MEMORANDUM AND ORDER

MARCIA A. CRONE, District Judge.

Petitioner John William King ("King"), an inmate confined in the Texas prison system, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. King is challenging his capital murder conviction and death sentence imposed by the 1st Judicial District Court of Jasper County, Texas, in Cause Number 8869, in a case styled The State of Texas v. John William King. The Director argues that the claims remaining before the court are procedurally barred. Having reviewed the submissions of the parties, the state court record, and the applicable law, the court is of the opinion the petition should be denied, and a certificate of appealability should not be issued.

I. Procedural History

King was sentenced to death for the murder of James Byrd, Jr. The offense took place on June 7, 1998. Based on the jury's answers to the special issues set forth in Article 37.071 of the Texas Code of Criminal Procedure, the trial court sentenced King to death on February 25, 1999. The Texas Court of Criminal Appeals ("TCCA") affirmed the conviction. King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000). King did not file a petition for a writ of certiorari.

While the direct appeal was pending, King filed an application for a writ of habeas corpus in state court. The state habeas court entered findings of fact and conclusions of law recommending that relief be denied. The TCCA denied the application without written order. Ex parte King, No. WR-49,391-01 (Tex. Crim. App. June 20, 2001) (unpublished order).

The present proceeding began on June 28, 2001. Most of the claims presented by King were not presented to the state courts. On March 29, 2006, the court granted the Director's motion for summary judgment with respect to the grounds for relief that had been exhausted. The court granted King's motion to hold the case in abeyance while he presented his remaining claims to the state court system. His second state application was dismissed as an abuse of the writ without consideration of the merits of the claims pursuant to Tex. Code Crim. Proc. Art. 11.071 § 5(c). Ex parte King, No. WR-49,391-02, 2012 WL 3996836 (Tex. Crim. App. Sept. 12, 2012).

King returned to this court and filed an amended petition (#75) on January 21, 2013. The Director filed an answer (#77) on April 22, 2013. King filed a reply (#89) on August 20, 2013.

II. Factual Background

The TCCA discussed the factual background of the crime as follows:

A portion of the note [King] wrote to Brewer was as follows:

King v. State, 29 S.W.3d at 558-62 (footnotes omitted). The TCCA found that the evidence was legally sufficient to prove that King murdered Byrd in the course of committing or attempting to commit kidnapping. Id. at 563-64. The TCCA rejected King's claim that the evidence was insufficient to show that he was a party to the offense. Id. at 564-65. Moreover, the Court held that there was no "manifest injustice" in the conviction. Id. at 565.

III. Grounds for Relief

King presents the following grounds for relief:

In the previous memorandum opinion (#64), the court granted the Director's motion for summary judgment on sub-claim "I" of King's first claim, his third claim, his eleventh claim, and the first sub-claim of his twelfth claim. The court granted King's motion to hold the case in abeyance while he presented the remaining claims and sub-claims to the appropriate state court. The TCCA subsequently dismissed the application containing these claims and sub-claims as an abuse of the writ without consideration of the merits of the claims pursuant to Tex. Code Crim. Proc. Art. 11.071 § 5(c). For the remainder of this memorandum, the court shall refer to such claims collectively as King's remaining claims.

IV. Exhaustion and Procedural Bar

The Director correctly observes that none of the remaining claims was exhausted at the time the petition was filed. He argues the claims should be rejected as procedurally barred in light of the TCCA's decision dismissing the subsequent application as an abuse of the writ.

The analysis of King's claims should begin with a discussion of the exhaustion requirement. State prisoners bringing petitions for a writ of habeas corpus are required to exhaust their state remedies before proceeding to federal court unless "there is an absence of available State corrective process" or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). In order to exhaust properly, a state prisoner must "fairly present" all of his claims to the state court. Picard v. Connor, 404 U.S. 270, 275 (1971). In Texas, all claims must be presented to and ruled upon the merits by the TCCA. Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). When a petition includes claims that have been exhausted along with claims that have not been exhausted, it is called a "mixed petition," and historically federal courts in Texas have dismissed the entire petition for failure to exhaust. See, e.g., Galtieri v. Wainwright, 582 F.2d 348, 355 (5th Cir. 1978) (en banc).

The exhaustion requirement, however, was profoundly affected by the procedural default doctrine that was announced by the United States Supreme Court in Coleman v. Thompson, 501 U.S. 722 (1991). The Court explained the doctrine as follows:

Id. at 750. As a result of Coleman, unexhausted claims in a mixed petition are ordinarily dismissed as procedurally barred. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied, 515 U.S. 1153 (1995). See also Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001). Such unexhausted claims are procedurally barred because if a petitioner attempted to exhaust them in state court, they would be barred by Texas abuse-of-the-writ rules. Fearance, 56 F.3d at 642. The procedural bar may be overcome by demonstrating either cause and prejudice for the default or that a fundamental miscarriage of justice would result from the court's refusal to consider the claim. Id. (citing Coleman, 501 U.S. at 750-51). Dismissals pursuant to abuse of writ principles have regularly been upheld as a valid state procedural bar foreclosing federal habeas review. See Moore v. Quarterman, 534 F.3d 454, 463 (5th Cir. 2008); Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir. 2008), cert. denied, 556 U.S. 1239 (2009); Coleman v. Quarterman, 456 F.3d 537, 542 (5th Cir. 2006), cert. denied, 549 U.S. 1343 (2007).

In the case at bar, the TCCA dismissed all of King's remaining claims as an abuse of the writ without consideration of the merits of the claims pursuant to Tex. Code Crim. Proc. Art. 11.071 § 5(c). Until just recently, the remaining claims would have undoubtedly been dismissed as procedurally barred in light of the decision by the TCCA dismissing them as an abuse of the writ. The Supreme Court, however, opened the door slightly for a showing of cause and prejudice to excuse the default in Martinez v. Ryan, 132 S.Ct. 1309 (2012) and Trevino v. Thaler, 133 S.Ct. 1911 (2013). In Martinez, the Supreme Court answered a question left open in Coleman: "whether a prisoner has a right to effective counsel in collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial." 132 S. Ct. at 1315. These proceedings were referred to as "initial-review collateral proceedings." Id. The Court held:

Id. at 1320.

The Supreme Court extended Martinez to Texas in Trevino. Although Texas does not preclude appellants from raising ineffective assistance of trial counsel claims on direct appeal, the Court held that the rule in Martinez applies because "the Texas procedural system — as a matter of its structure, design, and operation — does not offer most defendants a meaningful opportunity to present a claim of ineffective assistance of trial counsel on direct appeal." Trevino, 133 S. Ct. at 1921. The Court left it to the lower courts to determine on remand whether Trevino's claim of ineffective assistance of counsel was substantial and whether his initial state habeas attorney was ineffective. Id.

The United States Court of Appeals for the Fifth Circuit has summarized the rule announced in Martinez and Trevino as follows:

Preyor v. Stephens, 537 F. App'x 412, 421 (5th Cir. 2013), cert. denied, 134 S.Ct. 2821 (2014). "Conversely, the petitioner's failure to establish the deficiency of either attorney precludes a finding of cause and prejudice." Sells v. Stephens, 536 F. App'x 483, 492 (5th Cir. 2013), cert. denied, 134 S.Ct. 1786 (2014). The Fifth Circuit recently reaffirmed this basic approach in Reed v. Stephens, 739 F.3d 753, 774 (5th Cir.), cert. denied, 135 S.Ct. 435 (2014). The Fifth Circuit has also reiterated that a federal court is barred from reviewing a procedurally defaulted claim unless a petitioner shows both cause and actual prejudice. Hernandez v. Stephens, 537 F. App'x 531, 542 (5th Cir. 2013), cert. denied, 134 S.Ct. 1760 (2014). To show actual prejudice, a petitioner "must establish not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. (citations omitted) (emphasis in original).

All of King's remaining claims must be dismissed as procedurally barred unless he can satisfy the rule announced in Martinez and Trevino.

V. Discussion and Analysis

A. Ineffective Assistance of Counsel

King's first ground for relief involves allegations of ineffective assistance of trial and appellate counsel. He includes thirteen sub-claims. Sub-claim "I" was rejected in the court's previous memorandum opinion. All of the remaining sub-claims are procedurally barred in the absence of a showing of cause and prejudice. The rule announced in Martinez and Trevino provides for a possible showing of cause and prejudice with respect to substantial claims of ineffective assistance of trial counsel, but the rule does not extend to claims of ineffective assistance of appellate counsel. The Fifth Circuit has specifically declined to extend Martinez to ineffective assistance of appellate counsel claims. Reed, 739 F.3d at 778 n.16. Thus King's claims alleging ineffective assistance of appellate counsel are procedurally barred.

The ineffective assistance of trial counsel claims are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Martinez, 132 S. Ct. at 1318 (applying the Strickland framework). Strickland provides a two-pronged standard, and a petitioner bears the burden of proving both prongs. 466 U.S. at 687. Under the first prong, he must show that counsel's performance was deficient. Id. To establish deficient performance, he must show that "counsel's representation fell below an objective standard of reasonableness," with reasonableness judged under professional norms prevailing at the time counsel rendered assistance. Id. at 688. "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight." Id. at 689 (citations omitted). "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (internal quotation marks omitted). Under the second prong, the petitioner must show that his attorney's deficient performance resulted in prejudice. Id. at 687. To satisfy the prejudice prong, the habeas petitioner "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." Id. at 694. An ineffective assistance of counsel claim fails if a petitioner cannot satisfy either the deficient performance or prejudice prong; a court need not evaluate both if he makes an insufficient showing as to either. Id. at 697.

Most recently, the Supreme Court discussed the difficulties associated with proving ineffective assistance of counsel claims as follows:

Harrington v. Richter, 562 U.S. 86, 105 (2011). In a separate opinion issued on the same day, the Court reiterated that the "question is whether an attorney's representation amounted to incompetence under `prevailing professional norms,' not whether it deviated from the best practices or most common custom." Premo v. Moore, 562 U.S. 115, 122 (2011) (citing Strickland, 466 U.S. at 690).

1(a). Counsel presented through their own expert Dr. Quijano and allowed the State to present through Dr. Gripon a false, misleading, and incoherent expert's framework for the first special issue of "future dangerousness"

King initially alleges that his trial attorneys were ineffective for presenting and allowing a false, misleading, and incoherent expert's framework for the first special issue of "future dangerousness." The claim relates to both his expert, Dr. Quijano, and the State's expert, Dr. Gripon. In support of the claim, he cites portions of an affidavit provided by Dr. Mark Cunningham, his current expert. King uses Cunningham's affidavit as a means to second guess the methodologies used by Doctors Quijano and Gripon. He faults counsel for allegedly failing to rebut Dr. Gripon's testimony and, presumably, for failing to replace Dr. Quijano's allegedly flawed analysis with the approach set forth in Dr. Cunningham's affidavit. In his reply to the answer, King complains that counsel failed to put forth at least a minimal effort to present the "future dangerousness" issue in a way that could be deemed strategical or tactical.

In response, the Director observes that the Fifth Circuit "has repeatedly held that complaints of uncalled witnesses are not favored in federal habeas review because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have stated are largely speculative." Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009). The Director asserts that counsel effectively cross-examined Dr. Gripon, particularly with respect to his failure to conduct a face-to-face interview with King, his inability to predict future violence with 100 percent certainty, and the fact that he, as a psychiatrist, is no better than anyone else in predicting future behavior. 24 RR 54-56.1 The Director further argues that counsel effectively rebutted Dr. Gripon's testimony with the testimony of Dr. Quijano, who testified that King's potential for future dangerousness must be assessed in the appropriate context, that is, in prison. Id. at 82, 92. Dr. Quijano testified that if sentenced to life, King would not be eligible for parole until the age of 64, when the probability of future dangerousness would be very low. Id. at 83. The Director asserts that King is simply incorrect in claiming that trial counsel avoided the issue of future dangerousness altogether. See Amended Petition (#75) at 227. He argues that counsel's handling of the future dangerousness special issue fell within the bounds of reasonableness and acceptable performance. Furthermore, given the horrific nature of Mr. Byrd's murder, King could not demonstrate that counsel was constitutionally ineffective such that "[t]he likelihood of a different result [is] substantial, not just conceivable." Richter, 562 U.S. at 112 (citation omitted).

The court finds the Director's arguments to be persuasive. Counsel effectively cross-examined Dr. Gripon. Dr. Gripon acknowledged that psychiatrists have no special talent for predicting future dangerousness. 24 RR 54. He acknowledged that no one could predict future dangerousness with 100 percent certainty. Id. He acknowledged that he had not conducted an independent investigation and that his opinion was based on the materials provided to him by the District Attorney and FBI. Id. He acknowledged that an actual interview would have been the best way to base conclusions. Id.

The record also shows that counsel effectively rebutted Dr. Gripon's testimony with testimony from Dr. Quijano. Dr. Quijano, formerly the chief psychologist for the prison system, testified extensively about King's potential for future dangerousness. Id. at 92. He testified about the measures at TDCJ's disposal for insuring that inmates would not pose a threat in prison. Id. at 92-107. He testified that age was the best predictor of future dangerousness. Id. at 100. As correctly pointed out by the Director, Dr. Quijano testified that King would not be eligible for release until the age of 64, and that the probability of 64 year old person committing an act of violence was very low.

Counsel extensively questioned both experts. His questioning of the experts did not fall below an objective standard of reasonableness. In another death penalty case involving Dr. Quijano, the Fifth Circuit found that trial counsel pursued a reasonable trial strategy in presenting Dr. Quijano's testimony in mitigation for the proposition that a capital murder defendant could be safely controlled in prison, that he would not pose a threat, and that jurors should thus vote against the imposition of the death penalty. Anderson v. Quarterman, 204 F. App'x 402, 406 (5th Cir. 2006), cert. denied, 549 U.S. 1249 (2007). Trial counsel's use of the same line of defense in the present case was appropriate and consistent with the approach taken by attorneys in other capital cases. He pursued a reasonable trial strategy in presenting Dr. Quijano as a witness on the issue of future dangerousness. King has not shown that counsel's representation fell below an objective standard of reasonableness or amounted to incompetence under prevailing professional norms. He also failed to show that, but for counsel's unprofessional errors, the result of the proceeding would have been different. He did not satisfy either Strickland prong in order to show ineffective assistance of trial counsel. The first ineffective assistance of counsel claim lacks merit.

It is further noted that King's current counsel regularly files petitions that include allegations that trial counsel was ineffective for failing to present a "coherent" claim of future dangerousness. The Fifth Circuit rejected the argument as procedurally barred in Shields v. Dretke, 122 F. App'x 133, 147 (5th Cir.), cert. denied, 545 U.S. 1160 (2005). The Fifth Circuit rejected the argument on the merits in Coble v. Quarterman, 496 F.3d 430 (5th Cir. 2007). The following discussion was provided in Coble:

Id. at 437 (footnotes omitted). The Fifth Circuit's analysis is equally applicable to the present case. Trial counsel presented a sound trial strategy on the issue of future dangerousness. King's tactic in the present ground for relief is nothing more than an argument that an alternative defensive theory should have been employed, but his desire to have a specific defense theory presented does not satisfy his burden of showing ineffective assistance of trial counsel. This type of approach is inconsistent with his burden on federal habeas review. The issue before the court is whether trial counsel's representation fell below an objective standard of reasonableness, and King has not satisfied his burden on this issue. King's first ineffective assistance of trial counsel claim lacks merit. Since King has not demonstrated that his first ground for relief has at least some merit, he has not shown that the claim is substantial, as required by the Supreme Court in Martinez and Trevino. Since the first ineffective assistance of trial counsel claim lacks merit, King likewise failed to show that his initial state habeas counsel was ineffective in failing to present the claim in the first state habeas application. Finally, King failed to show actual prejudice. He did not satisfy his burden in order to overcome the procedural default regarding his first ineffective assistance of counsel claim; thus, the claim is procedurally barred.

1(b). Defense counsel were ineffective in failing to adequately present their motion for a change of venue

King next alleges that his attorneys were ineffective because they failed to present their motion for change of venue adequately. He acknowledges that his attorneys filed a motion for a change of venue and that the trial court heard the motion, but he describes the presentation of the motion as "a perfunctory affair." He notes that only two witnesses testified very briefly, and they just stated that they did not think that he could receive a fair trial in Jasper. 3 RR 9-26. King observes that Mr. Randy Walker, his first court-appointed attorney, testified that people in other counties could care less about "the effect this crime has had on the reputation of this community; and [they] . . . would care less about how this crime may affect Jasper economically in the future." Id. at 22. His impression was that there was a "real anger in this community about this crime." Id. at 26. By comparison, the prosecution called five witnesses. King complains that his attorneys did not even offer any argument on the motion for change of venue. Id. at 70.

In comparison, King discusses the efforts of the defense team in co-defendant Russell Brewer's trial. It was noted that "extensive media reports show the slaying tarnished Jasper's image and the only way to clear the community's reputation is to find those accused guilty."2 The district attorney responded to all the pre-trial publicity by agreeing to a change of venue, saying that it was "the smart thing to do."3 King argues that, in comparison, not agreeing to the change of venue in his case was "the dumb thing to do." He notes that the prosecutor "decided to give in to Barlow's [Brewer's attorney] request for a new venue when it became apparent that the Beaumont-based defense attorney would continue to hammer away on the issue."4 King complains that no such "hammering" was done by his attorney. He argues that given the degree of publicity that existed in Jasper, and the animosity towards him because of the unwanted publicity the crime had visited upon the town, there was no way he could have obtained a fair trial there.

The record shows, however, that King's trial attorneys filed a motion for a change of venue that was accompanied by the affidavits of two Jasper County residents stating that the defendant could not obtain a fair and impartial trial due to "widespread, inflammatory and prejudicial publicity." CR 92-98.5 Counsel was able to obtain a hearing on the motion. Counsel presented two witnesses who testified that they believed that King could not obtain a fair trial in Jasper County due to the current attitude in the community about the case. 3 RR 9-28. Counsel also submitted a joint exhibit containing all the local and statewide newspaper accounts of the case up to the time of the hearing. Id. at 7-8. The Director acknowledges that the record reveals that counsel had a difficult time locating witnesses who were willing to testify favorably for the defense. Id. at 28. Several of the witnesses that counsel had lined up to testify either were unable to testify or did not show up. Id. at 17, 29. Nonetheless, the record shows that counsel, in fact, pursued the issue. The description of counsel's effort "as a perfunctory affair" misrepresents the record.

The Director appropriately points out that King once again failed to identify any additional witness that trial counsel was remiss for not presenting. As was previously noted, the Fifth Circuit "has repeatedly held that complaints of uncalled witnesses are not favored in federal habeas corpus review because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have stated are largely speculative." Day, 566 F.3d at 538. The Court went on to explain that "to prevail on an ineffective assistance claim based on counsel's failure to call a witness, the petitioner must name the witness, demonstrate that the witness was available to testify and would have done so, set out the content of the witnesses proposed testimony, and show that the testimony would have been favorable to the particular defense." Id. (citations omitted). In the present case, King merely complains that counsel did not "hammer away on the issue." He offered nothing other than conclusory allegations and bald assertions, which are insufficient to support a petition for a writ of habeas corpus. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990); Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).

The Director also persuasively argues that King cannot show harm on this issue. He notes that King focused on the fact that co-defendant Lawrence Russell Brewer was able to obtain a change of venue. Brewer's trial was conducted six months after King's trial. Despite the change of venue, Brewer was found guilty of capital murder and sentenced to death. The change of venue did not make any difference. In comparison, co-defendant Shawn Allen Berry's motion for a change of venue was likewise denied, but he received a life sentence. Berry v. State, No. 09-00-061-CR, 2001 WL 726273 (Tex. App. — Beaumont April 5, 2001, pet. ref'd). There is no evidence that venue made any difference. King has not shown prejudice because he did not receive a change of venue.

It is further noted that the requirement of prejudice in the context of a direct challenge to the denial of a change of venue, as opposed to an ineffective assistance of counsel claim, was discussed in Busby v. Dretke, 359 F.3d 708 (5th Cir.), cert. denied, 541 U.S. 1087 (2004). Prejudice sufficient to warrant a change of venue cannot be presumed by virtue of pretrial press coverage, and a petitioner is not entitled to relief due to the denial of a change of venue absent proof that jurors were actually biased against him. Id. at 725-26. There must be a showing that the trial atmosphere was "utterly corrupted" by press coverage. Id. at 725. King did not make the requisite showing.

Overall, with respect to the second ineffective assistance of counsel claim, King failed to show that counsel's representation fell below an objective standard of reasonableness or that it amounted to incompetence under prevailing professional norms. Further, he failed to show that, but for counsel's unprofessional errors, the result of the proceeding would have been different. He did not satisfy either Strickland prong in order to show ineffective assistance of trial counsel. His second ineffective assistance of counsel claim lacks merit. Since King has not demonstrated that it has at least some merit, he has not shown that the claim is substantial, as required by the Supreme Court in Martinez and Trevino. King likewise failed to show that his initial state habeas counsel was ineffective in failing to present the claim in the first state habeas application. Finally, he failed to show actual prejudice. He did not satisfy his burden in order to overcome the procedural default on his second ineffective assistance of counsel claim; thus, the claim is procedurally barred.

1(c). Failure of defense counsel to make an opening statement

King next alleges that his trial attorneys were ineffective for failing to make an opening statement after a short and devastating opening statement by the prosecutor. In support of the claim, King provides nothing more than a statement by an author who observed, "[i]t seems to say there is no defense."6

The Fifth Circuit has long held that the decision of whether to present an opening statement falls squarely within "the zone of trial strategy." Gillard v. Scroggy, 847 F.2d 1141, 1147 (5th Cir. 1988), cert. denied, 488 U.S. 1019 (1989); Murray v. Maggio, 736 F.2d 279, 283 (5th Cir. 1984). See also Martinez v. Dretke, 426 F.Supp.2d 403, 468-69 (W.D. Tex. 2006) (where petitioner has alleged no specific facts showing how his attorney's failure to make an opening statement prejudiced him and where evidence was "overwhelming," there was no "reasonable probability that, but for the failure of petitioner's trial counsel to make an opening statement . . ., the outcome of the guilt-innocence phase of petitioner's trial would have been different."). King has the burden of demonstrating both deficient performance and resultant prejudice. Strickland, 466 U.S. at 687. He failed to satisfy either prong. Instead, he offered nothing other than conclusory allegations and bald assertions, which are insufficient to support a petition for a writ of habeas corpus. See Miller, 200 F.3d at 282; Koch, 907 F.2d at 530; Ross, 694 F.2d at 1011. In his reply to the answer, King asserted that his arguments on this issue were not just "conclusory," but he went no further than to argue that this ground for relief was just a pattern of deficient representation. Both his ground for relief and reply were conclusory.

Overall, with respect to the third ineffective assistance of counsel claim, King failed to show that counsel's representation fell below an objective standard of reasonableness or that it amounted to incompetence under prevailing professional norms. He likewise failed to show that, but for counsel's unprofessional errors, the result of the proceeding would have been different. He did not satisfy either Strickland prong in order to show ineffective assistance of trial counsel. His third ineffective assistance of counsel claim lacks merit. Since King has not demonstrated that it has at least some merit, he has not shown that the claim is substantial, as required by the Supreme Court in Martinez and Trevino. King likewise failed to show that his initial state habeas counsel was ineffective in failing to present the claim in the first state habeas application. He also failed to show actual prejudice. King did not satisfy his burden in order to overcome the procedural default on his third ineffective assistance of counsel claim; thus, the claim is procedurally barred.

1(d). The defense attorneys gave totally ineffective and harmful final arguments during both phases of the trial

King argues in his next ground for relief that the final arguments given by his attorneys were totally ineffective, extremely perfunctory, and could only have given the idea that they were just going through the motions. He stresses that the guilt phase argument covered only a little more than twenty pages. 22 RR 22-46. He argues that there was no "coherent" theory advocated, no attempt to attack the weaknesses of the State's theory that this was a racially-motivated crime, nor any attempt to induce reasonable doubt by arguing the evidence.

King asserts that his attorney's argument during the punishment phase of the trial was even worse. King notes that his attorney called only two witnesses. His father was called as a witness, who asked the jury for mercy. He asserts that his other witness, Dr. Quijano, offered very limited and flawed testimony that was not helpful at all. He argues that the following statement by counsel highlighted the weakness of their case: "I've spent half the night trying to come up with something that I think might be meaningful to you." 22 RR 17. King notes that his attorney told the jury that his one expert said they "only have one point . . . on mitigation . . . the theory of the older you get while you're confined, the less likely you are to commit any kind of act. He's told you that's all he had." Id. at 19. King claims that the argument confirmed the virtual acquiescence of the defense to a death sentence. He notes that his attorney stated that the prosecutor had done "a good job" in showing how the other mitigating factors did not apply, again emphasizing the weakness of their case. Id. He added that his second attorney's argument was equally ineffective, mainly a reiteration of his theme that the prison had made him a racist, and generalized discussions of the death penalty and the Bible.

In response, the Director observes that King cannot "manufacture deficient performance by selectively extracting phrases from trial counsel's closing argument and mischaracterizing them." Dowthitt v. Johnson, 230 F.3d 733, 750 (5th Cir. 2000), cert. denied, 532 U.S. 915 (2001). He argues that King is attempting to do exactly that. He asserts that when examining the arguments in context, trial counsels' arguments at both the guilt/innocence and punishment phases were effective, especially considering that counsel was defending their client "in the face of a very bad set of facts." Id. at 751 (internal quotation marks omitted).

The Director's argument is persuasive in light of a thorough review of the record. During the guilt/innocence phase of the trial, counsel initially focused on the State's evidence concerning whether a kidnapping had taken place by driving home the point that there was absolutely no evidence establishing that James Byrd had been restrained. 22 RR 26-32. It should be noted that the aggravating element which raised the offense from murder to capital murder was the charge that the offense occurred "in the course of committing the offense of kidnapping." CR 242. If the jury had believed that there was no kidnapping, then the aggravating element making the case capital murder would not have been satisfied. The argument was appropriate in an effort to persuade the jury to convict King of the lesser-included offense of murder, as opposed to capital murder. Counsel also highlighted weaknesses in the State's circumstantial evidence case, including the fact that one of the cigarette butts found at the scene with King's DNA on it could have come from the ashtray in Shawn Berry's truck. Counsel also noted that the sandals with Byrd's DNA on them were consistent with Lewis Berry's shoe size, as opposed to King's shoe size. 22 RR 38-40. Counsel further stressed that the testimony regarding King's tattoos was largely a matter of interpretation and that his tattoos had nothing to do with whether King was guilty of capital murder. Id. at 42-46, 30.

During the punishment phase of the trial, counsel recounted that King had not been a racist when he went to prison and that he was merely a product of prison society. 25 RR 21, 24. Counsel pointed out King's lack of violent criminal behavior apart from James Byrd's murder. Most importantly, counsel focused on Dr. Quijano's testimony that King would likely spend his sentence in administrative segregation and, with a life sentence, would have to serve at least forty years before being eligible for parole. Id. at 20. Counsel argued that the jury was "probably going to punish him more with a life sentence than . . . with the death penalty." Id. Counsel also noted the pain experienced by King's father, whose emotional, heart-wrenching testimony (24 RR 125-33) was perhaps the most compelling part of the punishment phase of the trial. 25 RR 21-24. While these arguments might not be the choices King or his current habeas counsel would have made, it simply cannot be said that these arguments were somehow constitutionally deficient. See Richter, 562 U.S. at 105. King has not shown that his attorneys' closing arguments during either the guilt/innocence phase or the punishment phase fell below an objective standard of reasonableness.

The court further finds that the Director's focus on Dowthitt is appropriate. In that case, the Fifth Circuit offered the following assessment of counsel's closing argument:

230 F.3d at 751 (internal footnotes omitted). More recently, the Fifth Circuit reiterated that counsel's statements made during closing arguments "were part of a reasoned tactical decision and that such strategic decisions should not be second guessed under the teaching of Strickland." Pape v. Thaler, 645 F.3d 281, 292 (5th Cir. 2011), cert. denied, 132 S.Ct. 1100 (2012).

King's attorney at trial reasonably argued that King should not be convicted of capital murder because of the lack of evidence of kidnapping. He reasonably challenged the State's case in order to give rise to reasonable doubt. During the sentencing phase of the trial, counsel focused on Dr. Quijano's testimony to cast doubt on whether King would be a continuing danger. Finally, the focus on King's father's testimony was appropriate to evoke some sympathy for King. Counsel's choices in closing must be viewed as reasoned trial strategy, which may not be second guessed by this court.

Overall, with respect to the fourth ineffective assistance of counsel claim, King failed to show that counsel's representation fell below an objective standard of reasonableness or that it amounted to incompetence under prevailing professional norms. He likewise failed to show that, but for counsel's unprofessional errors, the result of the proceeding would have been different. He did not satisfy either Strickland prong in order to show ineffective assistance of trial counsel. King's fourth ineffective assistance of counsel claim lacks merit. Since King has not demonstrated that it has at least some merit, he has not shown that the claim is substantial, as required by the Supreme Court in Martinez and Trevino. King likewise failed to show that his initial state habeas counsel was ineffective in failing to present the claim in the first state habeas application. Finally, King failed to show actual prejudice. He did not satisfy his burden in order to overcome the procedural default on his fourth ineffective assistance of counsel claim; thus, the claim is procedurally barred.

1(e). The complete failure of the defense to present any viable case during the punishment phase of the trial

King next argues that his attorneys' performance during the punishment phase of the trial was a complete abdication of their responsibility to him. He again notes that only two people were called and stresses that the entire defense occupied only fifty-nine pages of transcript. 24 RR 75-134. Of these, forty-one pages were direct examination. King once again criticizes Dr. Quijano's testimony and cites, as an alternative, Dr. Cunningham's affidavit. He complains that there was a total failure to humanize him to the jury, although such claim misrepresents the facts in light of his father's testimony. He criticizes the State's evidence compiled during the first state habeas proceedings that rested heavily on an affidavit by King's trial attorney, Sonny Cribbs, which he describes as self-serving and false. He rejects Cribbs' claim that he had talked to family members. He complains that the defense was unable to counter Dr. Gripon's damaging testimony.

The Director, in response, asserts that the claim is nothing more than a "rehash" of the first ineffective assistance of counsel claim, 1(a), which lacks merit for reasons explained therein. He also observes that King's claim that counsel "failed to present any viable claim at the punishment phase of the trial" was raised and rejected during the first state habeas proceedings. See SHCR-01 at 187-191 (¶¶ 47-91). He notes that Cribbs submitted an affidavit stating that he conducted an extensive investigation into King's childhood and background and obtained numerous health opinions in an unsuccessful attempt to mitigate the brutality of James Byrd's murder. The Director opines that there was not anything that could have possibly mitigated this crime; nonetheless, a viable punishment case was presented through the testimony of Dr. Quijano and the compelling testimony of King's father. The Director further argues that King failed to show that the state court's rejection of the claim during the first state habeas proceedings was objectively unreasonable.

In analyzing this claim, the court notes that the parties mixed together claims that were presented in two separate state habeas corpus proceedings. The claim presented in the first state habeas corpus proceeding was decided on the merits, while the claim presented in the second state proceeding was rejected as an abuse of the writ. Different standards apply depending on whether a claim was presented in the first or second state habeas corpus proceeding. In the first state habeas corpus proceeding, King argued that his attorney "failed to properly investigate matters in support of mitigation." The claim focused on the efforts of Sonny Cribbs to develop a mitigation defense in behalf of King. King modified his ground for relief in the present petition claiming that his attorney failed to present a viable defense during the punishment phase of the trial. King's first state application for a writ of habeas corpus did not mention Dr. Cunningham. Since the ground for relief was modified, the present ground for relief was stayed in order to give King the opportunity to submit it to the Texas Court of Criminal Appeals.

To the extent that King is arguing that his attorney failed to investigate matters properly in support of mitigation, his claim was fully developed in the first state habeas proceeding. The trial court found Cribbs to be credible and accepted his statements as true. The finding was made that Cribbs was not ineffective with respect to this claim. The Director appropriately observed that King did not satisfy his burden under 28 U.S.C. § 2254(d) of showing that the state court findings on this issue 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 resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. King may not relitigate a claim adjudicated on the merits, subject to the exceptions in § 2254(d). Richter, 562 U.S. at 98. To the extent that King is attempting to challenge Cribbs' affidavit with new affidavits that were not presented in the first state habeas corpus proceeding, such "evidence later introduced in federal court is irrelevant." Cullen v. Pinholster, 563 U.S. 170, 184 (2011).

To the extent that King is once again challenging Dr. Quijano's testimony, the Director appropriately characterized the ground for relief as a rehash of claim 1(a), which lacks merit for reasons previously explained.

The precise issue raised by King at this time is whether counsel was ineffective for failing to present a viable defense during the punishment phase of the trial. King has not shown that the defense presented by counsel during the punishment phase of the trial, consisting of the testimony of his father and Dr. Quijano, fell below an objective standard of reasonableness or that it amounted to incompetence under prevailing professional norms. At best, he showed that additional evidence could have been presented, but he did not satisfy his burden under Strickland of showing that counsel's representation was deficient. He likewise failed to show that, but for counsel's unprofessional errors, the result of the proceeding would have been different. He did not satisfy either Strickland prong in order to show ineffective assistance of trial counsel. King also failed to show that his state habeas counsel was ineffective in failing to present the additional aspects of the claim, such as Dr. Cunningham's affidavit, in the first state habeas application. King's fifth ineffective assistance of counsel claim lacks merit. Since King has not demonstrated that it has at least some merit, he has not shown that the claim is substantial, as required by the Supreme Court in Martinez and Trevino. King likewise failed to show that his initial state habeas counsel was ineffective in failing to present the claim in the first state habeas application. Finally, King failed to show actual prejudice. He did not satisfy his burden in order to overcome the procedural default on his fifth ineffective assistance of counsel claim; thus, the claim is procedurally barred.

1(f). Failure to object to the unqualified and erroneous testimony on tattoos by a local police officer

King next complains that Rich Ford, a sergeant with the Jasper Police Department, was allowed to testify as an expert on the meaning of tattoos even though he had no academic or professional qualifications. He notes that Ford testified about the meaning of a "baphomet" ("used as a worshiping type symbol, satan"). 18 RR 209. Ford interpreted the lightning bolts as the "signs of the S.S." or sons of satan. Id. at 212. He testified as to the "patch" of the Confederate Knights of America, and the K.K.K. triangle. Id. at 214. He discussed the swastika and "Aryan pride." Id. at 215. King complained that Ford was allowed to call a tattoo "an evil-looking figure." Id. at 216. Another figure was likewise termed "an evil-looking figure." Id. at 217. Another was termed a "[d]emonic-looking figure." Id. at 218. He identified a picture of a man as that of Anton LaVey, founder of the church of satan. Id. at 219. Ford testified as to the meaning of the "SS" and those on King's head. Id. at 213. Ford further testified that the pentagram can "be satanic or wicca, which is witchcraft." Id. at 220. King provided an affidavit from Roy Birnbaum, the artist who created the vast majority of the tattoos, who asserted that the tattoos "had no racial meaning whatsoever, and it was not intended to be racist. King did not know what I was going to put on before it was done."

The record reveals that Ford explained to the jury the meaning of the tattoos based on his training and research. Defense counsel had no reason to object since most of Ford's observations could have been made by anyone viewing King's tattoos. Counsel was not required to make frivolous or futile motions or objections. Johnson, 306 F.3d at 255; Koch, 907 F.2d at 527. On the other hand, when Ford went a step further and started to render an opinion about the existence of a connection between satanic cults and hate or racist groups, defense counsel did lodge an objection, which was overruled. 19 RR 21. The Director persuasively argues that counsel objected when an objection was appropriate.

The record further reveals that counsel effectively cross-examined Sgt. Rich Ford. Ford acknowledged that the tattoos "could have several different interpretations." Id. at 5. He acknowledged that in the prison environment, tattoos are more often a means of survival and protection. Id. at 8-10. With respect to a tattoo looking like Anton LaVey, Ford acknowledged that the picture also resembled a character portrayed in one of King's comic books. Id. at 10-11. Ford also admitted that the symbol which he identified as a "baphomet" could also be found on the Congressional Medal of Honor. Id. at 13-24.

Defense counsel further called Ford's testimony into question when cross-examining Matthew Hoover. Hoover testified that the "SS" tattoos did not derive a racist meaning within the prison system. Id. at 84. Hoover further explained that the Aryan Brotherhood, a white prison gang, did not hold any satanic beliefs and that pentagram tattoos were common in prison. Id. at 85.

Defense counsel also called a witness to counter Ford's testimony. John Mosley explained that he had drawn some of King's tattoos, and that several of the tattoos identified by Ford as indicative of white supremacist beliefs had no particular significance in prison. 21 RR 74-76. It is again noted that King attached an affidavit from Roy Birnbaum to his petition in an effort to show how counsel should have countered Ford's testimony, but Birnbaum's affidavit presented the same type of evidence provided by Mosley. Any testimony that Birnbaum could have provided would have been largely cumulative. Mosley also testified that inmates get tattoos to intimidate other inmates, thus reducing the likelihood that they will be the victim of assault. Id. at 77-78.

Overall, defense counsel effectively cross-examined Ford. He objected when an objection was appropriate, and he countered Ford's testimony when cross-examining another witness and by presenting a defense witness. Counsel's representation on this issue did not fall below an objective standard of reasonableness and was not deficient. Furthermore, King has not shown prejudice, particularly since Ford's testimony was largely inconsequential. See Gonzales v. Quarterman, 458 F.3d 384, 394-95 (5th Cir. 2006) (tattoo evidence was not "critical to conviction" and "open to interpretation" thus no "reasonable probability that the result of the trial would have changed with expert testimony or argument challenging the meaning of the tattoos"). The sixth ineffective assistance of counsel claim lacks merit. Since King has not demonstrated that the ground for relief has at least some merit, he has not shown that the claim is substantial, as required by the Supreme Court in Martinez and Trevino. King likewise failed to show that his initial state habeas counsel was ineffective in failing to present the claim in the first state habeas application. Finally, King failed to show actual prejudice. He did not satisfy his burden in order to overcome the procedural default on his sixth ineffective assistance of counsel claim; thus, the claim is procedurally barred.

1(g). Failure to object to the unqualified and inaccurate testimony of "gang expert" William Knox

The seventh ineffective assistance of trial counsel claim is akin to the previous claim. This time King alleges that counsel was ineffective for failing to object to unqualified and inaccurate "gang" testimony by William Knox. King stresses that Knox was allowed to testify about gangs without being qualified as an expert regarding gangs. He observes that Knox only had a bachelor's degree and had only risen to the level of a police officer investigator with the Houston Police Department after fifteen years of service. He complains that counsel failed to object to King's qualification as a gang expert. He complains that Knox concluded that it was King's intent to form a gang or group in Jasper. 20 RR 97. Furthermore, Knox testified that King would have had to "do something that would draw the attention of the community to the concept of whatever group that he's organizing. And often that involves some kind of crime and needs to be public, a public crime." Id. at 98. King complains that Knox testified without objection that the crime scene was consistent with an initiation practice, where the leader would be present and possibly participate to show that he could commit the crime. Id. Knox thought it was significant that "the body was left in a very public open space. It was designed to strike terror in the community, I think." Id. at 99.

The record reveals that Knox's qualifications were, in fact, fully developed during the trial. He testified that he owned a company called Cutting Edge Communications, which provides consulting work for law enforcement and education in the community on gangs. Id. at 90. He testified he had been a police officer in Houston for 15 years and previously served in the United States Air Force. Id. He testified that he graduated from the University of Houston and regularly investigated gangs in the 1980s. Id. at 90-91. He had also been to seminars on gangs and had been published. Id. at 91-92. He testified that he had testified many times about gangs. Id. at 92. The record shows that defense counsel objected to Knox's anticipated testimony with regard to gang membership and extraneous offenses, which was overruled. Id. at 90. King's allegation that counsel did not make any objections lacks any basis in fact. Counsel's representation was not deficient for failing to object to Knox's anticipated testimony. Furthermore, given the wealth of other evidence demonstrating King's violent racial hatred and his intention of starting a free world chapter of the Confederate Knights of America, most significantly from his own personal writings, Knox's testimony was largely cumulative. King has not shown that he was prejudiced by counsel's representation with respect to Knox's testimony. The seventh ineffective assistance of counsel claim lacks merit. Since King has not demonstrated that it has at least some merit, he has not shown that the claim is substantial, as required by the Supreme Court in Martinez and Trevino. King likewise failed to show that his initial state habeas counsel was ineffective in failing to present the claim in the first state habeas application. Finally, King failed to show actual prejudice. He did not satisfy his burden in order to overcome the procedural default on his seventh ineffective assistance of counsel claim; thus, the claim is procedurally barred.

1(h). Failure of defense attorneys to object to prosecutorial misconduct, trial error and hearsay

King next alleges that there "were numerous instances of trial error that were not objected to by the defense." The Director persuasively argues, in response, that none of the alleged trial errors were objectionable.

King initially complains that counsel failed to object to the erroneous introduction of evidence of co-defendant Lawrence Russell Brewer's tattoos, as they were irrelevant. 18 RR 223-24. The Director appropriately notes that this evidence actually shifted the focus of attention from King to Brewer. Counsel may have had a valid strategic reason for not objecting to the evidence since it gave the jury the opportunity to view someone other than King as the instigator of the racially motivated murder. The Supreme Court recently stressed that federal habeas relief must be denied if there is any "reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 562 U.S. at 105.

King also alleges that counsel was ineffective for failing to object to hearsay elicited by the prosecution. He complains that counsel failed to object to hearsay about what prison officials told Rich Ford, the Jasper detective, regarding the meaning of tattoos. 18 RR 220. He complains that counsel failed to object to Ford's testimony of what another man told him that the tattoos meant. Id. at 221. On the other hand, counsel objected when the same testimony was offered about Brewer's tattoos, and the objection was sustained. Id. at 225. King argues that his attorney should have likewise objected to the testimony regarding his tattoos. Ford's testimony, however, merely discussed his investigation regarding the meaning of King's tattoos. It is questionable whether a hearsay objection would have been sustained. Nonetheless, King has not shown that the failure to object amounted to deficient performance or that he was in any way prejudiced by the failure to object given the relative insignificance of the meaning of the tattoos. Cf. Woodfox v. Cain, 609 F.3d 816-17 (5th Cir. 2010) ("Because the testimony was cumulative of other evidence, we cannot hold that but for counsel's failure to object, the results of the trial would have been different."); Burnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993) ("failure to object to leading questions and the like is generally a matter of trial strategy as to which we will not second guess counsel."). Moreover, as was previously noted with respect to Claim 1(f), the Fifth Circuit has opined that tattoo evidence was not "critical to conviction" and "open to interpretation;" thus, there was no "reasonable probability that the result of the trial would have changed with expert testimony or argument challenging the meaning of the tattoos." Gonzales, 458 F.3d at 394-95.

King next complains that the trial court's discussion regarding parole and good time was confusing. He argues that counsel should have objected to the trial court's confusing instructions. However, the jury instruction was consistent with the law as it was at that time. See, e.g., Johnson v. Quarterman, 294 F. App'x 927, 931-32 (5th Cir. 2008), cert. denied, 556 U.S. 1107 (2009). He has not shown that counsel had any basis for objecting to the instruction even though it may have been confusing. He has not shown that counsel's representation was deficient on this matter or that he was prejudiced.

King also complains that counsel failed to object to the trial court's definition of reasonable doubt: "proof of such a convincing character that you would be willing to rely and act on it without hesitation in the most important of your own affairs." 25 RR 7. He asserts that the Supreme Court disapproved of this type of language in Sullivan v. Louisiana, 508 U.S. 275 (1993), although he also admits that the language was not held to be unconstitutional. His latter statement essentially is an admission that the claim lacks merit and that he cannot show prejudice. The complaint lacks merit for the additional reason that the Fifth Circuit has examined this precise phrase and found that it was proper. See United States v. MacHauer, 403 F. App'x 967, 969 (5th Cir. 2010). Counsel had no reason to make a frivolous objection. The claim lacks merit.

King also alleges that counsel was ineffective with respect to prosecutorial misconduct where the prosecutor referred to a cleared space as a "fight scene" without any evidence that there had been a fight there. 17 RR 131; 17 RR 121; 17 RR 127. He acknowledges that defense counsel subsequently clarified that the "fight scene" was pure speculation and that there was no testimony that someone observed fighting. 17 RR 145. He, nonetheless, argues that counsel should have objected to the use of the phrase.

The record reveals that the phrase "fight scene" was first employed during the testimony of Tommy Robinson, an investigator for the Jasper County Sheriff's Department. Robinson described the area where the victim's body was found as follows:

17 RR 121. Robinson, as opposed to the prosecutor, was the first person to employ the phrase "fight scene." King misrepresented the record in attributing the phase to the prosecutor and characterizing it as prosecutorial misconduct. Trial counsel, nonetheless, effectively crossexamined Robinson, who acknowledged that he did not see anyone fighting and that his description of the area as a "fight scene" was based on what he had seen or "felt out there." Id. at 145. King has not shown that his attorney's handling of this matter fell below an objective standard of reasonableness or was in any way deficient. Furthermore, relief should be denied because King failed to show prejudice.

King next complains about the prosecutor's closing arguments in the guilt/innocence phase of the trial, wherein the prosecutor stated that "the defendants came out of hell like the illustration in the comic book, and they dumped the victim in front of a church `to show their defiance of God, to show their defiance of Christianity and to show their defiance of everything that most people in this country stand for and in this State and in this Country.'" 22 RR 22. He argues that the statement improperly injected religion into the trial and was an adverse comment on his non-Christian beliefs. He asserts that the adverse comments on his religious beliefs were improper as they had no relevance and were unduly inflammatory. See, e.g., People v. Wood, 488 N.E.2d 86, 89 (N.Y. 1985) (reversible error for prosecutor to attempt to impeach a defense expert by insinuating that his decision to affirm rather than swear to the truth of his testimony somehow affected his credibility).

In response, the Director appropriately observes that the arguments were the product of reasonable inferences from, and summations of, the evidence presented at trial and were therefore not objectionable. See, e.g., Cantu v. State, 842 S.W.2d 667, 690 (Tex. Crim. App. 1992) (counsel is afforded wide latitude in drawing inferences from the record as long as they are reasonable and offered in good faith). He notes that the argument was the product of a reference to a drawing out of King's own notebook. See State's Exhibit 42. The full argument was as follows:

22 RR 22. The Director argues that King has not shown how counsel's failure to object, assuming he should have, to this one portion of the State's closing argument prejudiced him in any way.

The standard for granting habeas corpus relief because of prosecutorial misconduct is "the narrow one of due process, and not the broad exercise of supervisory power." Darden v. Wainwright, 477 U.S. 168, 181 (1986). It is well established under Texas law that proper jury argument must fall within one of the following categories: (1) summary of the evidence, (2) reasonable deduction from the evidence, (3) in response to argument of opposing counsel, and (4) plea for law enforcement. Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990). Improper remarks by a prosecutor "are a sufficient ground for habeas relief only if they are so prejudicial that they render the trial fundamentally unfair." Hughes v. Quarterman, 530 F.3d 336, 347 (5th Cir. 2008) (citations omitted). "Such unfairness exists only if the prosecutor's remarks evince either persistent and pronounced misconduct or . . . the evidence was so insubstantial that (in probability) but for the remarks no conviction would have occurred." Id. "The relevant question is whether the prosecutor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. (citing Darden, 477 U.S. at 181).

The language employed by the prosecutor in this case was similar to the language used by a prosecutor in Drew v. Collins, 964 F.2d 411 (5th Cir. 1992), cert. denied, 509 U.S. 925 (1993). In that case, the prosecutor used the terms "sadistic killer," "macho man," "rolling torture chamber" and "chamber of execution." 964 F.2d at 419. The Fifth Circuit found that the comments were grounded in the record and that the prosecutor was not asserting his own credibility as to the foundation of the witnesses. Id. The Fifth Circuit opined that the language was inflammatory but also found that the comments referred to evidence in the record and thus did not violate due process. Id. In a more recent case, the Fifth Circuit assumed that referring to a defendant as "the devil" was improper, but the use of the term in isolation did not render the trial fundamentally unfair. United States v. Whittington, 269 F. App'x. 388, 410-11 (5th Cir. 2008).

In the present case, the terms employed by the prosecutor may have been inflammatory, but they related to evidence in the record. King's own drawing provided the basis for the closing argument. The fact that Byrd's body was left in front of a church was also part of the record. The prosecutor was not obliged to ignore the facts of this case simply because they included an element of religion. The prosecutor's comments did not deny King due process.

It is again noted that this claim was included as part of King's ineffective assistance of trial counsel claim, as opposed to a stand-alone claim of prosecutorial misconduct. King did not, however, develop the ineffective assistance of trial counsel aspects of the claim. He did not show that his attorney had any reason to object to the prosecutor's comments. He did not show that his attorney's representation was deficient or that he was prejudiced by such deficient representation.

Overall, with respect to each sub-claim under Claim 1(h), King has not satisfied either Strickland prong. He did not show deficient representation or prejudice. The eighth ineffective assistance of counsel sub-claim lacks merit. Since King has not demonstrated that it has at least some merit, he has not shown that the claim is substantial, as required by the Supreme Court in Martinez and Trevino. King likewise failed to show that his initial state habeas counsel was ineffective in failing to present the claim in the first state habeas application. Finally, King failed to show actual prejudice. He did not satisfy his burden in order to overcome the procedural default on his eighth ineffective assistance of counsel claim; thus, the claim is procedurally barred.

1(I). Failure of the defense attorneys to investigate and present mental health information

King alleges in his ninth ineffective assistance of trial counsel claim that his trial attorneys were ineffective for failing to investigate and present mental health information. It is noted that the court discussed this claim on the merits in the previous memorandum opinion (#64) and granted the Director's motion for summary judgment as to the claim. This issue was fully developed during the initial state habeas corpus proceedings. Trial counsel stated in an affidavit that he asked a forensic psychologist to evaluate King, and after the psychologist did so, he told counsel that he saw no evidence of mental illness. Counsel also stated that King denied having any mental illness and no members of his family gave any indication that King had any form of mental illness. Based upon this evidence, the state trial court found that counsel's performance was not deficient. The trial court further found that even had counsel conducted a more thorough job of investigating his mental state, there was no reasonable probability that the result in the guiltdetermination or punishment-determination phases of the trial would have been different. The TCCA adopted the findings and denied relief. King has not shown, as required by 28 U.S.C. § 2254(d), that the State court findings 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 resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. Thus, he is not entitled to federal habeas corpus relief, and the Director was properly granted summary judgment as to this claim.

1(j). Defense counsel failed to challenge flawed testimony by the coroner Dr. Tommy Brown

King next alleges that his trial counsel was ineffective for failing to challenge the testimony of coroner Dr. Tommy Brown. He notes that Dr. Brown testified that the victim was alive and conscious when he was being dragged and that Byrd attempted to shift his body to alleviate the pain. Dr. Brown testified that the victim was alive and conscious until he hit a culvert, when the lethal wounds occurred. 21 RR 45. Dr. Brown added that the victim was probably alive when his head, right arm, and shoulder were separated. Id. at 53. He noted that there were no severe drag marks on Byrd's head, which led him to conclude that the victim was conscious most of the time he was being dragged. Id. at 58. Dr. Brown thought he was alive and conscious for the two and one-half miles he was dragged until he hit the culvert. Id. at 60. King argues that this testimony was critical, both as to the nature of the wounds and the nature of the crime of kidnapping. King points out that this testimony was challenged during the trial of co-defendant Shawn Berry. Dr. Lloyd White, the Nueces County medical examiner, was employed to testify in Berry's behalf. King contends that if his attorney had likewise challenged Dr. Brown's testimony, then the result of his trial would have also resulted in a life sentence.

The Director, on the other hand, notes flaws in King's claim. He initially characterizes it as nothing more than speculation, which is sufficient for denying relief. Richter, 562 U.S. at 111-12. He also argues that Dr. White's testimony was not beneficial. Dr. White testified that he could not determine, as Dr. Brown had, whether the victim was conscious when he was dragged behind Berry's truck, but he agreed with Dr. Brown that the victim was alive until he hit the culvert and was decapitated.7 Furthermore, even if King could somehow prove that the victim was already dead when he was chained to the pickup, even though all expert testimony was to the contrary, the requisite kidnapping was accomplished before the dragging. The evidence showed that King and his co-defendants restrained the victim, first by deception and then by force, with the requisite intent to hold him in a place where he was not likely to be found, which was the logging road, for the purpose of causing him bodily injury, and that in restraining him, they also intended to prevent his liberation by using deadly force. The Director appropriately argues that it would have been reasonable trial strategy for trial counsel to avoid presenting a defense expert who agreed with the State's expert that the victim was alive when he was chained to the pickup and then dragged down the dirt and gravel logging road.

Counsel's duty to investigate included seeking out and interviewing potential witnesses. Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986); Williams v. Beto, 354 F.2d 698, 703 (5th Cir. 1965). To succeed on the claim, however, a petitioner must show that had counsel investigated the claim he would have found witnesses to support the defense, that such witnesses were available, and had counsel located and called these witnesses, their testimony would have been favorable and they would have been willing to testify on his behalf. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985); Gomez v. McKaskle, 734 F.2d 1107, 1109-10 (5th Cir.), cert. denied, 469 U.S. 1041 (1984).

In the present case, King alleges that his attorney should have called Dr. White, or some other expert, as a rebuttal witness. The Director persuasively argues, however, that it was reasonable trial strategy for trial counsel to avoid presenting a defense expert who agreed with the State's expert. Dr. White's testimony supported Dr. Brown's testimony as to cause of death and the nature of kidnapping. Furthermore, Shawn Berry was likewise convicted of capital murder, although he received life imprisonment, and his conviction was affirmed despite challenges to the sufficiency of the evidence. Berry v. State, No. 09-00-061-CR, 2001 WL 726273 (Tex. App. — Beaumont 2001, pet. ref'd). King has not shown that counsel's representation was deficient for failing to call Dr. White or some other expert as a rebuttal witness. He likewise failed to show prejudice. He did not satisfy either Strickland prong. The tenth ineffective assistance of counsel claim lacks merit. Since King has not demonstrated that it has at least some merit, he has not shown that the claim is substantial, as required by the Supreme Court in Martinez and Trevino. King likewise failed to show that his initial state habeas counsel was ineffective in failing to present the claim in the first state habeas application. Finally, King failed to show actual prejudice. He did not satisfy his burden in order to overcome the procedural default on his tenth ineffective assistance of counsel claim; thus, the claim is procedurally barred.

1(k). Counsel failed to adequately urge his motion to withdraw

King next alleges that his trial counsel was ineffective for failing to urge his motion to withdraw as counsel adequately. King states that he wrote a letter to the trial court asking that his court-appointed attorney be replaced on November 23, 1998. King explained that his attorney was "in disagreement of my innocence" and had acknowledged to him on several occasions that he planned "to do no more in my defense than try and ensure that I do not receive the death sentence."

The record reveals that counsel filed a motion to withdraw on January 6, 1999. In support of the motion, counsel stated that the two attorneys "have an irreconcilable conflict of interest with the defendant which requires their removal from the case." On January 11, 1999, two weeks before jury selection was scheduled to begin, counsel brought the motion to the trial court's attention. Counsel presented the motion as follows:

5 RR 4-5. King argued that the presentation of the motion was "perfunctory" and implied that his attorney was "just going through the motions in filing the motion." He argued that his attorney's representation was deficient and that counsel would not have been required to remain as his attorney if he had presented the motion adequately.

King's request for different counsel was fully discussed on direct appeal. The TCCA discussed the issue as follows:

King, 29 S.W.3d at 565-66 (footnotes and internal citations omitted). The TCCA discussed this issue in terms of both trial error and ineffective assistance of counsel and rejected King's allegations.

In the present petition, King adds a new wrinkle to his ineffective assistance of counsel claim by asserting that counsel failed to urge adequately the motion to withdraw. The TCCA rejected this new argument as an abuse of the writ. The Sixth Amendment provides criminal defendants with a right to counsel, but the "right to counsel of choice does not extend to defendants who require counsel be appointed to them." United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006). The Fifth Circuit has characterized complaints about not receiving a different court appointed attorney as amounting to "garden-variety ineffective assistance claims." United States v. Rincon, 223 F. App'x 331, 332 (5th Cir. 2007). Counsel was undoubtedly aware that King was not entitled to a new attorney just because of a conflict of personality or disagreements between him and his client. See Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1990). King has not shown that there was a legitimate basis under the law for him to receive a new or different attorney. He has not shown that counsel's representation was deficient for failing to urge the motion with greater enthusiasm. The claim is conclusory and does not support a petition for a writ of habeas corpus. See Miller, 200 F.3d at 282; Koch, 907 F.2d at 530; Ross, 694 F.2d at 1011. King likewise failed to show that he was prejudiced by trial counsel's alleged failure to urge the motion to withdraw with greater enthusiasm. The ineffective assistance of counsel claim lacks merit. Since King has not demonstrated that it has at least some merit, he has not shown that the claim is substantial, as required by the Supreme Court in Martinez and Trevino. King likewise failed to show that his initial state habeas counsel was ineffective in failing to present the claim in the first state habeas application. Finally, King failed to show actual prejudice. He did not satisfy his burden in order to overcome the procedural default on his eleventh ineffective assistance of counsel claim; thus, the claim is procedurally barred.

1(l). Failure of defense counsel to object to punishment phase "future dangerousness" testimony of Dr. Edward Gripon

King next alleges that trial counsel was ineffective for failing to object to Dr. Edward

Gripon's "future dangerousness" testimony during the sentencing phase of the trial. He notes that Dr. Gripon did not personally examine him. Instead, his testimony was based upon the reports and records compiled in this case. Based upon the reports and records, Dr. Gripon testified that King should be sentenced to death because he was a future danger to society. King complains that counsel did not object to Dr. Gripon's expertise, credentials, ability to make such predictions or his methodology.

In many ways, the present ineffective assistance of trial counsel claim is a repeat discussion of Claim 1(a), which was rejected. It is further noted that King's current counsel made similar complaints about Dr. Gripon's testimony in Shields v. Dretke, 122 F. App'x 133 (5th Cir.), cert. denied, 545 U.S. 1160 (2005). The Fifth Circuit rejected the complaint as follows:

Id. at 153. The Fifth Circuit's observations are equally applicable to the present case. Dr. Gripon has regularly testified as an expert regarding the future dangerousness of defendants based on reports and records, without interviewing the defendants. The Fifth Circuit has accepted such testimony. Counsel had no basis to object to Dr. Gripon's testimony. King has not shown that his trial counsel's representation was deficient. He has not established prejudice. The twelfth ineffective assistance of counsel claim lacks merit. Since King has not demonstrated that it has at least some merit, he has not shown that the claim is substantial, as required by the Supreme Court in Martinez and Trevino. King likewise failed to show that his initial state habeas counsel was ineffective in failing to present the claim in the first state habeas application. Finally, King failed to show actual prejudice. He did not satisfy his burden in order to overcome the procedural default on his twelfth ineffective assistance of counsel claim; thus, the claim is procedurally barred.

1(m). Cumulative errors of counsel rendered his trial unfair

King finally alleges that he is entitled to federal habeas corpus relief based on cumulative errors of counsel. However, because all of King's ineffective assistance of trial counsel claims lack merit, he has failed to show that he was denied due process as a result of cumulative errors. United States v. Moye, 951 F.2d 59, 63 n.7 (5th Cir. 1992); Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992), cert. denied, 508 U.S. 960 (1993). In another case involving King's current counsel, the Fifth Circuit rejected a cumulative error claim as follows:

Coble, 496 F.3d at 440. In the present case, King has not identified any error(s) of constitutional dimension. Furthermore, the Director appropriately observed that the Fifth Circuit has specified that "[m]eritless claims or claims that are not prejudicial cannot be cumulated, regardless of the total number raised." Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996) (citing Derden, 978 F.2d at 1461). King is not entitled to relief on his cumulative error claim.

In conclusion with respect to all of the ineffective assistance of counsel sub-claims presented in ground for relief number one, King has not shown (1) that his underlying claims of ineffective assistance of trial counsel are "substantial," meaning that he must demonstrate that the claims have some merit, and (2) that his initial state habeas counsel was ineffective in failing to present those claims in his first state habeas application. He also failed to show actual prejudice. He failed to satisfy his burden in order to overcome the procedural default. Consequently, apart from claim 1(I), all of the sub-claims included in his first ground for relief are procedurally barred. With respect to claim 1(I), as noted in the court's previous memorandum, King failed to satisfy his burden under 28 U.S.C. § 2254(d) in order to obtain relief. Overall, King has not shown that he is entitled to relief with respect to any of his claims contained in ground for relief number one.

B. Ineffective Assistance of Counsel and Actual Innocence

In ground for relief number 2, King presents another ineffective assistance of trial counsel claim, which is also discussed in terms of actual innocence. King alleges that trial counsel was ineffective for failing to present a viable defense of actual innocence. In analyzing the second ground for relief, the court initially notes that allegations of ineffective assistance of counsel and actual innocence are distinct issues that must be treated separately. See Rocha v. Thaler, 626 F.3d 815, 823 (5th Cir. 2010) (declined the invitation to treat actual innocence and ineffective assistance of counsel claims synonymously), cert. denied, 132 S.Ct. 397 (2011). Thus each issue will be discussed separately, starting with the ineffective assistance of counsel claim.

King argues that trial counsel was ineffective in failing to challenge the State's evidence against him and failing to present any effective challenge to the prosecution's version of the victim's death. He specifically complains that counsel failed to challenge the evidence regarding the sandals with a drop of the victim's blood on them, sandals that purportedly did not belong to him. King also complains that counsel failed to explain that people besides himself had access to his "Possum" lighter on the night of the murder. He also complains that counsel failed to point out obvious inconsistencies in the State's theory of the case and logical gaps in their reasoning, including the alleged motive for the crime. He complains that counsel failed to investigate and present his version of events, and his alibi, as he did not testify at trial. He finally complains that counsel failed to show the jury that he was "actually innocent of this notorious and horrific crime."

The Director argues that the ground for relief is both procedurally barred and wholly without merit. He notes that the claim was presented to the TCCA and dismissed as an abuse of the writ without consideration of the merits of the claim pursuant to Tex. Code Crim. Proc. Art. 11.071 § 5(c). He adds, however, that a portion of the claim regarding counsel's efforts to locate an alibi witness was raised and rejected during the first state habeas proceedings and on direct appeal. He argues that the Martinez/Trevino rule does not help because the claim is not substantial. He further argues that because the actual innocence claim lacks merit, it cannot serve as a gateway through which the procedurally defaulted claims can pass.

It is again noted that the issue of ineffective assistance of trial counsel is a separate issue from actual innocence. Rocha, 626 F.3d at 823. The procedural bar discussion in Section IV of this memorandum opinion, including the discussion of the Martinez/Trevino rule, governs the analysis of King's ineffective assistance of trial counsel claim. King initially complains that trial counsel failed to "explain" the presence of a cigarette butt with his DNA on it at the crime scene. The record establishes, however, that trial counsel explored the possibility that the evidence did not necessarily indicate King's presence at the scene with several of the State's witnesses. Counsel cross-examined Keisha Atkins on whether King and others placed cigarette butts in the ashtray of Berry's truck. 18 RR 48. Counsel elicited testimony from F.B.I. Agent Tim Brewer on crossexamination clarifying that it could not be determined when DNA was deposited on the cigarette butt. Id. at 136. Counsel thoroughly and effectively cross-examined Frank Samuel Baechtel, a forensic examiner in the F.B.I.'s DNA analysis unit, concerning the DNA evidence. Baechtel admitted there was no way to determine when the cigarette was smoked. 20 RR 45. He added that the length of time someone's DNA on a cigarette butt would last was the product of how it was kept. Id. Counsel cross-examined Lewis Berry about whether King smoked in Shawn Berry's truck. Id. at 164. Lewis Berry testified that King smoked in the truck, although he did not recall whether King used the ashtray. Id. Counsel went on to point out these flaws in the State's case during closing arguments. 22 RR 38-40.

The Director appropriately observes that King failed to point to another source of information or evidence available to counsel at the time of trial to further support his claim. To succeed on the claim, King must show that had counsel investigated the claim he would have found witnesses to support the defense, that such witnesses were available, and had counsel located and called these witnesses, their testimony would have been favorable and they would have been willing to testify on his behalf. Alexander, 775 F.2d at 602; Gomez, 734 F.2d at 1109-10. The failure to produce some evidence from an uncalled witness severely undermines a claim of ineffective assistance. Sayre v. Anderson, 238 F.3d 631, 636 (5th Cir. 2001). Conclusory claims are insufficient to entitle a habeas corpus petitioner to relief. Woods, 870 F.2d at 288; Schlang, 691 F.2d at 799. King does nothing more than present a bald and conclusory claim that counsel "failed to present any effective challenge to the prosecution's version of the victim's death." The claim lacks merit.

King also complains that counsel failed to present to the jury the possibility that the sandals found in his apartment with the victim's blood on them actually belonged to Lewis Berry, as opposed to King. The assertion is refuted by the record. Keisha Atkins admitted on crossexamination by defense counsel that she could not say whether a particular pair of sandals identified by the State belonged to King; instead, she could only say that they looked like King's sandals. 18 RR 32-33. She further testified that Lewis Berry stayed sometimes at King's apartment. Id. at 33. Counsel elicited information from FBI Agent Kenneth Kempf acknowledging that Lewis Berry's driver's license was found in King's apartment. Id. at 91. Kempf also testified that there was not much difference in size between the sandals wore by King and Lewis Berry. Id. at 90, 126-27, 131-32. King's friend Tommy Faulk acknowledged when he was cross-examined by defense counsel that Lewis Berry sometimes lived in King's apartment and kept clothes, shoes and other personal items there. 19 RR 254-55. Defense counsel also cross-examined Lewis Berry, who testified that the bigger sandals belonged to King. 20 RR 160. Counsel revisited this flaw in the State's case during closing arguments as follows:

22 RR 40. The Director appropriately points out that King presents no other source of information or witnesses available at the time of trial to further support this alternative theory.

King next complains that counsel failed to challenge the State's argument that his statements to the media were false. He insists that his statements were not false. The record reveals that King's letter to the media was tendered into evidence by the State, and counsel had no objection to the letter being admitted into the record. 20 RR 119. King's letter was quoted on pages 4-7 of this memorandum opinion and discussed in the opinion issued by the TCCA. The letter was the one instance where King's side of the story was told at trial. It was not subjected to cross-examination. Counsel's representation was effective in allowing King's side of the story to be presented in this manner. With respect to the specific complaint, King has not identified where the State argued that the contents of the statements were false, and he failed to show how and when counsel should have objected. Once again, King has made a conclusory claim that does not provide a basis for federal habeas corpus relief.

King next complains about how his letter to co-defendant Brewer was handled by his attorney. King made the following comments in the letter:

State's Trial Exhibit 104. The TCCA characterized the letter as an admission of guilt. King, 29 S.W.3d at 565. King argues that the letter could have been easily construed as merely a denial that there was blood on his clothes as he was not present. He complains that the alternative interpretation was never mentioned by the defense. Nonetheless, the letter was in the record. It was subject to interpretation. One interpretation was that it could be viewed as an admission of guilt. The Director persuasively argues that it was reasonable for trial counsel to conclude that bringing additional attention to the letter by arguing for an alternative interpretation could strain their credibility with the jury beyond natural bounds.

King next complains that counsel did not attempt to rebut the State's theory that his racial animosity supplied a motive for murder. The Director correctly argues that counsel did argue this point in rebuttal. Counsel, in fact, argued that just because King had made racial slurs did not mean that he committed the act of racial violence. See 22 RR 36, 43, 46. Trial counsel argued that the State had presented nothing more than a circumstantial case focusing on tattoos and racial animosity.

Overall, with respect to these issues that are subject to the procedural bar, King has not shown that his trial attorney's representation was deficient or that he was prejudiced due to such deficient representation. The ineffective assistance of trial counsel claim lacks merit. Since King has not demonstrated that it has at least some merit, he has not shown that the claim is substantial, as required by the Supreme Court in Martinez and Trevino. King likewise failed to show that his initial state habeas counsel was ineffective in failing to present the claim in the first state habeas application. Finally, King failed to show actual prejudice. He has not satisfied his burden in order to overcome the procedural default on this ineffective assistance of trial counsel claim.

The Director appropriately notes that an additional aspect of the present ground for relief was actually presented in the first state application for a writ of habeas corpus. King complained that trial counsel was never interested in verifying either his version of events or his alibi. In support of this claim, he cited affidavits from Ronald King, his father, and Claudia Womack. This issue was fully developed during the first state habeas corpus proceeding. King's trial attorney, Sonny Cribbs, provided an affidavit that included the following statement:

SHCR-01 at 144.8

Upon review of the state application, the record and affidavit, the state trial court entered the following findings of fact and conclusions of law:

SHCR-01 at 193-94. The trial court went on to find that King failed to prove that trial counsel's representation on this issue was deficient or that he was prejudiced by such deficient representation. Id. at 195. The TCCA subsequently denied the first state application for a writ of habeas corpus without written order. This aspect of King's second ground for relief should be denied because he has not shown, as required by 28 U.S.C. § 2254(d), that the State court findings 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 resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.

Overall, King has not shown that his ineffective assistance of trial counsel claim contained in the second ground for relief has any merit.

King complicates this claim somewhat by including allegations of actual innocence. In evaluating this argument, it is again noted that a federal habeas claim is procedurally defaulted when the state court has based its rejection of the claim on a state procedural rule that provides an adequate basis for relief, independent of the merits of the claim. Coleman, 501 U.S. at 729-32. "[A] federal court will not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus absent a showing of cause and prejudice to excuse the default." Haley, 541 U.S. at 388. Under a narrow exception to this rule, courts will review such a claim without a showing of cause and prejudice "when the habeas applicant can demonstrate that the alleged constitutional error has resulted in the conviction of one who is actually innocent of the underlying offense or, in the capital sentencing context, of the aggravating circumstances rendering the inmate eligible for the death penalty." Id. A claim of actual innocence is "`not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.'" Schlup v. Delo, 513 U.S. 298, 315 (1995) (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)). See also Rocha, 626 F.3d at 824. This basic principle was recently reaffirmed by the Supreme Court in McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013), and by the Fifth Circuit in Burton v. Stephens, 543 F. App'x 451, 458 (5th Cir. 2013).

In his reply to the answer, King asserts that he is bringing both a "freestanding" claim of actual innocence and a "gateway" claim of actual innocence, but the Supreme Court has never recognized a "freestanding" claim of actual innocence. McQuiggin, 133 S. Ct. at 1931. Moreover, the Fifth Circuit has regularly rejected freestanding claims of actual innocence. See Coleman v. Thaler, 716 F.3d 895, 908 (5th Cir. 2013) (citations omitted). King has not shown any Supreme Court or Fifth Circuit authority recognizing a freestanding claim of actual innocence; thus, he has not shown a basis for relief using this argument.

In both McQuiggin and Rocha, the petitioners were trying to overcome procedural problems by arguing actual innocence in order to have their ineffective assistance of counsel claims considered on the merits. In Rocha, the Fifth Circuit stressed that a petitioner must make a "sufficient gateway showing of actual innocence to justify having his federal habeas claim considered on the merits." 626 F.3d at 825 (citing House v. Bell, 547 U.S. 518, 522 & 553-54 (2006)). Prior to Martinez/Trevino, the only way King would have been able to have the present ground for relief considered on the merits would have been by passing through the actual innocence gateway, but Martinez/Trevino provided him with a second opportunity to have the claim considered on the merits. Nonetheless, as was previously explained, he failed to satisfy the cause and prejudice exception provided by Martinez/Trevino. Thus the question remaining before the court is whether King has made a sufficient gateway showing of actual innocence.

The Supreme Court has stressed that the burden of showing actual innocence is extraordinary:

Schlup, 513 U.S. at 327.

The Supreme Court has further illuminated the standard enunciated in Schlup. "First, although `[t]o be credible' a gateway claim requires `new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial,' [Schlup, 513 U.S.] at 324, 115 S.Ct. 851, the habeas court's analysis is not limited to such evidence." House, 547 U.S. at 537. The "habeas court must consider `all the evidence,' old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under `rules of admissibility that would govern at trial.'" Id. at 538 (quoting Schlup, 513 U.S. at 327-28). Then, "[b]ased on this total record, the court must make `a probabilistic determination about what reasonable, properly instructed jurors would do.'" Id. (quoting Schlup, 513 U.S. at 329).

Second, "the Schlup standard is demanding and permits review only in the `extraordinary' case." House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 327). Although in the vast majority of cases, claims of actual innocence are rarely successful, "the Schlup standard does not require absolute certainty about the petitioner's guilt or innocence." Id. Instead,

Id. Finally, the Supreme Court explained that "the gateway actual-innocence standard is `by no means equivalent to the standard of Jackson v. Virginia, 442 U.S. 307, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1970),' which governs claims of insufficient evidence." Id. (quoting Jackson, 442 U.S. at 330). Instead, "[b]ecause a Schlup claim involves evidence the jury did not have before it, the inquiry requires the federal court to assess how reasonable jurors would react to the overall, newly supplemented record." Id. This may include consideration of "the credibility of the witnesses presented at trial." Id. at 537-38 (quoting Jackson, 442 U.S. at 330).

More recently, the Fifth Circuit discussed the type of evidence that must be presented in order to satisfy the actual innocence standard:

McGowen v. Thaler, 675 F.3d 482, 499-500 (5th Cir. 2012), cert. denied, 133 S.Ct. 648 (2012) (internal quotation marks and citations omitted).

In the present case, King submitted an affidavit from Samuel Rae,9 his natural father, who indicated that King had expressed a desire before the murder to move to Georgia and work with him. King argues that the affidavit undercuts the State's theory about the motive for the murder, including his alleged desire to begin a chapter of the Confederate Knights of America in Jasper. King also submitted a letter from co-defendant Lawrence Brewer10 stating that King was not involved.

The Director responded by noting that nothing in the letter indicates that Brewer would have been willing, much less able, to testify at King's trial. Moreover, this "admission" on Brewer's part is in direct conflict with the testimony at Brewer's own capital murder trial that he, King and Shawn Berry (and no one else) were present when the victim was murdered. The Director argues that Brewer's recantation is patently incredible. See Spence v. Johnson, 80 F.3d 989, 1003 (5th Cir.), cert. denied, 519 U.S. 1012 (1996); Drew v. Scott, 28 F.3d 460, 463 (5th Cir.), cert. denied, 512 U.S. 1266 (1994).

The core evidence that was before the jury that found King guilty was discussed by the TCCA as follows:

King, 29 S.W.3d at 565.

The additional evidence presented by King to support his actual innocence claim was his father's affidavit and Brewer's letter. However, neither Rae's affidavit nor Brewer's letter satisfies the extraordinarily high standard discussed in Schlup. Rae's affidavit provides nothing more than an inference that King at one time had thoughts about moving to Georgia to work with his father, but it did not provide an alibi. It did not undercut the State's evidence about King's motive for the murder. Similarly, Lawrence Russell Brewer's rambling fifty page letter, entitled "Coup de Grace," is of questionable value. For one thing, it was prepared five years after Mr. Byrd's death and four years after Brewer was convicted. See Komolafe v. Quarterman, 246 F. App'x 270, 272 (5th Cir. 2007), cert. denied, 552 U.S. 1168 (2009) (credibility of affidavit was mitigated by the fact that it was submitted eight years after the petitioner's conviction). Furthermore, the letter is internally inconsistent and in direct conflict with the evidence presented at Brewer's trial. Id. See also Graves v. Cockrell, 351 F.3d 143, 153 (5th Cir. 2003) (Schlup is not satisfied with a recanting affidavit containing numerous contradictory statements). Moreover, at this juncture, the letter is particularly suspect since Brewer cannot be cross-examined because he has been executed. The Fifth Circuit has stressed that "recanting affidavits and witnesses are viewed with extreme suspicion by the courts." Spence, 80 F.3d at 1003 (citing May v. Collins, 955 F.2d 299, 314 (1992)). In Drew, the Court stated that it had "little confidence in [a codefendant's] postsentencing truth experience because he had nothing to lose by incriminating himself after receiving a 60-year sentence." 28 F.3d at 463. The state court's findings were cited for the proposition that "[i]t is not unusual for one of two convicted accomplices to assume the entire fault and thus exculpate his codefendant by the filing of a recanting affidavit or other statement." Id. The Fifth Circuit concluded that even if the affidavits were accepted as true, "these statements would not undermine our confidence in the jury's verdict in the least." Id. This court is of the same opinion with respect to King's evidence supporting his actual innocence claim. Rae's affidavit and Brewer's letter are of little value. His other affidavits, such as the statements by Dr. Mark Cunningham and Roy Birnbaum, are no better. Considering all the evidence, both old and new, incriminating and exculpatory, King has not shown that it is more likely than not that no reasonable juror would have voted to find him guilty beyond a reasonable doubt. The actual innocence claim lacks merit. He has not satisfied the extraordinary gateway showing required in order to have any of his remaining claims considered on the merits.

Overall, with respect to the second ground for relief, King has shown neither cause and prejudice nor actual innocence in order to overcome the procedural bar. With respect to the evidence that was properly presented to the state courts in the first state habeas corpus proceeding, King has not shown, as required by 28 U.S.C. § 2254(d), that the State court findings 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 resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. Finally, the second ground for relief should also be denied because it lacks merit.

C. Remaining Claims

Grounds for relief three through twenty-one may be grouped into two broad categories. Three of the claims were previously dismissed on summary judgment (#64), and the rest are subject to the procedural bar.

3. The trial court violated King's rights under the Sixth and Fourteenth Amendments when it denied his request for different trial counsel and denied trial counsel's motion to withdraw

King's third ground for relief is a freestanding claim that the trial court violated his rights under the Sixth and Fourteenth Amendments when it denied his request for different trial counsel and denied trial counsel's motion to withdraw. The ground for relief was one of the three claims rejected in the previous memorandum opinion. It should be recalled that it was also rejected in the current memorandum when presented in the context of an ineffective assistance of trial counsel claim in claim 1(k). King has not shown that he is entitled to relief based on ground for relief number three.

4. King's rights under the First and Fourteenth Amendments were violated by the admission of evidence during both phases of his trial, relating to his abstract beliefs without a sufficient "nexus" to the crime, contrary to Dawson v. Delaware11

The fourth ground for relief relates to the evidence regarding King's abstract beliefs, racism, alleged affiliation with a group called the Confederate Knights of America, and writings and reading materials. He argues that the introduction of this evidence violated his rights under the First Amendment, denied him due process, and biased the jury against him. The ground for relief was rejected by the TCCA as an abuse of the writ. In an effort to overcome the procedural bar, King argues in his amended petition that the dismissal of the claim on procedural grounds was due to the failure of initial state habeas counsel to raise it in the first state habeas petition. He did not add anything to the argument in his reply to the answer. His argument does not satisfy the Martinez/Trevino rule. More specifically, he failed to show that (1) his underlying claims of ineffective assistance of trial counsel are substantial, and (2) his initial state habeas counsel was ineffective in failing to present those claims in his first state habeas application. King has not satisfied his burden in order to overcome the procedural bar.

5. The admission of unreliable and unscientific testimony of "future dangerousness" violated King's rights under the Eighth and Fourteenth Amendments to the United States Constitution

The fifth ground for relief is yet another complaint about Dr. Gripon's testimony. King presented similar complaints in the context of his ineffective assistance of trial counsel claims in claims 1(a) and 1(l). The present ground for relief was rejected by the TCCA as an abuse of the writ. In an effort to overcome the procedural bar, King argues in his amended petition that the dismissal of the claim on procedural grounds was due to the failure of initial state habeas counsel to raise it in the first state habeas petition. His excuse, however, does not satisfy the Martinez/Trevino rule, which requires him to show that (1) his underlying claims of ineffective assistance of trial counsel are substantial, and (2) his initial state habeas counsel was ineffective in failing to present those claims in his first state habeas application. In his reply, he attempts to satisfy the Martinez/Trevino rule by renewing his ineffective assistance of trial counsel claim, but such claim lacks merit for reasons previously explained in conjunction with claims 1(a) and 1(1). King has not satisfied his burden in order to overcome the procedural bar.

6. The Texas "special issues" deprived King of his Sixth and Fourteenth Amendment rights to have a jury determine, beyond a reasonable doubt, every fact that operates to increase the punishment authorized, as required by Apprendi v. New Jersey12 and Ring v. Arizona13

7. The State's introduction of unconvicted offenses and the sentencer's consideration of that evidence violated King's Sixth, Eighth and Fourteenth Amendment rights and was contrary to the holding in Apprendi and Ring

The sixth and seventh grounds for relief relate to Apprendi and Ring. The Supreme Court held that, except for prior convictions, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. The Supreme Court extended Apprendi to facts giving rise to capital punishment in Ring, 536 U.S. at 589. The sixth and seventh grounds for relief were rejected by the TCCA as an abuse of the writ. King did not show cause and prejudice for the default or that a fundamental miscarriage of justice would occur if the court did not consider the claim on the merits. He has not satisfied his burden in order to overcome the procedural bar.

King acknowledges that his claims are contrary to Fifth Circuit law. See Brown v. Dretke, 419 F.3d 365, 377 (5th Cir. 2005); Vega v. Johnson, 149 F.3d 354, 359 (5th Cir. 1998). The Director supplemented the list of cases rejecting the argument with the following recent cases: Druery v. Thaler, 647 F.3d 535, 546-47 (5th Cir. 2011), cert. denied, 132 S.Ct. 1550 (2012); Paredes v. Quarterman, 574 F.3d 281, 292 (5th Cir. 2009), cert. denied, 562 U.S. 1203 (2011). Most recently, the Fifth Circuit reiterated that the Apprendi and Ring arguments have repeatedly been rejected and, furthermore, they do not apply retroactively to cases on collateral review. White v. Thaler, 522 F. App'x 226, 234 (5th Cir. 2013) (citing Teague v. Lane, 489 U.S. 288 (1989), cert. denied, 134 S.Ct. 907 (2014)). Like the situation in White, King was convicted years before the issuance of the decisions in Apprendi and Ring. Relief is unavailable. Despite the case law being clearly against him, King still included the claims in his petition. He specified that he raised these issues to preserve them for review. Nonetheless, the court simply lacks authority to grant relief on these claims.

8. Due to pervasive and extensive pre-trial publicity, King's trial was conducted in a prejudicial atmosphere that made the trial process inherently unfair and deprived him of due process

9. The totality of the prejudicial circumstances and atmosphere surrounding the trial deprived King of his Fifth, Sixth, Eighth and Fourteenth Amendment rights and violated his right to due process of law

10. King was deprived of his right to a fair trial in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments when the trial court refused to grant his motion for a change of venue despite overwhelming prejudice against him in Jasper

Claims eight through ten concern the pre-trial publicity surrounding the offense and the trial court's failure to grant King a change of venue. The claims were dismissed by the TCCA as an abuse of the writ. King has not shown cause and prejudice for the default or that a fundamental miscarriage of justice would occur if the court does not consider the claim on the merits. In the amended petition, King merely argues the dismissal of the claims on procedural grounds was due to the failure of his initial state habeas counsel to raise them in his first state habeas petition. The Director appropriately notes that King does not claim ineffective assistance of trial counsel in order to benefit from the holdings in Martinez and Trevino. In his reply to the answer, King adds an ineffective assistance of trial counsel claim in an effort to bring the grounds for relief within the scope of the Martinez/Trevino rule. It should be recalled, however, that King presented a pretrial publicity claim in the context of an ineffective assistance of trial counsel in claim 1(c), but he failed to show that his trial counsel was ineffective and the claim was rejected. The reasoning is equally applicable to the present grounds for relief. Claims eight through ten should be dismissed because King has not satisfied his burden to overcome the procedural bar.

11. King was denied meaningful access to the courts and due process of law in state post-conviction proceedings and was denied competent counsel for his initial state habeas proceedings by unconstitutional state court action

The eleventh ground for relief was rejected in the court's previous memorandum opinion.

King acknowledges in his amended petition that this claim was among those that were dismissed. The court's previous decision was issued before the Supreme Court announced the decisions in Martinez and Trevino. To the extent that circumstances have changed as a result of those decisions, the present opinion takes into account the decisions announced in Martinez and Trevino. Nonetheless, as discussed throughout this opinion, these cases do not provide him with any basis for relief.

12. King's attorneys were ineffective in not obtaining and/or using a confidential defense psychiatric expert under Ake v. Oklahoma14 to examine their client for purposes of both guilt/innocence and punishment phases of the trial

In the twelfth ground for relief, King asserts that his attorneys knew or should have known that an insanity or diminished mental capacity defense was a viable option, but his attorneys were allegedly ineffective for making very little or no attempt to have him evaluated on a confidential basis, as they were entitled to under Ake v. Oklahoma. "In Ake, the Supreme Court held that, upon request, a trial court must appoint a psychiatrist for an indigent defendant if a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial and, in the context of a capital sentencing proceeding, when the state presents psychiatric evidence of the defendant's future dangerousness." Woodward v. Epps, 580 F.3d 318, 331 (5th Cir. 2009) (citing Ake, 470 U.S. at 82-83), cert. denied, 559 U.S. 1071 (2010)). King acknowledged that this claim, as it relates to the guilt/innocence phase of the trial, was rejected in the court's previous order granting summary judgment in favor of the Director. He was permitted to return to state court to exhaust the claim as it relates to the punishment phase of the trial. The TCCA dismissed the subsequent application for a writ of habeas corpus as an abuse of the writ. For reasons that will hereinafter be explained, King has not satisfied his burden of overcoming the procedural bar based on the Martinez/Trevino rule.

The ground for relief lacks merit in several respects. The Director appropriately observes that it appears that King is arguing, in part, that counsel was per se ineffective for using a psychologist, rather than a psychiatrist, as his mental health expert at trial. The court rejected this aspect of King's claim in the previous memorandum opinion. See, e.g., Hogan v. Estelle, 537 F.2d 238, 238 (5th Cir. 1976), cert. denied, 429 U.S. 1065 (1977). The Director further notes that there is no evidence before the court from either the trial or any post-conviction proceedings that King had or has any mental disorder that would have raised the issue of sanity. Indeed, the psychologist who testified at trial on King's behalf, Dr. Quijano, explained that King had no mental disorder, and this, he testified further, meant that King would pose less of a future danger than an inmate diagnosed with a mental disorder, as that might cause irrational reactions. 24 RR 88-89. The Director persuasively argues that King has not shown the need for an additional psychiatric expert; thus, the claim lacks merit.

The claim also lacks merit because of the development of the issue during the first state habeas proceeding, although the issue there specifically concerned the guilt/innocence phase of the trial. Defense counsel Sonny Cribbs submitted an affidavit during the first state habeas corpus proceedings, wherein he discussed his efforts to investigate King's mental health as follows:

SHCR-01 at 141-44.

The state trial court subsequently issued the following findings regarding King's mental health:

SHCR-01 at 188-89. The TCCA subsequently denied the first state application for a writ of habeas corpus without written order. As was noted in the previous memorandum opinion, the portions of this ground for relief that were exhausted should be denied because King has not shown, as required by 28 U.S.C. § 2254(d), that the State court findings 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 resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.

Even though this claim as it relates to the punishment phase of the trial was not specifically raised in the first state habeas corpus proceeding, the substance of the claim was developed. Mr. Cribbs' discussion regarding his efforts to discover and develop any evidence of mental illness, insanity or mental defects applies equally to both the guilt/innocence and punishment phases of the trial. Counsel fulfilled his duty to conduct an investigation regarding mitigating evidence in order to "discover all reasonably available mitigating evidence." Wiggins v. Smith, 539 U.S. 510, 524 (2003) (emphasis in original). Counsel found no evidence of insanity, mental illness or mental disability. This is not a situation where defense counsel was on notice of a defendant's past institutionalization and conducted "no investigation of any kind" into competency. Cf. Bouchillon v. Collins, 907 F.2d 589, 596-97 (5th Cir. 1990). Counsel had no duty to "believe that another psychiatrist might reach a different conclusion" where the initial evaluation "was consistent with counsel's own perception and observation of the defendant." Clark v. Collins, 19 F.3d 959, 964 (5th Cir.), cert. denied, 513 U.S. 966 (1994).

It is again noted that the present ground for relief is specifically based on Ake. King alleges that his trial attorneys were ineffective in not obtaining and/or using a confidential psychiatric expert. In light of the mental health evaluations obtained by counsel in his preparation for trial, any effort to have a psychiatrist appointed would have done nothing to assist in King's defense and counsel's decision came within the scope of well informed, strategic decisions, that cannot be second-guessed. Crane v. Johnson, 178 F.3d 309, 314 (5th Cir.), cert. denied, 528 U.S. 947 (1999).

It should also be recalled that King specifically denied that he was bringing a claim under Ake in the first state habeas corpus proceeding and that the trial court issued a finding that he was not bringing a claim under Ake. King, nonetheless, added a claim under Ake when he filed the present petition. King is being somewhat disingenuous in arguing in the present proceeding that he is entitled to relief under Ake.

In an effort to overcome the procedural bar, King argues in the amended petition that the dismissal of the claim on procedural grounds was due to the failure of initial state habeas counsel to raise it in the first state habeas application. His excuse, however, does not satisfy the Martinez/Trevino rule, which requires him to show that (1) his underlying claims of ineffective assistance of trial counsel are substantial, and (2) his initial state habeas counsel was ineffective in failing to present those claims in his first state habeas application. In his reply to the answer, King states nothing more than the Director's argument that the claim is procedurally barred is no longer valid in light of Trevino. The excuse offered in his reply is conclusory. He has not satisfied his burden in order to overcome the procedural bar. The twelfth ground for relief is procedurally barred.

13. King's jury was fundamentally biased against him due to errors of the trial court in death-qualifying the jury in violation of Witherspoon v. Illinois15 and Morgan v. Illinois16

In his thirteenth ground for relief, King argues that the jury was fundamentally biased against him because of errors of the trial court in death-qualifying the jury. He specifically argues that prospective jurors were erroneously excluded for cause because of their opposition to the death penalty, in violation of Witherspoon, while others were kept on the jury who should have been excluded due to their bias in favor of the death penalty, in violation of Morgan. In support of the claim, he cites the record with respect to the following prospective jurors: James Edward Mallett, Nicholaus Dwayne Fountain, Larry Pedigo, Herman Marie Rawls, Jo Marie Jones, Larry DeLord, Bartley Rhodes, Craig S. Harding, Steven Wheeler and James Nobles.

The Supreme Court has held that prospective jurors may be excluded for cause if they "would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or . . . that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." Witherspoon, 391 U.S. at 522 n.21. "A prospective juror, however, may not be excluded for cause simply because he may be hesitant in his ability to sentence a defendant to death." Knight v. Quarterman, 186 F. App'x 518, 535 (5th Cir. 2006) (internal citations omitted). Conversely, in Morgan, the Supreme Court held that prospective jurors who state that they will vote for the death penalty without regard to mitigating evidence should be disqualified for cause because they have formed an opinion concerning the merits of the case without basis in evidence presented at trial. Id. at 738-39. The Fifth Circuit has "stated that Morgan only involves the narrow question of whether, in a capital case, jurors must be asked whether they would automatically impose the death penalty upon conviction of the defendant." Trevino v. Johnson, 168 F.3d 173, 183 (5th Cir.), cert. denied, 527 U.S. 1056 (1999) (citation omitted).

In the present case, prior to the second state habeas corpus proceeding, King only challenged the exclusion of James Edward Mallett, which was raised on direct appeal. The TCCA provided the following discussion in overruling the point of error:

King, 29 S.W.3d at 567-68 (internal footnotes omitted). The prospective juror was properly excluded for cause because he unequivocally stated that he would not impose the death penalty. The decision by the TCCA complied with Witherspoon. King does not have any basis for federal habeas corpus relief because Mallett was excluded for cause.

King's appellate attorney focused solely on Witherspoon. He did not raise any errors based on Morgan. King did not raise any complaints about Nicholaus Dwayne Fountain, Larry Pedigo, Herman Marie Rawls, Jo Marie Jones, Larry DeLord, Bartley Rhodes, Craig S. Harding, Steven Wheeler and James Nobles until he filed the second state application for a writ of habeas corpus. The TCCA dismissed the second state application as an abuse of the writ. In his amended petition, King does not show cause and prejudice for the default or that a fundamental miscarriage of justice would occur if the court does not consider the claim on the merits. In an effort to overcome the procedural bar, King merely argues in the amended petition that the TCCA's dismissal of the subsequent writ on procedural grounds was due to the failure of appellate counsel to raise it on direct appeal. In his reply to the answer, he states only that "[t]he procedural default arguments have been presented supra." See Reply at 188. His reply is conclusory. His argument for overcoming the procedural bar does not satisfy the Martinez/Trevino rule, which requires him to show that (1) his underlying claims of ineffective assistance of trial counsel are substantial, and (2) his initial state habeas counsel was ineffective in failing to present those claims in his first state habeas application. King has not satisfied his burden in order to overcome the procedural bar. Consequently, the claim is procedurally barred.

14. The State's failure to disclose a deal made with a prosecution witness undermines confidence in the reliability of the verdict in violation of Brady v. Maryland17

King alleges in his fourteenth ground for relief that the State violated Brady by failing to disclose that the State's witness Matthew Hoover was given a deal in exchange for his testimony. King notes that Hoover was a Texas prison inmate. Hoover testified during the guilt/innocence phase of the trial that King's nickname was "Possum," about King's racist views, and about King's plan to kidnap and kill an African-American.

Under Brady, "the suppression by the prosecution of evidence favorable to an accused. . . violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. Brady concerned a defendant's right to a fair trial. Oman v. Cain, 228 F.3d 616, 620 (5th Cir. 2000). In order to prevail on a Brady claim, the Fifth Circuit has required a petitioner to show that (1) the prosecution suppressed evidence, (2) the evidence was favorable to the defense, and (3) the evidence was material to his guilt or innocence. Mahler v. Kaylo, 537 F.3d 494, 499 (5th Cir. 2008) (citations omitted). Evidence is material only when there exists a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id. at 500. "Evidence is not `suppressed' if the defendant either knew, or should have known of the essential facts permitting him to take advantage of any exculpatory evidence." Rector v. Johnson, 120 F.3d 551, 560 (5th Cir. 1997). The State is not obligated under Brady to disclose evidence that is available from other sources. Id. at 559. Finally, a Brady claim may not be premised on mere speculation. Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir. 2000); Hughes v. Johnson, 191 F.3d 607, 629-30 (5th Cir. 1999).

The Director argues that King failed to show a Brady violation. He observes that King's sole evidentiary support for the claim is his own self-serving statement, which he filed in response to a wrongful death lawsuit filed by the Byrd family. He argues that King's Brady claim should be dismissed as speculative. Moreover, to counter the self-serving statement presented by King, the Director submits an attachment listing Hoover's criminal history showing that he is currently serving time in Missouri and that he was arrested on the charges associated with these convictions two or three months after he testified in the King case. The Director also notes that Hoover was not the only person who testified about King's racist view. He argues that King cannot show materiality. The Director persuasively argues that King has not satisfied his burden of showing a Brady violation.

Even though the fourteenth ground for relief is conclusory and devoid of merit, it should primarily be rejected because it is procedurally barred. The ground for relief was not raised in state court until the second state application for a writ of habeas corpus. The TCCA dismissed the second state application as an abuse of the writ. In an effort to overcome the procedural bar, King merely argues that the dismissal of the claim on procedural grounds was due to the failure of initial state habeas counsel to raise it in the first state habeas petition. The Director correctly observes that the Martinez/Trevino rule does not apply since King has not shown an underlying claim of ineffective assistance of trial counsel. In his reply to the answer, King states only that "[t]he procedural default arguments have been presented supra." See Reply at 192. Once again, his reply is conclusory. King has not shown cause and prejudice for the default or that a fundamental miscarriage of justice would occur if the court does not consider the claim on the merits. King has not satisfied his burden in order to overcome the procedural bar.

15. Article 37.071(e) & (g)'s prohibition against informing jurors that a single holdout juror will cause the imposition of a life sentence violated King's rights under the Eighth and Fourteenth Amendments to the United States Constitution

King's fifteenth ground for relief concerns Texas' "12-10" rule, which purportedly violates Mills v. Maryland, 486 U.S. 367 (1988). "In Mills, the Supreme Court held that the Eighth Amendment was violated because the jury instructions may have precluded the jury from considering mitigating evidence unless all twelve jurors agreed that a particular circumstance was supported by the evidence." Miller v. Johnson, 200 F.3d 274, 288 (5th Cir. 2000) (citing Mills, 486 U.S. at 384). The Fifth Circuit has held "that Mills is not applicable to the capital sentencing scheme in Texas." Id. "Under the Texas system, all jurors can take into account any mitigating circumstance. One juror cannot preclude the entire jury from considering a mitigating circumstance." Id. at 288-89 (citing Jacobs v. Scott, 31 F.3d 1319, 1329 (5th Cir. 1994)). A full discussion of the "12-10" rule is unnecessary since the Fifth Circuit has repeatedly rejected challenges to Texas' capital sentencing provisions based on Mills. See, e.g., Druery v. Thaler, 647 F.3d 535, 542-43 (5th Cir. 2011); Parr v. Thaler, 481 F. App'x 872, 878-79 (5th Cir. 2012); Adams v. Thaler, 421 F. App'x 322, 335 (5th Cir. 2011). Relief based on Mills is unavailable.

The fifteenth ground for relief should primarily be rejected, however, because it is procedurally barred. It was not raised in state court until the second state application for a writ of habeas corpus. The TCCA dismissed the second state application as an abuse of the writ. King has not shown cause and prejudice for the default or that a fundamental miscarriage of justice would occur if the court does not consider the claim on the merits. In an effort to overcome the procedural bar, King merely argues in the amended petition that the TCCA's dismissal of the subsequent writ on procedural grounds was due to the failure of appellate counsel to raise it on direct appeal. In his reply, he states nothing more than his "procedural default arguments have been presented supra." See Reply at 194. His argument for overcoming the procedural bar does not satisfy the Martinez/Trevino rule, which requires him to show that (1) his underlying claims of ineffective assistance of trial counsel are substantial, and (2) his initial state habeas counsel was ineffective in failing to present those claims in his first state habeas application. King has not satisfied his burden in order to overcome the procedural bar. The claim is procedurally barred and devoid of merit.

16. King was denied the right to effective assistance of appellate counsel in violation of the Sixth, Eighth and Fourteenth Amendment to the United States Constitution

King's sixteenth ground for relief is an ineffective assistance of appellate counsel claim. He raised the ineffective assistance of appellate counsel claim for the first time in his second state application for a writ of habeas corpus, which was denied by the TCCA as an abuse of the writ. He has not shown show cause and prejudice for the default or that a fundamental miscarriage of justice would occur if the court does not consider the claim on the merits. In an effort to overcome the procedural bar, King merely argues in the amended petition that the claim should have been raised in the first application for a writ of habeas corpus. The Director correctly notes that the Martinez/Trevino rule does not apply under these circumstances. The Fifth Circuit has specifically declined to extend Martinez/Trevino to ineffective assistance of appellate counsel claims. Reed, 739 F.3d at 778 n.16. In reply, King merely states that his "procedural default arguments have been presented supra." See Reply at 195. His argument for overcoming the procedural bar does not satisfy the Martinez/Trevino rule, which requires him to show that (1) his underlying claims of ineffective assistance of trial counsel are substantial, and (2) his initial state habeas counsel was ineffective in failing to present those claims in his first state habeas application. Consequently, the claim is procedurally barred.

17. In view of the many different capital sentencing schemes that have been in operation in Texas in recent years, the Texas death penalty has been arbitrarily imposed and, thus, is unconstitutional under the Eighth Amendment and Equal Protection Clause of the Fourteenth Amendment

King's seventeenth ground for relief is a rather novel argument for having the Texas death penalty procedures declared unconstitutional. He discusses the changes in the Texas death penalty statutes over the last forty years and argues that such changes clearly show that the death penalty has been arbitrarily imposed and is thus unconstitutional under the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment. The Western District of Texas rejected a similar complaint about the Texas death penalty statutes that included no fact specific allegations and concluded that it was "little more than a facial attack on the validity of the Texas capital sentencing scheme." Moore v. Quarterman, 526 F.Supp.2d 654, 716 (W.D. Tex. 2007), c.o.a. denied, 534 F.3d 454 (5th Cir. 2008). The recent history of the changes in the death penalty scheme were reviewed. It was noted that the petitioner had not identified any Supreme Court precedent which casts any doubt on the validity of the current Texas capital sentencing special scheme. Id. It was further found that the claim was foreclosed by the Teague18 non-retroactivity doctrine. Id. at 717.

The analysis employed by the Western District of Texas is persuasive. King has not cited any Supreme Court precedent that casts doubt on the Texas capital sentencing scheme. The ground for relief lacks merit. The ground for relief should primarily be rejected, however, for a more basic reason. The present ground for relief was one of the many grounds raised for the first time in the second state application for a writ of habeas corpus, which was rejected by the TCCA as an abuse of the writ. King has not shown cause and prejudice for the default or that a fundamental miscarriage of justice would occur if the court does not consider the claim on the merits. In an effort to overcome the procedural bar, King argues in the amended petition that the TCCA's dismissal of the subsequent writ on procedural grounds was due to the failure of appellate counsel to raise it on direct appeal. In his reply to the answer, he merely argues that his "procedural default arguments have been presented supra." See Reply at 199. King's excuse does not satisfy the Martinez/Trevino rule. More specifically, King has not shown that (1) his underlying claims of ineffective assistance of trial counsel are substantial, and (2) his initial state habeas counsel was ineffective in failing to present those claims in his first state habeas application. He has not satisfied his burden in order to overcome the procedural bar. The seventeenth ground for relief is procedurally barred.

18. The Death Penalty, at least as presently administered in Texas, is cruel and unusual under the Eighth and Fourteenth Amendments to the United States Constitution

King's eighteenth ground for relief is a variation of his previous claim. He argues once again that the death penalty constitutes cruel and unusual punishment, at least as applied in Texas. The present ground for relief was one of the many grounds for relief raised for the first time in the second state application for a writ of habeas corpus, which was rejected by the TCCA as an abuse of the writ. King has not shown cause and prejudice for the default or that a fundamental miscarriage of justice would occur if the court does not consider the claim on the merits. In an effort to overcome the procedural bar, King merely argues in the amended petition that the TCCA's dismissal of the subsequent writ on procedural grounds was due to the failure of appellate counsel to raise it on direct appeal. He argues that his appellate counsel was ineffective for failing to raise the claim on direct appeal. In his reply to the answer, he simply states that his "procedural default arguments have been presented supra." See Reply at 201. His excuse does not satisfy the Martinez/Trevino rule. King has not shown that (1) his underlying claims of ineffective assistance of trial counsel are substantial, and (2) his initial state habeas counsel was ineffective in failing to present those claims in his first state habeas application. The eighteenth ground for relief is procedurally barred.

19. Lethal injection is cruel and unusual punishment under the Eighth Amendment to the United States Constitution

King next argues that the use of lethal injection constitutes cruel and unusual punishment. The Supreme Court has rejected the argument. Baze v. Rees, 535 U.S. 35 (2008). It has regularly been rejected by the Fifth Circuit. Whitaker v. Livingston, 732 F.3d 465 (5th Cir.), cert. denied, 134 S.Ct. 417 (2013); Raby v. Livingston, 600 F.3d 552 (5th Cir. 2010); Kelly v. Lynaugh, 862 F.2d 1126, 1135 (5th Cir. 1988), cert. denied, 492 U.S. 925 (1989). The claim lacks merit.

The ground for relief should primarily be rejected because it is procedurally barred. It was one of the many grounds raised for the first time in the second state application for a writ of habeas corpus, which was rejected by the TCCA as an abuse of the writ. King has not shown cause and prejudice for the default or that a fundamental miscarriage of justice would occur if the court does not consider the claim on the merits. In an effort to overcome the procedural bar, King argues in the amended petition that the TCCA's dismissal of the subsequent writ on procedural grounds was due to the failure of appellate counsel to raise it on direct appeal. In his reply to the answer, King once again states only that his "procedural default arguments have been presented supra." See Reply at 203. His excuse does not satisfy the Martinez/Trevino rule. More specifically, he failed to show that (1) his underlying claims of ineffective assistance of trial counsel are substantial, and (2) his initial state habeas counsel was ineffective in failing to present those claims in his first state habeas application. The nineteenth ground for relief is procedurally barred.

20. Trial counsel were operating under a conflict of interest in violation of King's Fifth, Sixth, Eighth, and Fourteenth Amendment rights

King next argues that his trial attorneys operated under a conflict of interest because they signed a literary and media rights agreement on the day he was sentenced to death. The Director notes that counsel did not enter into the agreement until after the trial was over and after their representation had ended. Consequently, there was no violation of any ethical rules.

The ground for relief should primarily be rejected because it is procedurally barred. It was one of the many grounds raised for the first time in the second state application for a writ of habeas corpus, which was rejected by the TCCA as an abuse of the writ. King has not shown cause and prejudice for the default or that a fundamental miscarriage of justice would occur if the court does not consider the claim on the merits. In an effort to overcome the procedural bar, King argues in the amended petition that the TCCA's dismissal of the subsequent writ on procedural grounds was due to ineffective assistance of state habeas counsel for failing to raise it in the first state application for a writ of habeas corpus. In his reply to the answer, King states only that his "procedural default arguments have been presented supra." See Reply at 204. His excuse does not satisfy the Martinez/Trevino rule. More specifically, he failed to show that (1) his underlying claims of ineffective assistance of trial counsel are substantial, and (2) his initial state habeas counsel was ineffective in failing to present those claims in his first state habeas application. King has not satisfied his burden in order to overcome the procedural bar.

21. The cumulative effect of the errors at Mr. King's trial denied him of due process under the Fourteenth Amendment

King's final claim is that he is entitled to federal habeas corpus relief due to cumulative errors. The claim is akin to the ground for relief that he raised to complete his broad based ineffective assistance of trial counsel claim (Claim 1(m)). In another case involving King's current counsel, the Fifth Circuit rejected a similar cumulative error claim as follows:

Coble, 496 F.3d at 440. In the present case, King has not identified any error(s) of constitutional dimension. Furthermore, the Fifth Circuit has specified that "[m]eritless claims or claims that are not prejudicial cannot be cumulated, regardless of the total number raised." Westley, 83 F.3d at 726 (citing Derden, 978 F.2d at 1461). King is not entitled to relief on his cumulative error claim.

Even though the ground for relief lacks merit, it should be rejected primarily because it is procedurally barred. It was one of the many grounds raised for the first time in the second state application for a writ of habeas corpus, which was rejected by the TCCA as an abuse of the writ. King does not show cause and prejudice for the default or that a fundamental miscarriage of justice would occur if the court does not consider the claim on the merits. He did not satisfy his burden in order to overcome the procedural bar.

VI. Discovery/Evidentiary Hearing

King filed a motion for leave to conduct discovery and a motion for an evidentiary hearing. His current attorney routinely files such motions as part of an effort to show cause and prejudice or actual innocence. See, e.g., Haynes, 526 F.3d at 195-96; Shields, 122 F. App'x at 155. The following analysis was employed by the Fifth Circuit in rejecting counsel's complaints about being denied a hearing:

Shields, 122 F. App'x at 155 (citations omitted). The analysis is equally applicable to the present case. King has not shown a factual dispute which, if resolved in his favor, would entitle him to relief or a factual dispute that requires development in order to assess the claim. All of King's claims raised in his amended petition are subject to the procedural bar, and he has not satisfied his burden in order to overcome the procedural bar. He has not shown that he is entitled to discovery or an evidentiary hearing.

VII. Certificate of Appealability

Furthermore, King is not entitled to the issuance of a certificate of appealability. An appeal may not be taken to the court of appeals from a final order in a habeas corpus proceeding "unless a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1)(A). Although King has not yet filed a notice of appeal, the court may address whether he would be entitled to a certificate of appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua sponte rule on a certificate of appealability because "the district court that denies a petitioner relief is in the best position to determine whether the petitioner has made a substantial showing of a denial of a constitutional right on the issues before the court. Further briefing and argument on the very issues the court has just ruled on would be repetitious.").

A certificate of appealability may issue only if a petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the requirement associated with a "substantial showing of the denial of a constitutional right" in Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected a petitioner's constitutional claims on the merits, "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). "When a district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.

In this case, reasonable jurists could not debate the denial of King's § 2254 petition on substantive or procedural grounds, nor find that the issues presented are adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S. at 484). Accordingly, the court finds that King is not entitled to a certificate of appealability as to his claims.

VIII. Conclusion

In summary, the present memorandum opinion concerns the claims that King presented to the TCCA in his second state application for a writ of habeas corpus. The TCCA dismissed the second application as an abuse of writ pursuant to Tex. Code Crim. Proc. Art. 11.071 § 5(c). King has not shown cause and prejudice or actual innocence in order to overcome the procedural bar. As such, the claims remaining before the court are procedurally barred. To the extent that some aspects of the amended petition included claims that were properly exhausted when the original petition was filed, King failed to satisfy his burden under § 2254(d) for obtaining relief. The petition should be denied. It is therefore

ORDERED that the petition for a writ of habeas corpus is DENIED, and the case is DISMISSED with prejudice. It is further

ORDERED that a certificate of appealability is DENIED. It is finally

ORDERED that all motions by either party not previously ruled upon are DENIED.