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

                                                                            FILED
                                                                           April 18, 2012

                                       No. 10-70011                        Lyle W. Cayce
                                                                                Clerk

MARIO SWAIN,

                                                  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
                         U.S.D.C. No. 6:06-cv-00425-mhs


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
        A Texas jury convicted Mario Swain of capital murder and sentenced him
to death for the 2002 killing of Lola Nixon. Having obtained no relief from his
conviction or sentence in Texas state courts, Swain turned to the federal courts
for habeas relief. The district court denied Swain’s habeas petition, see Swain
v. Thaler, No. 6:06cv425, 

(E.D. Tex. Mar. 31, 2010); but it
granted a certificate of appealability on the following three issues, which Swain


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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pursues in this appeal: (1) whether the introduction of Swain’s confessions at
trial violated his right to due process and privilege against self incrimination;
(2) whether Swain’s trial counsel rendered ineffective assistance of counsel by
failing to adequately investigate evidence in mitigation of the death penalty; and
(3) whether Swain defaulted his claim that the prosecution’s use of a procedure
known as a “jury shuffle” violated the Equal Protection Clause—and if he did not
default this claim, whether he is entitled to relief. Swain has not shown that he
is entitled to relief on any of these three grounds; therefore, we AFFIRM the
district court’s denial of his habeas petition.
                                         I.
      On December 28, 2002, Lola Nixon’s friends contacted the police after
Nixon did not show up for dinner the night before and they could not locate her
the next day. Police went to Nixon’s house on Iris Circle in Longview, Texas,
and discovered evidence of forced entry and blood throughout the house. The
police focused their investigation on a truck that one of Nixon’s neighbors
reported was parked in front of a vacant house on Nixon’s block the night before.
The truck was registered to Mario Swain’s grandfather, and when the police
spoke with him, he told them that Swain had been using the truck.
      Detective Terry Davis spoke with Swain on the phone, and Swain told him
that he could come speak with him where he worked, at a residential treatment
home. Detective Davis and Detective Jim Nelson drove to the address that
Swain had given and Swain’s grandfather’s truck was parked in the driveway.
Swain came out and met them in front of the open garage door. They asked him
why his truck was seen parked on Iris Circle the night before, and Swain told
them that he had gone riding with a friend and ended up parking his truck
there. One of the detectives told Swain that this was his opportunity to come
clean, which prompted Swain to give the following account: The night before, he
and a man named Casey Porter broke into a house on Iris Circle; when the

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                                 No. 10-70011

owner came home, Porter attacked her; they put the woman, who was alive but
unconscious, in the trunk of her car and drove to a remote location near the
airport where they left her. Swain agreed to take the detectives to the place
where he said that he and Porter had left the woman. Swain rode in the back
of the detectives’ car and directed them to a field where they discovered blood,
a black trash bag, and a piece of a tire jack, but they did not find Nixon.
Detective Davis testified that he did not recall handcuffing Swain at any point
while they were at Swain’s workplace or while Swain rode in their car, and that
he administered Miranda warnings to Swain when Swain got into the detectives’
car. Detective Nelson testified that he handcuffed Swain at some point “when
we were in the garage talking” and that “[a]t that point, we told him we were
going to detain him.”
      The detectives then brought Swain to the Longview Police Department.
There, he was read his Miranda rights again and he gave several written
statements. In his first statement—which included an acknowledgment that
Swain had the “right to remain silent and not make any statement at all and .
. . the right to [have] a lawyer present”—Swain admitted that he participated in
burglarizing Nixon’s house, but accused Porter alone of assaulting her. The
police arrested Porter, but soon discovered that he had an alibi. The detectives
confronted Swain with this information and after they informed him of his rights
again, Swain provided a second written statement. This statement also included
an acknowledgment “that I have the right to remain silent” and “to have a
lawyer present.”   Swain again admitted to participating in the burglary;
however, this time, Swain claimed that a man named Brian Mason Woods was
his accomplice and that Woods had assaulted the victim. As with Porter, the
police questioned Woods and discovered that he had an alibi.
      Several hours later, Swain was charged with burglary of a habitation and
was brought before a magistrate who read him his rights in accordance with

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Texas law.1 Swain was then brought to the district attorney’s office where a
different detective and an investigator with the District Attorney’s Office
questioned him. He agreed to lead them to Nixon’s body, and directed them to
a vehicle containing her corpse that was close to where he had first led
Detectives Davis and Nelson. Nixon had been beaten over the head and stabbed
in the chest. The medical examiner later testified that the cause of death was
“homicidal violence, including sharp force injuries, blunt force injuries, and
probable strangulation.”
       After disclosing the location of Nixon’s body, Swain was brought back to
the Longview Police Department. There, Detective Davis read him his rights
again and Swain gave a third written statement. As with the previous two
statements, this statement included an acknowledgment of “the right to remain
silent” and “the right to have a lawyer present.” This time, Swain admitted that
he had committed the burglary on his own. He also stated that the burglary
ended in a struggle with Nixon when she returned home; that he bludgeoned her
with a tire tool and placed her semi-conscious body into the trunk of her car; and
that he drove her to a field and left here there while she was breathing but
barely conscious. Later, police found the tire tool that Swain had used to
bludgeon Nixon; they also searched Swain’s truck and found clothing with
Nixon’s blood on it and Nixon’s car keys and garage door opener.
       Swain was tried for capital murder and, over his objection, his several
statements were introduced against him. After a three-day trial, a jury found

       1
          See Tex. Code Crim. Proc. art. 15.17(a) (“The magistrate shall inform in clear
language the person arrested, either in person or through the electronic broadcast system, of
the accusation against him and of any affidavit filed therewith, of his right to retain counsel,
of his right to remain silent, of his right to have an attorney present during any interview with
peace officers or attorneys representing the state, of his right to terminate the interview at any
time, and of his right to have an examining trial. The magistrate shall also inform the person
arrested of the person’s right to request the appointment of counsel if the person cannot afford
counsel. The magistrate shall inform the person arrested of the procedures for requesting
appointment of counsel.”).

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him guilty and sentenced him to death. The Texas Court of Criminal Appeals
(TCCA) upheld Swain’s conviction and sentence; and the Supreme Court denied
review. Swain v. State, 

(Tex. Crim. App. 2005), cert. denied 

(2006). The TCCA later denied Swain’s state habeas application. Ex
parte Swain, No. WR-64437-01, 

(Tex. Crim. App. Sept. 20,
2006) (unpublished). Swain then filed a petition for federal habeas relief, which
the district court denied. Swain v. Thaler, No. 6:06cv425, 

(E.D. Tex. Mar. 31, 2010). The district court granted a COA on three issues,
which are the subject of this appeal.
                                        II.
      “This habeas proceeding is subject to the Antiterrorism and Effective
Death Penalty Act (AEDPA), 28 U.S.C. § 2254 . . . .” Maldonado v. Thaler, 

, 235 (5th Cir. 2010). “Under AEDPA, if a state court has adjudicated
a habeas petitioner’s claims on the merits, he may receive relief in the federal
courts only where the state court decision [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.’” 

Quarterman, 

, 356 (5th Cir. 2007), in turn
quoting 28 U.S.C. § 2254(d)) (internal quotation marks omitted).
      “A decision is contrary to clearly established law if the state court ‘applies
a rule that contradicts the governing law set forth in [Supreme Court] cases.’”
Lafler v. Cooper, --- S. Ct. ---, 

, at *11 (U.S. Mar. 21, 2012)
(alteration in original) (quoting Williams v. Taylor, 

, 405 (2000)
(opinion for the Court by O’Connor, J.)). “To merit habeas relief, a state habeas
court’s application of federal law must be not only incorrect but ‘objectively
unreasonable.’” 

(quoting Renico v. Lett, 

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                                       No. 10-70011

1855, 1865 (2010)). “[A] determination of a factual issue made by a State court
shall be presumed to be correct [and] [t]he applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1).
       “We review the district court’s conclusions of law de novo, applying the
same standard of review that the district court applied to the state court
decision.” 

(citing Jones v. Cain, 

, 535
(5th Cir. 2010)). “[W]e review the district court’s findings of fact for clear error.”
Charles v. Thaler, 

, 498 (5th Cir. 2011) (quoting Evans v. Cain, 

, 622 (5th Cir. 2009)) (internal quotation marks omitted).
                                             III.
                                              A.
       The first issue on which the district court granted a COA is whether the
introduction of Swain’s confessions at trial violated his right to due process and
privilege against self incrimination. Swain contends that in order to secure
Swain’s confession, Detectives Davis and Nelson deliberately circumvented the
prophylactic warnings established in Miranda v. Arizona, 

(1966),
by questioning him first, before they informed him of his rights; and only once
he had confessed, did they give him Miranda warnings before questioning him
again. Swain argues that this question-first interrogation procedure violates
Miranda as explained in Missouri v. Seibert, 

(2004). The TCCA
held that the introduction of Swain’s statements at trial did not violate his
constitutional rights.2 We first conclude that this decision was not based on an

       2
         In addition to rejecting Swain’s Seibert claim on the merits, the TCCA determined
that Swain procedurally defaulted this claim. See Swain, 

, at *4. The
Respondent urges us to affirm the denial of this claim on the basis of procedural default.
However, we choose to resolve this claim on the merits because it is clear to us that the claim
“can be resolved more easily by looking past any procedural default.” Busby v. Dretke, 

, 720 (5th Cir. 2004) (“Although the question of procedural default should ordinarily
be considered first, we need not do so invariably . . . . In this case, we believe that [the

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unreasonable determination of the facts in light of the evidence presented in the
state court proceeding. We also conclude that this decision was not contrary to,
nor did it involve an unreasonable application of, clearly established federal law,
as determined by the Supreme Court. Accordingly, Swain has not shown that
the district court erred in denying him habeas relief on this claim.
       In Miranda v. Arizona, the Supreme Court held that the statements a
defendant gives during custodial interrogation are inadmissible at trial unless,
“[p]rior to questioning, [the] suspect ‘[is] warned that he has a right to remain
silent, that any statement he does make may be used as evidence against him,
and that he has a right to the presence of an attorney, either retained or
appointed.’” J.D.B. v. North Carolina, 

, 2401 (2011) (quoting

); see also United States v. Courtney, 

, 336
(5th Cir. 2006) (“[S]tatements obtained during a custodial interrogation without
providing adequate warnings under Miranda are inadmissible.”). Thus, the
necessity of administering Miranda warnings prior to police questioning depends
on the custodial nature of the interrogation. 

(“[A]
defendant who voluntarily gives a statement to law enforcement in a
non-custodial situation need not be advised of his Miranda rights.” (citing
Oregon v. Mathiason, 

, 495 (1977))).
       In Missouri v. Seibert, “the Supreme Court addressed ‘a police protocol for
custodial interrogation that call[ed] for giving no warnings of the rights to
silence and counsel until interrogation has produced a confession,’” at which
point the interrogating officer would administer “‘Miranda warnings and then
lead[] the suspect to cover the same ground a second time.’” 

(quoting 

).               The Seibert Court held that


petitioner’s] . . . claim can be resolved more easily by looking past any procedural default.
Accordingly, we shall assume that the claim is not defaulted.”(internal quotation marks and
citations omitted)).

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“statements obtained through the use of this technique are inadmissible.”

; 

J., concurring in the judgment).
However, we have recognized that “Seibert only applies if the first statements
were obtained in violation of Miranda.” 

. In sum, if
Swain’s initial, oral statements, which were obtained during police questioning
without Miranda warnings, were given in a non-custodial situation, then neither
Miranda nor Seibert required the suppression of those statements or Swain’s
later, written statements, which were given following Miranda warnings.
      The pertinent question then is whether Swain was in custody during the
initial police questioning at his place of employment. “A suspect is ‘in custody’
for purposes of Miranda ‘when placed under formal arrest or when a reasonable
person in the suspect’s position would have understood the situation to
constitute a restraint on freedom of movement of the degree which the law
associates with formal arrest.’” 

United States v. Bengivenga,

, 596 (5th Cir. 1988) (en banc)); see also Berkemer v. McCarty, 

, 442 (1984) (“[T]he only relevant inquiry is how a reasonable man in the
suspect’s position would have understood his situation.”). The TCCA determined
that Swain’s “initial conversation occurred before Swain was taken into custody
or arrested and was voluntarily given.” Swain argues that this decision entitles
him to habeas relief on two grounds under 28 U.S.C. § 2254(d).
      First, Swain contends that the TCCA’s decision was based on an
unreasonable determination of the facts in light of the evidence presented in the
state court proceedings. See 28 U.S.C. § 2254(d)(2). Swain attacks the TCCA’s
decision because it “never accurately addressed or reconciled the testimony
surrounding Swain’s driveway and backseat interrogation, confessions and
warnings[,] . . . did not identify which testimony it viewed more credible,” and
did not “pinpoint when (1) Swain was handcuffed, (2) taken into custody, or (3)
Mirandized.” Swain Br. 33-34. He argues further that “[t]here are no state

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court findings that Det. Nelson handcuffed Swain after any of his four
incriminating oral statements.” 

bottom, Swain contends that the
evidence presented in the state proceedings proves that he was handcuffed before
he was initially questioned by Detectives Davis and Nelson in front of his
workplace. See, e.g., 

was vague and uncertain on precisely
when Swain was handcuffed and Mirandized, while Nelson was certain . . . .
Nelson handcuffed Swain and then Davis questioned him . . . .”). We disagree.
      Contrary to Swain’s assertions that Detective Nelson was certain about
handcuffing Swain before the initial questioning, Detective Nelson’s trial
testimony is entirely vague about when he handcuffed Swain. The pertinent
part of Detective Nelson’s testimony, upon which Swain relies, is as follows:
      Q.    Now, did you -- at some point, did you handcuff Mr. Swain?
      A.    Yes, I did.
      Q.    When was that?
      A.    That was when we were in the garage talking.
      Q.    Okay. So you’re in the garage talking --
      A.    Yes, sir.
      Q.    -- and you handcuff him.
      A.    I did. I told him we were going to detain him for further
            investigation. He was moving around quite a bit, walking
            around in the garage. I didn’t know if he was going to -- if he
            was just nervous or he was going to attempt to flee on us, so
            I handcuffed him.
      Q.    And he wasn’t free to go at that point.
      A.    At that point, we told him we were going to detain him, yes,
            sir.
      Q.    Which means he’s not free to go.
      A.    No, sir.
This brief testimony does not indicate with any certainty that Detective Nelson
handcuffed Swain before, as opposed to after, he had made incriminating
statements about participating in the burglary.
      Moreover, Detective Nelson’s testimony that immediately followed may
suggest that Swain was handcuffed after his confession:


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       A.    After Mr. Swain told Detective Davis and I that he had
             participated in the burglary of the victim’s residence -- and we
             asked him -- and he also says that they took items from the
             residence, we asked if had any of that property on his person
             as that time.
                    Then he says that he had some 50-cent pieces that he
             took from the house that were in his jacket pocket. We asked
             him to retrieve them. He said that it was okay for us to take
             them out of his pocket, which we did.
(emphasis added). Swain points to the last line of Detective Nelson’s testimony
and argues, “Det. Nelson explained that he lifted the fifty-cent coins from
Swain’s coat pocket[,] [and] [t]he only reason this would be necessary would be
if Nelson had already handcuffed Swain, who could no longer reach the pockets.”
Swain Br. 30. However, the penultimate sentence, emphasized above, may
suggest the opposite: that Swain was not yet handcuffed—otherwise, it is
arguable that Detective Nelson would not have asked Swain to retrieve the coins
from his pocket. Furthermore, Detective Davis testified that he did not recall
handcuffing Swain at any time while they were at the house and speaking with
him.
       Based on this ambiguous testimony, we cannot say that the TCCA’s
decision that Swain was not in custody when he made his initial incriminating
statements was based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings.
       Next, Swain contends that the TCCA’s decision that he was not in custody
when he was initially questioned resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law. See 28
U.S.C. § 2254(d)(1). Again, we disagree.
       As previously explained, the relevant inquiry for “custody” in the context
of Miranda warnings is whether “a reasonable person in the suspect’s position
would have understood the situation to constitute a restraint on freedom of


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                                  No. 10-70011

movement of the degree which the law associates with formal arrest.’”

(citing, inter alia, 

, 442).
The testimony established the following facts regarding the initial police
questioning of Swain in front of his place of employment: After the police
determined that Swain had possession of the truck that was seen parked on the
victim’s block the night of her disappearance, Swain telephoned Detective Davis
and told him that he could come speak with him at his work; when the police
arrived, Swain agreed to speak with the officers voluntarily; all of the initial
questioning occurred in an environment that was familiar to Swain and open to
public view; and Swain was free to move around. Moreover, as just described,
the testimony does not support Swain’s contention that he was handcuffed before
this initial questioning. Thus, on this record, Swain has not shown that the
TCCA’s decision that he was not in custody—and thus, that the introduction of
his statements at trial did not violate Miranda or Seibert—resulted in a decision
that was contrary to, or an unreasonable application of, clearly established
federal law, as determined by the Supreme Court. See Yarborough v. Alvarado,

, 664-66 (2004).
      Thus, we see no error in the district court’s decision that Swain is not
entitled to habeas relief under 28 U.S.C. § 2254(d) on his claim that the
introduction of his statements at trial violated his constitutional rights.
                                       B.
      The second issue on which the district court granted a COA is whether
Swain’s trial counsel rendered ineffective assistance of counsel by failing to
adequately investigate evidence in mitigation of the death penalty. Swain
contends that if his trial counsel had conducted a reasonable investigation, he
would have uncovered significant evidence of traumatic events from Swain’s
childhood and of Swain’s psychological problems. Swain argues that had his
trial counsel presented this evidence to the jury, the jury would not have

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                                  No. 10-70011

sentenced him to death. We conclude that the TCCA’s decision that Swain did
not receive ineffective assistance of counsel was not contrary to, and did not
involve an unreasonable application of, clearly established federal law.
      In Wiggins v. Smith, 

(2003), the Supreme Court addressed
a Sixth Amendment ineffective-assistance-of-counsel claim based on the alleged
failure of trial counsel to adequately investigate and present evidence in
mitigation of the death penalty. 

Court explained that “the legal
principles that govern claims of ineffective assistance of counsel [established] in
Strickland v. Washington, 

(1984),” also governed Wiggins’ claim.

. “An ineffective assistance claim has two components:
A petitioner must show that counsel’s performance was deficient, and that the
deficiency prejudiced the defense.” 

U.S. at 687). “To
establish deficient performance, a petitioner must demonstrate that counsel’s
representation ‘fell below an objective standard of reasonableness.’” 

U.S. at 688). “[T]o establish prejudice, a ‘defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’”

).
      The TCCA held that Swain’s claim failed on both components of the
Strickland ineffective-assistance standard.       The district court, however,
“assum[ed] arguendo that Swain can demonstrate deficient performance and . . .
focus[ed] on the prejudice prong of the Strickland test.” Swain, 

, at *8.     The district court held that “the state court was not
unreasonable in finding that even had Swain presented the evidence of his
upbringing and psychological problems, there was not a reasonable probability
that at least one juror would have voted to spare his life,” and “[a]ccordingly,
[that] Swain has failed to show that the state court’s decision was contrary to,

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or an unreasonable application of, the standards provided by clearly established
federal law for succeeding on an ineffective assistance claim.” 

agree with the district court’s conclusion regarding the prejudice prong of
Swain’s Strickland claim, and therefore, we need not address the deficient
performance prong. Day v. Quarterman, 

, 536 (5th Cir. 2009) (“If
the petitioner fails to prove the prejudice component, the court need not address
the question of counsel’s performance.” (citing 

)).
      The district court accurately described the aggravating and mitigating
evidence that was presented in the punishment phase of Swain’s trial, as well
as the mitigating evidence that Swain presented in his habeas proceeding, which
was not introduced at trial, but Swain contends was available:
             At the punishment phase of Swain’s capital murder trial, the
      state presented evidence that in January 2001 he assaulted a
      fourteen-year-old girl named Olivia Torres, and in December 2002
      he burglarized the home of a woman named Nicole Anderson, and
      rendered her unconscious by making her inhale halothane, a
      general anesthetic. One of Swain’s girlfriends, Ashley Russell,
      testified that Swain spoke to her about knocking out older women
      at car washes and taking their money, and showed her a bottle of
      halothane. She also saw a book which Swain kept containing
      driver’s license numbers, car models, and descriptions of women
      driving the cars.
             Crystal Hargett testified that Swain asked her on more than
      one occasion to help him rob victims. Teresa McNene testified that
      someone struck her in the back of the head in October 2002 and
      tried to steal her purse. A month later, someone burglarized her
      work area, stealing her cosmetologist license and her cordless
      phone. Another of Swain’s girlfriends, Kristie Anderson, testified
      that Swain brought a cordless phone to his apartment. Anderson
      gave the phone to Officer Monty Gage, who testified that the serial
      number on the phone matched the serial number of McNene’s
      phone. Kristie Anderson also testified that she found papers at
      Swain’s apartment with the victim’s name and other names, both
      male and female, addresses, vehicle descriptions, and license plate
      numbers, written in Swain’s handwriting. Betty McDonald testified
      that in 1999 she was attacked from the back seat of her car by a

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                               No. 10-70011

   man with a taser.        Officer Gregory Stewart testified that
   fingerprints taken from McDonald’s car after the incident were
   Swain’s.
         The Defense called five witnesses: Swain’s mother, his
   maternal grandfather and grandmother, one of his jailers, and a
   criminologist. Swain’s Mother, Mechelle Todd, testified that after
   he was born the family moved between Long Beach, California,
   Longview, Texas, and Houston, Texas. She divorced Swain’s father
   when Swain was five years old and married his stepfather three
   years later. She testified that Swain got along well with his
   stepfather. When he was twelve years old, Swain moved from his
   residence in California back to Longview, Texas and lived with his
   grandparents for about four or five years. He then moved back to
   California, but did not like it and returned to Longview. Both
   grandparents testified that Swain caused them no trouble, was
   quiet, obedient and respectful, and attended church regularly. All
   three testified that there was good in Swain and that Swain had a
   good side which was worth saving. On cross-examination, Swain’s
   grandfather and his mother admitted that they were aware that
   Swain and another youth were involved in an incident of sexual
   cruelty involving a cow belonging to Swain’s uncle, and his
   grandfather had to pay the veterinarian bill. Swain’s jailer testified
   that Swain had not assaulted anyone during the year he had been
   incarcerated and had not caused trouble other than minor
   infractions, such as being in the wrong part of the jail at head count
   time. The criminologist testified to security procedures in the Texas
   prison system.
         During his state post-conviction proceedings, Swain presented
   a comprehensive social history report from Sheri Stillwell, and a
   mit[i]gation affidavit from Dr. Kate Allen. Both are Licensed
   Clinical Social Workers, and both opined that Swain suffered from
   post-traumatic stress disorder as a result of (1) seeing his father
   beat his mother, and (2) being locked in a closet while his father
   beat his mother, when Swain was a young child. Swain also
   suffered from attachment issues as a result of frequent moving and
   having to share his mother with his stepfather and stepbrother.
   Finally, he was sexually abuse[d] when he was six years old by
   being encouraged to watch pornographic movies by his
   sixteen-year-old uncle, and he himself began having sexual
   intercourse at age twelve. Swain’s psychological problems appeared
   serious enough to his mother that she took him to see a psychologist


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                                  No. 10-70011

      when he was ten or eleven, but the psychologist told her that
      nothing was wrong with him. He began engaging in criminal
      activity (shoplifting) when he was twelve years old.
Swain, 

, at *8-9 (footnote omitted).
      On this record, we cannot say that the TCCA’s decision—that there was
no prejudice under the Strickland formulation in Swain’s trial attorney’s failure
to uncover and present this mitigating evidence to the jury—resulted in a
decision that was contrary to, or an unreasonable application of, clearly
established federal law, as determined by the Supreme Court. In Miniel v.
Cockrell, 

(5th Cir. 2003), this court considered the same type of
claim that Swain presents here. In support of his ineffective assistance claim,
Miniel had introduced affidavits from several relatives and friends describing
the mitigating evidence that Miniel argued was available:
      Miniel’s [a]ffidavits paint a picture of a rough childhood. Miniel’s
      biological mother, Carmen Cantu, abandoned him when he was only
      a few days old. He was adopted by his aunt and uncle, Jesse and
      Manuel Miniel. He grew up in a house with six adoptive siblings in
      Rock Falls, Illinois, and his parents often fought over his father’s
      drinking and philandering. They also fought over Manuel’s
      treatment of Miniel. Manuel frequently beat Miniel from the time
      he was very young and some of these beatings were severe. In
      addition to the physical abuse, the children suffered from neglect.
      Jesse worked at a factory at night, leaving Manuel alone with the
      children. Manuel admits that he was an alcoholic and that he would
      often go to bars when Jesse was working. He would sometimes
      leave his children alone in the car outside a bar for hours at a time,
      even during the harsh Illinois winters. Other times, he would leave
      them alone in the house.

said that “Miniel’s [a]ffidavits are mild when compared to the
evidence presented by the petitioners in Wiggins v. Smith, [

(2003)],
and Williams v. Taylor, [

(2000)],” 

n.10;
and, accordingly, we held that “jurists of reason could not debate the correctness”
of the determination that “Miniel’s ineffective assistance claim fails for a lack of


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                                  No. 10-70011

prejudice.” 

is clear that the evidence Miniel presented in his
habeas petition was stronger mitigating evidence than the evidence Swain
presents in his habeas petition here. Thus, like Miniel, Swain has not shown
that he is entitled to habeas relief based on ineffective assistance of counsel. For
these reasons, we affirm the district court’s decision to deny Swain habeas relief
under 28 U.S.C. § 2254(d) on this claim.
                                        C.
      The third issue on which the district court granted a COA is whether
Swain defaulted his claim that the prosecution’s use of a procedure known as a
“jury shuffle” violated the Equal Protection Clause of the Fourteenth
Amendment, and if he did not default this claim, whether he is entitled to relief.
We conclude that Swain procedurally defaulted this claim and therefore, we do
not decide whether Swain would be entitled to relief.
      At the start of voir dire in Swain’s trial, the prosecution requested that the
venire panel be shuffled, causing more white people to be at the front of the
venire panel and making it less likely that a black person would be seated on the
jury. Swain now contends that this violated his right to equal protection of the
laws. However, Swain did not raise this issue in his direct appeal. As a result,
when Swain later presented this claim for the first time in his state habeas
petition, the TCCA concluded that Swain had defaulted this claim. Likewise, the
federal district court held that “[g]iven that Swain has failed to establish either
that he had good cause for failing to raise this claim or that a fundamental
miscarriage of justice would occur if the Court declined to address the substance
of the claim, the Court finds that this claim is barred from review under the
doctrine of procedural default and that dismissal of [this] claim is appropriate.”
Swain, 

, at *12.
      Swain contends that the district court erred because the state procedural
bar is not regularly enforced, and thus, that it is not an adequate and

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                                       No. 10-70011

independent state bar to habeas relief in federal court. See Harris v. Reed, 

(1989). That argument, however, is foreclosed by this court’s decision
in Dorsey v. Quarterman, 

(5th Cir. 2007):
       The Texas Court of Criminal Appeals has held that record based
       claims not raised on direct appeal will not be considered in habeas
       proceedings. Ex parte Gardner, 

, 191 (Tex. Crim.
       App. 1996, clarified on reh’g Feb. 4, 1998). This procedural rule was
       firmly established by Gardner before Dorsey’s appeal following his
       trial in 2000. This court recognizes that the Gardner rule sets forth
       an adequate state ground capable of barring federal habeas review.
       Busby v. Dretke, 

, 719 (5th Cir. 2004) and cases cited
       therein. Accordingly, the district court erred by failing to apply the
       procedural bar to this issue. Dorsey makes no claim of cause and
       prejudice and does not assert that a miscarriage of justice would
       result if the claim is not considered on its merits.

and citations omitted).3
       Like the petitioner in Dorsey, Swain appealed his conviction after the
TCCA decided Gardner; and, like Dorsey, Swain makes no claim of cause for
failing to raise his jury shuffle claim on direct appeal, and does not assert that
a miscarriage of justice would result if we did not consider the claim on its
merits. Therefore, we see no error in the district court’s determination that
Swain’s jury shuffle claim is procedurally barred.
                                             IV.
       For the foregoing reasons, we AFFIRM the district court’s denial of habeas
relief for Mario Swain.




       3
         Swain cites several decisions of the TCCA that post-date our decision in Dorsey in
which the TCCA allowed “an illegal sentence claim” to be raised for the first time in a habeas
petition. However, Swain’s jury shuffle claim is a “record based claim[]” analogous to the
Batson claim raised in Dorsey; it is not an “illegal sentence claim.” Therefore, we fail to
perceive the relevance of those cases.

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