United States Court of Appeals
Fifth Circuit
FILED
February 17, 2005
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
_____________________ Clerk
No. 04-70008
_____________________
ROBERT ALAN SHIELDS,
Petitioner - Appellant
v.
DOUG DRETKE, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee
---------------------
Appeal from the United States District Court for the
Southern District of Texas, Galveston
(3:99-CV-753)
---------------------
Before JOLLY, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Robert Alan Shields seeks a certificate
of appealability (“COA”) on multiple issues that the district
court deemed unworthy of collateral review. Shields also appeals
the district court’s order granting summary judgment in favor of
respondent-appellee Doug Dretke (“the State”). Shields further
appeals the district court’s order denying an evidentiary hearing
under 28 U.S.C. § 2254(e)(2).
*
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that this opinion should not be published and is not precedent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.
Because Shields has failed to make a substantial showing of
the denial of a constitutional right, we deny his application for
a COA on all of his claims after a threshold inquiry on the
merits. We further find that the district court did not abuse
its discretion when it denied Shields an evidentiary hearing.
I. PROCEEDINGS
In 1994, a Texas grand jury indicted Shields for the murder
of Paula Stiner while in the course of committing and attempting
to commit burglary and robbery. In 1995, a jury found Shields
guilty of capital murder. After the penalty phase, the jury
recommended the death penalty, and, in October 1995, the trial
court sentenced Shields to death.
Shields directly appealed his conviction and sentence to the
Texas Court of Criminal Appeals (“TCCA”). In 1998, the TCCA
affirmed Shields’s conviction and sentence.1 Shields filed a
motion for rehearing, which that court denied.
Shields timely filed an application for a writ of habeas
corpus in the state trial court. The trial court entered
findings of fact and conclusions of law, recommending that relief
be denied.2 The TCCA adopted the trial court’s findings of fact
1
See Shields v. State, No. 72,278 (Tex. Crim App. Feb. 25,
1998) (unpublished).
2
See Ex parte Shields, No. 94CR1685-83 (112nd Judicial
District Court of Galveston County, Texas, Oct. 14, 1998).
2
and conclusions of law and denied relief after its own review of
the record.3
In 1999, Shields timely filed a petition for a writ of
habeas corpus in the United States District Court for the
Southern District of Texas. Shields’s federal habeas petition
contained numerous unexhausted claims. After the state filed its
opposition to Shields’s petition, in which it argued that the
majority of Shields’s claims were unexhausted and therefore
procedurally barred, Shields moved to stay the proceedings
pending his return to state court to exhaust the unexhausted
claims. The district court granted the motion and allowed
Shields to return to state court to exhaust his claims. The
order further permitted Shields to refile his federal petition
within 90 days if the TCCA denied relief. Pursuant to the
district court’s order, Shields filed a successive habeas
application with the TCCA.
In 2002, the TCCA denied Shields’s successive state habeas
application as an abuse of the writ under state statute.4
Shields then refiled his federal petition in the district court.
In 2003, the district court denied Shields’s petition, denied his
3
See Ex parte Shields, No. 72,278-01 (Tex. Crim. App. Dec.
9, 1998).
4
See TEX. CODE CRIM. PROC. art. 11.071 § 5 (Vernon’s 1999).
3
request for an evidentiary hearing, and rendered summary judgment
in favor of the State. Shields filed a motion in the district
court to alter or to amend its judgment under Federal Rule of
Civil Procedure 59(e), and the district court denied the motion.
In February 2003, Shields sought a COA in the district court
on 28 issues. Based on the TCCA’s dismissal of Shields’s
successive habeas petition, the district court rejected the
majority of Shields’s claims as procedurally barred. After a
threshold inquiry on the merits, the district court rejected
those claims on which Shields had not procedurally defaulted.
Shields now seeks a COA on these issues from this court.
II. FACTUAL BACKGROUND
A. Guilt-Innocence Phase
The evidence adduced at trial showed that Tracy Stiner, the
victim’s husband, arrived home from work shortly before 6:00 p.m.
on September 21, 1994. He discovered his wife’s body in the
laundry room. Mrs. Stiner’s body lay on its right side on the
floor of the laundry room with her back to the washer and dryer.
The room and the victim were covered in blood. The breakfast
area of the house was in disarray, and the contents of Mrs.
Stiner’s purse were strewn about. There was also a hammer on the
floor of the breakfast area. As Mr. Stiner searched the house,
he noticed that several items —— including several pair of socks,
4
shirts, a book bag, and a kitchen knife —— were missing. Mr.
Stiner testified that he later learned that, at 11:37 a.m. —— a
time when his wife would have been at work —— a telephone call
had been made from his home to the home of one of Shields’s
friends in Spring, Texas.
Dr. William Korndoffer, Galveston County’s Chief Medical
Examiner, testified that Mrs. Stiner had suffered a blunt trauma
to the head and had been repeatedly stabbed in the throat, chest,
and torso. Mrs. Stiner also suffered a number of defensive
wounds, which indicated that she had struggled with her assailant
before she died.
Detective Michael Wayne Tollett of the Friendswood Police
Department testified that he was notified of Mrs. Stiner’s murder
around 6:16 p.m. on September 21 and arrived at the Stiner
residence shortly thereafter. Tollett testified that police
lifted Shields’s fingerprints from the laundry room and that
bloody shoe prints at the scene were consistent with Shields’s
shoes. Tollett found blood on the purse, the carpet, and a large
amount of blood in the laundry room. He also found one
screwdriver on the carpet below a broken window and a wooden-
handled screwdriver outside. A cigarette butt found at the scene
had saliva on it consistent with Shields’s saliva. Mrs. Stiner’s
car was also missing.
5
The Shields family lived next door to the Stiners.
Christine Shields, Shields’s mother, testified that a police
officer informed her of Mrs. Stiner’s murder when she returned
home on September 21. The next day, Mrs. Shields noticed that
some items were out of place in her garage —— cushions had been
arranged to form a makeshift bed, and some drinks were nearby.
Mrs. Shields also found Shields’s pager and one of his shirts
near the cushions, although Shields had not lived with his
parents for several months and was not welcome in their home
without at least one parent present. When Mrs. Shields learned
from neighbors that a wooden-handled screwdriver like one that
she and her husband owned had been used to break into the Stiner
home, she began to suspect that her son was involved in the
crime. She contacted the police and gave them Shields’s friends’
phone numbers where he might be reached.
Shields was arrested on September 24, 1994. At the police
station, police noticed cuts on his hands. There was also a cut
on his right chin and what appeared to be blood on his shoes,
which the police took to the lab for analysis. Shields’s
underwear was also saturated with blood.
Shields’s fingerprints were found on Mrs. Stiner’s
checkbook, on the door leading from the laundry room to the
garage, and in Mrs. Stiner’s car. Mr. Stiner identified several
6
of the items in Mrs. Stiner’s car as having been in his home
before his wife’s murder. The bloody shoe impression at the
crime scene matched the shoes that Shields wore at the time of
his arrest. The blood obtained from Shields’s underwear and from
a paper towel at the Stiner home were consistent with Shields’s
blood.
Further, evidence showed that Shields had used Mrs. Stiner’s
credit card after the murder to purchase a suit. Mark Lang was
manager of Dejaiz’s Men’s Clothing in Willowbrook Mall and was
working on September 21. He testified that Shields came into the
store around 6:15 p.m. and purchased a suit with a credit card in
the name of Paula Stiner. Shields signed the credit card slip in
the name of Tracy Stiner, Mrs. Stiner’s husband. When Lang
noticed a horizontal cut on Shields’s finger, Lang was told by
Shields that he had cut his finger while splicing wires at work.
Shields also had a bandage around his middle finger on his left
hand.
Several of Shields’s friends also testified for the
prosecution. Troy Sterner testified that he knew Shields in 1994
and, at that time, Shields was staying in vacant houses in the
Woodlands area. Shortly after the murder, Sterner saw Shields
with cuts on his hand. Shields told Sterner that he had cut them
while working at a store.
7
Gina Cykala, a friend of Shields, testified that on the day
of the murder she saw Shields at McDonald’s at around 8:45 p.m.
Shields was driving a big white car that she had never seen
before. Shields told Cykala that he had borrowed the car from a
friend.
Colin Checketts also testified that on September 21, Shields
was driving a white car. Shields told Checketts that he had
obtained the car from a friend, Ray Holt, and wanted to sell it
for $500. He told Checketts that he had cut his hands while
working at a store. He then gave Checketts the suit that he had
purchased at Dejaiz’s Men’s Clothing Store. David Chastain and
Jarrod Moore, two of Shields’s friends, testified the same.
The defense put no witnesses on the stand during the guilt-
innocence phase. After hearing all of this evidence, the jury
returned a verdict of guilty.
A. Penalty Phase
1. Evidence by the State
At the penalty phase, the State introduced evidence that
Shields had been assessed deferred adjudication probation for
theft/burglary of a motor vehicle in 1992, after which Shields
completely disregarded the terms of his probation.
Authorities also arrested Shields in Florida in 1994 for
grand theft auto. In January 1994, Shields and two friends,
8
Chastain and Checketts, broke into a car in Friendswood, stole a
checkbook and a credit card and charged $150 in cigarettes before
the card was reported stolen. Around the same time, the three
friends broke into a house next door to Shields’s and stole cash,
car keys, and, later, the car itself. They then drove to Florida
in the car, shoplifting along the way. They were arrested in
Florida for grand theft auto. They had also attempted to break
into a home in Florida, but they fled when a neighbor spotted
them. The jury also heard testimony that in July 1994, Shields
had been involved in stealing credit cards and a cell phone from
another car.
Based on the testimony of Shields and his mother, the
Florida court liaison officer recommended, and the court ordered,
that the conditions of probation be amended to allow Shields to
enter St. Joseph’s Psychiatric Hospital for at least one month to
receive psychiatric evaluation and possible drug treatment.
After twelve days, the court allowed Shields to report on an
outpatient basis. Shields later missed two appointments in July
1994. On August 10, Mrs. Shields urged the court officer to
issue a warrant for Shields so that she could retrieve her
missing car, which Shields had stolen.
John Matzelle, a friend of Shields, testified that in June
1994, Shields loaded a pistol and pointed it at him. When
9
Matzelle objected, Shields stood up and shoved the gun in
Matzelle’s face, stating that he “could point the fucking gun in
[his] face if he felt like it.” Shields later went in the
backyard and fired the gun twice over the fence, returning to
tell his friends that he “had just shot at his mail carrier.”
Detective Tollet testified that no mail carrier recalled a
shooting incident on his route that day.
To refute the defense psychiatric testimony, the State also
called Dr. Edward Gripon as a rebuttal witness. Responding to a
hypothetical question that paralleled the facts of Paula Stiner’s
murder, Dr. Gripon testified that such an offender lacks concern
and remorse for his own action. He further testified that
Shields’s psychiatric records demonstrate poor impulse control
and aggressiveness. Dr. Gripon diagnosed Shields with
“personality disorder with features of aggressivity, features of
antisocial personality, which is the absence of a social
conscience, not caring what one does, that sort of thing.” Dr.
Gripon testified that in his opinion, Shields is a future danger.
Dr. Gripon never personally interviewed Shields.
2. Evidence by the Defense
Mrs. Shields testified that Shields had a close relationship
with his family until two years after they moved to Colorado from
Texas. At that point, Shields became withdrawn and did not get
10
along with his father. When the family moved back to Texas,
Shields’s grades were average, and he was a typical fifteen-year
old. Shields’s relationship with his family deteriorated after
an arrest for theft. He began to associate with “undesirable”
people and at times would disappear from home for a day or two.
To ensure his graduation, the Shields decided to drop him off and
to pick him up every day from high school. A month or two before
graduation, however, Shields moved out of his parents’ home
without notice. Shields returned only to inform his parents that
he could not live by his father’s rules. When Shields left
again, it was to Florida in a neighbor’s stolen car.
Mrs. Shields arranged professional counseling for Shields in
1993, but he quit after three or four visits. Shields then
refused to see another professional. By June 1994, Shields was
no longer taking the anti-depressant medication that the St.
Joseph’s doctor had prescribed, and his behavior deteriorated.
Shields left his parents’ home for good in July 1994 to live in
an abandoned house in the Woodlands. Mrs. Shields testified that
in her opinion, Shields could not have murdered Mrs. Stiner
unless Mrs. Stiner confronted him first. She also testified that
she did not believe that he had entered the home with the intent
to hurt Mrs. Stiner. On cross-examination, Mrs. Shields admitted
that she and her husband had twice changed the locks on the house
11
to prevent Shields from breaking in and stealing.
Clinical social worker Fran St. Peter performed a
biopsychosocial assessment on Shields. St. Peter performed a
three-hour assessment on Shields the night before her testimony
and interviewed Shields’s mother, father, sister, and brother-in-
law. St. Peter testified that one of Shields’s close friends had
been killed when Shields was eleven. The incident, she
testified, traumatized him. The family’s move to Colorado then
isolated him and caused him to withdraw. St. Peter testified
that Shields’s first introduction to narcotics occurred when he
was a thirteen- to fourteen-month old baby, when doctors
prescribed medication to him to ease the pain after he burned
himself. Shields tried Valium when he was eleven. St. Peter
also testified that Shields had consumed alcohol continuously
since the age of fourteen. By the age of seventeen, 70 to 75 per
cent of Shields’s time related to procuring, using, or recovering
from drugs and alcohol. St. Peter questioned the Shields’
attentiveness to their son and stated that the family essentially
led separate lives.
Dr. Fred Fason testified as to Shields’s alleged future
dangerousness. He testified that a psychiatrist would need to
perform a scientifically-based medical evaluation on an
individual before making a diagnosis of future dangerousness. He
12
also stated that the American Psychiatric Society has recommended
that its members not testify as to future dangerousness because
no test has demonstrated that these opinions are scientifically
valid. Responding to a hypothetical question that traced the
facts of Paula Stiner’s murder, Dr. Fason admitted that his
diagnostic impression was that “he’s a sociopath or antisocial
personality disorder.”
Dr. James Marquart, a professor of criminal justice at Sam
Houston University and a sociologist, testified as to study
results that show that the majority of former death row inmates
in the general prison population do not commit acts of violence
in the prison any more than any other prison inmate. Dr.
Marquart testified that it is difficult to predict accurately
future dangerousness based solely on the offense committed.
Perry Evans and Jose Lozano, employees of the Galveston
County Sheriff’s Department, testified that Shields was involved
in four instances of jail misbehavior in over a year. Although
officials had classified Shields as a minimum security inmate,
they based this classification on Shields’s representations that
he had no prior criminal record, no chemical dependency problem,
and lived at his family home. While in jail awaiting trial,
Shields was involved in a fight, was in an unauthorized area, and
destroyed, altered, or damaged county property or the property of
13
another.
After hearing both the State’s and the defense’s evidence,
the jury answered the special issue question of future
dangerousness in the affirmative and recommended death.
III. LAW
Section 2253 of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) forecloses appeal from a state habeas
proceeding unless a circuit justice or judge issues a COA.5 We
may issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.”6 To make this
showing, Shields must demonstrate that “jurists of reason could
disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.”7 If the district court denies relief on procedural, as
opposed to constitutional grounds, “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
5
28 U.S.C. § 2253(c)(1)(A).
6
Id. § 2253(c)(2).
7
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing
Slack v. McDaniel, 529 U.S. 473, 483 (2000)).
14
it debatable whether the district court was correct in its
procedural ruling.”8
To determine whether to grant a COA, we are limited “to a
threshold inquiry into the underlying merit of [Shields’s]
claims.”9 This threshold inquiry “does not require full
consideration of the factual and legal bases adduced in support
of the claims.”10 Instead, we base our determination on “an
overview of the claims in the habeas petition and a general
assessment of their merits.”11 When the district or state court
has imposed the death penalty, “any doubts as to whether a COA
should issue must be resolved in [petitioner’s] favor.”12
Shields seeks a COA from this court on multiple issues:
(1) The district court erred when it found that Shields
procedurally defaulted on the majority of his
ineffective assistance of counsel claims.
(2) Trial counsel was ineffective in that he failed to
present a viable defense during the guilt-innocence
phase.
(a) The district court overlooked issues of disputed
fact that entitled Shields to proceed on appeal as
to all of his ineffective assistance of counsel
8
Slack, 529 U.S. at 484 (emphasis added); Matchett v.
Dretke, 380 F.3d 844, 847-48 (5th Cir. 2004).
9
Miller-El, 537 U.S. at 327.
10
Id. at 336.
11
Id.
12
Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
15
claims.
(b) Trial counsel failed to present evidence to
contradict the state’s theory that Shields had
been “lying in wait” for the victim.
(c) Trial counsel was ineffective in that he refused
to permit Shields to testify to present an
alternative version of events and because he
switched defense theories midway through trial.
(3) Trial counsel was ineffective during the guilt-
innocence phase of the trial in that he:
(a) failed to object to the introduction of the hammer
and knives found at the scene of the crime.
(b) failed to object to the testimony of Shields’s
mother, Christine Shields.
(c) failed to object to the admission of Shields’s
out-of-court statements to the Woodland
subdivision witnesses.
(d) failed to consult with forensic evidence experts
to rebut the state’s case.
(4) Trial counsel’s performance during opening and closing
arguments at the guilt-innocence phase constituted
ineffective assistance of counsel.
(a) Trial counsel failed to object to the state’s
opening argument that allegedly consisted of
victim impact information and characterized the
evidence of guilt as conclusive.
(b) Trial counsel failed to present an adequate
closing argument.
(5) Trial counsel was ineffective during the guilt-
innocence and punishment phases in that he failed to
obtain a confidential defense psychiatric expert under
Ake v. Oklahoma13 to examine Shields.
(6) Trial counsel’s performance during the state’s case-in-
chief at the punishment phase constituted ineffective
assistance of counsel because he:
(a) failed to require the state to prove the
extraneous offenses admitted as evidence of future
dangerousness.
13
470 U.S. 68 (1985).
16
(b) allowed incompetent witnesses to testify and
failed to investigate the witnesses to impeach
them effectively.
(7) Trial counsel’s performance during the defense’s case-
in-chief at the punishment stage constituted
ineffective assistance of counsel because he:
(a) failed to present the theory of self-defense and
Shields’s alleged lack of intent to the jury as
mitigating evidence.
(b) failed to investigate and to prepare Shields’s
background history and incompetently presented
punishment phase evidence.
(c) failed to prepare adequately the mitigation
specialist witness, Fran St. Peter.
(d) admitted damaging evidence through the mitigation
specialist that would have otherwise been barred
under Estelle v. Smith.14
(e) failed to present effectively mitigating evidence.
(f) failed to present a viable insanity defense or to
present evidence on Shields’s alleged diminished
capacity.
(g) failed to use effectively defense experts Dr.
Fason and Dr. Marquart.
(h) elicited positive answers to the special issues ——
that the jury was to consider to determine whether
to impose a life sentence or death —— from two
defense witnesses.
(8) Trial counsel was ineffective in that he failed to
present a coherent defense to the state’s case on
future dangerousness.
(9) Trial counsel’s performance at the punishment phase was
ineffective in that he:
(a) opened the door to the rebuttal testimony of Dr.
Gripon by introducing psychiatric records produced
by the state’s mental health expert.
(b) introduced into evidence exhibits that suggested
an affirmative answer to the special issues.
(c) failed to object to the state’s hypothetical
questions posed to Dr. Gripon.
14
451 U.S. 454 (1981).
17
(d) failed to request a hearing under Texas Rule of
Evidence 705(b) and to object under Daubert v.
Merrell Dow Pharmaceuticals, Inc.15 to determine
the scientific foundations of Dr. Gripon’s
opinion.
(10) Trial counsel was ineffective at the punishment phase
in that he failed to object to the state’s comment that
Shields lacked remorse.
(11) The cumulative effect of trial counsel’s errors
prejudiced him and deprived him of effective assistance
of counsel.
(12) Trial counsel conducted a deficient voir dire, thereby
depriving Shields of his Sixth Amendment right to an
impartial jury.
IV. COA: Procedural Default
Whether the trial court erroneously concluded that
Shields procedurally defaulted on the majority of his
ineffective assistance of counsel claims.
We have always required that a habeas petitioner exhaust his
claims in state court before proceeding to federal court on those
claims: “[A] state prisoner seeking to raise claims in a federal
petition for habeas corpus ordinarily must first present those
claims to the state court and must exhaust state remedies.”16
“Under the procedural default doctrine, a federal court may not
consider a state prisoner’s federal habeas claim when the state
based its rejection of that claim on an adequate and independent
15
509 U.S. 579 (1993).
16
Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir. 2001)
(citing 28 U.S.C. § 2254(b)).
18
state ground.”17 If the petitioner fails to present his claims
to the appropriate state court, his claims are procedurally
defaulted. Defaulted claims “will not be regarded as a basis for
granting federal habeas relief.”18 Nevertheless, a petitioner
may overcome any procedural default “if he can demonstrate cause
for the default and actual prejudice as a result of the alleged
violation of federal law.”19 “‘Cause . . . requires a showing of
some external impediment preventing counsel from constructing or
raising the claim.’”20 To demonstrate prejudice, a petitioner
must show “‘not merely that the errors at . . . trial created a
possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error
of constitutional dimensions.’”21
A petitioner may also overcome procedural default by
17
Martin v. Maxley, 98 F.3d 844, 846 (5th Cir. 1996).
Shields also argues that Texas’s abuse-of-the-writ doctrine is
not an adequate and independent state ground. For the reasons
stated infra, see n. 70, we reject this argument.
18
Ogan v. Cockrell, 297 F.3d 349, 356 (5th Cir. 2002)
(citing Martinez, 255 F.3d at 239).
19
Id.
20
McCleskey v. Zant, 499 U.S. 467, 497 (1991) (quoting
Murray v. Carrier, 477 U.S. 478, 492 (1986)) (emphasis in
original).
21
Murray, 477 U.S. at 494 (quoting United States v. Frady,
456 U.S. 152, 170 (1982)) (emphasis in original).
19
demonstrating that “failure to consider the claims will result in
a fundamental miscarriage of justice.”22 To demonstrate a
“fundamental miscarriage of justice,” the petitioner must
“establish that under the probative evidence he has a colorable
claim of factual innocence” —— or, “actual innocence.”23 A
petitioner may demonstrate actual innocence during the guilt-
innocence phase by showing that, in view of the identified
constitutional error, “it is more likely than not that ‘no
reasonable juror’ would have convicted him.”24 When the
petitioner challenges a sentence of death, he must establish
actual innocence by showing that “but for a constitutional error,
no reasonable juror would have found the petitioner eligible for
the death penalty under the applicable state law.”25
Shields contends that the district court erred when it held
that he procedurally defaulted on the majority of his ineffective
assistance of counsel claims. The district court held that
Shields had procedurally defaulted on all of his claims except ——
as numbered in this opinion —— 3(a), (9)(c), and (9)(d). Shields
22
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
23
Sawyer v. Whitley, 503 U.S. 333, 339 (1992) (quoting
Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)).
24
Schlup v. Delo, 513 U.S. 298, 329 (1995).
25
Sawyer, 503 U.S. at 336.
20
argues that during his state habeas proceeding, he filed in the
TCCA an Emergency Motion to Abate Habeas Appeal and for Dismissal
with Prejudice in which he (1) informed the court that habeas
counsel was ineffective in failing to present numerous claims to
the court; (2) asked the court to dismiss his habeas counsel; and
(3) asserted his right to self-representation. Without providing
reasons, the TCCA denied this motion outright.
Shields maintains that the state court’s denial of his
emergency motion —— which, he urges, was a denial of his Sixth
Amendment right to self-representation —— constitutes cause and
prejudice to excuse the procedural default. The State, on the
other hand, contends that Shields merely asserts a claim for
ineffective assistance of habeas counsel and that our precedent
controls here.26
In Ogan v. Cockrell, the petitioner argued for the first
time on appeal that the state court had denied him meaningful
access to the courts, equal protection, and due process when it
refused to “remedy its earlier error of appointing him
ineffective [habeas] counsel.”27 While the application to the
Texas Court of Criminal Appeals was pending, Ogan wrote a letter
to the court, in which he asked the court to dismiss his habeas
26
Ogan v. Cockrell, 297 F.3d 349 (5th Cir. 2002)
27
Id. at 356.
21
counsel and appoint another attorney.28 The letter also included
a pro se motion that requested the removal of Ogan’s appellate
counsel and provided examples of counsel’s alleged
incompetence.29
The district court rejected Ogan’s argument and dismissed
several of Ogan’s claims as procedurally barred because Ogan’s
appointed habeas counsel had failed to raise them before the
state courts.30 We affirmed the district court and in so doing,
reaffirmed our long-standing holding that an ineffective
assistance of state habeas counsel claim does not constitute
sufficient cause to overcome the procedural bar because there is
no constitutional right to competent habeas counsel.31
On its face, Ogan clearly forecloses Shields’s arguments.
Shields argues, however, that this matter is distinct from Ogan
because he asserted his Sixth Amendment right to self-
representation to the TCCA, which denied him that right. Noting
that “cause” requires a force external to the petitioner that
prevents him from developing the record and from asserting his
claims to the state courts, Shields argues that the “Texas Court
28
See id. at 365 n. 3.
29
See id.
30
See id. at 356.
31
See id. at 357.
22
of Criminal Appeals’ denial of Shields right to self-
representation was the ‘external force’ and interference that
made compliance not only impractical but impossible.”
Shields’s argument, although novel, is meritless. First,
neither we nor the Supreme Court has established a federal
constitutional right to self-representation on collateral review.
Further, in Martinez v. Court of Appeal, the Supreme Court
explicitly held that there is no federal constitutional right to
self-representation on direct appeal from a criminal
conviction.32 It is implausible, therefore, that there would
exist such a right on collateral review. Accordingly, the TCCA’s
denial of Shields’s right to self-representation on collateral
review does not demonstrate a substantial showing of the denial
of a constitutional right sufficient to support the granting of a
COA or to excuse his procedural default. Accordingly, we are
barred from considering those claims that Shields failed to raise
before the Texas courts and which the TCCA later dismissed as an
abuse of the writ. Notwithstanding this bar, however, our
independent review of the record demonstrates that the district
court held that Shields had procedurally defaulted on one claim
that we find he raised in his state petition.
32
528 U.S. 152, 163 (2000).
23
In his reply brief, Shields specifically argues that he did
not procedurally default on claims (6) through (11).33 Claim
(11) charges that the cumulative effect of trial counsel’s errors
prejudiced him and deprived him of effective assistance of
counsel. Shields specifically raised this issue in his state
habeas application and thus has not waived it.
Less clear is whether Shields raised claims (6) through (10)
in his state habeas petition. Shields argues that these five
claims specifically challenge trial counsel’s performance at the
punishment phase and are not procedurally barred because his
state habeas application specifically challenged trial counsel’s
performance during the punishment phase. In effect, Shields
argues that because his state habeas application challenged trial
counsel’s performance at his punishment phase, he did not
33
Shields also asserts that he preserved the other claims
in his federal habeas petition before the district court that
challenge errors at the guilt/innocence phase of the trial.
Shields’s state habeas petition belies this assertion. The only
aspects of the trial challenged in Shields’s state habeas
application were the failure of trial counsel to object to (1)
the testimony of Lang as to the credit card purchase of the suit
two hours after the murder, and (2) the admission of the hammer
and the knives. Whether on purpose on through inadvertence of
counsel, Shields does not seek a COA on the failure to object to
Lang’s testimony at the guilt/innocence phase (although, as we
discuss below, he does challenge the inclusion of this extraneous
offense in the hypotheticals posed to Dr. Gripon at the
punishment phase). As noted below, Shields has properly
preserved his challenge to the hammer and the knives.
24
procedurally default on any claims that he raises in his federal
petition that concern his punishment phase. We do not read
Shields’s state habeas petition so broadly.
Claim (6) alleges that trial counsel was ineffective during
the punishment phase of the trial because he failed to require
the state to prove the extraneous offenses, and allowed
incompetent witnesses to testify. The substance of claim (6)
challenges the testimony of John Hernandez, the probation
officer, who testified that: (1) Shields committed car theft (for
which he was never charged or prosecuted); (2) Shields had been
institutionalized and had not continued his counseling when
released; and (3) Shields’s own family did not like him.
Further, Claim (6) challenges the testimony of Chastain, Holt,
and Matzelle.
Shields mentioned none of these witnesses in his state
habeas application. Neither did Shields mention the extraneous
offenses. Although Shields, in his state habeas application,
mentions trial counsel’s ineffectiveness in allowing testimony on
the extraneous offenses at the guilt-innocence phase, the only
witness (and extraneous offense) that the state habeas
application challenged was Lang, who testified as to the purchase
that Shields made after the murder using Mrs. Stiner’s credit
card. Lang did not testify during the punishment phase of the
25
trial. Accordingly, to the extent that Shields now challenges
any “extraneous offense” evidence at his punishment phase,
Shields did not fairly present this claim to the state court and
has procedurally defaulted on it.
Shields also asserts that he did not procedurally default on
claim (7), which contains eight sub-claims. With the exception
of sub-claim (7)(f), we find no mention of the other claims in
Shields’s state habeas petition. Shields specifically argued in
his state habeas application that his trial counsel failed to
present evidence on Shields’s alleged brain defects during the
punishment phase of his trial.34 In his federal petition,
however, Shields alleges in sub-claim (7)(f) that trial counsel
was ineffective in failing to present a viable insanity defense
and evidence on Shields’s alleged diminished capacity during the
guilt/innocence phase of the trial. We find no mention in
Shields’s state habeas petition that trial counsel was
ineffective for failing to produce evidence of diminished
capacity or insanity at the guilt/innocence phase, which, Shields
argues, would have provided him with an affirmative defense to
murder. Accordingly, Shields did not fairly present this claim
34
In his state habeas petition, Shields raised this claim
of error with respect to the testimony of Fran St. Peter, who
testified only during the punishment phase of the trial.
26
to the state court and is procedurally barred from bringing it
now.
Claim (8) of Shields’s federal petition alleges that trial
counsel was ineffective at the punishment phase because he failed
to present a coherent defense to the state’s case on future
dangerousness. Specifically, Shields contends that trial counsel
failed to familiarize themselves “with the methods of risk
assessment of future dangerousness” and failed to cross-examine
Dr. Gripon “on the erroneous correlations in his analysis.” In
his state habeas application, Shields challenged the State’s
hypothetical questions posed to Dr. Gripon and trial counsel’s
failure to object to Dr. Gripon as an expert. Neither of these
claims —— properly preserved in federal sub-claims (9)(c)-(d) ——
challenged trial counsel’s failure to present a “coherent
defense.” Accordingly, Shields has procedurally defaulted on
this claim.35
Federal sub-claims (9)(a)-(b) contend that trial counsel was
ineffective because he (a) opened the door to the rebuttal
testimony of Dr. Gripon by introducing psychiatric records
produced by the State’s mental health expert, and (b) introduced
into evidence exhibits that suggested an affirmative answer to
35
In any event, the arguments in this claim are somewhat
preserved in federal sub-claims (9)(c)-(d).
27
the special issues. Shields has procedurally defaulted on these
two sub-claims. Nowhere in his state habeas petition did he
challenge the introduction of exhibits at the punishment phase.
Accordingly, Shields procedurally defaulted on these claims.
Federal claim (10) alleges that trial counsel was
ineffective at the punishment phase in that he failed to object
to the state’s comment during closing argument that Shields
lacked remorse. Specifically, Shields alleges that the State
violated Griffin v. California36 because the comment that Shields
lacked remorse indirectly commented on Shields’s refusal to
testify, which is protected by the self-incrimination clause of
the Fifth Amendment. After careful review of Shields’s state
habeas petition, we find no mention —— direct or indirect —— of
this claim. It is, therefore, procedurally barred from our
review.
Accordingly, we conclude that jurists of reason would not
disagree with the district court’s conclusion that Shields is
procedurally barred from asserting the majority of his
ineffective assistance of counsel claims. We agree with the
district court that Shields properly preserved claims (3)(a),
(9)(c), and (9)(d). We disagree with the district court that
36
380 U.S. 609 (1965).
28
Shields procedurally defaulted on claim (11), his cumulative
error claim. We hold that jurists of reason could disagree
whether the district court was correct in its procedural ruling
on this claim.37 Because Shields must also demonstrate the
denial of a constitutional right on this claim,38 however, we
resolve below whether Shields is entitled to a COA on the four
claims that he has properly preserved.
V. COA: Preserved Claims (3)(a), (9)(c), (9)(d), and (11)
A. Legal Standard
To be entitled to relief under the AEDPA, a habeas
petitioner must show that the state court resolution of his case
was either “contrary to, or involved an unreasonable application
of, clearly established federal law, as determined by the Supreme
Court of the United States,” or “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.”39 Our
review on a request for a COA is similarly circumscribed by the
AEDPA, and “our duty is to determine not whether [Shields] is
entitled to relief, but whether the district court’s conclusion
37
See Slack, 529 U.S. at 484.
38
See id. at 485 (“Section 2253 mandates that both showings
be made before the court of appeals may entertain the appeal.”).
39
28 U.S.C. § 2254(d).
29
(that the state court adjudication was not contrary to or an
unreasonable application of federal law) is one about which
jurists of reason could disagree.”40
As all of Shields’s preserved claims relate to the
ineffective assistance of his trial counsel, he must show both
(1) that counsel’s representation was deficient, and (2) that
trial counsel’s deficient performance prejudiced him.41 If
Shields fails to carry his burden on either element, we may
reject his claim.42
To establish that counsel’s performance was deficient,
Shields must show that “counsel’s representation ‘fell below an
objective standard of reasonableness.’”43 Although no specific
guidelines exist to evaluate attorney conduct, “[t]he proper
measure of attorney performance remains simply reasonableness
under prevailing professional norms.”44
To show that a deficient performance by trial counsel was
40
Thacker v. Dretke, —— F.3d ——, 2005 WL 18542, at *2 (5th
Cir. Jan. 5, 2005); see Williams v. Puckett, 283 F.3d 272, 277
(5th Cir. 2002).
41
Strickland v. Washington, 466 U.S. 668, 687 (1984).
42
See id. at 697.
43
Soffar v. Dretke, 368 F.3d 441, 472 (quoting Strickland,
466 U.S. at 688).
44
Strickland, 466 U.S. at 688.
30
prejudicial, Shields must demonstrate “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”45 “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.”46 Rather, we must determine whether
“there is a reasonable probability that counsel’s errors affected
the outcome of the trial.”47 “A reasonable probability need not
be proof by a preponderance that the result would have been
different, but it must be a showing sufficient to undermine
confidence in the outcome.”48
B. Claim (3)(a)
Shield’s first properly-preserved claim alleges that his
trial counsel was ineffective during the guilt-innocence phase of
the trial because he failed to object to the admission into
evidence of the hammer and knives found at the scene of the
crime. With regard to both weapons, Shields specifically argues
that he merits a COA on this claim because no evidence connected
45
Id. at 694.
46
Id. at 691.
47
Soffar, 368 F.3d at 478.
48
Williams v. Cain, 125 F.3d 269, 279 (5th Cir. 1997)
(citing Strickland, 466 U.S. at 694).
31
the weapons to the crime, or, stated differently, no witness
testified and no testing revealed that the weapons introduced by
the prosecution were the weapons used during the crime.
Citing Texas Rule of Evidence 403, the district court
rejected this claim on the grounds that the probative value of
the hammer and the knives outweighed their prejudicial effect,
and trial counsel need not raise a meritless objection. Agreeing
with the state court, the district court found that if trial
counsel had objected to the admission of this evidence, the state
trial court would not have been wrong to overrule the objection.
We agree. Under both the Federal Rules of Evidence and the
Texas Rules of Evidence, relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice.49 The advisory committee’s notes to Rule 403
define “unfair prejudice” as “an undue tendency to suggest
decision on an improper basis, commonly though not necessarily,
an emotional one,” and we have adopted this definition.50 When a
defendant challenges evidence on the basis of Rule 403, we
require courts to “look at the ‘incremental probity’ of the
evidence in question in analyzing the offering party’s need to
49
FED. R. EVID. 403; TEX. R. EVID. 403.
50
FED. R. EVID. 403 advisory committee’s note; see also
Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314, 1334 (5th
Cir. 1985).
32
make this form of proof and the tendency of the questioned
evidence to invite an irrational decision.”51
Viewing the hammer and the knives within this rubric, we
find that their admission neither suggested a decision on an
improper basis nor invited an irrational decision. The hammer
and the knives were highly probative of the state’s case. Tracy
Stiner discovered the hammer on the floor of his home when he
discovered his wife’s body. He testified that this hammer was
his and that it was in the garage when he left for work that
morning. Detectives called to the scene found the hammer in the
breakfast room together with an overturned chair, a purse, a
checkbook, and an X-Ray folder from the doctor’s office.52 In
addition, the medical examiner, Dr. Korndorffer, testified that
Paula Stiner suffered a laceration on the top of her head and a
contusion on her forehead consistent with blunt force trauma.
Dr. Korndorffer testified further that these wounds were
consistent with the hammer found at the scene. He also testified
that Paula Stiner suffered blunt force trauma to her hands, which
bent and damaged her rings and knocked the stone out of one of
51
Jackson, 750 F.2d at 1334 (citing United States v.
Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc)).
52
Evidence presented at trial showed that Paula Stiner left
work early on the 21st to visit the doctor’s office and, when she
left, she was carrying a folder of X-Rays.
33
them.
Dr. Korndorffer testified additionally that the knife wounds
to Paula Stiner’s body were caused by a knife with a blade that
was five inches long and three-fourths of an inch wide. Tracy
Stiner testified that a knife with a blade of five inches length
and a width of three-fourths of an inch was missing from the
knife set on the counter, and the prosecution introduced the set
of knives from the Stiner home to show that the missing one fit
the descriptions of Dr. Korndorffer and Tracy Stiner.
We conclude that the probative value of the hammer and the
knives is not outweighed by unfair prejudice. The record clearly
demonstrates that the hammer was the one found at the scene.
Record evidence regarding the knives belies Shields’s assertion
that they were irrelevant, given Mr. Stiner’s testimony that the
one knife missing from the set fit the description of the weapon
that caused the stab wounds to Paula Stiner’s body.
More importantly, because Shields specifically argues that
no testimony or evidence proved that these were the weapons used
to perpetrate the crime, we view Shields’s claims of error to the
admissibility of the weapons as a challenge to their “chain of
custody.” As we have explained, “[i]n cases where the defendant
questions whether the evidence offered is the same as the items
actually seized, the role of the district court is to determine
34
whether the government has made a prima facie showing of
authenticity.”53 A “break in the chain of custody simply goes to
the weight of the evidence, not its admissibility.”54 The above-
noted record evidence establishes that the State made out a prima
facie case of authenticity. Consequently, any possible break in
the chain of custody would only go to the weight the jury
accorded the hammer and the knives.
We cannot say that trial counsel was ineffective for failing
to object to the admission of the hammer and the knives. Shields
has failed to make a substantial showing of the denial of a
constitutional right with regard to his evidentiary challenge.
Thus, we decline to issue a COA on this claims.
C. Claim (9)(c)
Shields advances that trial counsel was ineffective because
he failed to object to the hypothetical questions on future
dangerousness that the State posed to Dr. Gripon at the
punishment phase of the trial. The prosecutor posed three such
questions to elicit Dr. Gripon’s opinion on Shields’s future
dangerousness:
I would like to go over a hypothetical question
53
United States v. Sparks, 2 F.3d 574, 582 (5th Cir. 1993).
54
Id. (citing United States v. Shaw, 920 F.2d 1225, 1229-30
(5th Cir. 1991)); see also United States v. Dixon, 132 F.3d 192,
197 (5th Cir. 1997) (quoting Sparks).
35
with you, Doctor: Assume with me that the murder was
committed, the murder of Paula Stiner was committed by
a 19-year-old male who burglarized her home and who
laid in wait for his victim, Paula Stiner, for 5 ½
hours. And during that time he used the phone, he
gathered up items that he wanted to steal, he fixed
himself some food in a skillet, he selected his weapons
which were a hammer and a knife.
Assume further with me the victim entered the
house who was immediately assaulted with the hammer,
then the knife, struck some 27 or more times; and
during her horrific struggle to survive, was overcome
and died 10 to 15 minutes after the initial assault
began.
Assume with me further that immediately after the
assault on the victim that the Defendant went over to
the victim’s purse which was only a very short distance
away from her body, rummaged through the purse, taking
what he wanted, including credit cards, [and] the keys
to her car, which was parked in the garage.
Assume that the person drove to a shopping mall in
Paula Stiner’s car. Within about an hour and a half of
having committed the murder, he was at the mall. He
purchased items of clothing. He was described as cool,
polite, calm. He said that the card was his mother’s
credit card.
Tell us, Doctor, what does that behavior tell you
as a psychiatrist?
Assume further that the man, about two hours or so
later, met with some friends of his at a fast food
restaurant and again acted normal; was not intoxicated,
according to them; claimed that the car he was driving
was borrowed from a friend, that it was even for sale.
Assume further that later that evening he went out
with one of his friends to a nightclub in the
Montgomery County area, acted normal, had some beers,
just had a good time.
What does that behavior tell you, Doctor, about
that person?
Assume that during the year prior to the murder
that the man stole from his parents, he burglarized his
36
parents’ home. What does that tell you? What does
that behavior tell you, Doctor?
In response to these hypothetical examples, Dr. Gripon
testified that the described behavior demonstrates premeditation,
viciousness, and a lack of concern for the victim shown by “the
going about [of] the normal activities of life as if nothing had
actually happened.” He stated that “[a] person who can do that
has little concern for their fellow man, if any.” Dr. Gripon
also stated that such behavior demonstrates a lack of
responsibility and a “rather callous, very hard nature.”55
Shields asserts that the hypothetical scenarios exaggerated
and mischaracterized the facts of the crime. Shields also
contends that the extraneous offenses —— such as the credit card
purchase —— should not have been included in the hypothetical
questions.
Shields’s arguments are meritless. He does not explain how
the hypothetical examples mischaracterize or exaggerate the facts
that the State presented at trial. Based on our review of the
record, the hypothetical presentations neither mischaracterized
55
Shields relies heavily on this argument because in the
affidavit of an investigator who interviewed the jurors after the
jury imposed the death penalty —— attached to his state habeas
application —— one of the jurors stated that Dr. Gripon made a
better presentation on future dangerousness than the defense
witnesses and that “[s]he believe[d] that all of the other jurors
felt the same way about Dr. Gripon.”
37
nor exaggerated the facts of Paula Stiner’s murder. Rather, they
paralleled the evidence that the state introduced at trial. If
trial counsel had objected, his objection would have been
meritless. The failure to raise meritless, futile objections
does not constitute ineffective assistance of counsel.56
As for Shields’s “extraneous offenses” argument, he fails to
point to an extraneous offense in the hypothetical examples. Our
review of Shields’s state habeas petition does reveal, however,
that he referred to Mark Lang’s testimony about the credit card
purchase of the suit that occurred two hours after the murder.
The record clearly reflects that Lang testified to the facts that
the prosecutors included in the hypothetical questions.
Further, we reject any possible argument that Shields makes
with regard to the admissibility and use of such testimony.
Tracy Stiner testified that when he arrived home on the day of
the murder, he found his wife’s purse and its contents scattered
around on the floor of their breakfast area. He also testified
that Mrs. Stiner carried several credit cards in her purse. Lang
testified that on that same day, Shields used a credit card to
purchase $271.71 in clothing from DeJaiz’s. The name on the card
56
See Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994);
Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990) (citing Murray
v. Maggio, 736 F.2d 279, 283 (5th Cir. 1984) (per curiam)).
38
was Paula Stiner. Shields, identified by Lang, signed the charge
using the name Tracy Stiner, the victim’s husband. Lang’s
testimony tied Shields to the scene of the crime —— where he
stole the credit card —— and to the attack itself.
Such testimony is clearly admissible. Any objection to this
testimony under Texas Rule of Evidence 404(b), as Shields appears
to urge, would have been futile. Under Texas Rule of Evidence
404(b), “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show
that he acted in conformity therewith.”57 The prosecution did
not use the testimony of Lang —— or any corroborating evidence ——
to prove the character of Shields. This evidence had relevance
apart from any possible tendency to prove Shields’s character.58
Further, under our and Texas law, “[f]ruits of the same
crime are admissible and do not constitute an extraneous
offense.”59 Shields’s use of Paula Stiner’s credit card
57
TEX. R. EVID. 404(b). This language tracks that of federal
Rule of Evidence 404(b).
58
See United States v. Posada-Rios, 158 F.3d 832, 871 (5th
Cir. 1998); Alba v. State, 905 S.W.2d 581, 585 (Tex. Crim. App.
1995).
59
Skidmore v. State, 530 S.W.2d 316, 321 (Tex. Crim. App.
1975); see also United States v. Price, 877 F.2d 334, 337 (5th
Cir. 1989) (“Where evidence is inextricably intertwined with the
charged offense, it is relevant and not extraneous. If the
challenged extraneous evidence is inseparable from the evidence
of the charged offense, it is unnecessary to consider its
39
constituted fruits of his crime. We are satisfied that jurists
of reason would not debate the district court’s ruling in this
regard, and we deny a COA on this claim.
D. Claim 9(d)
Shields insists that his trial counsel was ineffective for
failure to (1) object to Dr. Gripon’s testimony based on the
inadmissible reports on which Dr. Gripon based it,60 and (2)
challenge Dr. Gripon under Texas Rule of Criminal Evidence 702.
Specifically, Shields emphasizes that trial counsel failed to
voir dire Dr. Gripon under Texas Rule of Criminal Evidence 705(b)
to determine the foundations of his opinion. Shields also
contends that trial counsel failed to challenge Dr. Gripon’s
qualification as an expert under Texas Rule of Criminal Evidence
702. We reject Shields’s arguments and decline to issue a COA on
this claim.
Texas Rule of Criminal Evidence 705(b) “allows counsel to
voir dire expert witnesses outside the presence of the jury to
admissibility under Rule 404(b).”) (citations and quotations
omitted).
60
Contrary to the state’s argument and the district court’s
finding, Shields explicitly argued in his state habeas petition
that Dr. Gripon testified on the basis of reports that were never
admitted at trial.
40
learn what facts the expert is basing his or her opinion on.”61
“[N]either the rule nor the case law creates a presumption of
error if counsel fails to request voir dire.”62 Texas courts
have often held that the rule is not violated when nothing in the
record indicates that counsel did not know on what facts the
expert witness based his opinion.63 In other words, when defense
counsel knows the basis of the expert’s opinion, there is no need
to invoke this rule.64
Here, the record confirms beyond cavil that defense counsel
was cognizant of the reports on which Dr. Gripon based his
opinion. Although Shields points to no specific reports in his
federal petition, in his state habeas petition, he challenged Dr.
Gripon’s reliance on the reports of Drs. Felthous, Barrett,
Hungerford, Franke, and Freedman. If Shields knew of the basis
of Dr. Gripon’s opinion, his counsel must have. Further, Dr.
Gripon explicitly testified at trial that he based his opinion on
these reports. It is thus clear that because defense counsel
knew of the basis of Dr. Gripon’s opinion, it would have been
61
Saenz v. State, 103 S.W.3d 541, 546 (Tex. Ct. App. 2003);
see Brown v. State, 974 S.W.2d 289, 292 (Tex. Ct. App. 1998).
62
Saenz, 103 S.W.3d at 546; Brown, 974 S.W.2d at 292.
63
Saenz, 103 S.W.3d at 546; Brown, 974 S.W.2d at 292.
64
Saenz, 103 S.W.3d at 546; Brown, 974 S.W.2d at 292.
41
futile to invoke Rule 705(b).
In addition, we note that Shields provides no explanation as
to why any of the reports on which Dr. Gripon based his testimony
would have been inadmissible. In any event, under Texas Rule of
Criminal Evidence 703, an expert “can . . . base his opinion
partially on facts or data which is inadmissible, if such
information is commonly relied upon by experts within his
field.”65 We perceive no ineffective assistance in counsel’s
failure to challenge Dr. Gripon’s reliance on, inter alia, the
autopsy report of Dr. Hungerford and psychiatric reports on
Shields from 1993. In addition, our review of the trial
transcript convinces us that defense counsel cross-examined Dr.
Gripon, including questioning him at the opening of his testimony
with regard to the validity of his expert opinion. There is no
merit to this claim.
Shields also insists that trial counsel was ineffective
because he failed to object to Dr. Gripon on the basis of Daubert
v. Merrell Dow Pharmaceuticals, Inc.66 Specifically, Shields
argues that “the methodology used by Dr. Gripon was inadequate
and unreliable under the Daubert test because he based his
65
Joiner v. State, 825 S.W.2d 701, 707-08 (Tex. Crim. App.
1992) (citing Nethery v. State, 692 S.W.2d 686, 702 (Tex. Crim.
App. 1985)).
66
509 U.S. 579 (1993).
42
assessment of future dangerousness entirely on his judgment, not
on any empirical data concerning base rates of violence of life-
sentenced prisoners convicted of capital murder, nor on any other
data that the science of violence risk assessment recognizes.”
As noted, though, Dr. Gripon based his psychiatric opinion
on future dangerousness on the records that related to Shields
and Paula Stiner’s murder. Even though we are somewhat troubled
by the absence of a personal interview of Shields by Dr.
Gripon,67 we cannot say that counsel was ineffective in failing
to make a Daubert objection to Dr. Gripon’s testimony. Our
review of the record demonstrates that Dr. Gripon adequately
established his expert credentials, which included prior
testimony as to the future dangerousness of a perpetrator on
between twelve to eighteen occasions. We have also noted our
awareness of no clearly established law that prevents a
psychiatrist from basing his opinion on the records of the case
and the psychiatric records of the perpetrator. Shields has
established no prejudice here.
Although trial counsel did not object to the testimony of
Dr. Gripon, the defense did put on its own expert witnesses
during the punishment phase to rebut Dr. Gripon’s testimony. Dr.
67
See Flores v. Johnson, 210 F.3d 456, 458 (5th Cir. 2000)
(Garza, J., specially concurring).
43
Fason testified as to the possible unreliability of future
dangerousness testimony, and Dr. Marquart testified that studies
reveal that capital inmates are no more likely to commit future
violent acts than any other inmates. Trial counsel was not
ineffective when he elected to rely on rebuttal witnesses to
discredit Dr. Gripon’s testimony instead of futilely filing a
Daubert objection. We reject Shields’s arguments and deny a COA
on this claim.
E. Claim (11)
In his final properly-preserved claim of error, Shields
argues that he deserves a COA on his claim that the cumulative
effect of trial counsel’s error denied him ineffective assistance
of counsel. As we conclude that there was no such error,
however, there can be no cumulative error.68
F. Conclusion
For the foregoing reasons, we deny a COA on Shields’s
properly-preserved claims. We hold that jurists of reason would
not debate the district court’s rulings. The district court did
not err when it denied Shields a COA on these claims and granted
summary judgment in favor of the State.
68
See United States v. Moye, 951 F.2d 59, 63 n.7 (5th Cir.
1992) (“Because we find no merit to any of Moye’s arguments of
error, his claim of cumulative error must also fail.”).
44
VI. Evidentiary Hearing
Shields also urges that the district court erred when it
failed to grant his request for an evidentiary hearing on his COA
claims. Shields reiterates many of the arguments that he raised
in his challenge to the district court’s ruling on his procedural
default claims. Shields contends that 28 U.S.C. § 2254(e)(2)
does not bar an evidentiary hearing here because he did not fail
to develop the factual bases of his claims in state court.69
Shields asserts that because the Texas courts impeded the factual
development of his claim —— thus involving no failure on his part
—— Section 2254(e)(2) does not apply. Shields maintains that he
is entitled to an evidentiary hearing to resolve factual disputes
that concern
69
Section 2254 provides
(2) If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court
shall not hold an evidentiary hearing on the claim
unless the applicant shows that ——
(A) the claim relies on ——
(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient
to establish by clear and convincing evidence that but
for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying
offense.
28 U.S.C. § 2254(e)(2) (emphasis added).
45
procedural default, and those relating to “cause” and
“prejudice” include the competence of counsel, whether
state action impeded Petitioner’s ability to present
his claims on direct appeal and on state habeas,
whether the basis of trial counsel’s decisions were
tactical or negligent and prejudicial, and the many
other factual issues detailed herein.
Shields further contends that the district court erred when it
did not grant him an evidentiary hearing because the state court
never “adjudicated” his claims, but only issued a perfunctory
one-page denial to the 600-plus-page petition.70
Accordingly, pursuant to Section 2254(e)(2), because Shields
does not contend that his claims of error rely on a new rule of
constitutional law or a factual predicate that he could not have
discovered with due diligence, he is not entitled to an
evidentiary hearing if he failed to develop a factual basis for
his claim in the state court proceedings.71
Shields was not diligent in pursuing the factual predicates
of his claims. He contends that he exercised due diligence by
70
Shields also contends that he is entitled to an
evidentiary hearing on whether Texas’s abuse-of-the-writ doctrine
is an adequate and independent state ground. This argument is
foreclosed by our holding in Emery v. Johnson, 139 F.3d 191, 195-
96 (5th Cir. 1997), that Texas’s abuse-of-the-writ doctrine
constitutes an adequate state ground. In Barrientes v. Johnson,
221 F.3d 741, 759-60 (5th Cir. 2000), we held that the doctrine
has constituted an independent state ground since the TCCA’s
decision in Ex parte Berber, 879 S.W.2d 889 (Tex. Crim. App.
1994).
71
See Williams v. Taylor, 529 U.S. 420, 429-30 (2000);
McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998).
46
requesting an evidentiary hearing in state habeas proceedings,
and that the state court impeded any factual discovery when it
perfunctorily denied his request. In sum, he asserts that
Section 2254(e)(2) is inapplicable here. Shields concedes,
however, that he devoted only one line of his 600-plus-page state
habeas petition to his request for an evidentiary hearing, when
he asked that he “be accorded an evidentiary hearing on the
allegations in this petition.” Although the Supreme Court has
said that “failure to develop the factual basis of a claim”
connotes fault on the part of the petitioner, we have held that
“[m]ere requests for evidentiary hearings will not suffice; the
petitioner must be diligent in pursuing the factual development
of his own claim.”72 Shields points to no factual dispute that
the state court, or, for that matter, the district court, could
have resolved by granting his request for an evidentiary hearing.
Neither does Shields proffer any specific evidence that would
change the state or district courts’ resolution of his claims.
Even if we were to determine that Shields did not fail to
develop the factual basis of his claim in state court,
“overcoming the narrow restriction of § 2254(e)(2) does not
guarantee a petitioner an evidentiary hearing, it merely opens
72
Dowthitt v. Johnson, 270 F.3d 733, 758 (5th Cir. 2000).
47
the door for one.”73 The district court still retains discretion
to grant or to deny an evidentiary hearing under Rule 8 of the
Rules Governing Section 2254 cases.74 To obtain a hearing,
Shields would have “to show either a factual dispute which, if
resolved in his favor, would entitle him to relief or a factual
dispute that would require development in order to assess a
claim.”75
Shields procedurally defaulted on the majority of his
claims. As such, we are barred from considering those claims,
evidentiary hearing or not. The alleged ineffective assistance
of Shields’s state habeas counsel does not constitute cause for
the procedural default, and an evidentiary hearing would have
shed no light on this issue.76
As to those claims on which Shields did not procedurally
default, the district court did not abuse its discretion when it
denied his request for an evidentiary hearing. We have held that
73
Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir. 2000).
74
RULES GOVERNING § 2254 CASES 8(a); see Murphy, 205 F.3d at
815.
75
Id. at 815; see Robison v. Johnson, 151 F.3d 256, 268
(5th Cir. 1998).
76
Ogan, 297 F.3d at 357; see also Holland v. Jackson, ——
U.S. ——, 124 S. Ct. 2736, 2738 (2004) (per curiam) (“Attorney
negligence, however, is chargeable to the client and precludes
relied unless the conditions of § 2254(e)(2) are satisfied.”).
48
“where a district court has before it sufficient facts to make an
informed decision regarding the merits of a claim, a district
court does not abuse its discretion in refusing to grant an
evidentiary hearing (even where no factual findings are
explicitly made by any state court).”77 Our review of the
instant record demonstrates that the district court reviewed the
pleadings, the record, and all of the evidence in support of
Shields’s claims. Indeed, even though the district court held
that Shields had procedurally defaulted on the majority of his
claims, it went on to address the merits of those claims, further
supporting our conclusion that it thoroughly reviewed the record.
Moreover, we have held that conclusional and unsupported
allegations do not entitle a habeas petitioner to an evidentiary
hearing.78 Our review of this record demonstrates that Shields
offers us no specific evidence that the jury did not consider at
trial. Neither does he point to any specific evidence that would
create a factual dispute as to the four claims on which he did
not procedurally default. The district court had before it the
affidavit of Shields’s state habeas counsel and still determined,
as we have done, that state habeas counsel’s alleged
77
Murphy, 205 F.3d at 816 (citing McDonald v. Johnson, 139
F.3d 1056, 1060 (5th Cir. 1998)).
78
See id. (citing Ward v. Whitley, 21 F.3d 1355, 1367 (5th
Cir. 1994)).
49
ineffectiveness does not constitute a sufficient factual dispute
to require an evidentiary hearing. The Rules Governing Section
2254 cases “‘do[] not authorize fishing expeditions.’”79
VII. CONCLUSION
For the foregoing reasons, we hold that the district court
did not err when it denied a COA to Shields and denied Shields an
evidentiary hearing. We therefore deny Shields’s application for
a COA.
COA DENIED.
79
Id. at 816-17 (quoting Ward, 21 F.3d at 1367).
50