* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

1 United States Court of Appeals

Fifth Circuit



## FILED

December 9, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 04-70005

______________________

ROBERT JAMES CAMPBELL

Petitioner-Appellant

versus

DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

___________________________________________________

Appeal from the United States District Court for

the Southern District of Texas, Houston Division

(C.A. No. H-00-3844)

___________________________________________________

Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge: *

In 1991, Robert James Campbell was convicted of capital murder

and sentenced to death for the murder of Alexandra Rendon. On June

14, 1995, the Texas Court of Criminal Appeals affirmed Campbell’s

conviction and sentence on direct review. Campbell v. State , 9101 The Texas Court of Criminal Appeals only selected portions

of this opinion for publication. The entire case is No. 701491,

slip op. (Tex. Crim. App. June 15, 1995).

2 The two grounds for relief were: (1) Campbell was entitled

to a lesser-included offense instruction for murder, felony

murder, kidnapping, and aggravated sexual assault; and (2)

ineffective assistance of counsel for not presenting testimony by

a mitigation expert during the punishment phase.

2 S.W.2d 475 ( Tex. Crim. App. 1995), 1 cert. denied

, 517 U.S. 1140

(1996). Campbell, through counsel appointed by the Court of

Criminal Appeals, filed a state habeas application raising two

grounds for relief. 2 The Texas habeas court denied habeas relief

as to each of Campbell’s claims, and on March 8, 2000, the Court of

Criminal Appeals affirmed the lower court’s denial. In late 2000,

Campbell filed a timely petition for writ of habeas in federal

district court raising seven grounds for relief. The district

court denied Campbell’s petition in its enti rety and refused to

grant a certificate of appealability (“COA”). C ampbell v. Dretke

,

H-00-3844 (S.D. Tex. March 20, 2003) [herinafter Ct. Op.]

Campbell now seeks a COA on six grounds: (1) denial of his

constitutional entitlement to a lesser-included offense

instruction; (2) constitutional error in inst ructing the jury on

the conspiracy law of parties during the liability phase of his

trial; (3) procedural default does not bar his claims that his

trial and appellate counsel provided ineffe ctive assistance; (4)

ineffective assistance of trial counsel; (5) ineffective assistance

of appellate counsel; and (6) the federal district court’s denial3

of authorization for intellectual functioning testing . We DENY

Campbell’s application for a COA on all of his claims.

BACKGROUND

On January 3, 1991, Alexandra Rendon left her job at Bank One

between 10:00 and 10:30 p.m. She was wearing a white leather

skirt, a cream-colored dress coat with snake skin patches on the

shoulders, a high school graduation ring, an engagement ring, and

a watch. At 10:53 p.m. Ms. Rendon purchased gasoline at a Chevron

st ation located near her place of employment. The next day, Ms.

Rendon’s mother realized that her daughter was missing, and on

Januar y 5, she contacted the police about her daughter’s

disappearance.

On January 14, 1991, the police picked up Lawrence Thomas,

Campbell’s friend of three years, for questioning. Thomas told the

police that Campbell had told him that he and his friend Lewis had

gotten a car from a lady at a gas station, driven her to a field,

and shot and killed her. On January 15 , Thomas led the police to

the field where Campbell had told him that Ms. Rendon’s body was

located. On January 16, the police arrested Campbell for Ms.

Rendon’s murder.

At trial, the State presented several witnesses whose

testimony tied Campbell to the commission of Ms. Rendon’s murder.

Campbell’s friends Thomas, Carey Pennamon, a nd Jesse Criff all

testified that Campbell told them that h e had shot and killed a

woman whose car he’d taken at a gas station . Campbell also3 Pennamon had also seen Campbell wearing the ring a day or

so after Ms. Rendon’s disappearance.

4 mentioned to two friends watching a news story about Ms. Rendon’s

murder, Otha Norton and Sheila Robeson, that Ms. Rendon looked like

the woman he’d shot and killed.

Additionally, Campbell told Thomas, Criff, and Pennamon that

he’d shot at Ms. Rendon twice, hitting her the second time. He

told Pennamon that he told her to “run, bitch run” before shooting

at her and told Thomas that he’d told her to walk away from the car

before shooting at her. He showed Thomas the field where he’d left

Ms. Rendon’s body, and described the location to Criff. That field

was where the police later recovered Ms. Rendon’s body.

The police also recovered many of Ms. Rendon’s belongings from

Campbell’s friends and family. They recovered the coat Ms. Rendon

had been wearing from Campbell’s mother Wilda, the class ring and

watch she had been wearing from Campbell’s gi rlfriend Demetrius

Brown, 3 and the gun used to kill Ms. Rendon from Campbell’s friend

Pennamon. Pennamon testified that Campbell had asked him to hold

onto the gun. Campbell offered Ms. Rendon’s white leather skirt,

which Thomas had seen earlier in the car Campbell was driving, to

his friends Robeson and Norton. Robeson declined the skirt because

it was dirty and Norton later threw it away. Campbell told

Pennamon that he had taken the personal belongings of the woman he

had killed. Campbell also drove numerous friends, including

Thomas, Norton, and Robeson around in a car identical to Ms.4 The degraded nature of the DNA prevented more accurate

results.

5 Rendon’s.

The police recovered semen of two men from Ms. Rendon’s body.

Campbell told Criff that he had sex with his victim and told Thomas

that Leroy Lewis, who was with Campbell th at night, had also had

sex with her. DNA testing further determined that 85.3% of

African-American males could be ex cluded from contributing the

semen attributed to Campbell, 4 and only four percent of AfricanAmerican males could have contributed the semen attributed to

Lewis.

Althou g h the draft jury charge contained instructions on

felony murder, murder, aggravated kidnapping, and aggravated

murder, the State objected to the inclusion of any lesser-included

offense instruction. The instructions given only allowed the jury

to return a verdict of not guilty or guilty of capital murder. The

jury found Campbell guilty of capital murder.

Punishment Phase

D uring the punishment phase, the State offered evidenc e of

other crimes Campbell had committed. Aside from judgments of

conviction against Campbell for two robberies, the State presented

evidence of two other carjacking crimes he committed about the time

of Ms. Rendon’ s disappearance. In both instances Campbell

confronted persons getting into their cars, abducted them, took

them to a remote location, and stole their personal possessions.6

In one instance, Campbell ordered the victim to walk away from the

vehicle and shot at him twice, missing both times. In the other,

Campbell’s accomplice talked him out of his plan to shoot the

female victim and drown her son in a nearby lake.

The defense called three family members and a friend to

testify on Campb ell’s behalf. They testified that Campbell was

r emorseful, needed rehabilitation, was loved by his family, and

would not be a future danger to society. On May 21, 1991, the jury

answered Texas’ special issues in a manner requiring the imposition

of a death sentence.

DISCUSSION

Campbel l’s § 2254 habeas petition is subject to the

Antiterr orism and Effective Death Penalty Act of 1996 (“AEDPA”)

because he filed his petition after its enactment. S ee Pub. L. No.

104-132, 100 Stat. 1214; Penry v. Johnson

, 532 U.S. 782, 792

(2001). Under AEDPA, Campbell may not appeal the district court’s

denial of habeas relief until he has obtained a COA. 28 U.S.C. §

2253(c)(1) (2000); Slack v. McDaniel , 529 U.S. 473, 478 (2000).

To obtain a COA, Campbell must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)

(2000); Miller-El v. Cockrell

, 537 U.S. 322, 336 (2003); Slack

, 529

U.S. at 483. Making such a showing requires Campbell to

demonstrate that “reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in7

a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” M iller-El

, 537 U.S. at

336 (quot ing Slack , 529 U.S. at 484). Our analysis “requires an

overview of the claims in the habeas petition and a general

assessment of their merit.” I d. A ny doubt regarding whether to

grant a COA is resolved in favor of the petitio ner, and the

severity of the penalty may be considered in making this

determination. F uller v. Johnson

, 114 F.3d 491, 495 (5th Cir.

1997).

Where the lower court denied Campbell’s claims on procedural

grounds, a COA should issue only if Campbell demonstrates both that

“jurists of reason would find it debatable whe ther the petition

states a valid claim of a denial of a constitutional right and that

jurists of reason would find it debatable whether the district

court was correct i n its procedural ruling.” S lack

, 529 U.S. at

484.

In our review of the district court’s determinations, we must

take into consideration that § 2254(d) of AEDPA requires a district

court to defer to a state court’s adjudication of a petitioner’s

claims on both pure questions of law and mixed question of law and

fact unless the state court’s determination was “contrary” to or an

“unreasonable application” of clearly established federal la w as

determined by the Suprem e Court. S ee Hill v. Johnson

, 210 F.3d

481, 488 (5th Cir. 2000). A state court’s decision is contrary to8

clearly established federal law when it “reaches a legal conclusion

in direct conflict with a prior decision of the Supreme Court or if

it reaches a different conclusion than the Supreme Court based on

materially indistinguishable facts.” M iniel v. Cockrell

, 339 F.3d

331, 337 (5th Cir. 2003). Additionally, we must defer to the

state court’s factual findings unless they “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)(2). The state court’s factual findings are

presumed to be correct and petitioner “shall have the burden of

rebutting the presumpt ion of correctness by clear and convincing

evidence.” 28 U.S.C. 2254(e)(1).

I. Lesser-Included Offense

Campbell first seeks a COA on his claim that the state court

violated his due process rights as provided by the Supreme Court in

Beck v. Alabama , by not giving the jury a lesser-included offense

instruction for the crim es of sexual assault, kidnapping, felony

murder, and murder, when the evidence would support such a verdict.

447 U.S. 625 (1980). On review of an Alabama statute that

prohibited a lesser-included offense instruction in capital cases,

the Supreme Court stated that:

[W]hen the evidence unquestionably establishes that the

defendant is guilty of a serious, violen t offense–but

leaves some doubt with respect to an element that would

justify a conviction of a capital offense–the failure to

give th e jury the “third option” of convicting of a

lesser-included offense would seem inevitably to enhance

the risk of unwarranted conviction.9

Id. at 637. However, “due process requires that a lesser-included

offense instruction be given only when the evidence warrants such

an instruction.” H opper v. Evans

, 456 U.S. 605, 611 (1982). Thus,

a lesser-included offense instruction will only be merited when

“the evidence would permit a jury rationally to find him guilty of

the lesser offense and a cquit him of the greater.” J ones v.

Johnson

, 171 F.3d 270, 274 (5th Cir.), cert. denied

, 120 S. Ct. 29

(1999).

The Fifth Circuit’s interpretation of B eck requires a trial

court judge to consider all of the evidence in the case as a whole

in determining whether a rational jury could have found the

defendant not guilty of capital murder but guilty of a lesserincluded offense. R ansom v. Johnson

, 126 F.3d 716, 726 (5th Cir.

1997); United States v. Harrison

, 55 F.3d 163, 167 (5th Cir. 1995);

Montoya v. Collins , 955 F.2d 279, 286 (5th Cir. 1992).

Fifth Circuit precedent has held that the determination of

whether a defendant is entitled to a lesser-included offense

instruction is a factual determination made by the state court and

to be entitled to habeas relief, a petitioner must rebut the

state’s holding under the “clear and convincing evidence” standard

contained in § 2254(e)(1). D owthitt v. Johnson

, 230 F.3d 733, 757

(5th Cir. 2000), Robertson v. Johnson

, 234 F.3d 890, 898 (5th Cir.5 There is, however, a debate as to whether it is correct to

classify the issue of whether a defendant was entitled to a

lesser-included offense instruction as a question of fact or a

question of law. See Bryson v. Ward , 187 F.3d 1193, 1211 (10th

Cir. 1999) (Briscoe, J., concurring) (arguing that whether a

defendant is entitled to a lesser-included offense instruction is

a mixed question of fact and law). If we were to analyze this

issue as a mixed question of law and fact we would apply §

2254(d)(1) to decide whether the state court’s decision was

“contrary to, or involved an unreasonable application of, clearly

established Federal law.” Because we find that Campbell is not

entitled to a COA under either standard and we are bound by Fifth

Circuit precedent, we do not resolve the debate in this case.

10 2000). 5 We will address each requested lesser-included offense

charge that Campbell was denied.

1. Aggravated Sexual As sault or Kidnapping but not Capital

Murder

Campbell contends that a rational jury could have found that

he kidnapped and raped Ms. Rendon but still have reasonable doubt

as to whether he killed her. Thus, he argues that the Texas state

trial court violated his due process rights under Beck when it did

not instruct the jury on the offenses of aggravated sexual assault

and kidnapping. To support this contention, Campbell relies on the

medical examiner’s testimony that the b ody’s decomposition would

have been expecte d to reach a more advanced stage if it had been

lying where it was discovered from January 3 until January 15.

Based on the examiner’s testimony, Campbell argues, the jury could

have rationally found that although Campbell kidnapped or sexually

assaulted Ms. Rendon while stealing her car on January 3, someone

other than Campbell may have killed her and left her body in the11

field on a date subsequent to January 3, because her body would

have sustained more decomposition if she had been killed and left

in the field on January 3.

Although the district court stated that the medical examiner

testified “that the body’s decomposition would have been expected

to reach a more advanced stage...unless the temperature was cool,”

Ct. Op. at 37, the medical examiner actually said that even if the

temperature was cool “there would be changes more than what we have

here.” St. Rec. Vol. 59 at 519-20. Campbell also argues that

aggravated sexual assault and kidnapping instructions were

warranted becaus e the murder weapon was discovered in Pennamon’s

possession rather than in Campbell’s.

It is not disputable that Campbell failed to present “clear

and convincing evidence” to rebut the state court’s determination

that he was not entitled to a lesser-included offense instruction.

Dowthitt

, 230 F.3d at 757-58. The evidence before the jury showed

that in the days following Ms. Rendon’s disappearance, Campbell

repeatedly bragged to multiple friends that he had shot and killed

Ms. Rendon, and he was seen wearing her class ring. Moreover, he

gave her dirty clothing to his friends and family. Considering

these admissions, in light of the whole record, jurists of reason

would agree that a rational jury could not have found Campbell

gui lty of sexual assault or kidnapping without also finding him

guilty of murder. Only by a contorted and irrational view of the

evid ence could the jury have found that Campbell kidnapped or12

sexually assaulted her and took her belongings on the day she

disappeared, but that she was murdered by an unidentified person

afterwards, although Campbell repeatedly bragged about being the

killer. We therefore deny Campbell’s request for a COA on this

claim.

2. Felony Murder but not Capital Murder

Campbell next contends that the jury may have rationally found

him guilty of felony murder rather than capital murder because it

could have had a reasonable doubt that he intend ed to kill Ms.

Rendon. Felony murder is a lesser-included offense of capital

murder. F uentes v. State

, 991 S.W.2d 267, 272 (Tex . Crim. App.

1999). The distinguishing element between the two crimes is the

“intent to kill.” Id . Therefore, Campbell is only entitled to a

lesser-included offense instruction on felony murder if he can show

that the jury could rationally have found M s. Rendon’s homicide

unintentional.

Campbell argues that the evidence shows that he shot at Ms.

Rendon with only the intent to terrify or wound her. In support of

this argument, Campbell points to the following facts: (1) the

scene of the murder was likely pitch black; (2) Campbell told Ms.

Rendon to run into the darknes s, which would have made it more

difficult for him to shoot her; and (3) the bullet wound on Ms.

Rendon’s body was located on her upper hip rather than her head.

Of that evidence, the Texas court found that the only evidence that13

tended to support Campbell’s theory was his claim that the shooting

occurred when it “may have been ‘pitch black,’” and that a rational

jury could have found that the darkness obscured his target to the

extent that his hitting her was unintentional. As the district

court explained, however, giving Ms. Rendon a chance to run into

the darkness before shooting her may have added “a sadistic element

of sport into the murder,” but not grounds for reasonable doubt as

to Campbell’s intent to kill Ms. Rendon. Ct. Op. at 32.

It is not debatable that the fact that it was dark when

Campbell shot Ms. Rendon is not sufficient clear and convincing

evidence to rebut the state court’s factual determinations.

S imilarly, no reasonable jurist could argue, given the evi dence,

that a rational jury could have found Campbell guilty of felony

mur der but not capital murder; and it therefore cannot be

reasonably maintained that the state habeas court unreasonably

applied clearly established federal law. We therefore deny

Campbell’s request for a COA on this issue.

3. Murder but not Capital Murder

Campbell next contends that a properly i nstructed jury may

have rationally found him guilty of murder but not capital murder

because the jury could have had a reasonable doubt as to whether

Campbell intentional ly caused Ms. Rendon’s death during the

commission or attempted commission of aggravated sexual assault or

kidnapping. Under Texas law, murder is defined as “intentionally

or knowingly caus[ing] the death of an individual.” T EX

. P EN

. C ODE14

§ 19.02(b)(1). Under Texas law, murder is a lesser-included

offense of capital murder, whi ch requires that a defendant

intentionally cause the death of another while in the course of

committing or attempting to commit some other crime such as

aggravated sexual assault or kidnapping. T E X

. P EN

. C ODE §

19.03(a)(2) ; Ex Parte McClelland , 588 S.W.2d 957, 959 (Tex. Crim.

App. 1979).

A. Aggravated Sexual Assault

Campbell argues that the jury could have harbored a reasonable

doubt with regard to whether he committed aggravated sexual assault

based on the following evidence: (1) Campbell told Thomas that

Lewis had raped Ms. Ren don, but did not confess to raping her

himself; and (2) while Campbell consented to providing the state

with body tissue and fluid samples, Lewis refused.

It is not maintainable that the evidence that Campbell, in his

conversation with Lewis, neither volunteered nor denied that he had

raped Ms. Rendon a nd that he provided a blood sample without the

state obtaining a warrant, rebuts the state court’s findings by the

clear and convincing evidence. D owthitt

, 2 30 F.3d at 757.

Similarly, it is not maintainable that the state habeas court’s

holdings were unreasonable in light of clearly established federal

law. Specifically, no rational jury could have convicted Campbell

of murdering Ms. Rendon but not sexually assaulting her. We

therefore deny a COA on this issue.

B. Kidnapping15

Campbell argues that there was sufficient basis for a rational

jury to find that he killed Ms. Rendon without kidnapping her

because of Thomas’ testimony that Campbell said Ms. Rendon complied

when he “just told her to get in [her car]” with Campbell and Lewis

at the gas station, St. Rec. Vol. 58 at 145-46, because it tends

to create a doubt as to whether Campbell made her leave the gas

station with him by means of force, intimidation, or deception, as

would be required under Texas law to uphold a verdict of

kidnapping. As the district court properly noted, however, before

Thomas so testified, he had earlier told the police that Campbell

told him that he forced Ms. Rendon into the car. Furthermore, as

the district court properly explained:

Logic defies the assumption that Ms. Rendon, a bank

employee who stopped to get gasoline in her car after

leaving work at night, would voluntarily get into her

vehicle with two strangers, having not me t them before

and with at least one of them carrying a gun, and then

proceed to an out-of-the-way location merely because one

of the men “just told her to get in it.”

Ct. Op. at 36.

We agree. It cannot be maintained that Campbell presented

clear and convincing evidence rebutting the state court’s findings.

Similarly, it is not maintainable that the state habeas court’s

holding was unreasonable in light of clearly established federal

law. We therefore deny a COA on this issue.

II. Jury Instructions on The Law of Parties During The Liability

Phase

Campbell’s next request for a COA relies on the Supreme

Court’s holding in Enmund v. Florida that it violates the Eighth16

Amendment to execute someone for aiding in a murder that he himself

did not commit. 458 U.S. 782 (1982). He argues that based on the

holding in Enmund

, he is entitled to a COA on the issue of whether

the inclusion of the “law of the parties” charge during the guiltinnocence phase of trial led to a constitutional error during the

punishment phase. I d. Campbell argues that the trial court’s

instructions created a substantial risk that the jury answered the

special issues requiring imposition of the death penalty upon

Campbell without finding that Campbell killed, intended to kill, or

intended that a killing take place as required for a death sentence

to comport with the Eighth Amendment. Id

.

Over Campbell’s objection, the cha rge submitted to the jury

during the guilt-innocence phase contained the following

instruction:

If, in an attempt to carry out a conspiracy to commit one

felony, another felony is committed by one of the

conspirators, all conspirators are guilty of the felony

a ctually committed, though having no intent to commit

it, if the offense was committed in furtherance of the

unlawful purpose and was one that sho uld have been

anticipated as a result of the carrying out of

conspiracy.

St. Rec. Vol. 1 at 185.

During the punishment phase the trial court judge did not give the

jury an “anti-parties” instruction, specifying that conspiratorial

liability does not apply to the punishment phase and that Campbell

should not get the death penalty unless he personally killed Ms

Rendon.6 Special Issue No. 1 asked:

Was the conduct of the defendant, Robert James Campbell,

that caused the death of th e deceased committed

deliberately and with the reasonable expectation that the

death of the deceased or another would result?

This Court, in Beyleu v. Scott , 67 F.3d 535, 543 (5th Cir. 1995)

, and Andrews v. Collins

, 21 F.3d 612, 630-31 (5th Cir. 1994), found

that asking whethe r “the conduct of defendant was committed

deliberately and with the expectation that death would result” in

the special issue requires the finding of individual liability.

7 St. Rec. Vol. 1 at 227.

17 Language identical to the language contained in th e first

special issue in the instant case, however, has been held to

include the requirement of a jury finding of individual liability

during the punishment phase. 6 B eyleu v. Scot t , 67 F.3d 535, 543

(5th Cir. 1995); Andrews v. Collins

, 21 F.3d 612, 630-31 (5th Cir.

1995). Furthermore, “th[e] structure of the punishment phase

reasonably lead[s] the jury to assume the law of the parties was

not applicable during this phase.” W estley v. Johnson

, 83 F.3d

714, 723 (5th Cir. 1996).

Campbell’s attempts to distinguish prior Fifth Circuit cases

because the trial court judge instructed the jury t o consider

eviden ce from both phases “in accordance with the previous

instructions of the court” 7 fail for the three reasons clearly

stated by the district court. First, the jury instructions during

the punishment phase told the jury to make an “i ndividualized

determination...of the personal culpability of...Campbell.” St.

Rec. Vol. 1 at 225. Second, the closing arguments by both sides8 We discuss the third ground below.

18 informed the jury that deliberations during the punishment phase

must focus on Campbell’s conduct alone. Finally, the evidence

before the jury contained few details about Lewis’ personal

culpability in crimes other than rape of the victim.

As for Campbell’s argument that the trial court erred by not

including a conspiracy instruction in the application portion of

the jury charge, as the district court noted, Campbell does not

cite any case finding a federal right to such instruction and

Campbell is unable to tie the application paragraph to a federal

Enmund right. Because reasonable jurists would not debate the

correctness of the dis trict court’s determination that the Texas

habeas court’s decision did not involve an unreasonable application

of clearly established federal law, we deny Campbell a COA on this

issue.

III. Procedural Default of Ineffective Assistance of Counsel Claims

In district court, Campbell asserted a habeas claim based on

ineffective assistance of his trial and appellate counsel on three

grounds. Campbell concedes that he did not raise in state court:

(1) trial counsel’s failure to object to, and request limiting

instructions regarding, the admission of certain hearsay testimony;

and (2) appellate counsel’s failure to raise several points of

error on direct appeal in state court. 8 He recognizes that 28

U.S.C. § 2254(b) requires him to present and exhaust any habeas9 Because Campbell has already brought a request for habeas

in state court, however, Texas’ abuse-of-the-writ doctrine would

prevent the presentation of these claims in a successive habeas

application. See T EX

. C ODE C RIM

. P RO . art. 11.071 § 5(a).

10 Campbell does not rely on the “manifest injustice”

exception to procedural bar.

11 T EX

. C ODE C RIM

. P. art § 2(a) states that a person seeking

habeas relief from imposition of the death penalty: “shall be

represented by competent counsel unless the applicant has elected

to proceed pro se....”

19 claim he may have in state court before bringing a habeas claim on

those grounds in federal court. 9 Campbell argues, however, that he

can overcome that default by demonstrating cause for the defaults

and actual prejudice, which would excuse his procedural default. 10

Ogan v. Cockrell , 297 F.3d 349, 356 (5th Cir.), cert. denied, 537

U.S. 1040 (2002).

To establish cause, Campbell asserts that his state appointed

counsel was ineffective in not raising those claims of ineffective

counsel in Campbell’s sta te habeas proceedings. He argues that

although there is no Sixth Amendment right to effective habeas

counsel, bec ause Texas law provides for state appointed habeas

counsel, 11 a due process right attaches to that state-created right

and protects Campbell from an arbitrary deprivation of that right.

He bases his argument on the Supreme Court’s decision in Coleman v.

Thompson

, 501 U.S. 722 (1991), which held that an inmate generally

has no r ight to effective representations in post-conviction

proceedings, but expressly did not reach the question of whether

that reasoning also applied when the state habeas forum is the20

“first forum in which a federal claim can be raised.” I d. at 750.

Campbell is correct that the Supreme Court left that question

unanswered. As the district court properly noted, however, the

Fifth Circuit has consistently r ejected the argument that

compliance with Texas’ statutory provision guaranteeing the

appointment of “competent” counsel in st ate habeas proceedings

mandates constitutionally effective representation even where, as

here, state habeas proceedings are the first forum in which

petitioner could assert such claims. O gan

, 297 F.3d at 357;

Martinez v. Johnson

, 255 F.3d 229, 245 (5th Cir. 2001); In re Goff

,

250 F.3d 273, 274-76, (5 th Cir. 2001). This Court has clearly

stat ed that “ineffective assistance of habeas counsel cannot

provide cause for a procedural default.” M artinez

, 255 F.3d at

241.

Other Circuits to address this issue similarly f ound

insufficient “cause” for a pr ocedural default based purely on a

habeas petitioner’s collateral counsel’s ineffectiveness. S ee

Mackall v. Angelone , 131 F.3d 442, 449 (4th Cir. 1997); H ill v.

Jones , 81 F.3d 1015, 1024-26 (11th Cir. 1996); Bonin v. Calderon

,

77 F.3d 1155, 1159-60 (9th Cir. 1996); Nolan v. Armontrout

, 973

F.2d 615, 616-17 (8th Cir. 1992). Accordingly, we conclude that

jurists of reason could not debate whether Campbell has made out a

claim of cause for his procedural default. The d istrict court did

not err in denying Campbell a COA on the issue of ineffective21

assistance of trial and appellate counsel. We therefore deny a COA

on Campbell’s claims that his counsel failed to object and request

limiting instructions regarding the admission of certain hearsay

testimony and failed to raise several points of error on direct

appeal.

IV. Ineffective Assistance During the Punishment Phase :

Campbell argues that he did present his third claim of

ineffective assistance of counsel in state court. He requests a

COA on the i ssue of whether he received constitutionally

ineffective assistance of counsel because his trial counsel did not

do an adequate investigation of mitigation evidence for the

punishment phase. In support of his claim, Campbell presents

affidavits by friends and family members describing Campbell’s

abused childho od and stating that Campbell’s attorneys had not

previously asked them about his childhood. The state argues, and

the district court found, that Campbell’s claim on this issue is

procedurally barred because he did not present those affidavits in

state court. Because the lower court denied Campbell’s claims on

procedural grounds, a COA should issue only if Campbell

d emonstrates that “jurists of reason would find it deb atable

whether the pe t ition states a valid claim of a 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.

Exhaustion of Remedies in State Court?22

“The exhaustion requirement is satisfied when the substance of

the habeas claim has been fairly presented to the highest state

court” so that a state court has had a “fair opportunity to apply

controlling legal principles to the facts bearing on the

petitioner’s constitutional claim.” S o ffar v. Dretke , 368 F.3d

441, 465 (5th Cir. 2004).

Exhaustion inquiries are case and fact-specific and “dismissal

is not required when evidence presented for t he first time in a

habea s proceeding s upplements

, but does not fundamentally alter

,

the claim presented to the state courts.” Anderson v. Johnson

, 338

F.3d 382, 387 n.8 (quoting Caballero v. Keane

, 42 F.3d 738, 741 (2d

Cir. 1994)). But “[s]ubstantial evidence rising to a ‘180 degree

turn’ will render a claim unexhausted.” I d. at 389 n.26.

Furthermore, a petitioner has not exhausted his state claim when he

offers material additional factual allegations and evidentiary

support to the federal court that were not presented to the state

court. D owthitt

, 230 F.3d at 746; Barrientes v. Johnson

, 221 F.3d

741, 761 (5th Cir. 2000); Gra ham v. Johnson , 94 F.3d 958, 968-69

(5th Cir. 1996).

Although Campbell’s state habeas petition stated that his

trial counsel did not do an adequate mitigation investigation, the

claim was in the context of arguing that counsel should have

presented the testimony of a mitigation specialist during the

punishment phase of Campbell’s trial. Specifically, in the state23

habeas proceedings Campbell argued that he was:

[D]enied effective assistance of counsel during the

punishment phase of his trial when trial counsel failed

to adequately investigate [his] history, when such

historical information was essential in the preparation

of a biopsychological assessment by an expert in the area

of mitigation, thereby denying [Campbell] the opportunity

to present mitigating evidence during punishment.

His pe tition failed to allege what specific facts such an

investigation would have uncovered in Campbell’s case or any facts

tending to show that Campbell’s trial attorney did not investigate

Campbell’s background. He relied solely on the fact that his state

trial counsel did not present a mitigation expert’s testimony.

The state habeas court found that Campbell’s trial counsel’s

strategy to not use a mitigation expert was reasonable and that

trial counsel did present evidence of Campbell’s background that

was within the scope of the special issues submitted to the jury

during the punishment phase. Because in the state habeas

proceedings Campbell did not allege any other facts tending to show

that Campbell’s trial lawyer failed to investigate his background,

the state habea s court did not perform any further analysis.

Although Campbell now faults the state habeas court for not holding

an evidentiary hearing, he gave no indication to the state court

that he had any evidence that Campbell’s state trial counsel did

not investigate Campbell’s background.

Before the federal district court, Campbell argued not that

his state trial counsel should have investigated his background for24

the purpose of prese nting expert testimony, but alleged more

broadl y that trial counsel was not adequately informed as to

Campbell’s background. For the first time in federal court

Campbell submitted affidavits by Campbell’s family and friends

stating that Campbell’s state trial counsel did not ask them about

Campbell’s background and describing various aspects of Campbell’s

childhood. Campbell’s state habeas counsel did not make any of

these allegations. Thus, as the district court explained, because

Camp bell’s claim in federal court did “not focus on counsel’s

preparation of information to be used by an expert, but the

preparation of substantive evidence for trial...The expanded

breadth and divergent focus render Campbell’s current habeas claim

unexhausted.” Ct. Op. at 57.

Because Campbell’s state habeas claim only briefly mentioned

counsel’s failure to investigate Campbell’s background and instead

focused on counsel’s failu re to present testimony from a

“mitigation expert,” Campbell’s claim took a “180 degree turn” in

federal court when he presented for the first time specific factual

allegati ons that Campbell’s state habeas counsel did not

investigate his background and allegations of the facts they would

have uncovered if they had. See Anderson , 338 F.3d at 389 n. 26,

Dowthitt

, 230 F.3d at 746; Graham

, 94 F.3d at 968. For those

reasons, reasonable jurists would not find debatable that the state

court did not have a “fair opportunity to apply controlling legal

principles to the facts bearing on the petitioner’s constitutional25

claim” when Campbell presented no specific facts of a failure to

investigate Campbell’s background to the state court. S offar

, 368

F.3d at 465. Because Campbell’s arguments attempting to establish

“cause” for and “prejudice” from his procedural default are no

different than the arguments he asserted for his other claims of

ineffective assistance of counsel, they fail for the same reasons.

We therefore deny Campbell’s request for a COA on this issue.

V. Authorization for IQ testing

Finally, Campbell requests a COA on the issue of whether the

distr ict court erred by not giving him funding to pursue his IQ

testing. Campbell’s original state and federal habeas petitions

did not allege that he was m entally retarded. Almost two years

after Campbell filed for habeas relief in federal court, the

Supreme Court held in Atkins v. Virginia that execution of mentally

retarded individuals is unconstitutio nal. 536 U.S. 304 (2002).

Prompted by that ruling, Campbell filed a successive state writ

application claiming for the first time that his death sentence was

invalid under Atkins because he was mentally retarded. After the

Texas Court of Criminal Ap peals dismissed Campbell’s subsequent

applic ation as an abuse of the writ, Campbell filed a motion in

this C ourt requesting authorization to file a successive federal

habeas petition pursuant to the “new rule” exception contained in

28 U.S.C. § 2244(b)(2)(A). This Court denied Campbell’s request

when it found that Campbell had not stated a p rima facie case of12 Section 848(q)(9) allows for the court to “authorize

[public funds for] a [capital] defendant’s attorney to obtain

services” that are “reasonably necessary for the representation

of the defendant.” 21 U.S.C. § 848(q)(9).

26 mental retardation under Atkins because he presented no evidence of

impaired mental functioning but only that he was “at risk” of being

mentally retarded. I n re Campbell , 82 Fed. Appx. 349, 351 (5th

Cir. 2003).

After this Court denied Campbell’s request for authorization

to file a successive habeas petition, Campbell filed a motion with

the district court requesting funds for IQ testing under 21 U.S.C.

§ 848(q)(9). 12 The district court denied Campbell’s motion on the

grounds that he could not authorize public funds for the

prosecution of a theory that the Court of Appeals has found

insufficient to support the filing of a successive habeas petition.

A lower court’s denial of a motion for authorization of funds

is reviewed for a buse of discretion. R iley v. Dretke

, 362 F.3d

302, 304 (5th Cir. 2004). To be entitled to IQ testing, Campbell

must “show that he is indigent and that the requested assistance is

‘reasonably necessary’ for his representation.” Id. at 307.

And to be entitled to additional discovery, Campbell must show

“good cause.” H ill

, 210 F.3d at 487; Rules Governing § 2254 Cases,

Rule 6(a). “Good cause” generally exists when a habeas petitioner

has “establish[ed] a prima facie claim for relief.” Id. (quoting

Murphy v. Johnson , 205 F.3d 809, 814 (5th Cir. 2000)). Because27

this court previously ruled that Campbell failed to make out a

prima facie Atkins claim and was therefore not entitled to file a

successive habeas petition before Campbell re q uested funds to

further investigate his claim, reasonable jurists would not find it

debatable that the district court did not abuse its discretion when

it denied Campbell funding for IQ testing. We therefore deny a COA

on this issue.

CONCLUSION

For these reasons, we DENY Campbell’s application for a COA on

all of his claims.