REVISED FEBRUARY 7, 2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-70009

RODNEY REED,

Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court

for the Western District of Texas

Before KING, CLEMENT, and HIGGINSON, Circuit Judges.

KING, Circuit Judge:

Petitioner-Appellant Rodney Reed was convicted of capital murder in a 

jury trial in Texas and sentenced to death. The Texas Court of Criminal 

Appeals affirmed his conviction and sentence on direct appeal. Reed 

unsuccessfully sought state habeas relief in six petitions. He also sought 

federal habeas relief in district court and now seeks a certificate of

appealability to challenge the district court’s denial of habeas relief. Reed 

argues that he should be granted a certificate of appealability based on his 

assertions of actual innocence, ineffective assistance of trial, appellate, and 

United States Court of Appeals

Fifth Circuit

FILED

January 10, 2014

Lyle W. Cayce

Clerk

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habeas counsel, Brady violations, and violations of his Sixth, Eighth, and 

Fourteenth Amendment rights. We hold that reasonable jurists could not 

debate the district court’s conclusions and accordingly DENY Reed’s request 

for a certificate of appealability.

I. FACTUAL AND PROCEDURAL BACKGROUND

The lengthy history of Petitioner-Appellant Rodney Reed’s conviction for 

the murder of Stacey Lee Stites has been aptly recounted by numerous courts, 

most comprehensively by the Texas Court of Criminal Appeals (“CCA”) in 

Reed’s 2008 post-conviction proceeding. Ex parte Reed, 271 S.W.3d 698 (Tex. 

Crim. App. 2008). We rely on the CCA’s factual recitation, and limit our 

discussion to those facts most pertinent to Reed’s present application for a 

certificate of appealability (“COA”).

A. Stacey Stites’s Murder

Stites moved, along with her mother, to Bastrop, Texas in 1995 after 

graduating from high school, and began working at the Bastrop H.E.B. grocery 

store. By late December 1995, she was engaged to Jimmy Fennell, a recent 

police academy graduate. The following month, Stites moved to Giddings, 

Texas to be closer to her fiancé, who had been hired as a patrol officer with the 

Giddings Police Department.

Stites continued working at H.E.B., but eventually transferred to the 

store’s produce department to earn more money in preparation for her 

wedding, scheduled for May 11, 1996. Stites was required to report to work 

daily at 3:30 a.m. to stock produce. Around 6:30 a.m. on April 23, 1996, one of 

Stites’s coworkers called Stites’s mother to inform her that Stites had failed to 

report to work. Stites’s mother called Fennell who set out looking for Stites,

while Stites’s mother called the police to report her daughter missing.

Earlier that morning, at 5:23 a.m., a police officer with the Bastrop 

Sheriff’s Department had observed Fennell’s pickup truck (which Stites 

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routinely drove to work) parked in the Bastrop High School parking lot. After 

confirming that the vehicle was not reported stolen, there was no broken glass, 

and the driver’s side door was locked, the officer returned to his patrol duties. 

Later, after Stites was reported missing, Officer Ed Selmala, an investigator 

with the Bastrop Police Department, conducted an investigation of the vehicle.

Stites’s body was discovered shortly before 3:00 p.m. later that day in a 

ditch on the side of a road. Investigators observed that Stites was partially 

unclothed. She was missing a shoe. Although she wore a bra, she was 

otherwise shirtless. Her H.E.B. nametag was found in the crook of her leg. 

Additionally, Stites’s pants were undone, her pants’ zipper was broken, and 

her underwear was bunched around her hips. A piece of webbed belt belonging 

to Stites was located at the edge of the road, and matched a piece of belt

discovered outside Fennell’s truck. Two beer cans lying across the road from 

Stites’s body were also collected.

Karen Blakely, a criminalist and serologist with the Texas Department 

of Public Safety, took vaginal and breast swabs from Stites’s body, which

showed the presence of semen. However, as a result of rigor mortis, Blakely 

could not determine whether Stites had been anally sodomized. Blakely 

observed various other injuries to Stites’s body, including an indentation in her 

neck, apparently caused by the piece of belt found nearby, scratches on her 

abdomen and arms, a cigarette burn on one arm, and shallow wounds on her 

wrists and back that appeared to have been caused by fire-ants.

An autopsy the following day by medical examiner Dr. Roberto Bayardo 

revealed bruises on Stites’s arms, bruises on her head in a pattern consistent 

with the knuckles of a fist, and bruises on her left shoulder and abdomen 

consistent with a seatbelt. A wide mark across her neck matched the pattern 

of her belt. Dr. Bayardo concluded that the belt was the murder weapon, and

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that Stites was strangled to death. He estimated her time of death as 

approximately 3:00 a.m.

Dr. Bayardo also took vaginal swabs and identified intact sperm, 

indicating that the sperm had entered Stites’s vagina “quite recently.” Dr. 

Bayardo also observed injuries to her anus, including dilation and superficial 

lacerations consistent with penile penetration inflicted at or near the time of 

Stites’s death. Rectal swabs showed sperm heads without visible tails leading 

Dr. Bayardo to report a “negative” result. Dr. Bayardo also could not rule out 

the possibility that the presence of sperm in the anus was the result of seepage 

from the vagina. Further DNA testing on Stites’s blood, the vaginal swabs, 

and liquid in Stites’s underwear showed that there was a single semen donor.

Authorities thereafter engaged in an eleven-month-long investigation. 

Police interviewed hundreds of individuals and identified over twenty-eight 

male suspects, including Fennell (Stites’s fiancé), Officer David Hall (one of 

Fennell’s fellow officers), and David Lawhon (a man who, officials learned, was 

bragging about killing Stites and who had killed another woman, Mary Ann 

Arldt, a few weeks after Stites’s murder). None of the suspects’ DNA matched 

that recovered from Stites’s body.

Eventually, Reed was identified as a suspect. Bastrop police officers 

frequently saw Reed in the early morning hours near Stites’s usual work route 

and the parking lot where Fennell’s pickup was found. A comparison between 

Reed’s DNA and that found on Stites’s body revealed that Reed could not be 

excluded as a suspect. Additional DNA analysis proved that Reed’s genetic 

profile matched that of the semen found at the crime scene.

B. Reed’s Trial

Reed was charged with capital murder in May 1997. At trial, state 

prosecutors presented evidence of the murder investigation, as well as 

testimony by Dr. Bayardo, Blakely, and DNA analyst Meghan Clement. Reed’s 

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trial defense consisted of two parts: First, Reed attempted to show that 

Fennell, Lawhon, or someone else could have committed the offense; and 

second, Reed tried to explain why his semen was in Stites’s body by evidencing 

a romantic relationship between himself and Stites. In furtherance of this trial 

strategy, Reed’s defense team called multiple witnesses, including a DNA 

expert, Dr. Elizabeth Ann Johnson. A jury ultimately rejected Reed’s defense 

and found him guilty.

During the trial’s punishment phase, state prosecutors introduced 

evidence that Reed had committed numerous other sexual assaults. The jury, 

after weighing the evidence, answered the special issues submitted pursuant 

to Texas Code of Criminal Procedure Article 37.071, and sentenced Reed to 

death.1

C. State Post-Conviction Proceedings

On direct appeal, the CCA affirmed Reed’s conviction and sentence. 

While his direct appeal was pending, Reed filed the first of six state habeas 

1 Article 37.071 § 2 provides that on conclusion of the presentation of the evidence in 

a capital murder case, the court shall submit the following issues to the jury:

(1) whether there is a probability that the defendant would commit criminal 

acts of violence that would constitute a continuing threat to society; and

(2) in cases in which the jury charge at the guilt or innocence stage permitted 

the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, 

Penal Code, whether the defendant actually caused the death of the deceased 

or did not actually cause the death of the deceased but intended to kill the 

deceased or another or anticipated that a human life would be taken.

Tex. Code Crim. Proc. Ann. art. 37.071 § 2(b). 

If the answers to these questions are in the affirmative, the court will submit 

the following issue:

[(3)] [w]hether, taking into consideration all of the evidence, including the 

circumstances of the offense, the defendant’s character and background, and 

the personal moral culpability of the defendant, there is a sufficient mitigating 

circumstance or circumstances to warrant that a sentence of life imprisonment 

without parole rather than a death sentence be imposed.

Id. § 2(e)(1).

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applications. Based on the state trial court’s recommended findings of fact and 

conclusions of law, and the CCA’s own review of the record, the CCA denied 

Reed’s petition on February 13, 2002. 

Before the CCA ruled on Reed’s state habeas petition, Reed filed a 

supplemental habeas claim, which the CCA interpreted as a subsequent 

application. In his second application, Reed argued that the State failed to 

turn over a letter containing DNA results from the beer cans found near the 

crime scene in violation of Brady v. Maryland, 373 U.S. 83 (1963). The CCA 

dismissed Reed’s subsequent habeas petition as an abuse of the writ for not 

meeting any of the exceptions listed in Article 11.071 of the Texas Code of 

Criminal Procedure.2

In March 2005, Reed filed his third state habeas petition, again arguing 

that the State suppressed evidence in violation of Brady. Reed also added 

other claims, including a freestanding actual innocence claim, ineffective 

assistance of trial and appellate counsel claims, and a claim that Texas’s 

2 Article 11.071 § 5(a) provides in relevant part that:

If a subsequent application for a writ of habeas corpus is filed after filing an 

initial application, a court may not consider the merits of or grant relief based 

on the subsequent application unless the application contains sufficient 

specific facts establishing that:

(1) the current claims and issues have not been and could not have been 

presented previously in a timely initial application or in a previously 

considered application . . . because the factual or legal basis for the 

claim was unavailable on the date the applicant filed the previous 

application;

(2) by a preponderance of the evidence, but for a violation of the United 

States Constitution no rational juror could have found the applicant 

guilty beyond a reasonable doubt; or

(3) by clear and convincing evidence, but for a violation of the United 

States Constitution no rational juror would have answered in the state’s 

favor one or more of the special issues that were submitted to the 

jury . . . .

Tex. Code Crim. Proc. Ann. art. 11.071 § 5(a).

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capital sentencing statute unconstitutionally prohibits jury instructions on the 

effect of a juror’s “no” vote. The CCA directed the trial court to hold a hearing 

as to some of the allegedly suppressed evidence, and dismissed the remaining 

claims as abuses of the writ. After conducting an evidentiary hearing, the trial 

judge recommended that Reed’s third state habeas petition be denied. The 

CCA ordered supplemental briefing and held oral argument. It then issued a

lengthy, detailed opinion holding that the record did not support Reed’s Brady 

claims, and further that Reed had failed to make a prima facie showing of 

innocence by a preponderance of the evidence, foreclosing review of the other 

claims raised in his third state habeas petition.

Reed filed a fourth habeas petition in February 2007, again raising 

Brady claims. A fifth state habeas petition followed in July 2008, raising still

more Brady claims. On January 14, 2009, the CCA rejected the claims raised 

in Reed’s fourth and fifth petitions as abuses of the writ. Reed filed a sixth 

state habeas petition on April 21, 2009, but this too was dismissed by the CCA

as an abuse of the writ.

D. Federal Post-Conviction Proceedings

Following the CCA’s denial of Reed’s second state habeas petition, Reed 

sought federal habeas relief under 28 U.S.C. § 2254. The district court allowed 

limited discovery and depositions, and determined that Reed had failed to 

exhaust in state court several of his claims arising out of evidence that was not 

discovered until after the federal writ was filed. The district court entered a 

stay of the federal writ in March 2004 to allow Reed to pursue his claims in 

state court.

On August 5, 2009, after the last of Reed’s state habeas petitions was

denied, Reed moved the district court to lift its stay. Reed filed a corrected 

second amended petition on February 12, 2010, and the State moved for

summary judgment. The district court referred Reed’s petition to a magistrate 

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judge who issued a comprehensive report and recommendation exhaustively 

listing each of Reed’s claims, and recommending that federal habeas relief be 

denied.

On September 26, 2012, after reviewing objections by both parties, the 

district court issued a lengthy order largely adopting the magistrate judge’s 

report and recommendation, denying habeas relief, and denying a COA. Reed 

subsequently filed a motion to alter or amend judgment on October 23, and a 

motion for leave to amend his petition and abate proceedings on November 30. 

In these two motions, Reed asked the district court to reopen his case, vacate 

its prior judgment, grant him leave to add an additional due process claim, and 

abate all further proceedings until he exhausted the due process claim in state 

court. The district court denied Reed’s motions on February 4, 2013.

Reed timely filed his application for a COA to appeal the district court’s 

decision on March 1, 2013.

II. STANDARD OF REVIEW

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), §§ 101–108, Pub. L. No. 104-132, 110 Stat. 1214 (codified as 

amended at 28 U.S.C. §§ 2244, 2253–2266), a state habeas petitioner may 

appeal a district court’s dismissal of his petition only if he first obtains a COA 

from the district court or the court of appeals. 28 U.S.C. § 2253(c)(1)(A). To 

obtain a COA, the petitioner must make “a substantial showing of the denial 

of a constitutional right.” Id. § 2253(c)(2). “Where a district court has rejected 

the constitutional claims on the merits, the showing required to satisfy 

§ 2253(c) is straightforward: The petitioner must demonstrate that reasonable 

jurists would find the district court’s assessment of the constitutional claims 

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). By contrast:

When the district court denies a habeas petition on procedural 

grounds without reaching the prisoner’s underlying constitutional 

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claim, a COA should issue when the prisoner 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 reviewing Reed’s request for a COA, we only conduct a threshold 

inquiry into the merits of the claims Reed raised in his underlying habeas 

petition. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). “This threshold 

inquiry does not require full consideration of the factual or legal bases adduced 

in support of the claims. In fact, the statute forbids it.” Id. In death penalty 

cases, “any doubts as to whether a COA should issue must be resolved in [the 

petitioner’s] favor.” Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005) 

(alteration in original) (internal quotation marks and citation omitted).

AEDPA provides that a district court may not grant habeas relief with 

respect to any claim that was adjudicated on the merits in the state court 

proceedings, unless the state habeas court’s denial:

(1) resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States; or 

(2) resulted in a decision that was based on an unreasonable 

determination of the facts in light of the evidence presented in the 

State court proceeding.

28 U.S.C. § 2254(d).

“A state court’s decision is contrary to Supreme Court precedent if: (1) 

‘the state court arrives at a conclusion opposite to that reached by [the 

Supreme Court] on a question of law’; or (2) ‘the state court confronts facts that 

are materially indistinguishable from a relevant Supreme Court precedent and 

arrives at a result opposite to [that of the Supreme Court].’” Pippin v. Dretke, 

434 F.3d 782, 787 (5th Cir. 2005) (alterations in original) (quoting Williams v. 

Taylor, 529 U.S. 362, 405 (2000)), cert. denied, 549 U.S. 828 (2006). “A state 

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court’s decision is an unreasonable application of clearly established federal 

law whenever the state court identifies the correct governing legal principle 

from the Supreme Court’s decisions but applies that principle to the facts of 

the prisoner’s case in an objectively unreasonable manner.” Id. (quoting Young 

v. Dretke, 356 F.3d 616, 623 (5th Cir. 2004)). “An unreasonable application 

may also occur if ‘the state court either unreasonably extends a legal principle 

from [Supreme Court] precedent to a new context where it should not apply or 

unreasonably refuses to extend that principle to a new context where it should 

apply.’” Id. at 787–88 (alteration in original) (quoting Young, 356 F.3d at 623). 

In evaluating the evidence presented in state court, we presume the state 

court’s factual findings correct unless a petitioner “rebut[s] the presumption of 

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

III. DISCUSSION

Reed broadly can be understood as seeking a COA on his claims that 

(1) he was actually innocent of Stites’s murder; (2) he received ineffective 

assistance of trial counsel; (3) he received ineffective assistance of appellate 

counsel; (4) his appellate counsel labored under a conflict-of-interest in 

violation of the Sixth Amendment; (5) the State suppressed evidence in 

violation of Brady; and (6) his Eighth and Fourteenth Amendment rights were 

violated when the State presented evidence during the trial’s punishment 

phase of an alleged sexual assault of which he had been acquitted.

The substance of the arguments he presents in support of these claims 

follows the principle themes of his defense at trial. These were, first, that 

someone other than him murdered Stites, and, second, that he had a romantic 

relationship with Stites. As to the first, Reed posited that there were 

numerous other individuals who could have murdered Stites. These included 

Fennell, Stites’s fiancé; Lawhon, who actually bragged of killing Stites; and 

Officer Hall, another Giddings police officer. As to the second, Reed attempted 

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to explain the presence of his semen in Stites as the result of a consensual 

sexual relationship between him and Stites.

Reed presented evidence during trial in support of both theories. A jury 

considered the evidence, and rejected it, finding Reed guilty of Stites’s murder. 

Throughout his habeas petitions, Reed presented additional evidence to show 

that one of the other suspects committed the murder, and that he and Stites 

were dating. The CCA ordered an evidentiary hearing, requested 

supplemental briefing, and ultimately rejected Reed’s arguments. Including 

the trial jury and, on habeas, the state trial court and the CCA, three factfinders thus have considered the very theories and much of the evidence Reed 

pursued in federal court.3

Reed’s request for a COA is further distinguished based on the DNA 

evidence in this case. DNA evidence is sometimes claimed to be relevant 

because it may exculpate the defendant. Here, by contrast, the fact that Reed’s 

sperm was in Stites is undisputed. The need to explain that fact drives Reed’s 

efforts to show that he and Stites were engaged in a clandestine sexual affair.

Against this backdrop, we turn to consider Reed’s multiple requests for 

a COA. As we discuss, the district court denied habeas relief under AEDPA’s 

deferential framework, after largely adopting a magistrate judge’s report and 

recommendation. Our task is to consider whether the district court’s 

conclusions are debatable. We note that although many of Reed’s claims were 

3 In Texas, “[o]n postconviction review of habeas corpus applications, the convicting 

court is the ‘original factfinder,’ and [the CCA] is the ultimate factfinder.” Ex parte Chavez, 

371 S.W.3d 200, 207 (Tex. Crim. App. 2012). Although the CCA will “generally defer to and 

accept the convicting court’s findings of fact and conclusions of law,” the CCA may exercise 

its authority “to make contrary or alternative findings and conclusions” when its 

“independent review of the record reveals that the trial judge’s findings and conclusions are 

not supported by the record.” Id. (internal quotation marks and citations omitted); see also 

Ex parte Flores, 387 S.W.3d 626, 634–35 (Tex. Crim. App. 2012) (CCA acts as “the ultimate 

fact finder” when the lower court’s findings “do not resolve the necessary factual issues”).

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procedurally defaulted, a COA should still issue as to them if Reed can show 

“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.” Slack, 529 U.S. at 484. Because Reed’s ability to show constitutional 

and procedural debatability determines whether he is entitled to have his 

procedurally defaulted claims reviewed on the merits, we consider first his 

reasons for overcoming the procedural bar—actual innocence under Schlup v. 

Delo, 513 U.S. 298 (1995), and ineffective assistance of counsel under Martinez 

v. Ryan, 132 S. Ct. 1309 (2012). Other than prioritizing our review of his 

Schlup and Martinez arguments, we consider Reed’s other claims in turn.

A. Actual Innocence

Reed asks for two separate COAs arising out of his assertion that he is 

actually innocent of murdering Stites. First, he asks that we grant a COA on 

his freestanding actual innocence claim. Second, he asks that we grant a COA 

to review whether he satisfies Schlup’s actual innocence standard, which 

would permit a federal court to review the merits of his otherwise procedurally 

defaulted claims. Of his two actual innocence arguments, the first is easily 

resolved.

Reed raised his freestanding actual innocence claim in his third state 

habeas petition. The CCA dismissed the claim pursuant to its abuse-of-thewrit doctrine. Under that doctrine, the CCA will not consider an argument not 

raised in an initial state habeas petition unless one of a narrow set of 

exceptions applies. See Tex. Code Crim. Proc. Ann. art. 11.071 § 5(a). We 

previously have held that “since 1994, the Texas abuse of the writ doctrine has 

been consistently applied as a procedural bar, and that it is an independent 

and adequate state ground for the purpose of imposing a procedural bar.” 

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Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir. 2008).4 The district court 

does not appear to have considered whether this claim was procedurally 

barred, rejecting it instead on the ground that this circuit does not recognize 

freestanding actual innocence claims.

Reed concedes that our precedent precludes his freestanding actual 

innocence claim. See In re Swearingen, 556 F.3d 344, 348 (5th Cir. 2009); see 

also Foster v. Quarterman, 466 F.3d 359, 367 (5th Cir. 2006) (“[A]ctualinnocence is not an independently cognizable federal-habeas claim.”); see, e.g., 

Matheson v. United States, 440 F. App’x 420, 421 (5th Cir. 2011). Reasonable 

jurists thus would not debate the district court’s denial of habeas relief on this 

claim, and we similarly deny a COA.

Reed’s other actual innocence argument requires more detailed

consideration. Reed argues that reasonable jurists would debate the district 

court’s decision not to consider his procedurally defaulted claims because he 

has shown that he is actually innocent of Stites’s murder under Schlup, 513 

U.S. 298. As he did at trial, Reed argues that he did not sexually assault and 

murder Stites, but rather that he was in a relationship with her, and that the 

semen present in her vagina was the result of consensual sexual intercourse. 

Reed attempted to establish such a relationship through testimony that he and 

Stites were seen together. He now argues his consensual relationship with 

Stites is demonstrated by forensic evidence showing that his sperm entered 

Stites’s body more than twenty-four hours before the murder. This is 

significant, Reed claims, because Stites’s failure to report non-consensual sex 

to law enforcement indicates that the encounter was the product of their 

romantic relationship. In support of the part of this theory relating to the age 

4 We deny Reed a COA as to his assertion that Texas’s abuse-of-the-writ doctrine is 

not an independent and adequate state procedural bar. See Hughes, 530 F.3d at 342.

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of the sperm found in Stites, he primarily relies on affidavits by Dr. Bayardo 

and Dr. Leroy Riddick.

A district court must deny federal habeas relief on procedurally 

defaulted claims dismissed “pursuant to an independent and adequate state 

procedural rule,” such as Texas’s abuse-of-the-writ doctrine. Coleman v. 

Thompson, 501 U.S. 722, 750 (1991); see Maples v. Thomas, 132 S. Ct. 912, 922 

(2012); Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001). Schlup held that, 

in “rare” and “extraordinary case[s],” a federal habeas petitioner may overcome 

a procedural default in state court by demonstrating a “fundamental 

miscarriage of justice.” 513 U.S. at 321. A petitioner makes such a showing 

where he establishes that he is “actually innocent” of the offense for which he 

was convicted. Williams v. Thaler, 602 F.3d 291, 307 (5th Cir. 2010) (citing 

Schlup, 513 U.S. at 326–27). To do so, a petitioner must “establish through 

new and reliable evidence that it was more likely than not that no reasonable 

juror would have convicted him in the light of the new evidence.” Woodfox v. 

Cain, 609 F.3d 774, 794 (5th Cir. 2010) (internal quotation marks and citation 

omitted). This evidence may include “exculpatory scientific evidence, credible

declarations of guilt by another, trustworthy eyewitness accounts, and certain 

physical evidence.” Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999). 

But “the habeas court’s analysis is not limited to such evidence.” House v. Bell, 

547 U.S. 518, 537 (2006). Rather, “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 (internal quotation marks and citation 

omitted). 

“Based 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). The actual-innocence standard “does not 

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merely require a showing that a reasonable doubt exists in the light of the new 

evidence, but rather that no reasonable juror would have found the defendant 

guilty.” Schlup, 513 U.S. at 329. Put differently, “a petitioner does not meet 

the threshold requirement unless he persuades the district court that, in light 

of the new evidence, no juror, acting reasonably, would have voted to find him 

guilty beyond a reasonable doubt.” Id.

We observe that this is not the first time Reed has argued actual 

innocence. Reed raised the same argument before the CCA. The CCA 

considered his argument under Article 11.071 § 5(a)(2), which provides that 

the CCA will consider an argument not raised in an initial state habeas 

petition if “by a preponderance of the evidence, but for a violation of the United 

States Constitution[,] no rational juror could have found the applicant guilty 

beyond a reasonable doubt.” See Reed, 271 S.W.3d at 733–34, 746–47. Because 

Article 11.071 § 5(a)(2) was enacted in response to Schlup, the CCA concluded 

that the “standards set forth for evaluating a gateway-actual-innocence claim 

announced by the Supreme Court should guide our consideration of such 

claims under Section 5(a)(2).” Id. at 733.

The CCA proceeded to engage in a voluminous discussion of all the 

evidence, “old and new,” before concluding that “Reed [had] not made a 

threshold, prima facie showing of innocence by a preponderance of the 

evidence.” Id. at 751. The CCA considered—and dismissed as insufficient—

evidence that: DNA test results from the beer cans found at the crime scene 

showed that Officer Hall was a potential suspect; Fennell and the Giddings 

Police Department had a reputation for violence; Reed and Stites had a 

consensual sexual relationship prior to her death; and unidentified men were 

seen in Stites’s company the morning of the murder. Id. at 746–51. It rejected 

as unreliable and not credible a host of additional evidence, including from the 

many witnesses Reed contends knew of his purported relationship with Stites. 

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Id. at 747. Because Reed had not shown that he was actually innocent of 

Stites’s murder, the CCA “refuse[d] to consider the merits of Reed’s other 

constitutional claims.” Id.

The magistrate judge deferred to the CCA’s findings of fact after 

adopting the Fourth Circuit’s reasoning in Sharpe v. Bell, 593 F.3d 372, 379 

(4th Cir. 2010), that “[w]here a state court looks at the same body of relevant 

evidence and applies essentially the same legal standard to that evidence that 

the federal court does under Schlup, [§] 2254(e)(1) requires that the state 

court’s findings of fact not be casually set aside.” In particular, the magistrate 

judge remarked that “[a] detailed explanation of why the CCA’s decision on 

actual innocence is worthy of deference from this Court would entail simply 

repeating what the CCA itself has already stated in great detail.” However, 

the magistrate judge nevertheless reviewed the CCA’s analysis, focusing on

the alleged consensual relationship between Reed and Stites that would

explain the presence of Reed’s semen. The magistrate judge concluded that 

“[e]ven if the Court were not required to defer to the CCA’s determinations, the 

Court would reach the same conclusion the CCA did for the same reasons.”

The district court was similarly unpersuaded by Reed’s arguments 

because the evidence Reed submitted only created the possibility that the 

sperm was deposited at an earlier time. The court found that the lack of 

evidence of an actual relationship between Stites and Reed, combined with the 

condition in which Stites’s body was found (which strongly indicated a violent 

sexual assault), defeated Reed’s assertion of actual innocence. The district 

court found that the magistrate judge did not err in adopting the Sharpe 

standard, and rejected Reed’s contention that the magistrate judge improperly 

failed to consider certain evidence. Addressing Dr. Bayardo’s affidavit, the 

district court refused to accept it, finding the “timing and content” of Reed’s 

submission, after the magistrate judge issued his report and recommendation, 

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“extremely suspect.” The court further found, however, that even 

substantively considered, Dr. Bayardo’s affidavit would have “little probative 

value.”5 As to Dr. Riddick’s affidavit, the district court found that the “evidence 

strongly suggest[ed] that Stites was sexually assaulted,” and that evidence like 

Dr. Riddick’s affidavit “would not exculpate Reed absent evidence that Reed 

and Stites were involved in a consensual sexual relationship.”

We conclude that the district court did not err in its analysis under 

AEDPA, and that its conclusion is not debatable by reasonable jurists. Reed 

primarily faults the district court for not giving sufficient weight to the 

affidavits of Dr. Bayardo and Dr. Riddick, which he argues show “that Stites 

and Reed likely had intercourse more than 24 hours before Stites’s murder.” 

In Reed’s view, “[b]ecause the forensic testimony offered in this habeas

proceeding is itself persuasive evidence of a consensual relationship [between 

Reed and Stites], a COA should issue.” We disagree.

5 In its order denying Reed’s motion to alter or amend judgment, the district court 

clarified that it “ha[d] considered Reed’s arguments with respect to [Dr. Bayardo’s] . . . 

affidavit, despite Reed’s delay in presenting [Dr.] Bayardo’s statements.” Regardless, we find

that even had the district court not considered Dr. Bayardo’s affidavit, it would have acted 

within its discretion because the affidavit was untimely. Reed has provided no persuasive 

reason for waiting well over a decade to revisit Dr. Bayardo’s testimony. Although “the 

district court need not reject newly-proffered evidence simply because it was not presented 

to the magistrate judge,” it also is true that “[l]itigants may not . . . use the magistrate judge 

as a mere sounding-board for the sufficiency of the evidence.” Freeman v. Cnty. of Bexar, 142 

F.3d 848, 852 (5th Cir. 1998); see also Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002). We 

consider whether the affidavit would alter our conclusion, assuming it properly is before us. 

In so doing, we do not reach the question of whether evidence like Dr. Bayardo’s affidavit is 

“new” within the meaning of Schlup. See In re Warren, – F. App’x —, 2013 WL 3870423, at 

*4 n.2 (5th Cir. July 29, 2013) (Dennis, J., dissenting in part and concurring in part) (citing 

Wright v. Quarterman, 470 F.3d 581 (5th Cir. 2006)) (noting circuit split “as to whether, under 

Schlup, the evidence was not discoverable at the time of trial or whether it is sufficient that 

the evidence be newly presented,” and declining to resolve issue). But see Moore v. 

Quarterman, 534 F.3d 454, 465 (5th Cir. 2008) (describing evidence as not “new” where “it 

was always within the reach of [petitioner’s] personal knowledge or reasonable 

investigation”).

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Dr. Bayardo testified at trial and estimated that Stites died on April 23, 

1996, at approximately 3:00 a.m., give or take a few hours. He further 

determined that the presence of intact sperm indicated that the sperm entered 

Stites’s body “quite recently.” In an affidavit submitted by Reed’s counsel after 

the magistrate judge recommended denying habeas relief, Dr. Bayardo sought 

to distance himself from the State’s interpretation of his trial testimony. 

The affidavit clarifies that the estimated time of death was a mere 

“estimate” and should not have been used as an accurate statement of when 

Stites died. Dr. Bayardo also questions the qualifications of other State experts 

who testified that spermatozoa could remain intact in a vagina for no more 

than twenty-four or twenty-six hours. He adds that “the spermatozoa [he] 

found in Ms. Stites’s vaginal cavity could have been deposited days before her 

death” and that the few spermatozoa that were found suggested that they were 

deposited more than twenty-four hours before Stites’s death. Dr. Bayardo 

further opines that, although having testified that Stites “was sexually 

assaulted,” the “presence of spermatozoa in Ms. Stites’s vaginal cavity was not 

evidence of sexual assault.” Further, “[t]here was no indication that the 

spermatozoa in Ms. Stites’s vaginal cavity was placed there in any fashion 

other than consensually.” Dr. Bayardo instead believes that Stites was 

sexually assaulted in her anal cavity, but that the assault “did not result in the 

deposit of any spermatozoa.” Although conceding that the injuries to Stites’s 

anus were consistent with penile penetration, Dr. Bayardo believes the injuries 

“are more consistent with penetration by a rod-like instrument, such as a police 

baton,” an apparent attempt to implicate Stites’s fiancé, Fennell, a former 

police officer, in the murder.

Like the district court, we conclude that Dr. Bayardo’s affidavit 

contributes little to the evidence already in the record. Dr. Bayardo’s affidavit 

is largely bereft of scientific evidence supporting his belief that Reed’s sperm 

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was deposited in Stites more than twenty-four hours before the murder or that 

the forensic evidence points more strongly to someone else having committed 

the sexual assault. In particular, his contention that, despite Stites having 

been the victim of a sexual assault, there is no indication that the sperm found 

in her vaginal cavity “was placed there in any fashion other than consensually”

is blatantly contradicted by the condition in which Stites’s body was found.

Dr. Bayardo’s purported “disavowal” of his trial testimony also does not 

contradict much of his original testimony. The jury was well aware that the 

time of death proffered at trial was only an “estimate.” Asked whether timeof-death determinations were “an exact science,” Dr. Bayardo responded at 

trial “[n]o, it’s not a precise scientific way of making a determination of the 

time of death, we only can make estimates.” Other facts and opinions in Dr. 

Bayardo’s affidavit were put before the jury through other witnesses. The jury 

heard from Reed’s DNA expert, Dr. Johnson, that sperm could remain present 

in a vaginal cavity for more than twenty-four hours after death. Likewise, Dr. 

Bayardo only states that the “very few” spermatozoa found “suggest[]” that the 

sperm was deposited in Stites more than a day before the murder.

Dr. Riddick’s affidavit likewise offers Reed less support than he believes. 

Dr. Riddick’s affidavit disputes the State experts’ testimony that spermatozoa 

would not be found more than twenty-four hours after a sexual encounter, and 

Dr. Bayardo’s trial testimony that the sperm was introduced into Stites’s 

vagina a day or two before the autopsy exam. Dr. Riddick opines that “it is 

impossible to conclude with any degree of scientific certainty, or even 

probability, that Rodney Reed had sexual intercourse with Stacey Stites less 

than 24 hours before her death, or even less than 48 hours before her death,” 

and, in fact, “it is possible to conclude that Rodney Reed and Stacey Stites had 

sexual intercourse as long as a week before Ms. Stites’s death, and perhaps 

even more than a week before.” In Dr. Riddick’s opinion, “it is highly unlikely 

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that Mr. Reed and Ms. Stites had sexual intercourse within 24 or even 48 hours 

of Ms. Stites’s death” because if they had “there likely would have been a large 

amount of semen present.”

Notably, Dr. Riddick’s affidavit says nothing about the condition in 

which Stites was found. Furthermore, the significance of Dr. Riddick’s 

affidavit, like Dr. Bayardo’s affidavit, is strongly undercut by the fact that the 

information contained therein only presents the jury with an alternative 

scenario it could consider, namely that Reed’s sperm entered Stites hours or 

days before her death. But the jury had evidence in support of such a scenario 

and evidently chose to reject it. Dr. Riddick’s affidavit merely presents the 

possibility that Reed could have had sex with Stites earlier. A reasonable juror 

would not be swayed by Dr. Riddick’s affidavit, and the district court’s 

conclusion to that effect is not debatable.

Our evaluation of both affidavits is unaltered by Reed’s reliance on the 

Supreme Court’s House decision, which he contends is factually analogous to 

this case. In House, the defendant was found guilty of murder based in part

on the fact that blood consistent with that of the victim was found on his 

clothes, and semen consistent with that of the defendant was found on the 

victim’s clothing. 547 U.S. at 528–30. The defendant in House was able to 

meet Schlup’s actual innocence standard by proving that the semen actually 

came from the victim’s husband, and that blood from the victim’s autopsy had 

spilled while stored with House’s clothing. Id. at 540–48. Reed argues that, 

similarly here, “the State’s forensic proof purportedly connecting Reed (by his 

sperm) to Stites’s murder has been debunked by Drs. Riddick and Bayardo.”

Contrary to Reed’s description, Dr. Bayardo’s and Dr. Riddick’s affidavits 

have not “debunked” the State’s DNA evidence. Instead, they merely reinforce 

evidence already in the record. There is trial testimony that sperm could be 

discovered up to three weeks after a victim’s death, and that in one case sperm 

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had been discovered sixteen days after death. The jury also was aware that 

the intact sperm in Stites were discovered almost thirty-six hours after the 

estimated time of death. Consequently, to the extent Reed’s new evidence is 

limited to these affidavits, the district court’s rejection of Reed’s gatewayinnocence argument is not debatable.6 See Moore, 534 F.3d at 465 n.17 (actual 

innocence showing “requires something more than pointing to ‘[a] mere 

possibility of prejudice,’ because a speculative claim ‘will not satisfy the actual 

prejudice prong of the cause and prejudice test, much less demonstrate actual 

innocence’” (emphasis in original) (citation omitted)).

Our conclusion is reinforced by the other evidence in this case, which the 

district court took note of, but which Reed largely ignores. The affidavits Reed 

submits create, at best, the possibility that Reed’s sperm entered Stites more 

than a day before her death, leading to the inference that Reed did not sexually 

assault Stites, who presumably would have reported such a crime. By contrast, 

the evidence that Reed forced himself on Stites and subsequently murdered 

her is extensive. 

Apart from the DNA evidence itself, there is the condition of Stites’s 

body. Stites was found shirtless. Her pants were undone, the zipper broken, 

and her underwear bunched around her hips. There were fresh bruises along 

her arms, and marks that appeared to be fingernails dug into flesh. There 

were bruises on her head in a pattern consistent with the knuckles of a fist, 

bruises on her left shoulder and abdomen consistent with a seatbelt, and a wide 

6 In his Rule 59(e) motion to alter or amend judgment, Reed also attached the affidavit 

of Dr. Joseph Warren. That affidavit, like Dr. Bayardo’s and Dr. Riddick’s, contends that 

“intact sperm can be found inside a human woman more than 24 hours after intercourse.” In 

Dr. Warren’s experience, “a period of twenty-four to seventy-two hours post coitus, is a good 

rule of thumb for how long a forensic biologist can expect to identify intact sperm after 

intercourse.” Assuming Dr. Warren’s affidavit is properly before us, we find the district 

court’s conclusion that Dr. Warren’s affidavit does not invalidate the State’s theory of guilt

because it “merely establishes the possibility of earlier sexual intercourse” not debatable.

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mark across her neck matching the pattern of her belt. All this strongly 

supports the conclusion that Stites was the victim of a sexual assault and that 

the sperm inside her did not result from a consensual encounter.

Along with this evidence, Reed was known to frequent the route along 

which Stites drove to work. He also was known to do so almost every night 

between 9:00 p.m. and 3:00 or 4:00 a.m.—overlapping with the hours Stites 

would be driving to work.

Furthermore, there was no credible evidence that Reed was in a 

relationship with Stites.7 Reed himself denied knowing Stites when police first 

approached him about her murder. To be sure, many witnesses, at trial and 

in the course of Reed’s state habeas proceedings, testified or submitted 

evidence that Reed had some kind of a relationship with Stites. But these 

witnesses were found, in the words of the CCA, “unreliable.” Reed, 271 S.W.3d 

at 747. At oral argument, Reed suggested that the witnesses’ statements were 

rejected because the only theory the trial DNA evidence supported was that 

Reed’s sperm likely entered Stites’s body close to when she died. But as the 

magistrate judge ably summarized, Reed’s witnesses were found not credible 

for a host of reasons independent of the DNA evidence:

Most of [Reed’s] witnesses did not know Stacey Stites, and 

identified her from memory by viewing her photograph. Those who 

claimed to have known her were proven to be badly mistaken. All 

of these witnesses were family, friends, or associates of Reed’s. 

Reed was never able to identify anyone who was a friend, family 

member, or associate of Stacey Stites who claimed to have been 

7 Reed asserts that the district court held him to an unreasonably high standard by 

requiring him to submit “compelling eyewitness evidence of Stites and Reed’s affair.” In fact, 

the district court simply required Reed to evidence the existence of a relationship between 

himself and Stites. Reed’s failure to do so is simply a reflection of the complete lack of credible 

evidence that such a relationship existed, rather than the product of an improper evidentiary 

burden.

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aware of a relationship between Reed and Stites. In short, there is 

no reliable evidence that ties Reed to Stites before her murder.

(footnote omitted).

For example, one witness who claimed to know Stites from school stated 

that he saw Stites and Reed together several times, and that they kissed and 

called each other “baby.” The witness further stated that while the witness

was in Bastrop County jail, Reed told him that he did not kill Stites. The CCA 

found these statements not credible because the evidence at trial showed that 

the witness could not have known Stites from school because Stites moved to 

Bastrop only after graduating. The witness’s general statements also offered 

no specific facts to be corroborated and did not comport with other evidence.

Two trial witnesses also were found not reliable by the CCA. Julia Estes 

testified at trial that she once saw Stites and Reed talking at H.E.B. Estes’s 

testimony was impeached by the fact that Reed and his family frequented 

Estes’s bar. Iris Lindley, a longtime friend of Reed’s parents, also testified that 

Stites came by Reed’s home looking for him. But Lindley initially misidentified 

Stites as “Stephanie,” and also admitted to not knowing whether Reed and 

Stites were dating.

These witnesses are but a short selection of the many individuals who 

submitted evidence purportedly showing Reed’s relationship with Stites. As 

we have noted, the CCA concluded that the evidence as to all the “witnesses 

who affirmed a relationship between Reed and [Stites]” was “unreliable.” Reed, 

271 S.W.3d at 747. Reed provides no discussion of the individual witnesses’ 

testimonies. The district court saw no reason not to defer to the CCA’s 

credibility determination, and we see none. See 28 U.S.C. § 2254(e)(1).8 As a 

8 Reed urges us not to apply § 2254(e)(1)’s presumption of correctness to the CCA’s 

review of his actual innocence claim under Schlup. The only authority he presents in support 

is the Supreme Court’s decision in House, 547 U.S. 518. But that decision discussed 

§ 2254(e)(2), not (e)(1), id. at 539, and we previously have applied § 2254(e)(1) in the context 

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result, Reed’s forensic evidence exists in a vacuum and only presents a possible 

factual scenario that is not borne out by any of the other evidence. To the 

extent Reed relies on other evidence not included in the relevant portion of his 

brief, we discuss that evidence in the course of addressing the claim under 

which it arises. We conclude that reasonable jurists would not debate the 

district court’s determination that Reed has failed to establish his actual 

innocence under Schlup and deny a COA on this basis.

B. Ineffective Assistance of Trial Counsel

Reed argues that his trial counsel was constitutionally deficient for 

failing to (1) refute the State’s forensic evidence; (2) present evidence of Stites’s 

and Reed’s alleged relationship; and (3) present evidence of Fennell’s bad 

character.9 He contends that reasonable jurists would debate the correctness 

of the district court’s decision to deny relief. The State responds that all his

ineffective-assistance-of-trial-counsel claims were procedurally barred.

The standard for evaluating whether a counsel’s performance was 

constitutionally adequate is set forth in Strickland v. Washington, 466 U.S. 

668 (1984). “First, the defendant must show that counsel’s performance was 

deficient.” Id. at 687. “Second, the defendant must show that the deficient 

performance prejudiced the defense.” Id. To show deficient performance, “the 

defendant must show that counsel’s representation fell below an objective 

of an actual innocence claim, see In re Wright, 298 F. App’x 342, 344 (5th Cir. 2008); cf. Graves 

v. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003) (applying § 2254(e)(1)’s presumption in the 

context of a freestanding actual innocence claim). Other courts have done likewise. See, e.g., 

Carr v. Warden, Leb. Corr. Inst., 401 F. App’x 34, 38–39 (6th Cir. 2010); Sharpe, 593 F.3d at

379; Storey v. Roper, 603 F.3d 507, 524 (8th Cir. 2010); Love v. Roberts, 259 F. App’x 58, 63 

(10th Cir. 2007); Goldblum v. Klem, 510 F.3d 204, 221 n.13 (3d Cir. 2007); Johnson v. Hooks, 

138 F. App’x 207, 208 (11th Cir. 2005); Madrid v. Gregoire, 187 F.3d 648, 1999 WL 439460, 

at *2 (9th Cir. 1999) (unpublished table decision). 9 Reed also argues that his habeas counsel was constitutionally deficient for failing to 

investigate and present expert forensic evidence in response to the State’s forensic proof. 

This argument appears to relate only to his contention that his ineffective-assistance-of-trialcounsel claims should be considered despite being otherwise procedurally defaulted. 

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standard of reasonableness.” Id. at 688. To demonstrate prejudice, a 

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.” Id. at 694. “A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Id. “Unless a defendant makes both 

showings, it cannot be said that the conviction or death sentence resulted from 

a breakdown in the adversary process that renders the result unreliable.” Id.

at 687.

Reed raised his ineffective assistance claims in his third state habeas 

petition. Because Reed did not raise these claims in his initial petition, and 

because it concluded that none of the exceptions under Article 11.071 § 5(a)(2) 

applied, the CCA dismissed Reed’s ineffective assistance claims “as an abuse 

of the writ.” Ex parte Reed, No. WR-50961-03, 2005 WL 2659440 (Tex. Crim. 

App. Oct. 19, 2005). As Texas’s abuse-of-the-writ doctrine is an “independent 

and adequate state procedural rule,” Coleman, 501 U.S. at 750, the district 

court found Reed’s ineffective assistance claims procedurally defaulted and did 

not consider them on the merits. It did, however, briefly consider whether

procedural default as to those claims could be excused following the Supreme 

Court’s Martinez decision.10

In Martinez, the Supreme Court held that a petitioner may establish 

cause to excuse a procedural default as to an ineffective-assistance-of-trialcounsel claim by showing that (1) his state habeas counsel was constitutionally 

deficient in failing to include the claim in his first state habeas application; 

and (2) the underlying ineffective-assistance-of-trial-counsel claim is 

“substantial.” 132 S. Ct. at 1318; see Preyor v. Stephens, – F. App’x —, 2013 

10 The district court also considered whether procedurally defaulted claims like Reed’s 

ineffective-assistance-of-trial-counsel claims could be considered because Reed had 

demonstrated that he was actually innocent. As discussed supra, this argument also fails.

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WL 3830160, at *8 (5th Cir. July 25, 2013); Sells v. Stephens, – F. App’x —, 

2013 WL 3784348, at *8 (5th Cir. July 22, 2013). For a claim to be 

“substantial,” a “prisoner must demonstrate that the claim has some merit.” 

Martinez, 132 S. Ct. at 1318. Conversely, an “insubstantial” ineffective 

assistance claim is one that “does not have any merit” or that is “wholly without 

factual support.” Id. at 1319.

The district court concluded that it was not required to review Reed’s 

ineffective assistance claims under Martinez in light of our decision in Ibarra 

v. Thaler, 687 F.3d 222, 227 (5th Cir. 2012) (holding that Martinez does not 

apply to Texas court decisions). Ibarra has since been overruled by Trevino v. 

Thaler, in which the Supreme Court expanded Martinez’s reach 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.” 133 S. Ct. 1911, 1921 

(2013). Reed’s Martinez argument thus is no longer foreclosed. 

However, although the district court’s reliance on Ibarra is incorrect 

following Trevino, and thus its procedural ruling is, at the very least,

debatable, to obtain a COA Reed must still demonstrate that reasonable jurists 

would debate “whether the petition states a valid claim of the denial of a 

constitutional right.” Slack, 529 U.S. at 478, 484; see also Womack v. Thaler, 

591 F.3d 757, 758 (5th Cir. 2009); Blanton v. Quarterman, 287 F. App’x 407, 

408 n.1 (5th Cir. 2008). Concluding that Reed has failed to state any debatable 

ineffective-assistance-of-counsel claims, we deny a COA. We address each of 

the purported deficiencies of counsel below.11

11 Reed asks that we remand this issue to the district court, citing our decision in 

Cantu v. Thaler, 682 F.3d 1053, 1054 (5th Cir. 2012) (remanding “so that the district court 

may decide in the first instance the impact of Martinez”). But as we explain, Reed has not 

presented a debatable ineffective assistance claim. See Amos v. Thornton, 646 F.3d 199, 203 

n.4 (5th Cir. 2011) (“In light of our determination that [petitioner] is not entitled to relief on 

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1. Failure to refute State’s forensic proof

Reed asserts that his “trial counsel was deficient for not using competent 

experts to rebut the State’s plainly false inference that Stites’s death and 

intercourse with Reed coincided,” and contradict the State’s anal rape theory. 

He draws attention to the fact that his trial jury clearly was concerned about 

the sperm found in Stites’s body, as evidenced by the fact that during its 

deliberations the jury asked questions about the sperm’s presence, condition, 

and durability. Reed relies on affidavits by Dr. Bayardo, Dr. Riddick, and

criminal laboratory director Ronald Singer. The State argues that Reed can 

show neither deficiency nor prejudice as relating to trial counsel’s failure to 

submit evidence of the kind included in the affidavits. This is because his trial 

counsel actually retained a court-qualified expert in criminalistics and DNA 

analysis—Dr. Johnson. Moreover, the State contends that any evidence in the 

affidavits of Dr. Bayardo, Dr. Riddick, and Singer is cumulative, and does not 

alter the fact that Reed’s sperm was found in Stites’s body.

The CCA did not consider this claim because it was not raised in Reed’s 

initial state habeas petition. The district court concluded that the claim was 

procedurally barred and that our Ibarra decision foreclosed the possibility of 

his speedy-trial claim, . . . the district court’s error in dismissing that claim as procedurally 

barred was harmless, and remand is unnecessary.”); cf. Wright v. Quarterman, 470 F.3d 581, 

591 (5th Cir. 2006) (declining to determine whether petitioner established actual innocence 

where merits of underlying claim were not debatable); Nelson v. Cockrell, 77 F. App’x 209, 

216 (5th Cir. 2003) (granting COA with respect to ineffective assistance claim, but not 

remanding case because district court did not err in denying habeas relief because state 

courts’ application of clearly established federal law was not objectively unreasonable), 

vacated on other grounds by Nelson v. Dretke, 542 U.S. 934 (2004). Under these 

circumstances, we cannot grant a COA. See Jimenez v. Quarterman, 555 U.S. 113, 118 n.3 

(2009) (COA should issue on district court’s denial of habeas relief on procedural grounds 

only where jurists of reason would debate both the procedural ruling and that petition stated 

valid claim of denial of a constitutional right). As a practical matter, we also observe that 

although the district court did not review Reed’s ineffective assistance claims under 

Martinez, the district court did review Reed’s assertions of actual innocence, which included 

much of the evidence Reed relies on to show that his counsel acted deficiently.

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review under Martinez. Although, as discussed, the district court’s procedural 

decision is debatable following Trevino, we conclude that Reed’s claim that trial 

counsel was ineffective for not adequately refuting the state’s forensic proof is 

not debatable, and thus does not require issuance of a COA.

Considering the first Strickland prong, Reed admits that his DNA expert 

Dr. Johnson testified at trial that sperm could survive longer than twenty-four

hours, and only protests trial counsel’s reliance on Dr. Johnson because of her

purported lack of credentials and first-hand criminal experience. Contrary to 

Reed’s apparent belief, his trial counsel’s representation does not fall below an 

“objective standard of reasonableness” merely because the retained expert is 

not the best or most knowledgeable in her field. Strickland, 466 U.S. at 688. 

This is not a case of counsel failing to retain an expert or retaining an expert 

who could not address the issues disputed at trial. See Cox v. Cockrell, 62 F. 

App’x 557, 2003 WL 1202920, at *6 (5th Cir. 2003) (unpublished table decision)

(counsel not deficient for calling expert who performed poorly, but because 

expert could not testify as to disputed issue). Comparing the affidavits Reed

presents and the testimony of Dr. Johnson demonstrates that the crux of 

Reed’s argument—that sperm could remain intact for longer than twenty-four

hours and that therefore the presence of Reed’s sperm could have been the 

product of a consensual sexual encounter between Reed and Stites—was 

presented at trial.

Reed’s contention that his case is similar to State v. Fitzpatrick, 118 So.

3d 737 (Fla. 2013), is unpersuasive. Fitzpatrick was a case in which sperm 

evidence linked the defendant to the murder victim, and the key question was 

how long the sperm had been present in the victim. Id. at 748–49. The Florida 

Supreme Court affirmed the lower court’s decision to grant defendant a new 

trial based on counsel’s deficient performance. Id. at 741. The court found that 

“[t]he record repeatedly demonstrates that counsel did not adequately prepare 

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himself to present an intelligent or knowledgeable defense with respect to the 

most important issue of [defendant’s] trial: the timing of the alleged sexual 

encounter between [him] and [the victim].” Id. at 754. Most glaringly, “counsel 

failed to retain any forensic or medical experts,” and failed to challenge the 

State’s experts or the physical evidence. Id. at 754–55.

Unlike trial counsel in Fitzpatrick, Reed’s defense team scrutinized the 

DNA evidence and the State’s experts. Reed’s assertion that a COA should 

issue because his “trial counsel failed to prepare for, or rebut through crossexamination or contradict by affirmative expert testimony, the State’s 

misleading forensics” ignores that Dr. Johnson testified as a DNA expert for 

the defense and provided testimony on the very issue Reed now challenges.

It also is not debatable that Reed fails to state a valid constitutional 

claim based on Strickland’s second prong—prejudice. Just as the affidavits do 

not establish Reed’s actual innocence they also do not make it “reasonably 

likely” that the result of Reed’s trial would have been different.12 Harrington 

v. Richter, 131 S. Ct. 770, 792 (2011) (“[T]he difference between Strickland’s 

prejudice standard and a more-probable-than-not standard is slight and 

matters ‘only in the rarest case.’” (citation omitted)). The addition of Singer’s 

affidavit to that of Dr. Bayardo’s and Dr. Riddick’s does nothing to change this 

outcome.

In his affidavit, Singer challenges the nature of the substance (which 

appeared to be saliva) found on Stites’s brassiere and breasts, and the DNA 

evidence recovered from that substance. Specifically, Singer states that 

amylase testing of the type performed on the substance “cannot be relied upon 

12 Likewise, we are unmoved by Reed’s reliance on an email by Clement agreeing that 

sperm can remain intact longer than 24 hours, and Blakely’s refusal to comment further on 

this case. This evidence is untimely and does not lend Reed any support beyond that already 

provided by the affidavits of Dr. Bayardo and Dr. Riddick.

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to identify a specific body fluid such as saliva with accuracy.” Singer further 

states that “there is no evidence [that the crime scene examiner] changed 

gloves between the taking of evidentiary samples,” and thus “it is probable that 

[she] contaminated Ms. Stites’ brassiere and breasts with trace evidence . . . 

after having probed Ms. Stites’ genital area with her fingers and taking swabs 

and tape lists from Ms. Stites’ pubic area.” 

We note that Singer’s affidavit merely recounts deficiencies in how the 

crime scene was secured and then infers, without further support, that the 

examiner did not change gloves while inspecting Stites’s body. But Singer 

himself states that “[t]he videotape of the crime scene . . . was poorly done,” 

and “does not completely record the activities at the crime scene.” A review of 

the video also reveals no unbroken sequence in which the examiner collected 

evidence from Stites’s genital area and then touched Stites’s chest. Reed also 

nowhere suggests that the presence of his sperm inside Stites was the result 

of improper crime scene investigation. Given this, there is nothing to support

the contention that the alleged incompetence by police personnel at the crime 

scene prejudiced Reed.13

We conclude that Reed has failed to present a debatable ineffectiveassistance-of-trial claim as to his trial counsels’ handling of the State’s forensic

evidence.

13 Reed also argues that effective trial counsel would have used the video recording of 

the crime scene to show that evidence was contaminated, destroyed, and overlooked. This 

argument fails for the same reasons detailed above. Further, we reject Reed’s suggestion 

that, but for the police’s incompetence, other evidence might have been uncovered. “Such 

speculation does not show prejudice.” Paz v. Scott, 68 F.3d 471, 1995 WL 581882, at *2 (5th 

Cir. 1995) (unpublished table decision).

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2. Trial counsel’s failure to present witnesses substantiating Stites’s 

and Reed’s alleged relationship

Reed next argues that trial counsel should have presented additional 

witnesses who could testify as to his relationship with Stites. In support, he 

lists the affidavits of multiple witnesses who purportedly knew about the

alleged relationship. In response, the State argues that the decision not to call 

the various witnesses Reed identifies was “a quintessential strategic decision 

that cannot be undone through the benefit of hindsight.” It further argues that 

any prejudice resulting from trial counsel’s failure to present these witnesses 

was speculative.

The CCA did not address the witnesses Reed points to in the context of 

his ineffective-assistance-of-trial-counsel claim because Reed did not include 

that claim in his initial habeas petition. However, as we have noted supra, in

considering whether Reed’s ineffective assistance claim should be considered 

because he met Article 11.071 § 5(a)(2)’s actual-innocence standard, the CCA 

concluded that the evidence as to all the “witnesses who affirmed a relationship 

between Reed and [Stites]” was “unreliable.” Reed, 271 S.W.3d at 747. The 

district court refused to consider the merits of this claim, finding it 

procedurally barred.

Although, as discussed, the district court’s procedural ruling is 

debatable, Reed’s failure to actually discuss any of the affidavits he identifies, 

much less show how he was prejudiced by their omission at trial, means that 

he has failed to state a reasonably debatable claim under Strickland. We 

further note that, to the extent the CCA also made a credibility determination 

as to the witnesses Reed identifies, we defer to that factual finding unless Reed 

presents clear and convincing evidence to the contrary. See 28 U.S.C. 

§ 2254(e)(1). Having not done so, Reed’s request for a COA on this claim is 

denied. See Harrington, 131 S. Ct. at 792.

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3. Trial counsel’s failure to present evidence of Fennell’s abuses

against women and minorities

In the last of his ineffective-assistance-of-trial-counsel claims, Reed 

contends that trial counsel was deficient for not conducting a proper pretrial 

investigation. Such an investigation, Reed asserts, would have revealed that 

Fennell was a jealous, abusive, and racist individual,14 against whom civil 

lawsuits alleging violence and racism had been filed. The State asks that we 

find this argument waived for inadequate briefing.

The CCA found this claim barred under its abuse-of-the-writ doctrine. 

The district court denied relief, holding that the claim was procedurally barred. 

As before, although the procedural part of the district court’s ruling is 

debatable, Reed’s failure to adequately brief his claim means that he has failed 

to state a debatable claim of the denial of a constitutional right. 

We agree with the State that Reed has waived his request for a COA. 

Instead of fully briefing this issue, Reed instead relies on his federal habeas 

petition to fill in the gaps of his argument. We previously have declined to 

grant a COA in similar circumstances. See McGowen v. Thaler, 675 F.3d 482,

497 (5th Cir. 2012) (“We have held that a COA applicant waives claims by 

directing the appellate court to briefing before the district court to support his 

request for a COA. [Petitioner’s] reference to his habeas petition therefore does 

not preserve his claims.” (footnote omitted)). As the State correctly argues, 

waiver is especially appropriate where, as here, the admissibility of much of 

the evidence Reed refers to is questionable, and Reed provides no defense of its 

admissibility. See Clark v. Thaler, 673 F.3d 410, 429 (5th Cir. 2012) (failure to 

assert meritless objection is not grounds for deficient performance); Thompson 

14 Reed is African-American. Fennell is Caucasian, as was Stites.

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v. Thaler, 432 F. App’x 376, 379 (5th Cir. 2011). His request for a COA on this 

claim is denied.

C. Ineffective Assistance of Appellate Counsel

Reed identifies three challenges that his appellate counsel should have 

raised on direct appeal: (1) a jury instruction that allowed jurors to consider 

“good conduct time” against the forty years Reed would serve if sentenced to 

life in prison; (2) the jury not being instructed that a lack of unanimity on 

special issues during the penalty phase would result in a life sentence; and (3) 

the denial of a continuance motion to give Reed’s trial counsel additional time 

to prepare.15 Reed argues that his appellate counsel’s failure to raise these 

issues rendered his appellate counsel’s representation constitutionally 

deficient under Evitts v. Lucey, 469 U.S. 387 (1985). The State argues that 

Reed’s ineffective-assistance-of-appellate-counsel claim is waived for 

inadequate briefing. Alternatively, the State contends that the claim is 

procedurally defaulted. 

Reed detailed his ineffective-assistance-of-appellate-counsel claims in 

his third state habeas petition. The CCA dismissed these claims as abuses of 

the writ. The magistrate judge accordingly recommended that the claim be 

found procedurally defaulted. The district court adopted the magistrate 

judge’s recommendation.

Reed does not appear to challenge the district court’s procedural ruling 

other than through his assertion of actual innocence under Schlup, which, as 

we have discussed, is unavailing. For the same reasons, the district court’s 

denial of habeas relief is not debatable.16

15 Reed also argues that appellate counsel was deficient for failing to challenge the 

exclusion of a witness’s statement relating to Lawhon confessing to Stites’s murder. This 

claim is discussed infra in connection with Reed’s conflict-of-interest claim.

16 To the extent Reed suggests that his ineffective-assistance-of-appellate-counsel 

claims also should be considered under Martinez, we decline to do so. See In re Sepulvado, 

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Even if we looked beyond the district court’s non-debatable procedural 

ruling to inquire into whether Reed has stated a valid claim of the denial of a 

constitutional right, we would find that Reed’s claims would fare no better. 

Reed’s “good conduct time” instruction argument fails because the relevant 

statutory provision—Article 37.071 § 2(e)(2)(B) (court shall “charge the jury 

that a defendant sentenced to confinement for life without parole . . . is 

ineligible for release . . . on parole”)—does not appear to have come into effect 

until after Reed’s trial. See 1999 Tex. Sess. Law Serv. Ch. 140, § 1 (S.B. 39)

(amending Tex. Code Crim. Proc. Ann. art. 37.071). Additionally, Reed’s 

argument fails to show how Reed suffered harm as a result of the jury 

instruction. See Ross v. State, 133 S.W.3d 618, 623 (Tex. Crim. App. 2004) 

(dispositive issue is “whether the jury was so misled or whether there is a 

reasonable likelihood that the jury applied the misleading parole charge in a 

way that prevented it from considering that a life-sentenced appellant would 

not be eligible for parole for forty years”).

Reed’s second argument, that the jury should have been informed that a 

lack of unanimity during the penalty phase would result in a life sentence, is 

a challenge to Texas’s so-called “12-10 Rule.”17 Arguments similar to Reed’s 

707 F.3d 550, 554 & n.8 (5th Cir. 2013); see also Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 

2013) (“Under Martinez’s unambiguous holding our previous understanding of Coleman in 

this regard is still the law—ineffective assistance of post-conviction counsel cannot supply 

cause for procedural default of a claim of ineffective assistance of appellate counsel.”); Banks 

v. Workman, 692 F.3d 1133, 1148 (10th Cir. 2012); Dansby v. Norris, 682 F.3d 711, 728–29 

(8th Cir. 2012), vacated sub nom. Dansby v. Hobbs, 133 S. Ct. 2767 (2013). But see Ha Van 

Nguyen v. Curry, 736 F.3d 1287, 1296 (9th Cir. 2013) (holding that Martinez extends to Sixth 

Amendment ineffective-assistance-of-appellate-counsel claims).

17 Under Texas law, a life sentence will be imposed if at least ten jurors agree that 

there is not “a probability that the defendant would commit criminal acts of violence that 

would constitute a continuing threat to society.” Tex. Code Crim. Proc. Ann. art. 37.071 

§ 2(b)(1). If the jurors unanimously agree that there is such a probability, they must then 

determine whether “taking into consideration all of the evidence, including the circumstances 

of the offense, the defendant’s character and background, and the personal moral culpability 

of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant 

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repeatedly have been rejected by this court and Texas courts, most recently in 

Parr v. Thaler, 481 F. App’x 872, 878–79 (5th Cir. 2012). See, e.g., Druery v. 

Thaler, 647 F.3d 535, 542–45 (5th Cir. 2011); Greer v. Thaler, 380 F. App’x 373, 

389 (5th Cir. 2010); Gonzales v. State, 353 S.W.3d 826, 837 (Tex. Crim. App. 

2011). Reed presents no grounds to revisit those decisions.

Reed’s third argument is equally unavailing. He contends that his

appellate counsel should have challenged the trial court’s denial of Reed’s 

continuance motion, and more broadly argues that his trial attorneys devoted

too little time to preparing his defense. “There are no mechanical tests for 

deciding when a denial of a continuance is so arbitrary as to violate due 

process. The answer must be found in the circumstances present in every 

case . . . .” Hall v. Thaler, 504 F. App’x 269, 283 (5th Cir. 2012) (quoting Ungar 

v. Sarafite, 376 U.S. 575, 589 (1964)). 

The district court adopted the magistrate judge’s recommendation to 

deny relief on this claim. The magistrate judge observed that “although Reed

makes general allegations in his pleadings before this Court that having 

sufficient time is essential to preparing a defense to a capital case, he does not 

demonstrate with any specificity how his counsel was unprepared to move 

forward with trial in his case in March 1998.” Likewise in his brief to this 

court, Reed provides little explanation, and we therefore find it waived. See 

McGowen, 675 F.3d at 497. A brief review of the attorney billing records

identified by the State also dispels any concerns that Reed’s defense team did 

not spend enough time preparing for trial.

that a sentence of life imprisonment without parole rather than a death sentence be 

imposed.” Id. § 2(e)(1). If jurors unanimously agree that there are not such mitigating 

circumstances, the defendant is sentenced to death. Id. § 2(g). If ten jurors agree that there 

are requisite mitigating circumstances, the defendant is sentenced to life imprisonment. Id. 

In the event jurors cannot agree on answers to either special issue, the court imposes a life 

sentence. Id.

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Upon review of Reed’s ineffective-assistance-of-appellate-counsel claims,

we conclude that even if the district court’s finding of procedural default is

debatable, Reed’s underlying constitutional claims are not.

D. Appellate Counsel’s Conflict of Interest

Reed seeks a COA on his Sixth Amendment claim that his appellate 

counsel suffered from an actual conflict of interest because, while his appellate 

counsel represented him on direct appeal, his appellate counsel also 

represented Lawhon (who boasted of killing Stites) in a separate state habeas 

proceeding. Because of that dual-representation, Reed posits that his 

appellate counsel did not appeal the trial court’s exclusion of certain testimony 

concerning Lawhon’s confession. The State points out that Reed’s argument 

has changed from that which was presented in state court, and that we should 

not now consider Reed’s claim other than how it was presented there. The 

State adds that Reed’s conflict-of-interest claim lacks merit as evidenced by 

the fact that Reed can offer no supporting caselaw granting habeas relief in 

similar circumstances.

Reed raised his conflict-of-interest claim in his first state habeas 

petition, where he asserted prejudice resulting from the fact that his appellate 

counsel would not testify about conversations he had with Lawhon that might 

inculpate Lawhon in Stites’s murder. The CCA rejected this argument. In 

district court, Reed argued that his appellate counsel’s dual representation had 

an adverse effect because it resulted in appellate counsel not objecting to the 

exclusion of certain evidence of Lawhon’s alleged confession. The district court 

correctly observed that this was not the argument Reed raised in state court, 

and declined to consider it.

We agree with the district court and conclude that reasonable jurists 

would not disagree with that court’s disposal of the claim. Reed’s claim, albeit 

not procedurally barred on the basis of an independent and adequate state 

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procedural rule, is unexhausted.18 See Kittelson v. Dretke, 426 F.3d 306, 315–

16 (5th Cir. 2005). Section 2254(b)(1) requires that a petitioner first exhaust 

his state court remedies before proceeding in federal court. See 28 U.S.C. 

§ 2254(b)(1)(A). AEDPA’s exhaustion requirement is “not satisfied if the 

petitioner presents new legal theories or factual claims in his federal habeas 

petition.” Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003).

Even if Reed’s conflict-of-interest claim were considered on the merits, it 

would not be entitled to habeas relief. See 28 U.S.C. § 2254(b)(2) (habeas relief 

may be denied on the merits, notwithstanding petitioner’s failure to exhaust 

state court remedies); cf. Miller v. Dretke, 431 F.3d 241, 245 (5th Cir. 2005) 

(“Because we hold [petitioner] is not entitled to habeas relief on the Bradyclaim, we need not decide whether the district court erred in considering it.”). 

The jury heard evidence that Lawhon bragged about killing Stites, so any 

additional testimony to that effect would be cumulative. Reed’s description of 

the circumstances leading to the witnesses at issue not testifying is also 

misleading. It was not the case, as Reed asserts, that “[t]he Trial Court refused 

to allow [the two witnesses] to testify.” Instead, although they initially 

expressed their willingness to testify, after consulting with a court-appointed 

attorney, both witnesses decided to exercise their rights under the Fifth 

Amendment and not testify. Reed’s suggestion that the trial court acted 

improperly in ensuring that the witnesses were advised by counsel and fully 

understood their constitutional rights is baseless.

E. Brady

Reed seeks a COA with respect to the district court’s denial of his Brady 

claims. Reed contends that the State suppressed: (1) DNA evidence of the beer 

18 We reject Reed’s suggestion that his failure to present this argument should be 

excused under Trevino because of deficient state habeas counsel. See Sepulvado, 707 F.3d at 

554–55 & n.8.

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cans found at the murder scene; (2) witness testimony that Stites and Fennell 

were arguing the morning of the murder; (3) testimony by a witness who 

allegedly remembered Fennell threatening to kill Stites with a belt; 

(4) statements by two witnesses who claimed to have seen Stites driving 

around with one or two men the morning of the murder; (5) an affidavit by 

Fennell’s former girlfriend; (6) evidence of lawsuits filed against Fennell and 

the Giddings Police Department; (7) a letter by Fennell to the Giddings city 

manager; and (8) evidence of criminal corruption by the Bastrop county 

sheriff.19 

To establish a Brady violation as to any of these claims, Reed had to 

prove that (1) the prosecution actually suppressed the statements, (2) the 

statements were favorable to him, and (3) the statements were material. See

Kyles, 514 U.S. at 434; Brady, 373 U.S. at 87; see also Trottie v. Stephens, 720 

F.3d 231, 251 (5th Cir. 2013). A petitioner’s Brady claim fails if the suppressed 

evidence was discoverable through reasonable due diligence. See United States 

v. Brown, 650 F.3d 581, 588 (5th Cir. 2011), cert. denied, 132 S. Ct. 1969 (2012). 

Suppressed evidence is material if “there is a reasonable probability that, had 

the evidence been disclosed to the defense, the result of the proceeding would 

have been different. A ‘reasonable probability’ is a probability sufficient to 

undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 

682 (1985); see United States v. Sipe, 388 F.3d 471, 485 (5th Cir. 2004).

Although we address Reed’s request for a COA as to each of his Brady 

claims below, we note that many of them are procedurally defaulted because 

Reed has failed to establish actual innocence under Schlup and does not 

19 Reed also argues that pursuant to Kyles v. Whitley, 514 U.S. 419, 436 (1995), we

should collectively review the suppressed evidence together with whatever prejudice Reed 

suffered as a result of his ineffective assistance of counsel. We find that none of Reed’s Brady 

claims, procedurally barred or otherwise, individually or collectively, are worthy of further 

consideration under AEDPA’s standard as correctly applied by the district court.

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separately argue that he has shown cause and prejudice to excuse procedural 

default as to any particular Brady claim.20

1. Beer-can-DNA evidence

Reed contends that the State suppressed a letter containing a DNA 

report that revealed a mixture of profiles from which Stites, Officer Hall, and 

Officer Selmala (the officer who investigated Fennell’s pickup truck) could not 

be excluded. He argues that “[i]t is uncontested that the State’s DNA report is 

exculpatory because it suggests that two officers (one closely associated with 

Fennell) were with Stites, drinking beer at the crime scene.” The State 

maintains that this claim is procedurally barred, and that Reed cannot show 

cause and prejudice to excuse the default. It further submits that even if the 

claim were considered on its merits, Reed cannot show prejudice because, at 

trial, Reed had access to the same DNA evidence and his DNA expert initially 

reached the same conclusion before conducting more refined Polymarker 

testing, which excluded Stites and the two police officers.

The CCA dismissed Reed’s Brady claim as an abuse of the writ. But 

although dismissing the claim, the CCA did consider the beer-can-DNA 

evidence, together with other evidence, in the context of Reed’s actual 

innocence claim. It found that “[a]lthough this new evidence may indeed 

arouse a healthy suspicion that Fennell had some involvement in Stacey’s 

death, [the court was] not convinced that Reed ha[d] shown by a preponderance 

of the evidence that no reasonable juror, confronted with this evidence, would 

have found him guilty beyond a reasonable doubt.”

20 We decline Reed’s suggestion that his procedurally defaulted claims may be 

considered under Martinez. Reed has insufficiently briefed this issue, and we consider this 

argument waived. We note that at least one other court has found this argument 

unpersuasive. See Hunton v. Sinclair, 732 F.3d 1124, 1126–27 (9th Cir. 2013) (rejecting 

petitioner’s attempt to excuse procedurally defaulted Brady claim under Martinez).

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 The magistrate judge, giving Reed the benefit of the doubt, 

recommended that the district court conclude that Reed had shown cause for 

the late filing of this Brady claim because it was unclear whether his defense 

team actually had received the State’s DNA report. But the magistrate judge 

also recommended that the district court find that Reed had not made a 

sufficient showing as to prejudice because Reed’s DNA expert, Dr. Johnson,

initially reached the same result as the prosecution—that Reed was not a 

donor, but that Stites, Officer Hall, and Officer Selmala could not be excluded. 

The district court adopted the magistrate judge’s report and recommendation. 

Reed does not argue that the district court improperly found this claim 

procedurally defaulted. Instead, he only argues that his claim should be 

considered because he has satisfied his burden under Schlup or Martinez, or 

alternatively, that he has shown cause for not filing this Brady claim in his 

initial habeas petition and resulting prejudice. We already have concluded 

that a COA should not issue as to Reed’s Schlup actual innocence claim, see 

our discussion supra, and that he has insufficiently briefed his contention that

Martinez should apply to his Brady claims. See In re Sepulvado, 707 F.3d at

554 & n.8; cf. Hunton, 732 F.3d at 1126–27.

Turning to whether Reed has sufficiently shown cause and default such 

that the district court’s procedural ruling is debatable, we note that, as an 

initial matter, it is unclear whether the State actually suppressed the report. 

The attorney responsible for handling the DNA evidence on Reed’s defense 

team simply could not recall whether the DNA report had been received. The 

fact that four copies of the report were made, only one of which was 

unaccounted for, suggests that it was. That aside, there are many other 

problems with this claim.

Most importantly, Reed cannot show that he was prejudiced by the 

State’s DNA report given that Reed’s own DNA expert, Dr. Johnson, reached 

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the same result—namely, that Reed was not a donor, but that Stites, Officer 

Hall, and Officer Selmala could not be excluded from the beer-can DNA. See 

Holly v. Collins, 9 F.3d 103, 1993 WL 481732, at *4 (5th Cir. 1993) 

(unpublished table decision) (“Awareness of the information purportedly 

suppressed neutralizes any . . . impropriety for purposes of a Brady claim 

implicating evidence of that information.”). Dr. Johnson subsequently 

conducted Polymarker testing, which excluded all three individuals. The State 

declined to conduct further DNA testing in light of Dr. Johnson’s more refined 

results.

Reed’s Brady claim therefore does not arise out of the purported 

suppression of the State’s DNA evidence, but out of his own expert 

subsequently conducting additional testing that reached a contrary conclusion, 

which the State then adopted. In an apparent effort to strengthen the State’s 

and Dr. Johnson’s original DNA results (which could not exclude Stites, Officer 

Hall, and Officer Selmala), Reed points to testimony by Dr. Arthur Eisenberg. 

Dr. Eisenberg opines that the beer can contained DNA from as many as four 

individuals, one of whom probably was female. Although Stites, Fennell, and 

Officer Selmala were excluded, Dr. Eisenberg could not exclude Officer Hall as 

a contributor from the beer-can-DNA evidence. Importantly, Dr. Eisenberg’s 

review of the beer-can-DNA evidence is completely divorced in time from 

Reed’s trial. To prevail under Brady, Reed must show that the purported 

suppression of the State’s DNA report at trial materially affected the trial’s 

outcome, not that years later another DNA expert would opine that Officer 

Hall could not be excluded from the DNA mixture. See Lawrence v. Lensing, 

42 F.3d 255, 257 (5th Cir. 1994) (“Brady claims involve ‘the discovery, after 

trial of information which had been known to the prosecution but unknown to 

the defense.’” (citation omitted)). 

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Reasonable jurists thus would not debate the district court’s procedural 

ruling denying habeas relief on this Brady claim.

2. Martha Barnett’s testimony

Reed argues that the district court effectively abdicated its duty under 

AEDPA to review his claim by failing to credit the testimony of Martha 

Barnett. In her affidavit, Barnett attests to seeing Stites and a man she later 

recognized as Fennell together in a loud confrontation between approximately 

5:00 and 5:30 a.m. on the day of the murder. Barnett testified that the two 

were gesturing “like there was some kind of conflict.” Reed contends that a 

review of the relevant evidence shows that Barnett’s testimony should not have 

been discounted. The State counters that Reed has not overcome the state 

habeas court’s credibility determination.

Reed included his Brady claim relating to Barnett’s testimony in his 

third state habeas petition. The CCA concluded that Reed’s claim satisfied the 

requirements of Article 11.071 § 5(a), and remanded it to the state trial court 

for a live evidentiary hearing. The state trial court entered findings of fact and 

conclusions of law finding Barnett not credible for multiple reasons. These

included that Barnett failed to satisfactorily explain why she did not report her 

sighting until over a year and a half after the murder; the disclosure occurred 

shortly after Fennell arrested her for driving under the influence; and Barnett 

claimed to have recognized Fennell from a newspaper article, despite the fact 

that no newspaper carried such a photograph. The trial court also found 

Barnett not credible because she changed the time she reported seeing Stites 

and Fennell from between 5:00 to 5:30 a.m. in her affidavit to approximately 

4:45 a.m. during the evidentiary hearing. Additionally, Barnett’s alleged 

sighting did not comport with Stites’s usual schedule of reporting for work by 

3:30 a.m., nor the fact that Stites evidently was on her way to work when she 

was murdered. Fennell’s truck, which Stites drove to work, also was found at 

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5:23 a.m., by which time Stites had already been killed. Lastly, Stites’s mother 

woke Fennell at 6:45 a.m.

The CCA similarly found Barnett’s testimony unreliable. Although 

finding parts of the trial court’s findings inconsistent with the record and 

“somewhat misleading,” it concluded that they were “largely supported by the 

record.” It determined that Reed had failed to show that the State was in 

possession of the information regarding Barnett prior to or during trial. 

Central to this determination was the chain of events by which Barnett first 

informed her attorney, Steven Keng, about seeing Stites and Fennell, and by 

which Keng then informed the Bastrop district attorney. After reviewing all 

the evidence of who told what when, the CCA upheld the state trial court’s 

credibility finding that Keng did not inform the Bastrop district attorney until 

after Reed’s trial. Discussing whether Reed had met his burden of showing 

actual innocence, the CCA also found the information provided by Barnett 

“unreliable” and “not credible.”

The district court adopted the magistrate judge’s recommendation that 

there was “nothing inconsistent with established federal law in the CCA’s 

reasoning,” and that Reed also had not “succeeded in demonstrating by clear 

and convincing evidence that any of the trial court’s or CCA’s findings of fact 

were unreasonable in light of the record before them.”

The district court appropriately deferred to the state habeas court’s 

credibility determination under 28 U.S.C. § 2254(e)(1). Reed attempts to 

overcome § 2254(e)(1)’s presumption of correctness by again arguing that 

Barnett disclosed her statements to Keng, who then passed them on to the 

Bastrop district attorney. It was the Bastrop district attorney, Reed alleges, 

who failed to disclose the statements to the defense team. According to Reed, 

the Bastrop district attorney “had professional and financial motives to deny 

his misconduct,” because “a prosecutor’s failure to disclose exculpatory 

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evidence can lead to professional discipline or even criminal liability,” and “[a]t 

the time of the habeas hearing, [the district attorney] had a pending lawsuit 

against [a newspaper] for defamation arising from the paper’s coverage of the 

Reed case.” Assuming Reed is correct and the State suppressed Barnett’s 

statement, Reed still cannot show prejudice because the CCA’s determination 

that Barnett was not a credible witness is supported by unrebutted evidence. 

Reed points out that Fennell was not called by the state trial court to dispute 

Barnett’s testimony, and that the only motive Barnett had for implicating 

Fennell was his arrest of her for driving while intoxicated. But Reed’s 

arguments implicate exactly the type of credibility determination we, as a 

federal court, leave to the state court that was on-hand to observe the witnesses 

at issue. The district court’s conclusion that the CCA’s decision was not based 

on an unreasonable determination of the facts thus is not debatable, nor is its 

determination that Reed has failed to present clear and convincing evidence 

that the CCA’s credibility determination was erroneous.

3. Mary Blackwell’s testimony

Reed claims that the State suppressed a statement by Mary Blackwell. 

Blackwell’s affidavit states that in 1995, during a police academy training 

class, she overheard Fennell say to another attendee that if he ever discovered 

Stites (his then-girlfriend) cheating on him he would strangle her. Blackwell 

states that she then told Fennell that he would be caught because he would 

leave fingerprints, to which Fennell responded that he would use a belt. 

Blackwell also recalled Fennell yelling at Stites. The State responds that the 

prosecution indisputably did not learn of Blackwell’s statement, if at all, until 

after Reed’s trial, and thus Brady should not apply. Additionally, the State 

points out that Reed’s defense team had as much access to the evidence as the 

prosecution because one of Reed’s state habeas investigators was told about

Blackwell’s statement. Finally, the State asks that the panel defer to the 

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CCA’s determination that Blackwell’s statement was unreliable and not 

credible.

Reed included his claim that the State suppressed Blackwell’s statement 

in his third state habeas petition. As with Reed’s Brady claim relating to 

Barnett’s testimony, the CCA remanded this claim to the state trial court to 

conduct a live evidentiary hearing. The state trial court found Blackwell not 

credible. The trial court based its determination on the fact that other 

testimony showed Fennell was emotionally upset after Stites’s death; the 

attendee to whom Fennell allegedly made the remarks had no recollection of 

them, and no other attendee heard the alleged statements; Blackwell failed to 

report information relevant to the homicide investigation despite being a peace 

officer; Blackwell originally described Fennell as joking; and Blackwell claimed 

to be entirely unaware of the circumstances of Stites’s death despite attending 

Stites’s funeral, living in the area, and knowing Fennell. The CCA adopted the 

trial court’s findings. It specifically held that “although we question whether 

Fennell’s statement to Blackwell falls within Brady’s ambit because it was not 

alleged to have been disclosed until after Reed’s trial and therefore may be 

more properly characterized as newly discovered evidence, we will 

nevertheless defer to the trial judge’s credibility determinations and 

factfindings because our independent review of the record establishes that they 

are supported by the record.” (footnote omitted).

The magistrate judge determined that “the Texas courts’ conclusions on 

this claim are consistent with established federal law, and are based on a 

reasonable determination of the facts in light of the record,” and accordingly 

recommended that the district court defer to those findings. The district court

held that there was insufficient evidence “to rebut the presumption of 

correctness of the state court’s credibility determination,” and denied habeas 

relief.

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“As a federal habeas court, ‘we must defer to the factual findings in the 

state court proceedings’ and ‘respect the ability of the fact-finder to evaluate 

the credibility of the witnesses.’” Jackson v. Miss. Dep’t of Corr., 359 F. App’x 

499, 502 (5th Cir. 2010) (citation omitted). Reed fails to offer any reason why 

the state court’s credibility determination as to Blackwell is erroneous. 

Instead, Reed argues that the district court failed to consider “the State’s 

pattern of suppressing exculpatory evidence” and that the assistant district 

attorney who allegedly learned of Blackwell’s statements had a motive “to deny 

misconduct and thereby avoid professional or even criminal liability.” As with 

Barnett’s testimony, Reed’s argument does not strike at the CCA’s underlying 

credibility determination, to which the district court correctly deferred. 

Reasonable jurists thus would not find the district court’s assessment of Reed’s 

Brady claim as it relates to Blackwell’s testimony debatable or wrong.

4. Brenda and Jennifer Praters’ statements

Reed argues that the State suppressed the written statements of Brenda 

and Jennifer Prater. The statements separately describe the Praters seeing 

Stites the day of the murder. Jennifer stated that she saw two people inside a 

car behind her house early that morning. She described the person in the 

driver’s seat as “dark complected, but not black” (possibly of “middle eastern 

descent”), and the person in the passenger seat as a “pale complected” woman 

with “big hair.” Jennifer asserts she was able to get a good look at the 

individuals because the car’s interior light was on. She was certain that Reed 

was not the man in the car. She subsequently recognized the woman as Stites, 

after seeing Stites’s picture in a newspaper. When confronted by police, 

however, Jennifer lied and told police she “didn’t know anything about” seeing 

a car the day of the murder.

Brenda stated that early on April 23, 1996, she saw a car go past her 

house twice. She saw three individuals in the car, the interior lights of which 

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were on—a driver of darker complexion, but not black (possibly “Mexican”); a 

woman in the passenger seat with light complexion and “big dark hair”; and a 

white male in the back seat. Like Jennifer, Brenda claims later to have 

recognized the woman in the passenger seat as Stites from a newspaper article. 

When police came to speak with her, Brenda related what she saw.

The State argues that Reed’s Brady claim is procedurally defaulted. It 

further points out that there was no evidence, other than the Praters’ 

statements, that any police officers actually talked with Brenda and Jennifer 

Prater. The only notes in the State’s possession that possibly related to the 

statements referred to a “Mary Fisher,” and were available to Reed. Finally, 

the State asserts that even if the statements are taken at face value, they are 

not material under Brady.

Reed’s Brady claim relating to Brenda and Jennifer Prater was included 

in his third state habeas petition. The CCA dismissed the claim as an abuse 

of the writ. The CCA subsequently discussed the Praters’ statements in the 

context of its actual innocence discussion. The CCA questioned the Praters’ 

credibility because they did not come forward with their information until 

September 2002. Jennifer’s credibility was suspect because her husband failed 

to corroborate her account. The CCA further observed that the Praters’ 

statements had “no continuity with any of the other new evidence offered by 

Reed and [did] not fit within the chronicle of events that the trial evidence 

support[ed].” Finding that Reed had failed to establish his actual innocence, 

the CCA refused to consider the merits of Reed’s Brady claim as to the Praters’ 

statements.

The district court concluded that the CCA’s credibility determination 

“was unreasonable in light of other record evidence,” because Brenda reported 

her sighting to the police and because there was no basis for requiring an 

additional affidavit from Jennifer’s husband to find her account credible. 

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Having determined that Reed established cause, the district court assumed 

actual prejudice to excuse the default. But it proceeded to find that Reed’s 

Brady claim failed on the merits. The court reasoned that “[t]here is nothing 

linking the eyewitness testimony by the Praters to Fennell, and the inferences 

Reed urges the court to draw from the Praters’ statements are far too 

speculative to have a meaningful impact on a reasonable juror’s assessment of 

the evidence.”

We find that the district court’s ultimate conclusion to deny habeas relief 

as to Reed’s Brady claim is not debatable. Although the district court found 

that Reed could show cause to excuse procedural default, and assumed 

resulting prejudice, it appears to us that Reed cannot meet this burden. 

Considering Jennifer’s statement first, Reed has failed to show cause. The 

CCA found her credibility suspect because she did not come forward with the 

information until several years after Stites’s murder. This is sufficient 

evidence on which to defer to the CCA’s credibility determination under 28 

U.S.C. § 2254(e)(1). Jennifer did not approach authorities with the information 

she held. She also admitted lying to the police because she “knew that being a 

witness in a criminal investigation would be a hassle.” Reed has not disputed 

these facts. We thus defer to the CCA’s credibility determination as to Jennifer

and conclude that there was no cause to excuse default because the State did 

not suppress the statement. We also find that Reed had failed to show 

prejudice as to the alleged suppression of Jennifer’s statement for the same 

reason we find no prejudice resulting from the purported suppression of 

Brenda’s statement.

As to Brenda’s statement, we agree with the district court that Reed has 

shown cause for excusing default because Brenda testified to having spoken 

with police authorities two days after the incident. Reed has not, however, 

shown actual prejudice, rendering the district court’s final disposition of the 

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claim non-debatable. Although Brenda states that she saw Stites with two 

other men, Reed provides no explanation for who these individuals were. 

Instead, Reed asserts that the Praters’ accounts “fit” with Barnett’s testimony 

because they “likely observed Stites earlier than Barnett did.” As he puts it, 

“[i]f Stites was with other men just prior to her murder, that comports with the 

Fennell-Stites confrontation witnessed by Barnett and provides motive for 

Fennell to strangle Stites.” Reed’s argument fails partly because we defer to 

the CCA’s finding that Barnett’s testimony is not credible. Additionally, 

Brenda’s statement is not exculpatory. To the extent there was enough time 

for an individual to sexually assault Stites after she was seen by the Praters, 

a reasonable juror could just as easily believe that Reed, and not Fennell, 

committed the deed. The district court’s conclusion that “[i]n light of the other 

evidence inculpatory of Reed and the lack of credible evidence that Reed had 

consensual sex with Stites before her death, the Praters’ statements . . . do not 

undermine confidence in the verdict” is not debatable.

5. Pamela Duncan’s affidavit

Reed contends that Fennell’s former girlfriend, Pamela Duncan, 

reported Fennell’s abusive behavior to authorities. According to Duncan’s 

affidavit, Fennell was “extremely possessive and jealous,” an abusive partner, 

and hostile toward African-Americans. Reed asserts a Brady violation on the 

basis of the State’s suppression of Duncan’s statement. The State argues that 

this claim is procedurally defaulted.

Reed presented his suppression-of-evidence claim concerning Duncan in 

his fourth state habeas petition. The CCA dismissed the claim as an abuse of 

the writ, but also considered the substance of Duncan’s affidavit as part of its 

Schlup analysis. The CCA concluded that this evidence did not undermine the 

jury’s verdict. The district court accepted the magistrate judge’s 

recommendation that this claim be found procedurally defaulted.

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The district court’s treatment of this Brady claim is not debatable. Reed 

does not discuss how Duncan’s affidavit would have been material at trial, and 

thus he does not show prejudice to excuse the default. Likewise, there are 

substantial questions as to whether Duncan’s account actually was 

suppressed. The affidavit does not make clear which authorities she 

approached concerning Fennell’s behavior, and there is no other record of her 

doing so. It thus appears that Duncan’s statements would have been as 

accessible to Reed as they were to the prosecution. See Kutzner v. Cockrell, 303 

F.3d 333, 336 (5th Cir. 2002) (“Brady does not obligate the State to furnish a 

defendant with exculpatory evidence that is fully available to the defendant 

through the exercise of reasonable diligence.”). As we have already concluded 

that Reed cannot show actual innocence under Schlup, Reed’s failure to 

establish cause for defaulting this claim and resulting prejudice renders the 

district court’s denial of habeas relief as to this Brady claim not debatable. 

6. Lawsuits against Fennell and the Giddings Police Department

Reed complains that the State suppressed evidence of two lawsuits filed 

against Fennell and the Giddings Police Department, which alleged violence 

and lawlessness, including against minorities. The State contends that 

information relating to the suits was contained in public documents accessible 

to Reed.

Reed included this Brady claim in his third state habeas petition. The 

CCA dismissed it as an abuse of the writ. The district court found the claim

procedurally defaulted.

We find the district court’s procedural ruling is not debatable. We agree 

with the State that the fact that lawsuits had been filed against Fennell and 

the Giddings Police Department was public information Reed could have 

discovered through reasonable diligence. See id. Additionally, Reed spends no 

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time discussing the substance of his claim, and thus he has not shown that he 

suffered prejudice as a result of it being held procedurally barred.

7. Fennell’s letter to the Giddings city manager

The record contains a letter Fennell wrote to the Giddings city manager 

in which he states that “[Officer] Hall made several comments during the 

murder investigation of my fiancé[e]. I have learned to forgive and forget.” 

Reed characterizes this statement as inculpating Fennell in Stites’s murder 

because Fennell also described Officer Hall as being someone who would “burn 

anyone” to get a position. Reed states that the State suppressed Fennell’s 

letter. The State responds that the claim is procedurally defaulted, Reed has 

not proven the substance of Officer Hall’s comments, and the letter was not 

written until after trial.

Reed’s Brady claim as it relates to Fennell’s letter appeared in his fifth 

state habeas petition. The CCA dismissed the claim as an abuse of the writ. 

The district court accordingly found the claim procedurally defaulted.

Other than his assertion of actual innocence, Reed presents no reasons 

why the district court should have considered his procedurally defaulted Brady 

claim on the merits. In any event, a brief review of the letter confirms that 

Reed’s theory is wholly speculative, precluding habeas relief under Brady. See 

Moore, 534 F.3d at 462–63 (“highly speculative theory” insufficient to satisfy 

Brady’s materiality requirement). There is no cause to debate the district 

court’s procedural dismissal of this claim.

8. Corruption in the Bastrop Sheriff’s Department

Reed argues that “[t]he State’s failure to disclose the known corruption 

within the Bastrop County Sheriff Department deprived Reed of powerful 

evidence impeaching the credibility of the investigation.” The corruption Reed 

refers to is the indictment of a former Bastrop county sheriff for several 

offenses regarding the improper sale of county property and the wrongful use 

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of inmate labor for personal benefit. The State dismisses Reed’s Brady claim 

as entirely failing to demonstrate how the former sheriff’s offenses were 

favorable to Reed’s defense, how this evidence was suppressed, or why it was 

material.

Reed included his claim that the State suppressed evidence of criminal 

misconduct by the former Bastrop county sheriff in his fifth state habeas 

petition. The CCA dismissed the claim as an abuse of the writ. The district 

court found the claim procedurally defaulted, and further found that even if 

Reed were able to establish cause and prejudice to overcome the state 

procedural default, his claim would fail on the merits.

Reed’s discussion of this Brady claim is limited to asserting that the 

State’s failure to disclose the information deprived him of powerful evidence to 

impeach the credibility of the investigation. As the State observes, however, 

Reed has not shown that this information could have been used to impeach 

anyone who actually participated in the investigation. We thus conclude that 

the district court’s procedural ruling is not debatable.

F. Eighth and Fourteenth Amendment violations

Reed alleges that his rights under the Eighth and Fourteenth 

Amendment were violated when the jury was allowed to consider extraneous 

criminal allegations relating to a sexual assault committed in 1987, of which 

he was acquitted. In Reed’s view, the State was allowed during the penalty 

phase of trial to effectively retry the 1987 case and make closing remarks 

“designed to inflame and elicit fears in the jury.” The State counters that 

Reed’s argument is unsupported by any Supreme Court precedent, and would 

run against our own circuit precedent.

Reed raised this claim on direct appeal and in his first state habeas 

petition. It was denied on the merits in both proceedings. The district court 

adopted the magistrate judge’s recommendation that Reed’s constitutional 

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claim be denied based on Supreme Court and circuit precedent. We likewise 

deny a COA as to this claim.

In Harris v. Cockrell, 313 F.3d 238, 245–46 (5th Cir. 2002), this court 

addressed the question of whether a defendant’s right to fair sentencing is 

compromised “by the introduction of evidence concerning a crime for which he 

had been indicted but acquitted.” The Harris court expressly found that “[t]he 

introduction of evidence of extraneous offenses of which the defendant has been 

acquitted is consistent with due process,” because “[a]lthough due process 

requires the application of collateral estoppel, that doctrine does not preclude 

[the State] from relitigating an issue when it is presented in a subsequent 

action governed by a lower standard of proof.” Id. at 246 (quoting Dowling v. 

United States, 493 U.S. 342, 349 (1990)) (internal quotation marks omitted). 

The Harris court further reasoned that, “[b]ecause ‘extraneous offenses offered 

at the punishment phase of a capital trial need not be proven beyond a 

reasonable doubt,’ the relevant standard of proof necessarily was lower than 

that at [the defendant’s] criminal trial.” Id. (citation omitted). “Collateral 

estoppel therefore did not preclude the introduction of evidence pertaining to 

these charges . . . .” Id.

Harris is dispositive of Reed’s claim, and we conclude that the district 

court’s decision to deny habeas relief on this claim is not debatable.

IV. Conclusion

For the reasons discussed, we DENY a COA as to all of Reed’s claims.

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