dissenting from the denial of panel rehearing:
In his petition for panel rehearing, Alberto Valdez requests that the panel opinion be amended to affirm the district court’s exclusion of four exhibits from his federal evidentiary hearing. The panel opinion correctly states that we review evidentiary rulings for abuse of discretion and that an erroneous evidentiary ruling will be reversed only where a substantial right of a party is affected. See Valdez v. Cockrell, 274 F.3d 941, 957 (5th Cir.2001). But, for the reasons that follow, I do not see how the district court’s exclusion of the four exhibits at issue constitutes an abuse of discretion.
First, the exclusion of evidence is a recognized sanction or remedy for discovery violations. See 4 WayNE R. LaFave et al., CRIMINAL Procedure § 20.6(a) (2d ed.1999). The 1990 subpoena issued during the state habeas proceeding obligated the Director to produce the four exhibits. Because the Director did not comply until the first day of the federal evidentiary hearing — several years later — I find it impossible to conclude that the district court abused its discretion in excluding the exhibits. Indeed, a district court may abuse its discretion by admitting testimony or documents that a proponent fails to timely identify or produce when under a legal obligation to do so. See, e.g., Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996 (5th Cir.1998). Moreover, had the State produced the exhibits prior to Valdez’s murder trial in response to his trial counsel’s discovery request, the issue of mental retardation may have been investigated and presented to the jury during the penalty phase of the trial. Thus, questions of relevancy notwithstanding, the district court could conclude, without abusing its discretion, that the State waived the opportunity to present the exhibits by failing to produce them in a timely manner. By overturning the district court’s decision regarding the exhibits, the panel opinion rewards *394the State for failing to do what it should have done over a decade ago.
Second, I also find that the district court’s exclusion of the exhibits as irrelevant was within its sound discretion. Although the panel opinion relies on the existence of these documents prior to Valdez’s trial and habeas hearing, Strickland asks whether there is a reasonable probability that, but for counsel’s failure to investigate Valdez’s possible retardation, the result of the 1988 trial would have been different. See Strickland v. Washington, 466 U.S. 668, 694-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Evidence for which the Director cannot establish availability at that time is not relevant to the Strickland inquiry. Because the Director failed to demonstrate the relevancy of the exhibits, the district court did not abuse its discretion in excluding them. See United States v. McClatchy, 249 F.3d 348, 358 (5th Cir.2001). Because the district court did not err, inquiry into the substantial rights of the Director is unnecessary.
The panel majority’s review of the district court’s ruling on the exhibits seems far closer to de novo than it does to abuse of discretion, which may unfortunately reflect my colleagues’ opinion as to the ultimate merits of this case. The district court did not abuse its discretion; accordingly, I dissent from the denial of panel rehearing.