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

                                                 FILED
                                                                            April 22, 2009

                                      Nos. 06-70044                    Charles R. Fulbruge III
                                                                               Clerk

JOHN WADE ADAMS

                                           Petitioner-Appellant-Cross-Appellee

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                           Respondent-Appellee-Cross-Appellant




           Appeals from the United States United States District Court
                       for the Northern District of Texas
                            USDC No. 3:02-CV-2042


Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
       Petitioner John Wade Adams, convicted of capital murder in Texas and
sentenced to death, received federal habeas corpus relief in district court based
on ineffective assistance of counsel (“IAC”) for his trial lawyer’s deficient
mitigation investigation. Adams now seeks a certificate of appealability (“COA”)
on three grounds for which the district court denied habeas relief, viz., (1) his



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  Nos. 06-70044

trial counsel’s failure to object to the prosecution’s improper and prejudicial jury
argument constituted IAC; (2) the prosecution’s failure to reveal impeachment
evidence constituted a denial of due process; and (3) the state trial court’s
erroneous exclusion of a member of the venire violated Adams’s Sixth
Amendment rights. Respondent Nathaniel Quarterman (the “State”) cross-
appeals the district court’s grant of habeas relief. Concluding both that Adams’s
trial counsel was ineffective by virtue of his constitutionally deficient mitigation
investigation which prejudiced Adams and that Adams fails to make a
substantial showing of the denial of any other constitutional right, we affirm the
district court’s grant of habeas relief for IAC and we deny a COA on Adams’s
remaining claims.
                       I. FACTS AND PROCEEDINGS
      A Dallas County jury convicted Adams on a charge of capital murder for
the 1997 stabbing death of Donna Vick. Adams’s co-defendant Gregory Edward
Wright was convicted of the same offense, sentenced to death, and executed on
October 30, 2008.
      Vick was a “street minister” to the homeless. In the days before her
murder, Vick invited the homeless Wright to reside in her house in exchange for
doing yard work. Adams, also apparently homeless at the time, was a friend of
Wright’s. In March 1997, Wright and Vick met Adams at the home of Llewelyn
Mosley, then left together in Vick’s car. They went first to a bar, the “VFW
Club,” then, in the early hours of the next morning, went to Vick’s home. There,
they stabbed her to death in her bed with a pocket knife owned by Adams and
with a butcher knife from Vick’s kitchen, then stole various items from the
house, left in Vick’s car, and drove to Mosley’s house. Later that day, Jeremiah
Tatum arranged for Adams and Wright to swap the items from Vick’s house for
$50 worth of crack cocaine. A neighbor, Jerry Causey, let the group borrow a
truck to haul the stolen goods.

                                         2
                                 Nos. 06-70044

      The next day, Adams got drunk and reported the murder to the Dallas
Police Department. Adams led the police to Vick’s body, to her abandoned
vehicle, to one of the knives, and to Wright.
      At Adams’s 1998 trial, Mosley testified that after the murder Adams and
Wright were happy and excited, exchanging high-fives. Tatum testified that
Adams was angry about the terms of the $50 crack-cocaine deal and that he
remarked, “Man, I just killed for this shit.” Tatum also testified that Adams said
Wright didn’t have the heart to finish the job, so Adams “had to kill the bitch.”
Causey testified that Adams told him, “I already done killed one bitch and I’ll
kill another one.” Adams testified in his own defense, denying the statements
that the State’s witnesses attributed to him, accusing them all of lying, and
claiming that he had refused to participate in the stabbing of Vick. The jury
convicted Adams of capital murder.
      To prepare for the punishment phase of trial, Adams’s attorney, David
Pickett, spoke to Adams’s mother and stepfather but found that they were not
particularly helpful or interested in testifying. Pickett hired an investigator,
Michael Christopher, to look for mitigating evidence. Christopher talked with
Adams’s mother and one of his brothers but found nothing very helpful. Adams
claims that he provided Pickett with the names of other family members and his
foster mother, but neither Pickett nor Christopher contacted them. Based on the
information collected and his knowledge of aggravating factors that would be
admissible if mitigation evidence were introduced, Pickett decided not to present
mitigation evidence. Instead, his strategy at the punishment phase was to
portray Wright as the instigator and Adams as only an accomplice and to stress
that Adams reported the murder to police and cooperated with the investigation.
      In this phase of the trial, the jury affirmatively answered the question
whether Adams would be a future danger to society and negatively answered the
question whether mitigating circumstances warranted a sentence of life

                                        3
                                 Nos. 06-70044

imprisonment rather than death. Accordingly, the trial court sentenced Adams
to death. On direct appeal, the Texas Court of Criminal Appeals (“TCCA”)
affirmed Adams’s conviction and sentence. Thereafter, the U.S. Supreme Court
denied review.
      Adams then filed an application for writ of habeas corpus in Texas state
court. The state habeas court issued detailed findings of fact and conclusions of
law, recommending that relief be denied.       Based on these findings and an
independent review of the record, the TCCA denied habeas relief. Adams then
filed his federal petition for writ of habeas corpus. The magistrate judge granted
Adams leave to depose his trial attorney, Pickett, and granted Adams’s motion
to expand the record to include that deposition. Holding that the state court
denied Adams an opportunity to develop the factual basis for his claim that
Pickett had failed to investigate mitigating evidence, the magistrate judge
ordered an evidentiary hearing. Only Pickett and his retained investigator,
Christopher, testified at that hearing.
      Adopting the magistrate judge’s findings of fact and conclusions of law, the
district court granted Adams habeas relief on the ground that Pickett was
ineffective for failing to investigate substantial, readily available mitigating
evidence and that this failure prejudiced Adams. The court denied Adams’s
other claims for habeas relief, including, inter alia, the three for which he now
seeks a COA from us. The State appeals the district court’s grant of habeas
relief for IAC, and Adams seeks a COA on the aforesaid three grounds that the
district court rejected.
                           II. STANDARDS OF REVIEW
      Adams filed his habeas petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), so his




                                          4
                                         Nos. 06-70044

petition is governed by AEDPA.1               Our review is limited by AEDPA, which
provides that habeas relief may not be granted unless (1) the state court
proceeding “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by
the Supreme Court; 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.” 2 “A decision involves an unreasonable application of
Supreme Court precedent if it ‘unreasonably extends a legal principle from
[Supreme Court precedent] to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should
apply.’” 3 “[A] decision is contrary to clearly established federal law if ‘the state
court arrives at a conclusion opposite to that reached by [the Supreme Court] on
a question of law’ or ‘confronts facts that are materially indistinguishable from
a relevant Supreme Court precedent and arrives at a result opposite to [that
precedent].’” 4       Merely incorrect state court decisions do not constitute
unreasonable applications of federal law; instead, the decision must be
objectively unreasonable.5 We presume that a state court’s factual findings are
correct, and the petitioner has the burden of rebutting those findings by clear
and convincing evidence.6


       1
           See Lindh v. Murphy, 

, 336 (1997).
       2
           Reed v. Quarterman, 

, 367 (5th Cir. 2009) (quoting 28 U.S.C. § 2254(d)(1)
(2006)).
       3
        Oliver v. Quarterman, 

, 334 (5th Cir. 2008) (quoting Williams v. Taylor,

, 407 (2000)), cert. denied, 

(Apr. 20, 2009).
       4
           

, 529 U.S. at 405).
       5
           Virgil v. Dretke, 

, 604 (5th Cir. 2006).
       6
         Blanton v. Quarterman, 

, 235 (5th Cir. 2008), petition for cert. filed (Feb.
9, 2009) (No. 08-8668); see 28 U.S.C. § 2254(e)(1).

                                                 5
                                         Nos. 06-70044

       Before a petitioner may appeal a denial of habeas relief, he must, as a
matter of subject-matter jurisdiction, secure a COA pursuant to AEDPA.7 We
may only grant a COA if the petitioner makes “a substantial showing of the
denial of a constitutional right.” 8 In making this determination, “[w]e conduct
a ‘preliminary, though not definitive’ evaluation — a so-called ‘threshold inquiry’
— of the petitioner’s arguments and must issue a COA if ‘reasonable jurists
would find the district court’s assessment of the constitutional claims debatable
or wrong.’” 9 In death-penalty cases, we resolve in favor of the petitioner any
doubts whether a COA should issue.10
                                        III. ANALYSIS
A.     Direct Appeal: IAC for Deficient Mitigation Investigation
       1.        Applicable Law
       IAC is “a mixed question of law and fact, which we review de novo.” 11 If
not clearly erroneous, however, we credit the trial court’s express or implied
findings of discrete, historic facts.12
       We review claims of IAC under the two-prong test of Strickland v.
Washington:13 Relief may be granted only if the petitioner demonstrates both (1)
that counsel’s performance was deficient, viz., “counsel was not functioning as



       7
          Moore v. Quarterman, 

, 459 (5th Cir. 2008). No COA is required when
the State is the appellant. DiLosa v. Cain, 

, 262 n.1 (5th Cir. 2002) (citing FED .
R. APP . P. 22(b)(3)).
       8
           28 U.S.C. § 2253(c)(2).
       9
           

–60.
       10
            

       11
            Ladd v. Cockrell, 

, 357 (5th Cir. 2002).
       12
            Sayre v. Anderson, 

, 634–35 (5th Cir. 2001).
       13
            

(1984).

                                                6
                                        Nos. 06-70044

the ‘counsel’ guaranteed . . . by the Sixth Amendment, ” and (2) that such
deficient performance prejudiced the petitioner, viz., counsel’s deficient
performance “deprive[d] the defendant of a fair trial, a trial whose result is
reliable.” 14
       In determining whether counsel’s performance was deficient, we employ
an objective standard of “reasonableness under prevailing professional norms.”15
We begin with a “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” 16 “Prevailing norms of practice as
reflected in American Bar Association Standards and the like . . . are guides to
determining what is reasonable, but they are only guides.”17
       When a “petitioner’s claim stems from counsel’s decision to limit the scope
of their investigation into potential mitigating evidence . . . [and] counsel
attempt to justify their limited investigation as reflecting a tactical judgment,”
the deference owed to such a strategic judgment turns on “the adequacy of the
investigations supporting those judgments.” 18 “[S]trategic choices made after
less than complete investigation are reasonable precisely to the extent that


       14
            

       15
            Wiggins v. Smith, 

, 521 (2003) (citation omitted).
       16
            

(internal quotation marks and citation omitted).
       17
         

We reference the version of the ABA Guidelines in place at the time of the
defendant’s trial. See Sonnier v. Quarterman, 

, 358 n.3 (5th Cir. 2007). Because
the Supreme Court did not reference the ABA Guidelines for the Appointment of Counsel in
Death Penalty Cases until 2005, see Rompilla v. Beard, 

, 387 n.7 (2005), the State
contends that our Strickland analysis in the instant pre-2005 case should not reference these
Guidelines as the “prevailing norms of practice.” This argument is not compelling and we
instead consider the ABA’s Guidelines as embracing the prevailing norms of the time even
before the Supreme Court explicitly referenced them.
       18
            

.

                                                7
                                          Nos. 06-70044

reasonable professional judgments support the limitations on investigation.”19
The question “is not whether counsel should have presented a mitigation case.
Rather, we focus on whether the investigation supporting counsel’s decision not
to introduce mitigating evidence . . . was itself reasonable.”20 “[C]ounsel should
consider presenting . . . [the defendant’s] medical history, educational history,
employment and training history, family and social history, prior adult and
juvenile correctional experience, and religious and cultural influences.” 21 That
is, “[g]enerally accepted standards of competence require that counsel conduct
an investigation regarding the accused’s background and character.” 22 Yet,
Strickland does not “require defense counsel to present mitigating evidence at
sentencing in every case.”23
      In our analysis of Strickland’s prejudice prong, we ask “‘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.’” 24        “A reasonable probability is a probability sufficient to
undermine confidence in the outcome,” but “[t]he result of a proceeding can be
rendered unreliable, and hence the proceeding itself unfair, even if the errors of
counsel cannot be shown by a preponderance of the evidence to have determined
the outcome.” 25       We re-weigh the mitigating and the aggravating evidence


      19
           

      20
           

original).
      21
       

(citing ABA GUID ELINES FOR THE APPOINTMENT AND PERFORMANCE                   OF
COUNSEL IN DEATH PENALTY CASES § 11.8.6, at 133 (1989)) (emphasis in original).
      22
           Miniel v. Cockrell, 

, 344 (5th Cir. 2003).
      23
           

.
      24
           Belyeu v. Scott, 

, 538 (5th Cir. 1995) (quoting 

).
      25
           

.

                                                 8
                                        Nos. 06-70044

looking to “the totality of the available mitigation evidence — both that adduced
at trial, and the evidence adduced in the habeas proceeding.”26
       2. Preliminary Issue: District Court’s Evidentiary Hearing
       The district court determined that 28 U.S.C. § 2254(e)(2) did not preclude
holding an evidentiary hearing to address a perceived factual dispute regarding
trial counsel’s investigation into Adams’s childhood. In cases involving petitions
for writs of habeas corpus under AEDPA, we review a district court’s decision to
hold an evidentiary hearing for abuse of discretion.27 The State argues that
holding the hearing constituted abuse of discretion because the IAC inquiry
involves both the performance and prejudice prongs, and that the district court
granted an evidentiary hearing regarding performance when lack of prejudice
independently foreclosed relief.
       Title 28 U.S.C. § 2254(e)(2) “states that if an applicant has failed to
develop the factual basis of his claim in state court proceedings, a federal court
should not hold an evidentiary hearing on the claim.” 28 Under this standard, “a
failure to develop the factual basis of a claim is not established unless there is
a lack of diligence, or some greater fault attributable to the prisoner or the
prisoner’s counsel.” 29 In addition to exercising diligence in developing a factual
basis in state court, to obtain an evidentiary hearing, a petitioner must show
that “if proven true, his allegations would entitle him to relief.”30




       

. Taylor, 

, 397–98 (2000).
       27
            See United States v. Demik, 

, 646 (5th Cir. 2007).
       28
            Conner v. Quarterman, 

, 293 (5th Cir. 2007).
       

. Taylor, 

, 432 (2000).
       30
          Murphy v. Johnson, 

, 816 (5th Cir. 2000); see 28 U.S.C. § 2254(e)(2)(B)
(requiring that the facts “would be sufficient to establish by clear and convincing evidence that
but for constitutional error, no reasonable factfinder would have” sentenced Adams to death).

                                                9
                                      Nos. 06-70044

       In the instant case, the district court acted within its discretion. Adams
made numerous requests in state court for an evidentiary hearing or to depose
witnesses in connection with his mitigation-based claim. The state court denied
these requests and accepted only affidavits that the parties could obtain from
witnesses who voluntarily cooperated. Adams was left with no means to prove
his allegations related to trial counsel Pickett’s mitigation investigation. Yet,
the state habeas court, relying on the fact that Adams had failed to prove those
same allegations, denied relief. It was not an abuse of discretion to conclude
that Adams exercised due diligence in attempting to develop the factual basis for
his mitigation-based claim in state court.31 Additionally, as confirmed by our
discussion below, the facts that Adams intended to prove would have entitled
him to relief.
       3.        Trial Counsel’s Performance
       The State asserts that Adams cannot mount a meritorious claim grounded
in Pickett’s allegedly deficient mitigation investigation given that Adams
purportedly instructed Pickett not to contact Adams’s family. Even assuming
Adams issued such an instruction, we disagree.
       First, the State’s reliance on Schriro v. Landrigan 32 is misplaced. There,
the Supreme Court stated that if a defendant issues an instruction to counsel not
to present any mitigating evidence, counsel’s failure to investigate cannot
constitute IAC.33 In contrast, the Supreme Court noted that Rompilla v. Beard
presented a different situation, one in which “the defendant refused to assist in
the development of a mitigation case, but did not inform the court that he did not


       31
         See 

(“[C]omity is not served by saying a prisoner has failed
to develop the factual basis of a claim where he was unable to develop his claim in state court
despite diligent effort.” (internal quotation marks omitted)).
       32
            

(2007).
       33
            

                                              10
                                         Nos. 06-70044

want mitigating evidence presented.” 34 In the instant case, there is no evidence
that Adams instructed counsel not to present mitigating evidence. Even if
Adams had instructed Pickett not to contact family members and presumably
not to present mitigating evidence derived directly from them, Pickett was not
relieved of conducting a mitigation investigation:
       [A] defendant’s desires not to present mitigating evidence do not
       terminate counsel’s responsibilities during the sentencing phase of
       a death penalty trial: The reason lawyers may not “blindly follow”
       such commands is that although the decision whether to use such
       evidence is for the client, the lawyer first must evaluate potential
       avenues and advise the client of those offering potential merit.35

       It is widely accepted that family members do not represent the only
potential avenue of mitigating evidence.36 Thus, an instruction not to contact a
defendant’s family members does not equate with a blanket instruction not to
investigate or present any mitigating evidence. In any event, it is unclear here
whether (1) Adams actually instructed Pickett not to contact his family and (2)
Pickett adequately explained to Adams the importance of mitigating evidence.37
Adams gave Pickett his mother’s telephone number, an act that appears to
contradict any intention that Pickett not contact Adams’s family members.
Further, Pickett now recognizes that Adams’s wishes would not have determined



       34
            

(citing Rompilla v. Beard, 

, 381 (2005)).
       35
         Wood v. Quarterman, 

, 203 n.7 (5th Cir. 2007) (internal quotation marks
and citation omitted), cert. denied, 

(2008).
       36
          See, e.g., Neal v. Puckett, 

, 238 (5th Cir. 2002) (en banc) (per curiam)
(looking to affidavits of school, hospital, and prison staff).
       37
          Cf. 

(“[I]n [defendant’s] presence, his counsel told the
sentencing court that he had carefully explained to Landrigan the importance of mitigating
evidence, especially concerning the fact that the State is seeking the death penalty.” (internal
quotation marks omitted)). The Supreme Court, however, has not specifically “imposed an
‘informed and knowing’ requirement upon a defendant’s decision not to introduce evidence.”

06-70044

the course of Pickett’s investigation: He “would have gone ahead and conducted
whatever investigation [he] thought appropriate, regardless of what [Adams]
wanted done,” i.e., he would have conducted what he considered to be a sufficient
mitigation investigation. Whatever Adams’s instructions were, they did not
have a substantial bearing on the extent of Pickett’s mitigation efforts.
      Neither are we satisfied that this is a case in which the defendant’s family
was unwilling or unable to help at the time of trial. If that were the situation
here, the fact that Pickett had “little family history with which to work [would]
not [be] due to ineffective representation but to the predicament [Adams] created
for himself.” 38 It is true that Pickett and his investigator, Michael Christopher,
spoke with Adams’s mother, his stepfather, and one sibling, none of whom was
particularly informative or willing to aid in Adams’s defense.            Yet, three
uncooperative family members does not an unwilling family make. It appears
that several of Adams’s family members would have been willing to assist in his
defense. For example, Adams’s habeas counsel filed affidavits from two half-
sisters, an aunt, and Adams’s foster mother, none of whom were contacted by
Pickett, but all of whom indicated a willingness to testify and assist Adams if
only they had been contacted.             And, it is troubling that Pickett, without
accepting responsibility for his own investigation, seems to have expected
Adams’s family members to come forward independently, irrespective of Pickett’s
investigative efforts. He testified: “I mean if there was somebody out there that
had this information, they needed to have come forward. Nobody from his family
came forward.”
      Consistent with this skewed perspective, Christopher testified at the
district court’s evidentiary hearing that he knew Adams had five or six siblings
but made no effort to contact them. Instead, Christopher expected Adams’s



      38
           Martinez v. Dretke, 

, 886 (5th Cir. 2005).

                                              12
                                     Nos. 06-70044

mother to instruct the siblings to contact Christopher if they were interested in
assisting with the case. And, Pickett gave Christopher no additional guidance
whether to conduct a more active investigation. Christopher testified that he
could have tracked down all of Adams’s siblings for $250 and that if he did not
have their names, he still could have located them at a cost of $500. But,
Christopher apparently would have done this only if Pickett had instructed him
to do so.   Christopher further testified that Adams did not volunteer, and
Christopher either did not ask Adams about, or does not recall asking Adams
about, information regarding abuse, neglect, and other possibly mitigating
evidence. Consistent with the testimony of Pickett and Christopher, Adams’s
affidavit states that neither of those two ever communicated to him the
importance of mitigating evidence. Christopher also conceded that in most cases
it is essential to investigate a defendant’s social, medical, psychological,
educational, abuse, and other histories, but that in this case he did not
investigate these areas, because “[Christopher] do[es only] what [he’s] asked to
do” and Pickett never made such a request.
       In the absence of a sufficient investigation of Adams’s background, it was
impossible for Pickett to make a strategic decision to pursue his stated
mitigation theory that emphasized Adams’s cooperation with police and his
relatively lesser participation in the murder. When, as here, counsel does not
conduct an investigation sufficient to enable him to reach an informed decision,
we must reject the assertion that counsel made a strategic choice not to
emphasize the defendant’s background.39 It is also apparent now that Pickett
concedes that his decision was not particularly informed. When asked if he
would have considered presenting the subsequently uncovered mitigation


       39
          See Lockett v. Anderson, 

, 715 (5th Cir. 2000) (“[T]he assertion of a
‘strategic decision’ must be rejected because no informed decision was made.” (emphasis in
original)).

                                            13
                                        Nos. 06-70044

evidence, Pickett responded that he “would have considered it . . . [but] can’t say
whether [he] would have used it or not.” Such a statement is not that of an
attorney who, at trial, affirmatively made a strategic decision not to present such
evidence. Further, Pickett’s trial emphasis on Adams’s cooperation with police
and relative role in the offense would have been wholly consistent with stressing
mitigating factors from Adams’s childhood.40 Of course, if Pickett had conducted
an investigation reasonably sufficient to support an informed strategy not to
present evidence related to Adams’s background, we would owe that decision
substantial deference.41 The instant case is distinct from those in which trial
counsel investigates a defendant’s background, uncovers so-called double-edged
evidence, and then makes a strategic choice not to present the evidence because
of its potentially aggravating effect.42 On the discrete facts of this case, Pickett
did not fulfill his “obligation to conduct a ‘reasonably substantial, independent
investigation’ into potential mitigating circumstances.” 43 A reasonable attorney
would have investigated further before deciding not to present mitigating
evidence.44


       40
         See Penry v. Lynaugh, 

, 319 (1989), abrogated on other grounds by Atkins
v. Virginia, 

(2002) (indicating that evidence of a defendant’s background is
relevant because a defendant with a disadvantaged background or one of emotional and
mental problems may not be as culpable as other defendants).
       41
         

–37 (emphasizing that we “do not assume that counsel’s
performance is deficient ‘merely because we disagree with trial counsel’s strategy’” (quoting
Crane v. Johnson, 

, 312 (5th Cir. 1999)).
       42
            See Rector v. Johnson, 

, 564 (5th Cir. 1997).
       43
         

–37 (quoting Baldwin v. Maggio, 

, 1332–33 (5th
Cir. 1983)).
       44
          See id; see also Wiggins v. Smith, 

, 523 (2003) (“[W]e focus on whether
the investigation supporting counsel’s decision not to introduce mitigating evidence of [a
defendant’s] background was itself reasonable.” (emphasis in original)); 

(“[I]nvestigations into mitigating evidence ‘should comprise efforts to discover all reasonably
available mitigating evidence . . . .” (quoting ABA GUIDELINES FOR THE APPOINTM ENT AND

                                               14
                                           Nos. 06-70044

       We conclude that Pickett’s investigation was insufficient as a matter of
law. Even with such assistance as Christopher provided, Pickett failed to make
even the most cursory inquiry into the existence of potentially mitigating
evidence in Adams’s background. The contrary state habeas court and TCCA
rulings are not merely incorrect; both are contrary to and unreasonable
interpretations of clearly established federal law.
       4.       Prejudice
       Having concluded that Pickett’s mitigation investigation was deficient, we
ask whether Adams was thereby prejudiced. The State urges that when the
district court evaluated the extent of available prejudicial evidence, it erred by
relying on unsubstantiated affidavits. We disagree. It is true that “[c]omplaints
of uncalled witnesses are not favored in federal habeas corpus review because
allegations of what a witness would have testified are largely speculative.” 45 Yet,
we have generally restricted this principle to a petitioner’s conclusional
statements about that which someone else might have said. 46 When a petitioner
comes forward with affidavits from those non-testifying witnesses attesting
under oath as to (1) what they would have said at trial and (2) that in fact they
would have testified at trial if they had been asked, we are chary to reject the




PERFORM ANCE     OF   COUNSEL   IN   DEATH PEN ALTY CASES § 11.4.1(C), at 93 (1989) (emphasis in
original)).
       45
            Lockhart v. McCotter, 

, 1282 (5th Cir. 1986).
       46
         See Coble v. Quarterman, 

, 436 (5th Cir. 2007) (“[The defendant] has not
established what information these witnesses would have provided.”); Evans v. Cockrell, 

, 377 (5th Cir. 2002) (noting that the defendant did “not provide affidavits from the
alleged eyewitnesses or indicate what testimony the eyewitnesses would give”); Sayre v.
Anderson, 

, 636 (5th Cir. 2001) (the defendant did not identify any favorable
witnesses); Buckelew v. United States, 

, 521 (5th Cir. 1978) (the defendant did not
identify what favorable testimony uncalled witnesses would have provided).

                                                  15
                                      Nos. 06-70044

uncalled witnesses’ statements.47 Further, the affidavits at issue here do not
involve statements that would be inadmissible hearsay.48                   For Adams “‘to
demonstrate the requisite Strickland prejudice, [he] must show not only that
[the] testimony would have been favorable, but also that the witness[es] would
have testified at trial.’”49 For a court to make this kind of inquiry based on
uncalled witnesses’ affidavits is non-controversial; many courts regularly assess
affidavits as competent evidence.50
       Pickett did not present any witnesses during the punishment phase of
Adams’s trial and, during his brief closing, Pickett’s co-counsel Hugh Lucas, did
not make any mitigation argument based on Adams’s background.                          Lucas
focused instead on (1) Adams’s lesser guilt relative to that of Wright, (2) Adams’s
cooperation with police, and (3) the fact that Vick’s murder was a “one-time
situation” for Adams.
       If Pickett had conducted even a minimally sufficient investigation, he
would have discovered the existence of substantial evidence that might have
influenced the jury to determine that mitigating factors required a sentence of
life imprisonment rather than death. For example, Adams’s half-sister, Bobbie

       47
         See Miller v. Dretke, 

, 362–63 (5th Cir. 2005) (considering how uncalled
physicians would have testified when it was fairly certain what the substance of the witnesses’
testimony would have contained); United States v. Cockrell, 

, 1427–28 (5th Cir.
1983) (distinguishing between a defendant’s “own speculations as to what [a witness] might
have been able to contribute” and a witness’s affidavit consisting of his proposed testimony).
       48
         Cf. Dowthitt v. Johnson, 

, 742 (5th Cir. 2000) (labeling as “particularly
suspect” affidavits from individuals stating that someone other than the defendant had
privately confessed to them that he, not the defendant, was guilty of the murder (quoting
Herrera v. Collins, 

, 417 (1993))).
       49
         Evans v. Cockrell, 

, 377 (5th Cir. 2002) (quoting Alexander v. McCotter,

, 602 (5th Cir. 1985)) (first and second alterations in original).
       50
         But see Wilkerson v. Cain, 

, 893–84 (5th Cir. 2000) (Garza, J., specially
concurring) (cautioning against relying on affidavits and indicating a preference for live
hearings in which the court may evaluate an affiant’s reliability). We note that the state
habeas court also considered the affidavits from Adams’s family members.

                                              16
                                     Nos. 06-70044

Dale Satterlee, would have testified about the abuse his mother and stepfather
inflicted on Adams.51 Another half-sister, Patricia Guillory, would have testified
about similar abuse.52 And a third half-sister, Deborah Chase, would have
testified about additional abuse and deprivation.53
       Moreover, Adams’s foster mother, Linda Elliott, would have told the jury
that when she first encountered Adams in his family’s mobile home, he was two
years old, and neither he nor his siblings had eaten in three or four days and did
not know where their parents had gone.54 She would also have testified that, at
the time, Adams was covered in what Elliott thought were cigarette burns and
was in a condition that she described as “almost a wild child.” Adams lived with
the Elliotts for seven years and apparently became “a happy child” and a good
student without a violent streak. Elliott also would have told the jury that
several years after they took Adams in, his mother attempted to extort $5,000
from the Elliotts for “the privilege of continuing to keep John,” and that when
this attempt failed, his mother was able to regain custody of Adams through
court proceedings in which she offered perjured testimony. According to Elliott,
after Adams’s mother regained custody, he “never had a chance,” and if Adams’s
mother had not interfered, Adams would have “had a good life . . . and . . . would
have gone to college too.”


       51
         For example, she stated: “Mama beat [Adams] up. He was on the floor and she was
kicking him and stomping on him”; Adams stepfather would “hit John with his hand, slap him
upside the head. He would hit John in the head or face.”
       52
        For example, she stated: “[I]f [Adams’s stepfather] saw one of the kids put his hand
on the wall, he would sneak up behind you and slap [the] shit out of you”; “Mama would hit
me with switches so bad my legs would bleed. She also used belts and a razor strap.”
       53
         For example, she stated: “John was whipped with a belt”; “You never really knew
what circumstances you would wake up to. You never even knew if there would be food in the
house.”
       54
         Deborah Chase recalls the events differently and states that Adams’s mother placed
the children with the Elliotts.

                                            17
                                      Nos. 06-70044

       In addition to these affidavits, the affidavit of Dr. Paula Lundberg-Love,
a professor of psychology at the University of Texas at Tyler, was submitted in
the state habeas proceedings.           After conducting a clinical interview and
psychological testing of Adams, reviewing his prison records, reading the
affidavits of family members, and consulting a summary of the evidence
presented at Adams’s trial, Dr. Lundberg-Love concluded that he suffers from
bipolar disorder, alcohol and drug dependence, and a personality disorder with
borderline and antisocial features. Dr. Lundberg-Love determined that “many
of the psychological problems experienced by John may be sequelae of the
neglect, physical, and psychological abuse that he experienced during childhood”
and that “it is not difficult to see how John Adams’ history of major child abuse
and neglect has had a profound impact upon his psychological, intellectual, and
social development.” 55
       The State contends that the post-conviction affidavits are “double-edged,”
and that if the affiants had so testified at trial, the State would have impeached
any mitigating evidence with evidence of, inter alia, Adams’s childhood thefts,
teenage marijuana use, absence without leave from the Army, gang affiliation,
and racist attitude. We recognize that the State may have followed such a
strategy at the trial’s punishment phase, but we cannot conclude that the
aggravating effect of this evidence would have outweighed the mitigating
evidence in a reasonable jury’s minds.
       We acknowledge that, as Wright’s execution date neared, Adams wrote
letters and answered interrogatories stating that he was Vick’s murderer, that



       55
         Although it may be reasonable for an attorney to make a strategic choice not to
present testimony of a psychological expert given that it could open the door to the State’s
presenting its own aggravating psychological evidence, in this case Pickett made no effort to
obtain sufficient information to determine whether evidence from an expert like Dr.
Lundberg-Love would have been useful. We re-emphasize that Pickett violated his
independent duty to investigate.

                                             18
                                       Nos. 06-70044

he had framed Wright, and that because Adams had found God in 2005, he now
felt that he should tell the truth. Yet, at a hearing, Adams conceded that the
letters were false and written for the sole purpose of delaying Wright’s
execution.56 We concluded in Wright’s case that Adams’s “letters are false and
not persuasive.” 57 Nothing today causes us to question that prior determination,
and Adams’s letters do not affect our prejudice analysis.
      We conclude that Pickett’s insufficient investigation prevented his
discovery of substantial, readily available mitigating evidence of Adams’s
childhood abuse, neglect, and abandonment. A reasonable probability exists
that, absent these errors (and even when considering the aggravating aspects of
Adams’s crime), a jury would have determined that “‘the balance of aggravating
and mitigating circumstances did not warrant death.’” 58 The conflicting rulings
of the state habeas court and the TCCA are contrary to, or an unreasonable
interpretation of, clearly established federal law.             We therefore affirm the
district court’s grant of habeas relief on the ground of IAC. Adams is entitled to
a new punishment-phase trial.58
B.    COA Issue One: IAC for Failure to Object
      1.        Applicable Law
      The Strickland IAC standard described above also applies to Adams’s
claim based on Pickett’s failure to object to the State’s jury argument. Adams’s
burden here, however, is two-fold:



      56
           In re Wright, 298 F. App’x 342, 343 (5th Cir. 2008) (per curiam) (unpublished).
      57
           

      58
        Martinez v. Quarterman, 

, 254 (5th Cir. 2007) (quoting Strickland v.
Washington, 

, 695 (1984)).
      58
          We express no view on whether, after sufficient investigation, competent counsel
should present mitigating evidence on retrial or, if so, what the nature and extent of such
evidence should be.

                                              19
                                        Nos. 06-70044

       In federal habeas actions, improper jury argument by the state does
       not present a claim of constitutional magnitude unless it is so
       prejudicial that the petitioner’s state court trial was rendered
       fundamentally unfair within the meaning of the Fourteenth
       Amendment’s Due Process clause. To establish that a prosecutor’s
       remarks are so inflammatory as to prejudice the substantial rights
       of a defendant, the petitioner must demonstrate either persistent
       and pronounced misconduct or that the evidence was so
       insubstantial that (in probability) but for the remarks no conviction
       would have occurred.

              The requisite showing is a difficult one for a criminal
       defendant to establish on appeal. The burden is even more difficult
       in this case because [Adams] must not only show [1] improper jury
       argument rising to the level of a constitutional impairment of a
       fundamentally fair trial, but he must also show [2] that his trial
       counsel was constitutionally ineffective in failing to object to the
       argument . . . .59

       Further, in addition to Strickland’s presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance, the nature of
Adams’s particular argument here requires him to overcome a substantial
barrier to relief: “A decision not to object to a closing argument is a matter of
trial strategy,” and we have previously declined to disturb a state habeas court’s
conclusion that failure to object at closing did not render trial counsel’s
assistance ineffective.60
       2.        Failure to Make a Substantial Showing of IAC for Failure
                 to Object
       Pickett, in his closing argument of the trial’s guilt-innocence phase,
referred to various prosecution witnesses as “‘outlaws’ and ‘deal-makers,’ who
because of charges pending against themselves, fashioned their testimonies to


       59
       Bridge v. Lynaugh, 

, 774 (5th Cir. 1988) (internal citations and quotation
marks omitted).
       60
            Drew v. Collins, 

, 423 (5th Cir. 1992).

                                               20
                                         Nos. 06-70044

fit what they believed the police wanted them to say.” In response, during the
State’s closing argument, the prosecutor argued:
       [I]f there’s a one of you, even one of you on this jury who believes
       that I have somehow cut some sort of implied, express or otherwise,
       deal with any of these witnesses, if any of you believe that I have
       attempted to defraud you, the Court, and this criminal-justice
       system somehow in this case, when you go back there to that jury
       room, I want you to do something for me.

       Before you decide whether this man is guilty or not guilty of this
       crime, if a one of you believes that’s occurred, you say not guilty . . . .
       But, I’m going to stand here and tell you again, that has not
       occurred in this case. It hasn’t occurred through the . . . Police
       Department. It hasn’t occurred through us.

       Assuming arguendo that these statements constituted an improper jury
argument because prosecutors may not “assert [their] own credibility as a
foundation for that of [their] witnesses,” 61 we nevertheless conclude that Adams
has not made a substantial showing that would overcome the presumption of
reasonable assistance. 62 Adams has neither made a sufficient showing that
there is a reasonable probability that the trial’s result would have been different
if Pickett had objected nor that the state court erred in concluding that Pickett
made a strategic choice not to object. Pickett “could have decided that his best
strategy was to let his own closing argument . . . speak for itself. Whatever the
reason for his choice not to object, we do not view his conduct as ineffective
assistance.” 63 The state courts’ holdings that Adams did not suffer IAC from



       61
            See United States v. Garza, 

, 664 (5th Cir. 1979).
       62
          We do not reach the issue of whether the State’s argument was in fact improper
under Texas law. The state habeas court found, as a matter of state law, that the argument
did not give rise to an objection. See Engle v. Isaac, 

, 119–21 (1982) (indicating
that reviewing questions of state law is not a component of our habeas review).
       63
            Wiley v. Puckett, 

, 102 (5th Cir. 1992).

                                                21
                                          Nos. 06-70044

Pickett’s failure to object were not unreasonable. We shall not grant Adams a
COA on this claim.
C.     COA Issue Two: Due Process – Failure to Reveal Impeachment
       Evidence
       Adams contends that the State unconstitutionally withheld Brady
material from him by failing to disclose information concerning an offer made to
State witness Llewelyn Mosley in exchange for his testimony. According to
Adams, the State (1) may have offered Mosley a deal for his testimony even
though no specific consideration was ultimately agreed upon and (2) assured
Mosley that he was not a suspect in Vick’s murder and that the State would
have already charged him if he were a suspect. Mosley testified against both
Wright and Adams at their respective trials.
       The suppression of impeachment evidence that is material to guilt or
punishment violates due process.64 “Evidence is ‘material’ when its suppression
creates a reasonable probability of a different result.” 65                 We consider
cumulatively the materiality of all suppressed evidence.66
       In Wright’s appeal, we said that he had offered no reason to disturb the
district court’s determination that he failed to establish that the State had
suppressed evidence of an agreement not to prosecute Mosley.67                  Likewise,
Adams has failed to offer any justification to reconsider the existence of an
actual agreement not to prosecute.




       64
            Wright v. Quarterman, 

, 591 (5th Cir. 2006).
       65
            

There is no harmless-error inquiry in our Brady analysis. Graves v. Dretke, 

, 340 (5th Cir. 2006).
       67
            

–92.

                                               22
                                    Nos. 06-70044

      Adams, however, asserts a distinct argument — that the State had a duty
to disclose the mere “possibility of a reward,” irrespective whether an actual
agreement existed.68 The State has a duty to disclose a possibility of reward
because even a possibility gives a witness “a direct, personal stake” in the
defendant’s conviction, regardless whether “the stake was . . . guaranteed
through a promise or binding contract, [or] was expressly contingent on the
Government’s satisfaction with the end result.”69 To hold that the State need
only reveal inducements to testify if the prospective witness responds “I accept”
would permit the State to conceal evidence of agreements that in practice might
have been accepted by the witness’s act of actually testifying rather than by
signing or otherwise reaching an explicit agreement.
      At trial, but outside the jury’s presence, Mosley’s attorney, Kent Traylor,
testified that Mosley and the State had reached no implied or express
agreement. Yet, Traylor did refer to an “offer.” The lead prosecutor and one of
his colleagues have stated under oath, however, that they made no offer to
Mosley to secure his testimony. And, the state habeas court found credible
prosecutor Rick Jordan’s recollection that he offered Mosley no deal and that
“there was no need whatsoever to offer any deal to Mosley because he had been
unreservedly telling the same story to the police and prosecution team since he
was first questioned . . . a few days after” the murder. The state habeas court
rejected Adams’s claim and determined “that the record, including Traylor’s
testimony and the affidavits of [the two prosecutors], does not reflect that the
State made an offer to Mosley, but merely reflects — through Traylor’s brief
testimony — that there was some ‘offer’ discussed by Traylor and Mosley. . . .
Traylor’s testimony may merely have described an ‘offer’ that Traylor and

      68
        See United States v. Bagley, 

, 683–84 (1985) (Blackmun, J., joined by
O’Connor, J.).
      69
           

                                           23
                                         Nos. 06-70044

Mosley made or discussed making to the State.” In denying relief to Adams, the
TCCA adopted the state habeas court’s findings.
       Adams has not established that the district court’s denial of Adams’s
Brady claim is reasonably debatable. He offers nothing to upend the state
habeas court’s factual determination that no offer was made. Traylor’s bare
mention of the word “offer” in the face of credible testimony that the State made
no offer to Mosley is insufficient to support a Brady claim.70 We shall not grant
Adams a COA on this claim.71
D.     COA Issue Three: Exclusion of a Member of the Venire
       No defendant may constitutionally be put to death by a jury “chosen by
excluding veniremen for cause simply because they voiced general objections to
the death penalty or expressed conscientious or religious scruples against its
infliction.” 72 Neither may a trial court exclude any member of the venire who is
“willing to consider all of the penalties provided by state law, and [is] not . . .
irrevocably committed, before trial has begun, to vote against the penalty of
death regardless of the facts and circumstances” of the case.73 Further, “a juror
may not be challenged for cause based on his views about capital punishment



       70
         Medellin v. Dretke, 

, 281 (5th Cir. 2004) (per curiam) (stating that
“speculation about the suppression of exculpatory evidence” cannot support a Brady claim).
       71
          Although the TCCA unanimously rejected Adams’s state habeas application, we
recognize that, on Adams’s direct appeal, two TCCA justices would have reversed the trial
court on the issue of the State’s allegedly withheld offer to Mosley. See Adams v. State, No.
73,132 (Tex. Crim. App. Nov. 22, 2000) (unpublished) (Womack, J., dissenting). The dissent
focuses on the fact that a possibility of reward can be material. Yet, at that time, the TCCA
neither had the benefit of (1) the state habeas evidence, including the prosecutors’ affidavits,
nor (2) the state habeas court’s factual findings and conclusions of law, which the TCCA
subsequently adopted in toto. The dissenting opinion in Adams’s direct appeal thus does not
convince us that reasonable jurists could debate the district court’s disposition of his
habeas application.
       72
            Witherspoon v. Illinois, 

, 522 (1968).
       73
            

n.21.

                                                24
                                       Nos. 06-70044

unless those views would prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his oath.” 74 “A trial
judge’s finding of bias during voir dire is a determination of fact, subject to a
presumption of correctness on collateral review . . . .”75
      In the instant case, the trial judge excluded a member of the venire who
stated that she personally could never vote for the death penalty despite its
being proper and appropriate in some cases. The prospective juror clarified her
views during voir dire examination, and when she was asked whether she could
vote for the death penalty in the worst of imaginable cases, she indicated that
she could not. Given this testimony and the presumption of correctness of such
a determination by a trial court, Adams has failed to make a substantial
showing that excluding this member of the venire violated Adams’s
constitutional rights. We shall not grant Adams a COA on this claim.
                                   IV. CONCLUSION
      We affirm the district court’s grant of habeas relief on the ground that
Adams was prejudiced by his trial counsel’s deficient mitigation investigation
constituting constitutionally deficient assistance of counsel. We deny a COA on
Adams’s other claims, however, because he has failed to make a substantial
showing of the denial of any other constitutional right.
AFFIRMED.




      74
           Adams v. Texas, 

, 45 (1980).
      75
           Fuller v. Johnson, 

, 500–01 (5th Cir. 1997).

                                              25