Troy Clark v. Rick Thaler, Director

Case: 07-70037 Document: 00511777818 Page: 1 Date Filed: 03/05/2012

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

FILED
March 5, 2012
No. 07-70037
Lyle W. Cayce
Clerk
TROY CLARK,

Petitioner–Appellant,

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

Respondent–Appellee.

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

Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Troy Clark, convicted of capital murder and sentenced to death in Texas
state court, appeals the denial of his petition for a writ of habeas corpus. Clark
asserts that his trial counsel rendered ineffective assistance by failing to
investigate and develop mitigating facts that could have been presented at the
punishment stage of his trial. The district court determined that Clark was not
entitled to relief on this claim but granted a certificate of appealability (COA).
Because the state court did not unreasonably apply clearly established federal
law on the record before it, we affirm.
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No. 07-70037

Clark also seeks a COA on four other claims that his trial counsel rendered
ineffective assistance. Those include assertions that his counsel: (1) in closing
argument, violated his duty of loyalty to Clark, failed to plead for mercy, and
failed to present mitigating evidence; (2) “opened the door” to damaging evidence
of another murder committed by Clark; (3) allowed introduction of evidence of
another extraneous offense; and (4) failed to object to a comment made by the
district court allegedly pertaining to Clark’s credibility. The district court’s
decision denying relief on these claims is not debatable among reasonable
jurists, and Clark’s claims are not adequate to deserve encouragement to proceed
further. We deny his request for a COA on these issues.
I
A
Clark lived with Tory Bush in Tyler, Texas, where the couple used and
sold methamphetamine. The victim, Christina Muse, briefly resided with Clark
and Bush, and when she moved out of their residence, Clark became concerned
that she would inform law enforcement of his drug-dealing activities.
Bush testified that on May 19, 1998, Muse returned to the couple’s home
for a social visit. Clark attacked Muse with a stun gun, informing her that she
“should have kept [her] mouth shut.” Clark then used duct tape to bind her
hands and legs and to cover her mouth. He placed Muse in a bedroom closet,
where he talked to her for some time. Clark eventually left her alone there for
several hours while he played video games and sold drugs to a customer. Upon
returning to the bedroom, Clark moved Muse to the bathroom and asked Bush
to get him a board, which he used to strike Muse. He then filled the bathtub
with water and ordered Bush to help him drown Muse by holding her head
underwater. When Muse stopped breathing, Clark placed her body in a blue
barrel, later adding cement mix, water, and lime. The next morning, at Clark’s
direction, Bush placed trash and debris in the top of the barrel. Clark then hid

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No. 07-70037

the barrel on his landlord’s property located outside of town. Several months
later, Clark was arrested and charged with capital murder.
B
In March of 2000, a jury convicted Clark of capital murder at the close of
the guilt–innocence phase of trial. At the punishment phase, the state presented
numerous witnesses who testified that Clark had murdered two other people,
committed rape and assault, burned a car, and dealt drugs. Defense counsel
informed the jury in his opening statement that he would present evidence
demonstrating that Clark would not be a future danger to society because he
could “function successfully in the penitentiary.” Counsel also told the jury that
he had “no witnesses to bring you under mitigation. I have nobody.” A defense
expert testified that, based on a risk-assessment grounded in actuarial data,
Clark would not be a future danger in prison.
Clark took the stand on his own behalf, against the advice of counsel, at
the punishment phase. In a colloquy with counsel outside the presence of the
jury, Clark confirmed that he had refused to allow his attorneys to call his
mother and father to testify. Clark also acknowledged that he had personally
contacted other potential mitigation witnesses and instructed them not to testify
on his behalf. He expressed his desire to tell the jury that he wanted to receive
the death penalty. In a contentious exchange with the prosecutor on cross-
examination, Clark ultimately so testified.
The jury determined that Clark presented a future danger to society, that
he had caused or intended Muse’s death, and that there were no mitigating
circumstances warranting a life sentence.1 Accordingly, the state court

1
See TEX. CODE CRIM. P. art. 37.071, § 2(b), (e) (requiring jury to evaluate three special
issues before the death penalty may be imposed).

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sentenced Clark to death. On mandatory appeal, the Texas Court of Criminal
Appeals affirmed the judgment.2
C
Clark filed an application for a writ of habeas corpus in Texas state court,
asserting several claims of ineffective assistance of counsel. Clark alleged that
the “principle [sic] ground upon which counsel rendered ineffective assistance”
was his failure to investigate and present mitigating evidence at the punishment
stage of the trial. To support this claim, Clark presented a one-and-a-half page
affidavit from his mother, in which she stated that she had not been contacted
by defense counsel. The affidavit also described several difficult circumstances
Clark faced in his childhood and early adulthood, including a general lack of
supervision, family alcoholism, abuse, and the suicide of his brother.
The state habeas court denied relief on all of Clark’s claims, concluding
that counsel’s performance was not deficient and that Clark had not
demonstrated prejudice. Based on the trial court’s findings and its own review,
the Texas Court of Criminal Appeals denied relief.3
Clark then filed the underlying habeas petition in federal court. He again
asserted, among other claims of ineffective assistance, that his counsel had failed
to conduct any investigation regarding mitigating evidence. In addition to his
mother’s affidavit, he presented an affidavit from his trial counsel and a thirty-
page report from a mitigation specialist. The trial counsel’s affidavit stated that
counsel essentially failed to conduct any investigation whatsoever into
mitigating evidence because “[a]t the time Troy’s case was tried, mitigation
practice was almost unknown.” The mitigation specialist’s report provided
information paralleling that contained in Clark’s mother’s affidavit but in

2
Clark v. Texas, No. 73,816 (Tex. Crim. App. Nov. 25, 2002) (unpublished).
3
Ex parte Troy Clark, No. 55,996-01, 2003 Tex. Crim. App. LEXIS 1033 (Tex. Crim.
App. Oct. 1, 2003) (unpublished).

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significantly more detail. The report also contained new evidence demonstrating
that Clark experienced severe poverty as a child; witnessed his mother’s male
partners use violence against her; witnessed the murder of a friend at age nine;
and was forced into criminal activity at an early age.
Considering both the evidence before the state court and the additional
evidence presented in federal court, the district court disagreed with the state
habeas court’s conclusion that counsel’s performance in failing to investigate
mitigating evidence was not deficient. The district court denied federal habeas
relief on this issue, however, determining that the state court’s conclusion that
Clark had not demonstrated prejudice was not an unreasonable application of
federal law. The district court also denied relief on Clark’s other claims. The
court granted a COA as to Clark’s mitigation investigation claim, but denied
COAs on Clark’s other claims.
Clark now appeals the district court’s denial of his ineffective assistance
claim regarding mitigation evidence and also petitions this court for a COA as
to his remaining claims.
II
Our review of Clark’s contention that his trial counsel provided ineffective
assistance by failing to investigate and failing to present mitigation evidence is
governed by the Antiterrorism and Effective Death Penalty Act (AEDPA).
Because this claim was “adjudicated on the merits in State court proceedings,”4
we evaluate it under the “‘difficult to meet’”5 and “‘highly deferential standard
for evaluating state-court rulings,’”6 which is contained in 28 U.S.C. § 2254(d).

4
28 U.S.C. § 2254(d).
5
Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (quoting Harrington v. Richter, 131
S. Ct. 770, 786 (2011)).
6
Id. (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

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That section provides that we may not grant relief unless adjudication of Clark’s
claim:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.7

“Claims of ineffective assistance of counsel involve mixed questions of law and
fact and are governed by § 2254(d)(1).”8 Clark carries the burden of proof.9
A
As an initial matter, this court questioned whether we are authorized to
consider the substantially more detailed mitigation evidence that Clark
presented to the federal district court. As noted above, Clark did not present his
trial counsel’s affidavit or the mitigation specialist’s report to the state habeas
court. At the time Clark filed his federal habeas petition, this court had held
that “problems presented by evidence introduced for the first time in federal
court in support of a federal habeas application are more accurately analyzed
under the ‘exhaustion’ rubric of § 2254(b), not as issues of ‘factual development’
under § 2254(d).”10 We requested supplemental briefing on this issue.
During the pendency of this appeal, however, the Supreme Court’s decision
in Cullen v. Pinholster held that, with respect to § 2254(d)(1), review “is limited

7
28 U.S.C. § 2254(d).
8
Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir.) (citing Briseno v. Cockrell, 274 F.3d
204, 206-08 (5th Cir. 2001)), cert. denied, 131 S. Ct. 265 (2010).
9
Pinholster, 131 S. Ct. at 1398 (citing Visciotti, 537 U.S. at 25).
10
Lewis v. Quarterman, 541 F.3d 280, 284 (5th Cir. 2008) (quoting Dowthitt v. Johnson,
230 F.3d 733, 745 (5th Cir. 2000)) (internal quotation marks omitted).

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to the record that was before the state court that adjudicated the claim on the
merits.”11 The Supreme Court derived this limitation from the “backward-
looking language” of § 2254(d)(1).12 The Court also reasoned that “[s]ection
2254(b) requires that prisoners must ordinarily exhaust state remedies before
filing for federal habeas relief.”13 The Court recognized that “[i]t would be
contrary to that purpose to allow a petitioner to overcome an adverse state-court
decision with new evidence introduced in a federal habeas court and reviewed
by that court in the first instance effectively de novo.”14 The Supreme Court
reiterated at another point in Pinholster that “evidence introduced in federal
court has no bearing on § 2254(d)(1) review.”15 It emphasized, “If a claim has
been adjudicated on the merits by a state court, a federal habeas petitioner must
overcome the limitation of § 2254(d)(1) on the record that was before that state
court.”16
The State contends in the present case that, to the extent material in the
mitigation expert’s affidavit duplicated information in the affidavit of Clark’s
mother that was presented to the state habeas court, the evidence is exhausted.
To the extent that the mitigation expert’s affidavit sets forth new or different
information, the State contends this is unexhausted. Clark contends that all of
the evidence presented to the federal district court simply supplements the claim
that he made in state habeas court and is therefore exhausted. The Supreme

11
Pinholster, 131 S. Ct. at 1398.
12
Id.
13
Id. at 1399.
14
Id.
15
Id. at 1400.
16
Id.

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Court faced similar arguments in Pinholster.17 The Court held that it “need not
resolve this dispute because, even accepting Pinholster’s position,” the Court was
“precluded from considering” the evidence adduced in the district court that
additionally supported Pinholster’s claim.18 Once the Supreme Court
determined, based only on the record that was before the state court, that the
petitioner was not entitled to relief under § 2254(d), it pronounced, “[O]ur
analysis is at an end.”19
In light of the teachings in Pinholster, we are not tasked with determining
whether all of the new evidence that Clark presented to the federal district court
was exhausted.20 We consider only the record that was before the state habeas
court. To prevail on his ineffective assistance claim, then, Clark “must overcome
the limitation of § 2254(d)(1) on the record that was before the state court.”21
B
We review the district court’s legal conclusions de novo and its factual
findings for clear error.22 We must determine whether the state court’s denial
of relief “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 Because Clark seeks relief on the basis of

17
Id. at 1402 n.11.
18
Id.
19
Id. at 1411 n.20.
20
Id. at 1402 n.11.
21
Id. at 1400; see also Pape v. Thaler, 645 F.3d 281, 287-88 (5th Cir. 2011) (applying
Pinholster to limit review under § 2254(d)(1) to the record before the state court), cert. denied,
132 S. Ct. 1100 (2012).
22
Ladd v. Cockrell, 311 F.3d 349, 351 (5th Cir. 2002).
23
28 U.S.C. § 2254(d)(1).

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ineffective assistance of counsel, the “clearly established federal law” against
which we measure the state court’s denial of relief is the standard set forth in
Strickland v. Washington.24 To prevail under Strickland, Clark must show that
(1) counsel’s performance was deficient, and (2) the deficient performance
prejudiced the defense.25
Though the state court did not specifically refer to Strickland, Clark does
not argue that the state court’s decision was contrary to federal law.
Accordingly, the question is whether the state court’s application of Strickland
to the facts before it was unreasonable.26 It bears emphasis that this inquiry is
“different from asking whether defense counsel’s performance fell below
Strickland’s standard.”27 As the Supreme Court has repeatedly admonished,
“‘an unreasonable application of federal law is different from an incorrect
application of federal law.’”28 Thus, under § 2254(d), we first “must determine
what arguments or theories supported or . . . could have supported[] the state
court’s decision.”29 We must then “ask whether it is possible fairminded jurists
could disagree that those arguments or theories are inconsistent with the

24
466 U.S. 668 (1984); Williams v. Taylor, 529 U.S. 362, 391 (2000) (“It is past question
that the rule set forth in Strickland qualifies as ‘clearly established Federal law, as
determined by the Supreme Court of the United States.’”).
25
Strickland, 466 U.S. at 687.
26
See Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5th Cir. 2002) (assuming that the
Texas court applied Strickland when, as in this case, the parties briefs centered around the
Strickland analysis); see also Harrington v. Richter, 131 S. Ct. 770, 784 (2011) (noting that
“this Court has observed [that] a state court need not cite or even be aware of our cases under
§ 2254(d)” (citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam))).
27
Richter, 131 S. Ct. at 785.
28
Id. (quoting Williams, 529 U.S. at 410).
29
Id. at 786.

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holding in a prior decision of” the Supreme Court.30 The state court’s
determination that Clark’s “claim lacks merit precludes federal habeas relief so
long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.”31
1
To demonstrate deficient performance under Strickland, a petitioner must
show that “counsel’s representation fell below an objective standard of
reasonableness.”32 “Judicial scrutiny of counsel’s performance must be highly
deferential,”33 and “the court should recognize that counsel is strongly presumed
to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.”34 Under the deferential standard
of Strickland, we must “affirmatively entertain the range of ‘possible reasons
[defendant’s] counsel may have had for proceeding as they did.’”35
When a petitioner argues that his attorney failed to investigate mitigation
evidence, the Supreme Court has said the proper inquiry is “not whether counsel
should have presented a mitigation case,” but “whether the investigation
supporting counsel’s decision not to introduce mitigating evidence of [the
defendant’s] background was itself reasonable.”36 Nonetheless, it has explicitly

30
Id.
31
Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
32
Strickland v. Washington, 466 U.S. 668, 688 (1984).
33
Id. at 689.
34
Id. at 690.
35
Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011) (quoting Pinholster v. Ayers, 590
F.3d 651, 692 (9th Cir. 2009) (en banc) (Kozinski, C.J., dissenting), rev’d sub nom. Cullen v.
Pinholster, 131 S. Ct. 1388 (2011)).
36
Wiggins v. Smith, 539 U.S. 510, 523 (2003).

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rejected a “constitutional duty to investigate” applicable to all cases, instead
emphasizing that the “constitutionally protected independence of counsel”
precludes the establishment of a “particular set of detailed rules” or even
“specific guidelines” beyond reasonableness.37 In clarifying that its precedents
do not compel any particular techniques, the Court emphasized that even
Strickland stated only that “[c]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary.”38
In Clark’s state habeas petition, he alleged that his counsel did not
“investigate [his] family background, or his social, medical, or mental history”
and failed to “conduct any interviews” or “retrieve or review any records.” The
only evidence Clark submitted to the state habeas court in support of this
contention was his mother’s affidavit, in which she stated that neither of Clark’s
trial attorneys, nor any investigator working on their behalf, contacted her. His
mother, Cleta Barrington, described the difficulties faced by Clark as a child in
light of her frequent incarceration brought on by drug addiction and prostitution,
and the abuses and frequent relocations he suffered while living with various
family members while his mother was in prison. Clark also had a cleft palate
as a child and was teased by other children. It interfered with his speech as
well. Clark’s mother explained that he had lived on his own since he was fifteen,
when she consented to his marriage to prevent him from being placed in another
foster-care program. She also revealed that Clark held himself responsible for
his brother’s suicide, which occurred the day after Clark and his brother had
fought. Barrington indicated that had Clark’s counsel or anyone working on

37
Pinholster, 131 S. Ct. at 1406 (quoting Strickland, 466 U.S. at 688-89) (internal
quotation marks omitted).
38
Id. at 1407 (quoting Strickland, 466 U.S. at 691) (internal quotation marks omitted).

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their behalf contacted her to ask about Clark’s past, she would have told them
what she eventually said in the affidavit.
For the first time in federal district court, Clark submitted additional
affidavits from his lead trial counsel and from a social worker who served as a
court-appointed mitigation specialist for Clark’s habeas counsel. Trial counsel
asserted that “mitigation practice in general was embryonic and not well
developed as a body of law at the time of Troy’s trial,” and that this fact and
counsel’s lack of training in mitigation led to a failure to obtain numerous
childhood, employment, and medical records and other evidence of Clark’s
background that might have been useful to the defense. The mitigation
specialist described the results of her research into Clark’s difficult and
traumatic childhood and his adult life filled with drug addiction and other
criminal activity, which might have engendered sympathy had it been presented
to the jury. (Much of it may have qualified as hearsay, however, since many of
the facts recounted by the mitigation specialist reflected only what she had been
told by others.)
Neither of these affidavits was provided to the state habeas court, and as
discussed above, evidence that was not before the state court cannot be
considered in a proceeding under § 2254(d)(1). We therefore review the state
court’s decision with reference only to the evidence that it had before it: the trial
court record and Barrington’s (Clark’s mother’s) affidavit.
The record from the trial court included the record from a motion for new
trial that Clark filed. That motion focused primarily on Clark’s claim that his
trial counsel was ineffective during the guilt–innocence phase of his trial.
Among others, Clark, both of Clark’s trial counsel, and a private investigator
appointed to Clark’s case testified at the hearing on the motion. Some of the
testimony addressed potential witnesses suggested by Clark. When asked how
he decided which witnesses to interview prior to trial, the investigator said, “I

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felt like I was being sent down rabbit trails on numerous occasions in this trial
because I’d run one lead down and the story would change, and I would have to
attempt to run another lead down.” There was minimal discussion of the
punishment phase of the trial, including describing what investigation did or did
not occur specifically directed toward that end. There was no allegation made
or evidence adduced of a failure to investigate mitigation; though that was not
the subject of the new trial motion, we nonetheless observe that evidence from
that hearing does not assist petitioner in meeting his burden here.
The state habeas court concluded that Clark did not demonstrate deficient
performance. In reaching this conclusion, the court acknowledged that counsel
had not contacted Clark’s mother, but also determined that counsel did, in fact,
interview other potential witnesses. The state court did not indicate the basis
upon which this conclusion was based, but there is evidence in the record that
supports this finding. At the hearing on the motion for new trial, for instance,
numerous witnesses were discussed; while this discussion primarily focuses on
the guilt–innocence phase, speaking with Clark’s friends and associates would
likely have given counsel information that would have related to Clark’s
background and character, as well as potential mitigation evidence.
Furthermore, from his experiences with these witnesses, counsel may have
drawn conclusions that future investigation would be fruitless; while counsel
stated that “I can’t recall anyone that [Clark] told us to go talk to and we did
not,” he also explained the problems with some of Clark’s witnesses. For
instance, one witness’s story was “absolutely consistent” with Clark’s, but when
she was needed for the trial, “we couldn’t find her and we tried.” Another
witness’s statements did not match what Clark indicated she would say.
Additionally, during the punishment phase, the court conducted a colloquy
with Clark before it would allow him to testify. During that proceeding, the
following exchange occurred between Clark and his counsel, Bobby Mims:

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MR. MIMS: Well, that’s not my question right now. . . . My
question is: You’re going to get up there and testify against
the advice of counsel?
CLARK: Yeah.
MR. MIMS: With respect to your punishment, is that correct?
CLARK: Yeah.
MR. MIMS: All right. Is it also true that we have asked you
to allow us to subpoena your father, Wilburn Clark, to come
up and testify for you, haven’t we. You refused to let us do
that?
CLARK: Yes, I did.
MR. MIMS: Okay. And also your mother, Cleta Barrington.
We wanted to go get her and bring her from the State facility.
She’s in the penitentiary somewhere in Arkansas and bring
her in and testify for you. Do you remember that? You didn’t
want us to do that either, did you?
CLARK: No, Sir.
MR. MIMS: Okay. Have I advised you we have no
other witnesses that are willing to come forward and
testify in your behalf. Did we advise of that?
CLARK: The people that have come that I called them,
told them not to come.
MR. MIMS: Yes, sir, in fact, you did call some people and tell
them not to come and testify in your behalf, didn’t you?
CLARK: Yes, sir.
On this record, the state court’s determination that Clark’s counsel
interviewed other witnesses was not an unreasonable determination of the
facts.39 The state court did not discuss whether counsel considered any other
sources of mitigating evidence, and the record before the state court was silent
on this point. There is a strong presumption under Strickland in favor of
competent performance by counsel, however, and the burden of demonstrating

39
See 28 U.S.C. § 2254(d)(2).

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deficient performance falls on the petitioner.40 Clark alleged that counsel’s
investigation was completely deficient, but the only evidence he provided to the
state court to support that allegation was his mother’s affidavit. From this, the
state court could conclude that trial counsel did not speak with Clark’s mother,
but could not readily conclude that he had done no other investigation, as alleged
in Clark’s application for writ of habeas corpus. Instead, there was evidence
indicating that counsel had conducted an investigation for the guilt–innocence
phase that may have implicated mitigating factors; that this investigation had
run into numerous roadblocks and “rabbit trails,” partially due to Clark’s
directions; and that counsel had at least proposed to speak with Clark’s mother
and father, but Clark prevented them from being subpoenaed.
The Supreme Court has admonished courts reviewing a state court’s
denial of habeas relief under AEDPA that they are “required not simply to ‘give
[the] attorney’s the benefit of the doubt,’ . . . but to affirmatively entertain the
range of possible ‘reasons [petitioner’s] counsel may have had for proceeding as
they did.’”41 The Strickland decision “calls for an inquiry into the objective
reasonableness of counsel’s performance, not counsel’s subjective state of
mind.”42 Clark’s counsel could reasonably have concluded that, in light of the
substantial and severely damaging evidence the State would present regarding
Clark’s history, a mitigation defense would be a two-edged sword and might well
bolster the State’s position that the death penalty was in order. Clark’s counsel
could reasonably have concluded that the best defense was to focus on the lack
of future dangerousness if Clark were imprisoned for life. That is clearly the

40
See Strickland, 466 U.S. at 687-91.
41
Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011) (alteration in original) (internal
citation omitted) (quoting Pinholster v. Ayers, 590 F.3d 651, 673 (9th Cir. 2009); id. at 692
(Kozinski, C.J., dissenting)) (internal quotation marks omitted).
42
Harrington v. Richter, 131 S. Ct. 770, 790 (2011) (citing Strickland, 466 U.S. at 688).

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strategy that was employed at trial. It was the only argument made to the jury
in summation at the conclusion of the penalty phase of the trial.
The state court determined that Clark did not demonstrate that counsel’s
performance was deficient. That determination “precludes federal habeas relief
so long as ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision.”43 Under Supreme Court precedent, Clark’s counsel had “a duty
to make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary,”44 and we must “affirmatively entertain
the range of possible reasons [defendant’s] counsel may have had for proceeding
as they did.”45 In light of the state court’s finding that defense counsel
interviewed other witnesses, and with only minimal evidence before the state
court to establish counsel’s deficiency, we believe fairminded jurists could
disagree on the correctness of the state court’s determination that counsel’s
performance was not deficient. Accordingly, federal habeas relief is precluded.
2
The State contends that, as an alternate ground of decision, we should
deny Clark habeas relief because he would have precluded his counsel from
calling any mitigation witnesses even had an adequate mitigation investigation
been conducted. The State relies on the Supreme Court’s decision in Schriro v.
Landrigan.46 The Landrigan decision held that “it was not objectively
unreasonable for [a state] court to conclude that a defendant who refused to
allow the presentation of any mitigating evidence could not establish Strickland

43
Richter, 131 S. Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
44
Strickland, 466 U.S. at 691 (emphasis added).
45
Pinholster, 131 S. Ct. at 1407 (quoting Pinholster, 590 F.3d at 692 (Kozinski, C.J.,
dissenting)).
46
550 U.S. 465 (2007).

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prejudice.”47 The circumstances of this case do resemble those addressed in
Landrigan. However, they are not identical. Though the Supreme Court in
Landrigan specifically stated that it had never imposed an “informed and
knowing” requirement on a defendant’s decision not to introduce evidence, it
assumed without deciding that such a requirement existed.48 Here, no court
below passed on whether any waiver by Clark was informed and knowing, and
the record is more ambiguous than the record in Landrigan. Accordingly, we
assume, without deciding, that Landrigan does not control.
We nevertheless conclude, as an alternate holding, that federal habeas
relief is precluded on this claim because the state court’s determination that
Clark did not demonstrate prejudice is not an unreasonable application of
federal law.
To establish prejudice under Strickland, Clark must show “a reasonable
probability that, absent [counsel’s] errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.”49 This court must “‘reweigh the evidence in aggravation against
the totality of available mitigating evidence.’”50
The decision in Strickland makes clear that in assessing prejudice, “the
question is not whether a court can be certain counsel’s performance had no
effect on the outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently.”51 Rather, “Strickland asks

47
Id. at 478.
48
Id. at 479.
49
Strickland, 466 U.S. at 695.
50
Pinholster, 131 S. Ct. at 1408 (quoting Wiggins v. Smith, 539 U.S. 510, 534 (2003)).
51
Richter, 131 S. Ct. at 791 (citing Wong v. Belmontes, 130 S. Ct. 383, 390 (2009) (per
curiam); Strickland, 466 U.S. at 693).

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No. 07-70037

whether it is ‘reasonably likely’ the result would have been different.”52 “This
does not require a showing that counsel’s actions ‘more likely than not altered
the outcome,’ but the difference between Strickland’s prejudice standard and a
more-probable-than-not standard is slight and matters ‘only in the rarest
case.’”53 “The likelihood of a different result must be substantial, not just
conceivable.”54
Aside from expert testimony that, based on actuarial models, Clark would
not have been a future danger in prison, the defense presented no mitigating
evidence at the punishment phase of the trial. In the state habeas court, Clark
presented additional mitigating evidence contained in his mother’s affidavit,
which showed that: (1) Clark was born with a cleft palate, causing speech
problems that invited ridicule from peers and family; (2) Clark’s mother had a
drug habit that she supported by prostitution, causing her to be incarcerated for
most of Clark’s life; (3) Clark’s father was not a presence; (4) Clark moved
around from home to home during his childhood; (5) Clark was subjected to
physical abuse by family members and exposed to family alcoholism; (6) Clark
married at 15 to avoid placement in a foster-care program and has been on his
own since; and (7) when Clark was 20, his brother committed suicide the day
after arguing with Clark.
Clark argued to the state habeas court that this additional evidence
presented “a hugely sympathetic case for mitigating a death sentence.” For
several reasons, we disagree. First, we have previously held that such evidence
is “double-edged” in that while it “might permit an inference that he is not as
morally culpable for his behavior, it also might suggest [that the defendant], as

52
Id. at 792 (quoting Strickland, 466 U.S. at 696).
53
Id. (quoting Strickland, 466 U.S. at 693, 697).
54
Id. (citing Strickland, 466 U.S. at 693).

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No. 07-70037

a product of his environment, is likely to continue to be dangerous in the
future.”55 Accordingly, “it is uncertain whether reasonable counsel would have
used the evidence had it been available; in any event, it is unlikely to have had
a significant mitigating effect had counsel presented it.”56
Second, it is unclear whether much of the evidence in Clark’s mother’s
affidavit would have been admissible, a factor relevant to the quality of the
mitigating evidence.57 The state court determined that the affidavit included
“significant hearsay and conclusory statements, much of which would not have
been admissible at trial.”
Third, it is questionable whether the jury would have been influenced by
the minimal mitigating evidence due to Clark’s own behavior on the witness
stand at the punishment phase of trial. Clark continued to deny his guilt,
expressed no remorse, and testified that he wanted the death penalty to be
imposed. After the prosecutor asserted that Clark was trying to manipulate the
jury into thinking that he wanted the death penalty so the jury would give him
a life sentence instead, Clark entered into a contentious exchange with the
prosecution. Clark also used profanity, causing the court to admonish him to
watch his language.
Finally, and most importantly, the aggravating evidence in Clark’s case
was overwhelming, a circumstance which we have observed makes it “virtually
impossible to establish prejudice.”58 The evidence at trial demonstrated that,

55
Ladd v. Cockrell, 311 F.3d 349, 360 (5th Cir. 2002).
56
Id.
57
See Neal v. Puckett, 286 F.3d 230, 241-42 (5th Cir. 2003) (en banc).
58
Ladd, 311 F.3d at 360 (citing Strickland, 466 U.S. at 698; Jones v. Johnson, 171 F.3d.
270, 277 (5th Cir. 1999); Russell v. Lynaugh, 892 F.2d 1205, 1213 (5th Cir. 1989)); cf. Schiro
v. Landrigan, 550 U.S. 465, 480-81 (2007) (“In sum, the District Court did not abuse its
discretion in finding that Landrigan could not establish prejudice based on his counsel’s failure
to present the evidence he now wishes to offer. Landrigan’s mitigation evidence was weak,

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No. 07-70037

fearing criminal penalties for his drug-dealing activities, Clark assaulted, bound,
kidnaped, beat, and drowned his victim before dumping her body in a barrel,
pouring lime and cement over it, and hiding the barrel in a remote location. In
addition to Clark’s long criminal history, the State also demonstrated that Clark
had committed two other murders, including one murder that occurred after
Muse’s death but prior to Clark’s apprehension. As the Supreme Court recently
recognized, evidence that a defendant “committed another murder [is] the most
powerful imaginable aggravating evidence.”59 Moreover, the State demonstrated
that Clark had also committed kidnaping, violent assault, and forcible rape, as
well as set a vehicle ablaze. As to the defense expert’s testimony that Clark
could successfully function in prison, other evidence showed that Clark had
previously been disciplined in prison for various rule infractions. Clark’s expert
was also forced to admit, on cross-examination, that the actuarial models on
which his testimony was based had proven incorrect in the past. Finally, a state
expert testified that Clark suffered from “antisocial personality disorder” and
that his personality would not change.
For all of these reasons, and particularly due to the overwhelming nature
of the aggravating evidence, there is no reasonable probability that, had the jury
heard the evidence contained in Clark’s mother’s affidavit, it would not have
imposed the death penalty.60 The state court’s determination that Clark did not

and the postconviction court was well acquainted with Landrigan’s exceedingly violent past
and had seen first hand his belligerent behavior.”).
59
Wong v. Belmontes, 130 S. Ct. 383, 391 (2009) (per curiam) (internal quotation marks
omitted).
60
Cullen v. Pinholster, 131 S. Ct. 1388, 1408 (2011) (“‘[T]he question is whether there
is a reasonable probability that, absent the errors, the sentencer . . . would have concluded
that the balance of aggravating and mitigating circumstances did not warrant death.’”
(alteration in original) (quoting Strickland v. Washington, 466 U.S. 668, 695 (1984)));
Harrington v. Richter, 131 S. Ct. 770, 793 (2011) (“The likelihood of a different result must be
substantial, not just conceivable.” (citing Strickland, 466 U.S. at 693)).

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demonstrate prejudice was therefore well within the bounds of AEDPA
reasonableness. At best, Clark can demonstrate that “‘fairminded jurists could
disagree’ on the correctness of the state court’s decision,”and federal habeas
relief is therefore precluded.61
III
We turn now to Clark’s application for COAs on his other ineffective
assistance claims. Under AEDPA, a prisoner whose habeas petition has been
denied in district court may not appeal “[u]nless a circuit justice or judge issues”
a COA.62 To obtain a COA, Clark must make “a substantial showing of the
denial of a constitutional right.”63 To make such a showing, he 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.”64 Our
task is to “look to the District Court’s application of AEDPA[’s]” deferential
framework “to petitioner’s constitutional claims and ask whether [the court’s]
resolution was debatable among jurists of reason.”65 “[A] claim can be debatable
even though every jurist of reason might agree, after the COA has been granted
and the case has received full consideration, that petitioner will not prevail.”66
“‘While the nature of a capital case is not of itself sufficient to warrant the

61
Richter, 131 S. Ct. at 786 (“A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness
of the state court’s decision.” (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004))).
62
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (alteration in original) (quoting 28
U.S.C. § 2253(c)(1)).
63
28 U.S.C. § 2253(c)(2).
64
Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2008)).
65
Id. at 336.
66
Id. at 338.

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issuance of a COA, in a death penalty case any doubts as to whether a COA
should issue must be resolved in the petitioner’s favor.’”67
A
Clark first claims his trial counsel’s closing argument amounted to
constitutionally ineffective assistance. Specifically, Clark claims that his
attorney’s performance was deficient because he abdicated his duty of loyalty to
Clark, did not ask the jury for mercy, and failed to present mitigating evidence.
The State argues that Clark’s closing argument ineffective assistance
claim is procedurally barred because Clark did not raise the claim on direct
appeal. The state habeas court determined that the record with respect to
Clark’s claims concerning closing argument was fully developed at his motion for
new trial and that Clark waived the claims by not asserting them on direct
appeal. The state court also resolved this claim on the merits, however. The
federal district court, citing state law demonstrating that ineffective assistance
claims are routinely evaluated for the first time on habeas review, concluded
that the alleged procedural bar was not applied “strictly and regularly . . . to the
vast majority of claims.” Therefore, the district court held the procedural bar
was not an adequate ground for the denial of relief.
The State does not address the district court’s rationale for rejecting its
procedural bar argument in this appeal, instead citing to cases rejecting record-
based claims other than ineffective assistance claims. “Although the question
of procedural default ‘should ordinarily be considered first,’ we need not do so
‘invariably,’ especially when it turns on difficult questions of state law.”68 Here,
we believe we can more easily address Clark’s request for a COA by considering

67
Johnson v. Quarterman, 483 F.3d 278, 285 (5th Cir. 2007) (quoting Ramirez v. Dretke,
398 F.3d 691, 694 (5th Cir. 2005)).
68
Busby v. Dretke, 359 F.3d 708, 720 (5th Cir. 2004) (quoting Lambrix v. Singletary, 520
U.S. 518, 524-25 (1997)).

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No. 07-70037

the potential merit of his ineffective assistance claim. Accordingly, we will
assume that the claim is not procedurally defaulted.
As noted above, Clark testified on his own behalf at the sentencing phase
of trial, expressing no remorse, stating he wanted to be sentenced to death, and
generally behaving belligerently in his exchange with the prosecution. Because
Clark did not testify until surrebuttal, his was the last testimony the jury heard
before closing arguments. In closing, Clark’s counsel adverted to that testimony,
calling it a “spectacle.” He asked, rhetorically, whether Clark was taunting and
manipulating the jury, answering his own question by saying “[A]t this point I
really don’t care, to tell you the truth. Because I’m not sure that it makes a
whole hell of a lot of difference.” He told the jury that he was “not going to fuss
at [the] verdict,” and that Clark was “the most difficult client” he had ever
represented. At that point, the court asked the attorneys to approach the bench,
querying whether counsel was purposefully trying to create reversible error.
Counsel asked to finish his argument, and the court agreed to “see where [he
was] going.” Counsel thereafter argued that Clark could be successfully
institutionalized and then returned to a discussion of Clark’s behavior on the
witness stand:
You know, when Troy got up on the witness stand and if you think that’s
taunting or you think he gave up, either way it is for you to decide. The thing
is, you decide. It’s not Troy Clark’s decision of whether or not he gets death
or life. It falls to you. If you think he was trying to manipulate you, taunt you,
dare you to sentence him to life, well, if that’s the opinion you raised, you can
call his bluff and find that the evidence will support the answers that would
dictate a death sentence, then that’s your judgment.
Immediately following the defense closing, at the court’s request, defense co-
counsel articulated the defense team’s strategy at a bench conference. Counsel
noted that “he got up and took the stand and asked for the death sentence,” and
that “[t]he strategy is it’s not his decision to make. It’s the jury’s to make.”

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At the hearing on Clark’s motion for new trial, counsel testified he had
discussed the closing argument extensively with co-counsel, and that it was
“[e]ntirely a strategic decision” made in light of Clark’s testimony that “either
challenged the jury or almost tried to incite the jury to give him the death
penalty.” Counsel testified that he and co-counsel concluded that their only
option was to “use some kind of reverse psychology with the jury that, that their
decision to give him the death penalty should be made a little more difficult than
the defendant’s simply saying go ahead.” The other attorney testified to the
same effect, specifically stating that the closing argument was designed to
maintain credibility with the jury and present “one or two arguments that
you . . . have to save the fellow’s life.”
In reviewing this and Clark’s other requests for COAs based on ineffective
assistance of counsel, we apply the Strickland standard discussed above. Our
review is also circumscribed by AEDPA’s deferential standard, however, making
our inquiry “different from asking whether defense counsel’s performance fell
below Strickland’s standard.”69 “The pivotal question is whether the state
court’s application of the Strickland standard was unreasonable.”70 The
Supreme Court has emphasized that “counsel has wide latitude in deciding how
best to represent a client, and deference to counsel’s tactical decisions in his
closing presentation is particularly important because of the broad range of
legitimate defense strategy at that stage.”71 “Closing arguments should ‘sharpen
and clarify the issues for resolution by the trier of fact,’ . . . but which issues to
sharpen and how best to clarify them are questions with many reasonable

69
Harrington v. Richter, 131 S. Ct. 770, 785 (2011).
70
Id.
71
Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003).

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No. 07-70037

answers.”72 At times, it may “make sense to forgo closing argument
altogether.”73 “Judicial review of a defense attorney’s summation is therefore
highly deferential-and doubly deferential when it is conducted through the lens
of federal habeas.”74
The state habeas court concluded that counsel’s performance was not
deficient, as he employed a “legitimate trial strategy . . . during the closing
argument to re-direct the attention of the jury from [Clark’s] challenge to
execute him to their duty to evaluate the evidence when answering the special
issues.” The federal district court concluded this determination was not contrary
to nor an unreasonable application of federal law. In his request for a COA,
Clark argues that counsel’s performance was deficient because counsel violated
his duty of loyalty, failed to plead for mercy, and did not discuss mitigating
factors. These claims are not adequate to deserve encouragement to proceed
further.
Counsel’s strategy in acknowledging that Clark was not likeable in trying
to gain credibility with the jury was reasonable. As we have held,
“acknowledgment of aspects of the case can be a proper ‘effort to bolster
credibility with the jury.’”75 Even if at times inartful, counsel’s argument was
a legitimate strategy to “‘sharpen and clarify the issues for resolution by the
trier of fact.’”76 The gravamen of counsel’s argument was to focus the jury’s
attention on its own responsibility in determining whether to impose a death

72
Id. at 6 (internal citation omitted).
73
Id.
74
Id.
75
Dowthitt v. Johnson, 230 F.3d 733, 751 (5th Cir. 2000) (quoting Kitchens v. Johnson,
190 F.3d 698, 704 (5th Cir. 1999)).
76
Gentry, 540 U.S. at 6 (quoting Herring v. New York, 422 U.S. 862 (1975)).

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No. 07-70037

sentence, regardless of Clark’s expressed desire to be sentenced to death. This
was not an unreasonable strategy.77 Counsel also emphasized the defense
argument that Clark would not present a significant danger in prison. Thus, the
record does not support Clark’s argument that counsel violated his duty of
loyalty to Clark.78 Moreover, given the wide range of available strategies,
pleading for mercy or presenting mitigating factors in a closing argument is not
required. Counsel’s closing argument was not constitutionally deficient, and
jurists of reason would not debate the district court’s conclusion. Moreover, for
the reasons discussed above, Clark cannot demonstrate prejudice.79 We deny
Clark’s request for a COA on this issue.
B
Clark next seeks a COA on his claim that counsel was ineffective in cross-
examining the State’s main witness, Tory Bush, by opening the door to
introduction of evidence of another murder Clark allegedly committed. In
addition to the offense at issue in this case, Clark was originally also indicted for
the murder of Tracy Mize, whose body was discovered on the same property
where Muse’s body was found. Prior to trial on the Muse murder, the court
granted Clark’s motion in limine to prevent the prosecution from introducing
evidence of the Mize murder.

77
Cf. Romero v. Lynaugh, 884 F.2d 871, 877 (5th Cir. 1989) (“Given his difficult
situation, we are not prepared to fault Wood’s effort to highlight the heavy responsibility of
the jury by not burdening them with the obvious and avoiding the risk of losing them by
arguing the absurd. To do so comes close to insisting on a pro forma argument in every case.
Had the jury returned a life sentence the strategy might well have been seen as a brilliant
move. That it did not does not mean that it was outside the range of reasonable professional
assistance.”).
78
See United States v. Cronic, 466 U.S. 648, 656-57 (1984) (“[I]f the process loses its
character as a confrontation between adversaries, the constitutional guarantee is violated.”).
79
See supra Part II.B.2.

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Bush, Clark’s girlfriend, testified that Clark committed Muse’s murder.
On cross-examination, defense counsel sought to impeach Bush by
demonstrating that she made a number of inconsistent statements to the police
regarding Muse’s death. Counsel established that, at one point, Bush placed the
blame on Mize. Counsel then elicited testimony that Mize had been murdered
and that the police found his body while searching for Muse. At this point, the
prosecutor urged, and the state judge agreed, that the defense had opened the
door to testimony regarding Mize’s death. Although this evidence was
previously inadmissible, it was now necessary to rehabilitate Bush. On redirect,
Bush testified about the circumstances regarding Mize’s death, implicating
Clark as the murderer. The state also introduced corroborating evidence, such
as testimony that the bullets recovered from Mize’s body were consistent with
those fired from Clark’s gun.
At Clark’s hearing on his motion for a new trial, counsel explained that the
defense team made a strategic decision to impeach Bush with the details of
Mize’s murder. Specifically, counsel explained that the defense team considered
impeaching Bush to be of utmost importance because she was the state’s
primary witness and because there was a lack of physical evidence connecting
Clark to the murder. However, counsel anticipated that it could become
necessary to introduce evidence of the Mize murder to impeach Muse effectively.
The record supports the state habeas court’s conclusions that: (1) counsel was
aware of this possibility; (2) it was discussed with Clark prior to trial; and (3) at
trial, the defense team conferred with Clark before raising the Mize issue.
Clark cannot demonstrate deficient performance under Strickland, as
“[j]udicial scrutiny of counsel’s performance must be highly deferential.”80 We
“indulge a strong presumption that counsel’s conduct falls within the wide range

80
Strickland v. Washington, 466 U.S. 668, 689 (1984).

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of reasonable professional assistance.”81 Clark has not demonstrated that, given
the necessity of impeaching Bush’s testimony, counsel’s decision to violate the
motion in limine fell outside of that range.82 Furthermore, Clark cannot
demonstrate prejudice. Regardless of Bush’s testimony regarding Mize, on direct
examination she had already placed the guilt for Muse’s murder on Clark. Also,
Clark was granted a limiting instruction in regard to Mize’s murder.
Accordingly, reasonable jurists could not debate the district court’s decision. We
deny Clark’s request for a COA on this claim.
C
Clark next seeks a COA for an ineffective assistance claim based on
counsel’s failure to object to the prosecution’s questioning of Amber Scroggins.
Specifically, Clark argues that counsel should have objected to Scroggins’s
testimony that Clark owned a stun gun and that he had bragged about using it
on one of his drug customers, Wesley Crocker. According to Clark, this failure
to object opened the door to Crocker’s testimony that Clark had him kidnaped,
assaulted him with a stun gun, and threatened to kill him.
Clark’s argument is untenable. Scroggins’s testimony on direct
examination did not lead to the admission of Crocker’s testimony. Rather, the
trial judge allowed Crocker’s testimony concerning his kidnaping because the
defense raised the issue of identity in cross-examining Scroggins, suggesting
that she and Bush murdered Muse. On direct appeal, the Texas Court of
Criminal Appeals agreed that Crocker’s testimony was not unfairly prejudicial

81
Id.
82
Cf. Emery v. Johnson, 139 F.3d 191, 197 (5th Cir. 1997) (concluding that attorney’s
considered strategic decision to directly question witness about the defendant’s confession,
thereby waiving the marital privilege, did not amount to ineffective assistance of counsel).

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No. 07-70037

because of its value in proving identity.83 Clark neither disputes this conclusion
nor argues that Scroggins’s testimony was inadmissible. As we have held,
“failure to assert a meritless objection cannot be grounds for a finding of
deficient performance.”84 This claim is not adequate to deserve encouragement
to proceed further, and we therefore deny Clark’s request for a COA on this
claim.
D
Finally, Clark requests a COA on his claim that counsel rendered
ineffective assistance by failing to object to the trial judge’s comment during
Clark’s testimony. In response to a question by the prosecutor, Clark stated that
he did not want to “get nobody in trouble” but that he guessed he had to tell the
truth. To this, the trial court responded with: “Yeah. You’re supposed to.”
Clark argues that the judge improperly commented on the weight of the evidence
and that counsel was thus ineffective in not objecting.
Clark’s argument is without merit. In United States v. Greer, a witness
for the defense, after being unable to answer precisely a number of the
prosecution’s questions, asked if the prosecution “wanted the truth.”85 The court
interjected and reminded the witness that his oath required the truth and that
he should testify accordingly.86 This court determined that there was no error
because the “district judge, as overseer of the trial, has the duty to ensure that
all witnesses understand the importance of their appearance and adhere to the

83
Clark v. Texas, No. 73,816, slip op. at 14-15 (Tex. Crim. App. Nov. 25, 2002)
(unpublished).
84
Emery, 139 F.3d at 198 (5th Cir. 1997) (citing Clark v. Collins, 19 F.3d 959, 966 (5th
Cir. 1994)); see also Buxton v. Collins, 925 F.2d 816, 825 (5th Cir. 1991) (concluding that
counsel did not act ineffectively in not objecting to a jury instruction that was not erroneous).
85
United States v. Greer, 806 F.2d 556, 559 (5th Cir. 1986).
86
Id.

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oath of truthfulness.”87 Thus, any objection by Clark’s counsel “would have been
futile, and failure to assert a meritless objection cannot be grounds for finding
deficient performance.”88 Accordingly, we deny Clark’s request for a COA on this
claim.
* * *
The judgment of the district court is AFFIRMED. We DENY Clark’s
requests for further COAs.

87
Id.
88
Emery, 139 F.3d at 198 (citation omitted).

30