attorney errors”16 remain subject to
“Strickland’s performance and prejudice components.”17
In considering the applicability of Cronic, the district
court determined that the “aspects of counsel’s performance
challenged by Wolfe (failure to adequately prepare for cross-
examination, failure to present mitigating evidence, etc.) are of
the same ilk as other specific attorney errors held subject to
Strickland’s performance and prejudice components.” Accordingly,
the district court applied Strickland rather than Cronic, and
required Wolfe to prove prejudice.
Although the district court considered Wolfe’s presumed-
prejudice argument, Wolfe failed to exhaust this argument in
state court. To obtain federal habeas corpus relief, a
petitioner must first exhaust all claims in state court prior to
requesting federal collateral relief.18
Whether a federal habeas petitioner has exhausted state
remedies is a question of law. To exhaust, a petitioner
must have fairly presented the substance of his claim
to the state courts. It is not enough that all the
15
See Bell v. Cone, 535 U.S. 685, 697 (2002).
16
Bell, 535 U.S. at 697.
17
Id. at 697-98.
18
See 28 U.S.C. § 2254(b)(1); Wilder v. Cockrell, 274 F.3d
255, 259 (5th Cir. 2001).
8
facts necessary to support the federal claim were
before the state courts or that a somewhat similar
state-law claim was made. Indeed, where petitioner
advances in federal court an argument based on a legal
theory distinct from that relied upon in the state
court, he fails to satisfy the exhaustion
requirement.19
To apply these principles to the instant appeal, this court must
ask whether Wolfe fairly presented the substance of his presumed-
prejudice argument in state court.
Rather than ask the state court to presume prejudice, Wolfe
argued that he had been actually prejudiced. In his first
petition, Laine complained that his attorney’s conduct
substantially impaired his defense and that his attorney’s
failures should be considered the only reason he received the
death penalty. In his amended petition, Wolfe complained that he
would not have been assessed the death penalty if his attorney
had prepared for the State’s punishment evidence. Neither
petition argued that Laine’s pretrial and trial failures rendered
his criminal proceeding non-adversarial, asked the state court to
presume prejudice from Laine’s purported failures, or relied on
Cronic. Consequently, Wolfe did not present the substance of his
presumed-prejudice issue in state court. As a result, Wolfe did
not exhaust this argument in state court. Because he did not
exhaust this argument in state court, Wolfe is not entitled to
19
Wilder, 274 F.3d at 259 (internal quotes and citations
omitted).
9
this court’s consideration of the argument now.
But even if Wolfe’s state habeas petition could be construed
to advance the argument, Wolfe would not be entitled to the
presumption set out in Cronic because he complains about failures
of the same ilk as the specific attorney failures complained
about in Strickland.20 In Strickland, the petitioner complained
that his attorney failed to ask for a continuance to prepare for
sentencing, to request a psychiatric examination, to investigate
and present character witnesses, to seek a presentence
investigation report, to present meaningful argument to the
sentencing judge, and to investigate the medical examiner’s
report or cross-examine the medical experts.21
In district court, Wolfe complained that:
- Laine did not hire medical or scientific experts to
challenge the State’s DNA evidence or the State’s
theory about how Wolfe received cuts to his hands,
- Laine’s cross-examination of the State’s medical and
DNA experts was inadequate and ineffective,
- Laine did not use any treatises or accepted reference
materials in cross-examining the DNA experts,
- Laine failed to ask for funds for a defense DNA
expert until after jury selection,
- Laine failed to call defense witnesses during the
guilt/innocence phase of trial, and
- Laine failed to present mitigation evidence which
20
See Bell, 535 U.S. at 697-98.
21
See Strickland, 466 U.S. at 676.
10
would have prevented the findings necessary for the
death penalty.
These complaints are specific errors of the same type complained
about in Strickland. They do not reflect a total failure. As a
result, Strickland, not Cronic, applies to Wolfe’s ineffective
assistance claim. Reasonable jurists would not debate the
applicability of Strickland. Thus, the district court’s
assessment of the applicability of Strickland is correct.
The court DENIES Wolfe’s request for a COA. Having resolved
this issue, the court now considers Wolfe’s ineffective
assistance of counsel claim.
Standard for Reviewing an Ineffective Assistance Claim
In a habeas corpus appeal, this court reviews the district
court’s findings of fact for clear error and its conclusions of
law de novo, applying the same standards to the state court’s
decision as did the district court.22 This court may not grant
relief on a claim a state court has adjudicated on the merits
“unless the adjudication of the claim . . . 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.”23 “A state court's
decision is deemed ‘contrary to’ clearly established federal law
22
See Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004).
23
28 U.S.C. § 2254(d)(1).
11
if it relies on legal rules that directly conflict with prior
holdings of the Supreme Court or if it reaches a different
conclusion than the Supreme Court on materially indistinguishable
facts.”24 “A state court's decision constitutes an unreasonable
application of clearly established federal law if it is
objectively unreasonable.”25 This court presumes the state court
findings of fact are correct, and the petitioner has the burden
of rebutting the presumption of correctness by clear and
convincing evidence.26
Wolfe’s Ineffective Assistance Claim
Wolfe’s argument on appeal is multifarious—complaining about
Laine’s lack of contact with him, the failure to take statements
from witnesses, the failure to obtain a plea bargain agreement,
and the failure to call defense witnesses—but Wolfe’s argument
focuses on Laine’s purported failure to prepare for challenging
the State’s DNA evidence. Indeed, the thrust of his claim has
always been that his attorney failed to prepare to challenge the
State’s DNA evidence.27 Wolfe, however, expanded his arguments
24
Busby, 359 F.3d at 713 (quoting Williams v. Taylor, 529
U.S. 362, 405-06 (2000)).
25
Pondexter v. Dretke, 346 F.3d 142, 146 (5th Cir. 2003).
26
See 28 U.S.C. § 2254(e)(1).
27
In his first petition for state habeas relief, Wolfe
complained his attorney: failed to hire medical or scientific
experts, inadequately cross-examined the State’s experts, failed
to challenge the State’s evidence that cuts to his hands were
caused by a knife, failed to hire an expert to opine that the
12
through various pleadings after he obtained additional discovery
during his federal habeas proceeding.28
Prior to his federal habeas proceeding, Wolfe was unable to
depose Laine. During Wolfe’s state habeas proceeding, the only
evidence of Laine’s performance was Laine’s affidavit and the
state habeas’s judge personal observations of Laine during trial.
cuts resulted from a broken beer bottle, and was unprepared to
address the State’s punishment evidence.
In his amended petition, Wolfe complained his attorney: did
not use any treatises or accepted reference materials in cross-
examining DNA experts, did not ask for funds for a DNA expert
until after jury selection, failed to call witnesses during the
guilt-innocence phase of trial, and failed to present mitigating
evidence which would have prevented the findings necessary for
the death penalty.
28
For example, in his motion for an evidentiary hearing,
Wolfe complained that Laine had not met with him for 18 months
before trial, and asserted that he may have considered entering a
guilty plea to lesser sentence or a lesser charge had he been
offered a plea bargain agreement and had the evidence been
explained to him. Wolfe also complained that Laine did not
cross-examine the State’s DNA witnesses about the possibility of
contamination.
In his response to the respondent’s motion to reconsider an
order granting his requests for discovery and a stay, Wolfe
asserted that Laine did not have a sufficient grasp of the DNA
evidence to adequately cross-examine the State’s witnesses
because the materials he received were insufficient for review.
Through a notice of filing of an affidavit, Wolfe asserted
that Laine was deficient for failing to use Wolfe’s wife as a
punishment witness, and that his wife would have testified that
Wolfe was a good husband and father.
In response to the respondent’s motion for summary judgment,
Wolfe complained that Laine failed to promptly investigate his
case.
In his objections to the memorandum and recommendation of
the United States Magistrate Judge, Wolfe argued that the
district court should presume prejudice in considering his claim,
and complained that Laine did not know about the State’s
punishment evidence of extraneous bad acts.
13
In his affidavit, Laine described his preparation for trial.
With the benefit of Laine’s deposition and additional discovery,
Wolfe now maintains that the state habeas court’s determination
of his ineffective assistance claim was an unreasonable
application of federal law to the facts of his case because it
was based on Laine’s fraudulent affidavit.
In his affidavit, Laine attested that he reviewed articles,
treatises, and cases; spoke with attorneys who had trial
experience with DNA; consulted with a DNA expert; and requested
the State’s DNA materials. Wolfe, however, contends Laine had no
ability to understand DNA evidence or to cross-examine the
State’s DNA witnesses. To support this argument, Wolfe relies on
an affidavit by a DNA expert he retained during his federal
habeas proceeding who attested that the DNA expert Laine hired
for trial could not have provided an accurate assessment of the
State’s DNA evidence because the expert did not have the
autorads29 from the State’s DNA analysis.
To establish ineffective assistance of counsel, a criminal
defendant must show that his attorney’s assistance was deficient
29
Wolfe’s expert explained, “[t]he autorads are X ray films
that contain the work product of the . . . DNA analysis. . . .
Autorads are to a DNA analysis what an X ray film is to a
potential broken bone analysis. A scientist can no more render a
second opinion regarding this DNA analysis without the autorads
than a doctor could render a second opinion about an orthopedic
problem without examining the patient X rays.”
14
and that the deficiency prejudiced him.30 “To establish
deficient performance, a petitioner must demonstrate that
counsel's representation ‘fell below an objective standard of
reasonableness.’”31 “An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the
judgment.”32 Thus, a defendant must prove prejudice to succeed
on a claim of ineffective assistance of counsel.33
When a defendant challenges a death sentence such as
the one at issue in this case, the question is whether
there is a reasonable probability that, absent the
errors, the sentencer—including an appellate court, to
the extent it independently reweighs the evidence—would
have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.34
A court considering an ineffective assistance claim is not
required to determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies.35 “If it is easier to
dispose of an ineffectiveness claim on the ground of lack of
30
See Hopkins v. Cockrell, 325 F.3d 579, 586 (5th Cir.),
cert. denied, 124 S. Ct. 430 (2003).
31
See Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003)(quoting
Strickland).
32
Strickland, 466 U.S. at 691.
33
Id. at 693.
34
Id. at 695.
35
Id. at 697.
15
sufficient prejudice,” a reviewing court may take that course.36
The district court followed that approach.
Although Wolfe maintains the district court erred because it
simply deferred to the state court’s disposition of his claim,
the district court applied well-established principles for an
ineffective assistance of counsel claim. Rather than evaluate
whether each alleged attorney failure constituted deficient
performance, the district court considered whether Wolfe proved
prejudice. For each complaint, the district court found that
Wolfe had not established prejudice.
As for Wolfe’s complaint about Laine’s failure to adequately
prepare for challenging the State’s DNA evidence, the district
court found that Wolfe failed to show that better preparation
would have either uncovered exculpatory evidence or weakened the
evidence against him, and concluded that Wolfe failed to show he
was prejudiced by the purported lack of preparation. The record
supports this determination.
Wolfe presented an affidavit from a DNA expert he retained
during his federal habeas proceeding, but the information in the
affidavit only challenges the work done by Wolfe’s trial DNA
expert. In particular, the affiant explained that the expert
hired during trial could not have properly assessed the FBI’s DNA
work because he did not have the autorads which form the
36
Id. at 697.
16
scientific basis for DNA analysis. The expert opined that
Wolfe’s trial counsel was unprepared to either understand or
confront the DNA evidence in any meaningful way. Despite this
characterization, Wolfe did not show that better preparation, or
testimony by a defense DNA expert, would have changed the jury’s
verdict.
Although the thrust of his ineffective assistance claim
applies to guilt/innocence, Wolfe seeks a new sentencing trial.
Wolfe maintains the prejudice he suffered as a result of Laine’s
failures is that he received the death penalty. Wolfe
characterizes Laine as the sole reason he received the death
penalty, but Laine’s being better prepared for the State’s DNA
evidence would not have changed this result. Without evidence
showing that the results of the FBI’s DNA testing was unreliable,
or that the DNA evidence presented at trial was inaccurate, Wolfe
cannot show prejudice.37 The results of subsequent DNA testing
show that further investigation and further preparation would
have produced nothing that would have changed the jury’s verdict.
Even if Laine had been better prepared, no reasonable probability
37
Compare House v. Bell, 311 F.3d 767 (6th Cir. 2002)
(certifying questions to the Supreme Court of Tennessee about
eligibility for death penalty where post-trial DNA evidence
showed semen introduced at defendant’s trial to prove his sexual
assault was not defendant’s semen), with Satcher v. Pruett, 126
F.3d 561 (4th Cir. 1997) (finding that new DNA evidence showing
at most that earlier tests were inconclusive, but not that
someone other than defendant was source of DNA sample taken from
crime scene, did not sufficiently establish actual innocence to
allow for consideration of procedurally defaulted claims).
17
exists that the results of Wolfe’s criminal proceeding would have
been any different.
The district court also applied well-established principles
to Wolfe’s complaint that Laine failed to negotiate a plea
bargain agreement. Specifically, the district court concluded
that Wolfe could not prove prejudice because he did not establish
that the State would have offered a plea bargain even if Laine
had pursued one. In his affidavit, Laine stated that he sought
out a plea bargain agreement even though Wolfe insisted that he
would not plead guilty to any charge. Laine explained that,
despite Wolfe’s declaration, he attempted to obtain a plea
bargain for aggravated robbery, murder or capital murder without
the death sentence, but was told “no.” The district court
treated this assertion as a state-court finding of fact that
could only be rebutted with clear and convincing evidence.
Although Wolfe maintains that Laine’s deposition proves
Laine’s affidavit is “a half-truth or outright lie,” the
deposition does not support this characterization. The jail
visitor records Wolfe relies upon place Laine’s statements about
his contact with Wolfe into question, but Laine offered a
plausible explanation during his deposition about why the records
do not reflect his visits.38 The record indicates Laine did not
38
Laine explained that during the time Wolfe awaited trial,
he represented many criminal defendants and frequently visited
the jail to see his clients. Laine explained that although he
signed the visitor log to see a particular inmate, he often saw
18
want to represent Wolfe and had little time to prepare for trial,
but the record also indicates Laine hired an investigator to
explore the circumstances of the criminal allegations, attempted
to obtain a plea bargain agreement, presented Wolfe’s explanation
for the cuts on his hands, challenged the State’s witnesses, and
attempted to obtain mitigation witnesses. Wolfe presented
statistics indicating the State offered plea bargains to other
capital murder defendants,39 but the statistics do not rebut
Laine’s assertion that the prosecutor told him that the State
would not offer Wolfe a plea bargain by clear and convincing
evidence. In addition, nothing indicates that the prosecutor
would have offered Wolfe a plea bargain for a life sentence had
Laine been better prepared to challenge the State’s DNA evidence.
Because Wolfe did not rebut the state court’s finding that the
State would not have offered Wolfe a plea bargain, the district
other inmates while he was at the jail.
39
Wolfe asserts that the statistics show that the State
offered a plea bargain to every other capital murder defendant,
except those defendants who killed law enforcement officers or
who committed multiple murders involving children. The
statistics, however, do not reflect enough details to reach that
conclusion. The statistics reflect: the defendant’s name, age,
race, file date, indictment number, indictment date, offense,
disposition date, disposition, and sentence.
Wolfe also contends he proved he would have considered a
plea bargain agreement. For this assertion, Wolfe relies on a
letter he wrote to his habeas attorney. In that letter, Wolfe
did not state that he would have considered a plea bargain.
Instead, he complained that Laine did not obtain a plea bargain
agreement and that Laine waited until the day before trial to
discuss a plea agreement.
19
court’s conclusion that Wolfe did not show prejudice is correct.
The district court applied the well-established principles
for considering ineffective assistance to Wolfe’s complaint that
Laine was ineffective because he did not call Wolfe’s wife as a
mitigation witness during the punishment phase of trial. The
district court concluded that Wolfe did not establish that the
jury would have sentenced Wolfe to life in prison had his wife
testified during the punishment phase of trial. Although Wolfe
presented his wife’s affidavit wherein she attested that Wolfe
was a good father and husband, Wolfe never presented the
affidavit to the state habeas court.
When a federal habeas petitioner presents “material
additional evidentiary support” to the federal court that was not
presented to the state court, the petitioner fails to exhaust his
state remedies.40 This court does not consider new factual
allegations in support of a previously-asserted legal theory—even
if the factual allegations come into existence after the state
habeas relief is denied—where the factual basis underlying a
claim is different from those underlying the state claim.41 In
this case, the factual basis for Wolfe’s claim is different from
that underlying his state claim.
In district court, Wolfe maintained his wife would have
40
Dowthitt v. Johnson, 230 F.3d 733, 745 (5th Cir. 2000).
41
See Joyner v. King, 786 F.2d 1317, 1320 (5th Cir. 1986);
Burns v. Estelle, 695 F.2d 847, 849-50 (5th Cir. 1983).
20
testified during the punishment phase of his trial. But Wolfe
did not advance this position in state court. Instead, Wolfe
simply complained that Laine failed to present mitigating
evidence. Thus, Wolfe’s argument in federal court is different
than it was in state court. As a result, the district court was
precluded from considering the allegation that Wolfe’s wife would
have presented mitigating evidence.
Without this assertion, the state habeas court and the
district court properly relied on the statement in Laine’s
affidavit that the wife did not want to testify. This statement
supports the district court’s conclusion that Wolfe did not
establish that the jury would have sentenced him to life in
prison had his wife testified during the punishment phase of
trial. Consequently, the district court correctly decided this
matter.
Conclusion
The district court carefully considered the arguments
presented in Wolfe’s federal habeas application. Rather than
determine whether each specific complaint constituted ineffective
assistance, or whether the totality of Laine’s purported failures
constituted ineffective assistance, the district court considered
Strickland’s prejudice question. In considering prejudice, the
district court correctly determined that Wolfe had not shown he
was prejudiced by Laine’s purported failures. Although the state
21
habeas court disposed of Wolfe’s state habeas application
differently than the district court disposed of Wolfe’s federal
application, the state court’s decision is not contrary to, and
does not involve an unreasonable application of, clearly-
established federal law. As a result, this court AFFIRMS the
judgment of the district court.
AFFIRMED.
22