### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-70026

MICHELLE BYROM, Petitioner–Appellant
v. CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS Respondent–Appellee

Appeal from the United States District Court for the Northern District of Mississippi

(06-CV-142)

Before DAVIS, SMITH, and PRADO, Circuit Judges. PER CURIAM: * Michelle Byrom (“Byrom”) was charged with capital murder following the d e a t h of her husband, Edward Byrom, Sr. (“Edward”). The jury found Byrom guilty, and the state court judge sentenced her to death. Byrom’ s a p p e a l and petition for post-conviction r elief were b oth denied by the Mississippi S upreme Court. Thereafter, Byro m p e titi oned for federal habeas relief o n twelve separate grounds. The district court denied Byrom’s petition, but granted her request for U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 28, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-70026 Document: 00512190481 Page: 1 Date Filed: 03/28/2013No. 11-70026

a certificate of appealability (“COA”) on five claims: (1) whe t her evidence was improperly suppressed; ( 2) whether Byrom had statements taken i n violation of her privilege against self-incrimination; (3) whether t h e trial court f ailed to consider all mitigating evidence; (4) whether h er waiver of a jury sentencing was valid; 1 and (5) wheth e r c o unsel was ineffective in failing to i nvestigate and present all available mitigating evidence. In addition to appealing most of those cl a i m s f o r which a COA was granted, Byrom has moved for an expanded COA

on two issues consid e r e d b y t he district court: (1) whether the exclusion of jailhouse letters from B y r o m ’ s son as a discovery sanction violated Byrom’s rights; and (2) whether B yrom received ineffective a ssistance of counsel when her trial attorney committed a discovery violation, thereby c ausing the exclusion

o f her son’s jailhouse l etters. For the reasons that follow, we d e n y B y r o m ’ s motion for an expanded COA and deny her habeas petition. I. Factual and Procedural Background On Ju n e 4 , 1999, Byrom was admitted t o the Iuka Hospital in Iuka, M i ssissippi with double pneumonia. H er admission was part of a rec u r r i n g series of illnesses caused in part by substance abuse a n d s e l f harm. 2 She was dropped off at the hospital by her h usband, Edward, who then returned home. Later that day, responding to a 9 11 call from Byrom’s son, Edward B yrom, Jr. (“Junior”), police f

ound Edward slumped over a coffee table in the family’s home. Edward had be e n shot four times in the chest with his own nine-millimeter pistol. After questioning Byrom and Junior in the hours after the murder, the

1 D es p ite receiving a CO A as to w hether Byrom valid ly w aived her ju r y s e n t e n c ing, Byrom ’s brief d oes not contain any inf orm ation or argum entation on this p oint. Accord ingly,
w e d eem it w aived

.

2 Byrom re c e i ve d a num ber of m ed ications up on being ad m itted to the hos p ital and throughout her s tay. Thes e d rugs includ ed Talw in, a p aink iller; Flexeril, a m us cle relaxant; Prilos ec, f

or s tom ach acid ; R es toril, a s leep aid ; Synthroid , a thyroid m ed ication; Pred nis one and Plaqueril, to treat lup us ; Zolof t, an antid ep res sant; and Librium , f or the a gi t a t i o n as s ociated w ith alcohol w ithd raw al. 2 Case: 11-70026 Document: 00512190481 Page: 2 Date Filed: 03/28/2013No. 11-70026

police came to b elieve that Byrom had hired one of J unior’s friends, Joey Gillis (“Gillis”), to murder Edward in exchange for $15,000 of Edward’s life insurance policy. Al l three individuals—Byrom, Junior, and Gillis—were subsequently arrested. By all accounts, the Byrom household was a particularly discordant place. Byrom a nd Edward frequently fo u gh t about money-related issues, and Junior would s ometimes i ntervene when the fights e scalated. Edward was physically, sexually, and verbally abusive to Byrom. He o ften ab u s e d J u n ior as well, generally in response to Junior’s partying, drinking, and drug use. Byrom and Edward themselves drank frequently, and it a ppears the family’s figh ts were

worse when alcohol was involved. Junior claims that, in the six months leading
up to Edward’s murder, the family would engage i n heated arguments that involved yelling and c ursing at least twice a week. Byrom also suffered verbal, physical, and se x u a l abuse as a child at the hands o f her stepfather, which resulted in her leaving home at around age fifteen. Acco r d i n g to Byrom a nd Junior, Edward frequently withdrew into the family’s entertainment room when he was home, often eati n g a n d sleeping there. That ro o m , which had shag carpet o n the walls and b lack plastic over the windows, had f

unctioned as a sound studio at one p oint. However, Byrom claims that Edward had more r ecently us e d the room t o indulge his addiction to pornography. As part of that addiction, Byrom alleges that Edward forced her to engage in sexual acts, some o f which he videotaped. Byrom’s c l a i m s were partially substantiated by videotapes recovered by police. B yr om claims that Edward’s recurrent threats and abuse prevented h e r from leaving him. I nstead, she arranged to have Edward m u r d e r e d

. Junior testified that Byrom a pproached him about having Edward murdered sometime in May 1999, after a particularly r owdy party at which Edward became belligerent and abusive t o b oth Byrom and Junior. Ju n ior testified that,

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approximately o ne week before the m u r d e r , he asked h is friend, Gillis, about murderi n g E dward. Gillis would e ither commit th e murder himself or find

s omeone else to do it and would receive $ 15,000 in exchange. After t wo fai l e d attempts, Edward was murdered on June 4, 1999. Although the precise order of B yrom’s and Junior’s initial i nterviews with police is disputed, it seems that police became suspicious of Junior a t the crime

scene and took him into custody for questioning as a r esult. 3 An inv e s tigator from the Mississippi Highway Patrol went to the hospital to interview Byrom, but police did not suspect Byrom’s i nvolvement at the time; th e y w e n t to ask

ab o u t w eapons in the home and the relationship b etween Edward and Junior. However, Junior made s u s p i c ious statements during h is interview with the police, which p rompted them to return to the hospital at around 10 : 4 7 p . m . to question B y r om further. It was during that interview that B yrom began implicating herself, Junior, and G illis in a murder-for-hire plot. On October 21, 1999, Byrom was indicted under Miss. Code Ann. § 97-3-19(2)(d), which criminalizes murder p erpetra t e d by a person who has b een offered or who has received anything of value for committing a murder, as well as all parties to the murder. During their incarceration, Byrom and Junior exchanged a n u m b er of letters. In at least two of these letters—letters that polic e d i d n o t i ntercept— Junior accepts complete responsibility for Edward’s murder and disclaims the existence of a m urder-for-hire conspiracy. In o ne of the letters, Junior claims he alone murdered E dward and that he did so for purely personal reasons. In the other letter, Junior describes the murder in detail. Defense counsel came into

3 P olice w ere sus p icious of Junior f or m u l t i p l e r e as ons . Firs t, Junior told the 911 d is p atcher that his f

ather had been s hot. When p olice arrived , how ever, Junior as ked w hether Ed w ard had s uf

f ered a heart attack

. Second , Junior had cuts on his k nuck l e s a n d blood on the back of his p ants

. It w as later d eterm ined that the blood was Junior’s

. The blood and the cuts w ere s up p os ed ly the res ult of p unching a d oor af ter dis covering Ed ward ’s bod y. 4 Case: 11-70026 Document: 00512190481 Page: 4 Date Filed: 03/28/2013No. 11-70026

possession of the letters some time before trial. Then, at B yrom’s pretrial hearing in October 2000, defense counsel alluded to the e x i s t e n c e o f letters, acknowledging the possession of ma t e r i a l s i n tended for use as impeachment evidence against Junior if he t e s t i f i ed consistently with the prosecution’s murder-for-hire theor y . 4 Defense counsel was told to produce th e material or risk its exclusion at trial. Counsel refused. At trial, Junior t estified against his mother i n support of the prosecution’s murder-for-hire theory. During cross-examination, defense counsel attempted to impeach Junior using the f i rst letter t o suggest that there was no m urder-forhire plot. The prosecution objected because the letter h ad not previously been disclosed. Byrom’s attorne y c l a i m e d that the applicable rule did not mandate pretrial disclosure since Junior and the letter were not p art of the defense’s casein-chief. The court recessed for the day t o con s i d e r the i ssue, and the prosecution was given a n opportunity to question Junior about the l e t t e r s. When asked whether h e had withheld any other evidence, Byro m ’ s a ttorney stated that they had “other impeachment evidence” that they intended to use to

“ i mpeach the daylights” out of Junior. Counsel was admonished that furt h e r nondisclosure would r esult i n e x c l usion of the evidence and further delay; nondisclosure was at counsel’s “own peril.” The next day, the c ourt determin e d t h a t the letter would be excluded as

a s anction for counsel’s deliberate d i s c o v ery violation. The court, h owever, l imited the scope o f its sanction. Byrom’s c ounsel was allowed to ask Junio r about the letter’s contents using direct quotes, but counsel could neither handle the letter n or r eference i t s existence in front of the jury. The court acknowledged that this amounted to s plitti n g h a i r s, but nevertheless f elt that thi s r e m e dy p r o p e rly r e dr essed counsel’s discovery violation. Counsel attempted

4 Junior agreed to tes tif y agains t his mother in exch a n g e f o r a p lea bargain to les s er charges in the m urd er- for- hire p lot. 5 Case: 11-70026 Document: 00512190481 Page: 5 Date Filed: 03/28/2013No. 11-70026

to impeach Junior with the second l e t t er as well, which r e sulted in a second recess and an identical sanction. During cros s -examination of Junior, counsel was able to read di rectly from the letters, and Junior admitted to many of the facts B yro m ’s attorney sought to e stablish. For instance, J unior a d m itt e d to t e lling different stories to different people regarding his role i n Edward’s death; J unior admitted that he wrote to his mother taking responsibility for the murder; and he a d m i t t ed that he had told others that no m u rder-for-hire conspiracy existed. Junior nevertheless denied other details from the letters, including that he alone killed Edward. On re-direct, the prosecution questioned J unior about the circumstances

surro unding the jailhouse letters. J unior testified th at he and B yrom had realized their letters were being intercepted and that the letters in question had been written with an a u d i e n c e o f law enforcement officers in mind. Junior claimed that he w rote the letters at a time of deep depression, during which he was “ready to take the rap for everything.” The jur y f

o u n d Byrom guilty of capital murder on November 17, 2000. After her conviction, B yrom petitioned to waive her right t o a jury sentencing. The pro s e c u t i o n concurred w ith Byrom’s request, and the court found that Byrom had made a valid waiver of her right. At the sentencing hearing, Byrom did not pr e s e n t a ny witnesses. 5 Instead, she offered the reports of a defense expert and a court-ordered psychiatrist, a s well a s the medical records from a doctor. These re p orts and records documented Byrom’s long history of abuse and illness. After considering mitigat i n g a nd aggravating factors, the judge sentenced Byrom to death by lethal injection.

5 D ef ens e couns el ap p arently believed that the trial court had m ad e several revers ible errors p rior to s entencing and

— anticip ating a retrial— couns el d id not want the p ros ecution to k now about their m itigation evid ence. Ad d itionally, B yrom w aived her jury s entencing on the belief that d oing so w ould create a con f l i c t f o r the trial jud ge at the retrial and becaus e they f elt the w aiver its elf m ight be ground s f or revers al. 6 Case: 11-70026 Document: 00512190481 Page: 6 Date Filed: 03/28/2013No. 11-70026

Byrom’s direct appeal and petition for post-conv i c tion relief were both denied by the Mississippi Supreme Court. Byrom v . State , 863 So. 2d 836 (Miss. 2003); Byrom v. State , 927 So. 2d 709 (Miss. 2006). Byrom then petitioned the district c our t f

or federal habeas relief on twelve grounds. The district court denied B yrom’s petition i n its entirety, but granted a COA as to five claims. Byrom v. Epps , 817 F. S upp. 2d 868 (N .D. Miss. 2011). Byrom appealed to this Court on four of the five claims for which the district court granted a COA. She also sought an expanded COA as to two claims rejected below. II. Expanded Certificate of Appealability A. Applicable Law A s a jurisdictional matter, under the Antiterrorism and Effective Deat h Penalty Act of 1 996 (“AEDPA”), petitioners may not appeal the denial of habeas relief without securing a c e r tificate of a ppealability (“COA”). 2 8 U.S.C. § 2 2 5 3 ( c)(1); Miller–El v. Cockrell , 537 U.S. 322, 336 (2003). A COA is o n l y warranted if the petitioner m akes “a s ubstantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, Byrom must d emonstrate “th a t r e a s onable j urists could debate whether (or, for that matter, agree that) the petition should have been r esolved i n a different manner

or that the issues presented were adequate to deserve encouragement to proceed further.” Miller–El , 537 U.S. at 336 (quotation marks omitted). When reviewing a district c ourt’s denial of a COA, this Court m ust issue

a COA if “reaso n ab l e j u rists would find the district court’s a ssessment of the constitutional c laims debatable or wrong. ” I d

. a t 3 38. “[A] claim can be debatable e ven though every jurist of r eason might a gree, after the COA has been granted a nd the case h as received full considerat i o n , that petitioner will not prevail.” Id

. a t 3 38. Moreover, “ [i]n death penalty cases, any doubts as to whether the COA should issue are resolved in favor of the petitioner.” Moore v.

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Quarterman , 534 F.3d 454, 4 60 (5th C ir. 2008) (citing Lamb v . Johnson , 179 F.3d 352, 356 (5th Cir. 1999)). Here, the district court granted Byrom a COA as to five claims and denied the rest. Byrom has since moved for an expanded COA regarding two of her claims. First, Byrom alleges that the trial court’s e xclusion of her son’s jailhouse l e t t e rs violated h er Sixth and Fourteenth Amendment constitutional rights. Second, Byrom claims she received ineffective assistance of counsel when her trial attorney willfully withh e l d the jailhouse letters, thereby c ausing their

e x c lusion at trial. A s such, the Court must examine the district court’s d e n i a l of these claims t o determine whether “reasonable jurists would find the district court’s a ssessment of the con s t i tutional c l aims d ebatable or wrong.” Michael Williams v. Taylor , 529 U.S. 420, 484 (2000). B. Exclusion of the Jailhouse Letters Byrom r eceived at least two letters fr o m J u n i o r while they were both incarcerated. In these letters, which were purportedly w ritten with the intention that law enforcement intercept them, Juni o r t o o k f ull r esponsibility for Edward’s murder and disclaimed the existence o f a murder-for-hire scheme. These l etters were given to Byrom’s attorney, who intended to use the l etters as impeachment evidence if J u n i o r testified consistently with the prosecution’s theory of the case against Byrom. Before trial beg a n, the court w arned Byrom’s counsel t o disclose impe a chment evidence t o the prosecution or risk discovery s anctions at trial. D i s r e g ar di n g th e c o u rt’ s a d m o nition, counsel withheld the letters until they we r e unveiled durin g Junior’s cross-examination. Counsel did so f or strategic surprise, as well as to ensure that Junior would remain a key prosecution witness. Byrom’s attorney also believed that his tactic was permissible under

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the relevant rule, a c laim the court did not accept. 6 As a sanction, the trial court barred counsel from referencing or handling the letters i n front of the jury. Nevertheless, counsel was permitted to question Junior about the letters and to read directly from the letters while questioning him. During cross-examination, Junior admitted t o offering different accounts of th e murder to different people, including pre v ious statements taking complete r e sponsibility for the murder. Junior did, however, ultimately deny direct responsibility f or his father’s death. On re-direct, Junior said he t o o k responsibility for the murder in the letters because they were written during a time of deep depression and that he did so to exonerate Byrom and Gillis. The Mississippi Supreme Court, on direct appeal, rejected Byrom’s claim that the letters’ exclusion was improper. Byrom v. State , 863 So. 2d 836, 869–71 (Miss. 2 003). The court ana l y z e d t h e relevant state discovery rule and d e t ermined that the trial court followed the correct procedure and r e a c h e d a n appropriate outcome. Id. at 868–71. That same court also rej e cted Byrom’s assertion that the e xclusion wa s p r ejudicial since Byrom’s counsel was nevertheless able to elicit testimony from Junior that favored Byrom’s theory of the case using the letters’ contents. Id. at 871. On review, the district court deferred t o the state court’s i nterpretation of its own evidentiary rules since it did not appear that the court was attempting to evade a federal issue. Byrom v. Epps , 817 F. S upp. 2d 8 68, 887 (N.D. Miss. 2011). The district court found that it w as not improper t o exclude d i r ect

6 In M is s is s ip pi, a recip rocal d is covery rule required that d ef ens e couns el d is clos e “the contents of any s tatem ent, written, record ed or otherw is e p res erved” f or “all w itnes s es in chief
w hich the d ef

end ant may of

f er at trial[

. ] ” U RCCC 9. 04( C) ( 1)

. Byrom contend ed that this rule d id not require dis clos ure of Junior’s letters becaus e “they w ere to be of f ered f or im p eachm ent p urp os es only and not as s ubs tantive evid ence in her cas e- in- chief

. ” Byrom , 863 So. 2d at 868. Bas ed on p rior p reced ent, the M is s is s ip p i Sup rem e Court rejected Byrom ’s claim becaus e the relevant rule is concerned with d is couraging the s ort of “trial by am bus h” that couns el had attem pted

. Id. at 869 ( quoting C oa tes v . Sta te , 495 So. 2d 464, 467 (M is s . 1986) ).

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references to the jailhouse letters as a s anct i o n for willfully withholding them
p r i o r to trial. Id. Further, the sanction was carefully crafted to let defense counsel “ question Ju n i or extensively from the letters in order to provide the defense with the opportunity t o present its theory of the murder.” Id. at 887–88. In fact, trial counsel read p ortions of th e letters verbatim. Id. a t 888. Because trial counsel’s discovery vi olation was a willful, strategic tactic, a nd because the sanction itself deprived Byrom’s defense of very little, the district court denied habeas relief. Id. Byrom bases her motion for an expanded COA o n Taylor v. Illinois , 484 U.S. 400 (1988), an attempted murder case i n which the trial court excluded a defense witness b ecause of trial counsel’s willful failure to disclose the witness prior to trial. 484 U.S. at 401–02. In Taylor , the d e fendan t ’ s a t t o r ney did not disclose the existence of a witness until the second day of trial, de spite the
pr o s e cution’s pre-trial request for a list of all defense witnesses and an amendment defense counsel made to his witness list on the first day of trial—an amendment that did n o t include the withheld witness. Id. at 403–04. When asked about the failure to disclose his witness, defense counsel claimed to have only re c e n t l y located the witness. Id. at 404. This, however, was n ot true. Before determining whether the new w itness could testify, the court conducted its own examination of the witness. I d. During that c olloquy, the witness disclosed that he and the attorney h ad f irst met months before, and that counsel visited him around a w eek before trial b egan. I d. at 4 05. The w itness also made statements suggesting he had not actually witnessed the altercation a t issue. Id. at 404–05. The trial judge concluded that c o mplete exclusion of the witness’s testimony was the appropriate sanction in light of the att o r n e y ’s d eliberately misleading statements and the likelihood that th e w i t n ess had not in fact witnessed the altercation that gave rise to the case. Id. at 405.

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In upholding the sanction, the S upreme Court rejected b o t h parties’ extreme positions: “Petitioner’s claim that the Sixth Amendment creates an absolute bar to the p reclusion of t he testimony of a surprise witness is just as extreme and j ust as unacceptable as the State’s position that the Amendment is simply i rrelevant.” I d. at 410. Instead, the C ou r t d e c i d e d that a c omplete evidentiary e xclusion was an acceptable sanction in certain situations, though it declined to enumerate a definitive test. Id. a t 414–16. Given the nature of the violation in Taylor , the Court found “the i nference that [counsel] was deliberately seeking a tactical advantage

. . . inescapable.” Id. at 417. Because

c o u n s el’s violation was “willful and blat a nt , ” c o m p l e t e e xc lu s io n w a s a p p r o p ri at e , regardless whether “prejudice to the prosecution could have been avoided.” I d. at 416–17. Here, Byrom attempts to distinguish the facts of Taylor in order to undermine the v alidity of the trial court’s di s c ov e ry s a n c ti o n , which B yrom views

as identical t o the s anction levied in Taylor

. Byrom characterizes the s anction here a s a complete e xclusion and claims that it was inappropriate because Taylor was n ot a capital murder case and the attorney in T a y lor went so far as to deliberately mislead the court. Here, Byrom’s a ttorney believed withholding Junior’s letters fell within the letter of the law, and Byrom ne v e r m i s led the court. These points are well taken, b ut Byrom fails to ap p r e c i a t e h ow the sanction in T

aylor differs f

rom this case. Whereas T aylor i nvolved the c omplete exclusion of a defense w itness, the trial court here only partially restricted the extent to which counsel could use Junior’s jailhouse letters. In fact, Byrom’s trial c ounsel was able to read directly f rom the letters while que s t i oning Junior, a nd Junior acknowledged many o f the key points counsel sought to e stablish. He acknowledged making inconsistent statements concerning his role in the murder and the existence of a m u rder-for-hire plot; and he admitt e d writing Byrom a letter s tating that h e killed his f ather. The

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trial court merely p recluded counsel from h andling the letters in front o f the jury and from specifically referring to their existence. That is, trial c o unsel was able to explore their theory of the case, though in a more limited c a p a city than originally planned. Counsel could not impeach Junior using the letters, but he nevertheless acknowledged giving i nconsistent stories a n d claiming responsibility for the murder, points defense counsel specifically sought to elicit for the sake of undermining Junior’s credibility and supporting their theory of the case. Here, the sanction fit the violati o n a n d f ell well w ithin Byrom’s Sixth Amendment rights. As the distric t c o u r t n oted, “[Byrom’s] right under the Confrontation Clause of the Sixth Amendment i s t o the “o pportunity for effective cross-examination.” Byrom , 817 F. Su p p. 2 d at 887 (quoting United States v. Whitfield , 590 F.3d 325, 363 (5th Cir. 2009)) (emphasis original). To the extent Byrom’s opportunity was limited, it was due t o t h e d e l iberate actions of her attorney. When couns e l e n g a ge s i n willf ul discovery omissions for purely tactical
reasons, the Sixth Amendment is not offended b y th e imposition of proportionate sanctions. See Taylor v. Illinois , 484 U.S. 400, 415 (1988). For these reasons, reasonable jurists could not find the district court’s assessment of Byrom’s constitutional claim debatable or wro n g. Michael Williams v. Taylor , 5 29 U.S. 420, 4 8 4 (2000). While the discovery violation in this case was n ot as egregious as the one in Taylor , neither was the s anction. As the district court stated: [t]he t r i a l court allowed the defense a remedy for its discovery violation that still allowed it to present its theory, and it allowed th e defense to question Junior extensively from the letters in order to provide the defense w ith the opportunity to present its theory of th e murder. In f

act, trial counsel read exact quotes from the letters in many instances.

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Byrom , 817 F. Supp. 2 d at 888. Contrary to Byrom’s representations, the trial court did not use the discovery violation to freely exclude d e fense evidence with little regard for the impact on Byrom’s constitutional rights. Rather, the court evaluated defense counsel’s discovery violation in light of the circumstances of the case a nd f

a s h i o n e d a remedy that a ddressed the violation while still affording Byrom wide latitude to present her t h e o r y o f the case. Moreover, counsel was able t o elici t m u c h o f what it wanted from J unior. See B recht v. Abrahamson , 507 U.S. 619, 6 37 (1993) (denying federal h abeas r elie f for trial

error unless the e rror “had substantial and injurious e ffect o r in f l uence in determining the jury’s verdict.”). Reasonable jurists could not find the district court’s assessment of this i ssue debatable or wrong. Therefore, the Court denies Byrom’s motion for an expanded COA on whether the e x c l u s i o n of Junior’s jailhouse letters amounted to a violation of Byrom’s rights. C. Ineffective Assistance of Counsel Byrom also s eeks an expanded C OA to argue that tr i a l c o u n sel’s refusal t o disclose Junior’s jailhouse letters prior to trial constituted ineffecti v e assistance of counsel since counsel’s willful discovery violations resulted in the sanctions discussed immediately above. However, the district court refused to consider this claim because Byrom “has never presented a State court with the argument that trial counsel performed ineffectively i n failing to properly follow the rules.” Byrom , 817 F. Supp. 2d at 8 88. Because reasonable jurists would not find the district court’s assessment d eb at able or wrong, we d eny Byrom’s motion. Michael Williams v. Taylor , 529 U.S. 420, 484 (2000). Before state prisoners m ay seek habeas relief in federal courts, they must f i r s t exhaust available s tate remedies so a s to give the state courts an opportunity to correct alleged violations of federal rights. 28 U .S.C. § 2254(b)(1)(A); Baldwin v. Reese , 541 U.S. 2 7, 29 (2004). In order to provide the “opportunity” required, the prisoner must “fairly present” her claim “in each

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appropriate state court (including a state supreme court w ith powers of discretionary revi e w) , t h ereby alerting that court to the f ederal nature of the claim.” Baldwin , 541 U.S. at 29 (quoting Dunan v . Henry , 513 U.S. 3 64, 365–66 (1995) (per curiam); O’Sullivan v. Boerckel , 526 U .S. 838, 845 (1999)). See also Smith v. Quarterman , 515 F.3d 39 2 , 402 (5th C ir. 2008) (“The exhaustion of state remedies, codified in § 2254(b ) ( 1 ) , r e quires a petitioner t o provide the h i gh e st court of the state a fair opportunity t o apply the controlling fe d e r a l constitutional principles to the same f actual a l legations before a federal court may review any alleged errors.”). I f a prisoner fails t o e xhaust her claim, it becomes procedurally barred. Here, Byrom has not previously claimed ineffective assistance of counsel based o n trial counsel’s i ntentional withholding of evidence. In her motion be f o r e this Court, Byrom makes two statements i n response to the district court’s ruling. First, Byrom claims that, “[i]n post-conviction proceedi n g s, Byrom claimed that she was denied her constitutional right to a fair trial when the trial court e xcluded Junior’s letters.” T h i s may be true, but such a claim does not contain a n ineffective assistance of counsel c laim within it. This Court addressed Byrom’s claims reg ar ding the e xclusion of J unior’s letters i n Part II.B,
supra . Second, Byrom claims that, s he “asserted t h at her trial and a ppellate counsel were ineffective for failing to raise th is claim as raised i n her postconviction petition.” It is not clear, however, that “this claim” refers to an ineffective assistance of counsel claim arising out o f a willful discovery violation. This conclusion is underscored by the b lock quote Byrom uses to illustrate the Mississippi Supreme Court’s holding. The text Byrom relies on pertains to the Mississippi Supreme Court’s refusal to re-examine whether the e xclusion of Junior’s jailhouse letters denied Byrom a fair trial. See Byrom , 927 So. 2d at 726. No port i on of that text, nor any p art of the opinion more broadly, even

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mentions the ineffective a ssis t a n c e o f c o u n s e l c l aim asserted here. Furthermore,

a review of Byrom’s briefs before the Mississippi S upreme Court failed to reveal

even a t race of the specific ineffective assistance of counsel claim put forth here. By contrast, Byrom i n fact presented four specific ineffective assistance of counsel claims while seeking post-conviction rel i e f i n t h e state court. She asserted ineffective assistance of counsel claims pr e m ised o n counsel’s ( 1) failure to pursue a change of venue; (2) general failure to investigate Byrom’s case; (3) failure to adequately investigate at b oth the guilt a nd sentencing phases; and (4) failure to object to comments made by the prosecution during closing a rguments. Id. a t 715–22. Byrom did not claim, however, that counsel was in e f f ective in willfully violating dis c o v e ry rules, causing the exclusion of Junior’s letters. Byrom has attempted to shift her ine ffective assistance of counsel claims to substantive areas n ot previously considered by the state c o urts. See Smith , 515 F.3d at 402 (findin g a c laim unexhausted when a federal c laim i s s hifted to substantive areas n ot previously raised in state court). Therefore, this claim is procedurally barred. In the alternative, Byrom c ontends that her procedural default s hould be excused because she has demonstrated a “manifest injustice

. ” That is, Byrom claims that her underlying innocence excuses her default since fail u re to consider the claim would constitute a manifest injustice. U nder the applicable precedent, Byrom mu s t m eet the “probably resulted” standard when raising a claim of ac t u a l innocence to avoid a procedural bar. Schlup v. Delo , 513 U.S. 298, 326–27 (1995). That is, she must “show that ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent.’” I d. at 327 (quoting Murray v . Carrier , 477 U.S. 478, 496 (1986)). This t est i s more difficult to meet than a showing of p rejudice. Manifest injustice “ does n ot merely require

a showing that a reasonable doubt exists in th e l ight of the n ew evidence, but

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rather that n o r easonable juror would h ave found the defendant guilty.” Id. at 329. Ap a r t from c ursorily raising this contention, Byrom has offered n o argumentation on point. Nevertheless, it is clear that B yrom cannot meet this standard w ith r egard to counsel’s failure to pr o duce Junior’s letters and their subsequent exclusion. As discussed above, th e t rial court crafted a narrow sanction in response to counsel’s conduct. That s anction still allowed counsel to question Junior regarding the letters. The substance of the san c t i o n did not alter the outcome o f the t rial. Allowing Byrom’s trial counsel to handle Junior’s letters in f

ront of the jury w o u l d n o t h ave caused all reasonable jurors to find Byrom not guilty. Therefore, we deny Byrom’s request for an expanded COA to pursue her ineffective assistance of counsel claim. III. Byrom’s Remaining Claims A. Junior’s Psychiatric Evaluation Before Byrom’s trial, the court ordered psychiatric evaluations f or Byrom, Junior, and Gillis. The same doctor, Dr. Criss Lott, conducted each evaluation, and the results were transmitted to t h e t r i a l court for in camera review. To date, B yrom has not seen Dr. Lott’s evaluation of Junior. However, Byrom contends that Junior confessed sole re s p o n s ib ility for Edward’s murder to Dr. Lott. Byrom makes this i nference on the basis of information gleaned from two sources. First, i n a n ewspaper article about Gillis’s trial, an Assistant District Attorney purportedly stated that, while p reparing to try G illis, the government learned of statements Junior made to Dr. Lott that confl i c t e d with his anticip a t e d testimony. Second, Dr. Lott has apparently c o nfirmed Junior’s statement to Byrom’s counsel. Dr. Lott w as e v e n p reparing to share Junior’s evaluation before the trial court forbade him from doing so. However, Byrom

was aware of J unior’s alleged statement to Dr. Lott b efore her state court appeal

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and yet did not c h a l l e nge the evidence’s suppression. Having failed to raise these claims previously, they are procedurally barred. Nevertheless, Byrom s eeks discovery of D r. Lott’s r e port i n order to establi s h t h ree constitutional c laims: (1) a Brady violation; (2) her actual innocence under Schlup ; and (3) her ineligibility for the d e ath sentence u n d e r Sawyer

. Discovery i s p ermitted only if good cause i s found. Murphy v. Johnson , 205 F.3d 809, 814 ( 5th Cir. 2000). Good cause may be found when a petition for habeas relief “establishes a prima facie claim for relief.” Id. ( quoting H arris v. Nelson , 394 U.S. 286, 290 (1969)). As e xplained b elow, Byrom has not m et this standard. 1. Brady Claim. “Under Brady , a d efendant’s due process rights m a y b e violated when exculpatory or impeachment evidence, which is both f avorable t o the defendant and material to guilt or p unish m e n t , i s concealed by the government.” Id. In this context, “mate r i a l ity does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.” Kyles v. Whitley , 5 14 U.S. 4 19, 434 (1995). Rather, the defendant need only show a reasonable probability of a different result. Id. A Brady violation is established by “sh o w i ng that the favorable e vidence could reasonably be taken to put the whole case in such a dif f e r e n t light as to undermine confidence in the verdict.” I d. at 435. Here, Byrom h as not made a prima facie showing o f a Brady violation because D r. Lott’s report does not create a reasonable p robability of a different result at Byrom’s trial. According t o Byrom, J u n i or’s e valuation would demonstrate that Junior t o o k responsibility for Edward’s death when interviewed by Dr. Lott. She seizes on this in order to claim that, had the report been produced before trial, it would have discredited Junior’s testi m o n y a n d aided Byrom’s c a se. This may be true, b ut, through cross-examination

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concerning the jailhouse letters, Junior’s testimony was already discredited at trial a nd in precisely the fashion Byrom describes here. Wh i l e Byrom was restricted from sho w ing Junior’s letters t o the j ury, her attorney questioned Junior about the letters’ c ontents a nd elicited testimony that u ndermined Junior’s testimony broadly and his statements r egarding his mother’s role in the murder specifically. He has already admitted to giving mult i p l e inconsistent statements regarding who was responsible for Edward’s m urder. The inclusion of o ne additional instance of such a statement thus does not create a reasonable probability of a differe n t o u t come. Dr. Lott’s report would merely bolster Byrom’s initial attempt at discrediting Junior’s testimony; it would not “put the whole case in such a different light as to undermine confidence in the verdict.” Id. Since this does not amount to good cause, we deny Byrom’s claim. 2. Actual Innocence As discussed previously, r a i s i ng an actual innocence claim requires showing “that ‘a constitutional violation has probably r e sulted in the conviction of one who is actually i nnocent.’” Schlup , 5 1 3 U.S. at 327 (quoting Murray v. Carrier , 477 U.S. 4 78, 496 (1986)). This test “ does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that

no reasonable juror w ould have found the defendant guilty.” Id. at 3 29. Byrom characterizes the aforementioned Brady claim as the constitutional viol a tion underpinning her actua l i nnocence claim. However, for the same reasons discussed above, Dr. Lott’s r eport does not establish a prima facie case of actual innocence. Byrom would h ave used Dr. Lott’s r e p o rt i n precisely the way she used J unior’s jailhouse letters. The effect of the report thus falls well short of the requisite s t a ndard. See Schlup , 5 1 3 U.S. at 327 (requiring that new evidence

m a k e it “more likely than not that no reasonable j uror would have fo u n d petitioner guilty beyond a reasonable doubt.”). Havi n g f ailed to show good cause, Byrom’s claim is denied.

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3. Eligibility for the Death Penalty In order to contest her eligibility f or the death p enalty, Byrom must show, based on the evidenc e proffered and all record e vidence, that there is a fair probability that a rational trier of fact would have enterta i ned a reasonable doubt as to the e xi stence o f the facts which made her eligible for the death penalty. Sawyer v. Whitley , 505 U.S. 333, 346–47 (1992). Here, Byrom claims that the evidence produced at trial—taken togeth e r with D r. Lott’s report—would create a fair probability that no rational juror would have found her guilty of participating in a murder-for-hire scheme, the capital c r i m e for which she was convicted. Miss. Code Ann. § 97-3-19(2)(d). Byrom h as not, h oweve r , m a d e the requisite s h owing. While Dr. Lott’s report w ould have s upported Byrom’s theory of the case, in light of t h e other evidence produced a t trial—including B yrom’s own confessions—it cannot be said that a rational t rier o f fact would hav e e ntertained a reasonable doubt regarding the existence o f a murder-for-hire scheme. According to Byrom, the parties planned to murder E dward. Junior i m p l i cated Byrom, Gillis, and h i m self; and Byrom separately implicated h erself on more than one o ccasion. Even with Dr. Lott’s report, i t cannot be said that a rational trier of fact would harbor a reasonable doubt a s to Byrom’ s g u i lt. Byrom has thus failed to show good cause, and we deny her claim accordingly. H a v i n g disposed o f Byrom’s motion for an expanded COA and B yrom’ s motion for additional discovery, the Court will next address those issues for which the district court granted a COA. B. Applicable Law and Standard of Review AEDPA was e nacted to address perceived abuses in the habeas system, limit pris o n e r s ’ ability to delay justice by filing frivolous claims, and respect state court determinations of fact a nd law. See Michael Williams v. Taylor , 529 U.S. 420, 436 ( 2000) (stating that A EDPA’s p u r p o s e w a s to “further comity,

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f i n ality , a n d f

e d e r ali s m ,” and highlighting the importance of “limit[ing] the sco p e of federal intrusion into s tate criminal adjudications and

. . . safeguard[ing] the States’ inte r e s t in the i ntegrity of their criminal and collateral proceedings”); Day v. McDonough , 547 U.S. 198, 205–06 ( 2006) ( AEDPA was pa s s e d to “promote[] judicial efficiency and conservation of judicial resources . . . a nd lend[] finality to state court judgment s w i t hin a reasonable time”). AEDPA thus “imposes a highly defere n t i a l s tandard for evaluating state-court rulings and demands that state-court decisions be given the b enefit of the doubt.” Renico v. L e tt , 130 S

. Ct. 1855, 1862 (2010) (citations and internal quotati o n m a r k s omitted). AEDPA governs o ur review of state court determinations of law and mixed issues of law and fact. 7 See 28 U.S.C. § 2 254(d)(1). Section 2254(d)(1) prohibits federal courts from g r a n t i n g habeas relief unless the state court’s denial “was contrary to, or i nvolved an unreasonable applic a tion of, clearly established Federal law, as d etermined b y the S upreme Court of the U nited States.” Id. See also Valdez v. Cockrell , 274 F.3d 941, 946 (5th Cir. 2001) (“We r eview questions of law and mixed ques t i o n s of law and fact under the ‘contrary to’ and ‘unreasonable applicat i o n ’ p r ong of 28 U.S.C. § 2254(d).”). The state court’s decision was contrary to federal law if the “the state court a rrives at a c o nclusion opposite to that r e a c h e d b y [ t h e Supreme Court] on a question of l aw or if the state court decides a case differently than [the Supreme Court] h as on a set of materially indistinguishable facts.” Terry Williams v . Taylor , 529 U.S. 362, 412–13 (2000). The state c ourt unreasonably applied federal law if it “identifies the correct governing legal p rinciple

. . . b ut unreasonably applies that principle to the facts of the prisoner’s case.” I d. at 413. In o ther words, in order to obtain habeas relief f

r o m a f e d eral court, “a state p risoner must show that the state

7 AED PA als o controls w h e n review ing s tate court f ind ings of f

act. See 28 U

. S. C

. § 2254( d) ( 2)

. N o f

ind ings of f

act are contes tedhere, how ever.

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c o u r t ’ s r uling on the claim being presented in federal court w as so lacking in justification that there w as an error w e l l understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington

v. Richter , 1 3 1 S

. Ct. 770, 786-87 (2011)

. This standard governs our review of the state court’s adjudication of Byrom’s claims. C. Coerced Statements In the wake of Edward’s murder, the police i nterviewed Byrom on five separate occasions: (1) 8:38 p.m. on June 4 ; ( 2) 10:47 p .m. on June 4; (3) 6 : 53

a.m. on June 5 ; (4) 9 :00 a.m. on J une 6; and (5) 3:03 p.m. on June 7. The first four interviews took p lace while Byrom was still hospitalized, and Byrom implicated herself in interviews two through five. At t rial, th e c o u rt excluded interviews two and three because of defective Miranda warnings. I t permitted the introduction o f interviews four and five, h o wever, against Byrom’s objection. B yr o m now claims that the trial court e rred when it admitted these t w o interviews b e c a u s e interviews two a n d three were the product o f coercion and that coercion carried over, thus marring her subsequent statements. The Mississippi Supreme Court dismissed this argument as m oot because the t rial court excluded the interviews during which c oercive c onduct allegedly occurred, i.e., interviews t wo and three. Byrom v. Stat e , 8 6 3 S o . 2d 836, 861 (Miss. 2003) (“This argument is moot because the statements were excluded.

. . . The remedy for coercive interrogation practices is exclusion of the statements in which the coercion was present. It does not require the exclusion o f all subsequent interrogations that are preceded by proper Miranda warnings and

are not coercive.”). The Supreme Court has made clear, however, th at coercive tactics can indeed carry over to subsequent interviews, implicating Fifth Amendment concerns, r egardless of whether earlier interviews are suppressed. Oregon v. Elstad , 470 U .S. 298, 309–10 ( 1985). Indeed, the Supreme Court has

enu merated f

actors for determining whether coercion taints subsequent

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interrogations. See id. at 3 10 (“When a prior statement is actually coerced, the time that passes b etween c onfessions, the change in place o f interrogations, and the change in identity of th e interrogators all bear o n whether that coercion has carried over into the second confess i o n . ” ). As e xplained below, since neither AEDPA exception applies to the Mississippi Supreme Court’s d e termination on the merits, Byrom’s claim fails. Cf. Richter , 131 S. Ct. at 787 (“And if the state court denies the c laim on the merits, the claim is barred in federal court unless one of the exceptions to § 2254(d) set out in §§ 2254(d)(1) and (2) applies.”). In order to validly waive the Fifth Amendment pr i v i l e g e against selfincrimination, an i ndividual’s waiver “must be voluntary in that it was not the product o f intimidation, coercion, or deception.” H opkins v. Coc k r ell , 325 F.3d 579, 5 83 (5th Cir. 2003). Proving that a confession was coerced requires showing that the confession “resulted from coercive police conduct and it i s essential that there be a link between the coercive conduct of the police and the confession of the defendant.” Id. at 584. Such conduct includes official overreach and direct coercion, as well as promises and inducements. See U nited States v. Blake , 2012 WL 3045649, at *1 (5th Cir. July 26, 2012) (unpublished) (per curiam). Trickery

or dec e i t o nly constitutes coercion “to the extent [the defendant is deprived] of knowledge essential to his ability to understand the nature of his rights and the
consequences of abandoning them.” Hopkins , 325 F.3d at 584. “ N e i t h e r mere emotionalism and c onfusion, nor mere trickery w ill alone necessarily invalidate

a c onfess i o n . ” Self v . Collins , 973 F.2d 1198, 1205 (5th Cir. 1992) (internal quotations marks omitted). For instance, this Court f ound that coercion occurred when a defendant confessed to a murder after being assured by police that the conversation was confidential. Hopkins , 325 F.3d at 5 8 4

– 85. The defendant had b een isolated for fifteen days and was even i nterviewed by a close friend in order to help elicit a confession. Id. at 5 8 4

. Likewise, c oercion was found when a mother confessed only after police threatened t o cut o ff h er state

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financial aid a nd take custody of her children. L ynumn v. Illinois , 372 U.S. 528, 534 (1963). Here, Byrom al l e g e s that the p olice coerced the confessions she gave during interviews two and three—the t wo interviews that were suppressed for Miranda reasons—and that the c o e r c i o n carried over into the subsequent two interviews during wh i ch she further implicated herself. B yr o m f o c u s e s h e r claim

on a handful of statements made to her during the course of interviews two and three, as well as the fact that she was heavily medicated while in the hospital. 8 At the beginning of her second interview, the sh e r i f f t o ld Byrom that Junior had already c onfessed and warned Byrom against letting Junior bear the full weight of Edward’s murder on his own: “He’s already given us a statement

on this. Don’t let h im be out h ere b y himself o n this.” The s heriff reiterated the point later when he told Byrom t h a t she was “trying to leave h im out there by himself.” The sheriff also told Byrom that she and Junior would be in d a nger as long as the triggerman remained free. Finally, the sheriff warned Byrom that he would tell the judge whether a n d t o what extent Byrom cooperated: “There

are [sic] stuff you are leaving out here. Now I ’m going to tell you. Once we get to the point where we have to talk to the Judge and everything. All that’s going to m a tter. He’s going to ask me how did she c ooperate?

. . . Well I’m gonna have to tell him that you had a memory lapse on some ‘stuff,’ we had to p ick it out of her. Now the Judge ain’t going to like i t

. ” Byrom claims th at these statements deceived her and exploited her emotions, thereby constituting coerc i on that tainted her subsequent confessions. Having reviewed the transcripts of these interviews, it is c lear that Byrom’s confessions were not coerced. While the sher i f f ’s statements were

8 The d octors treating Byrom told law enf orcem ent of

f icers that B yrom ’s m ed ications
w ould not interf

ere w ith her ability to be interview e d

. In any event, s uch a claim is p roced urally barred f

or f ailure to ad equately p res ent it in p rior p roceed ings

.

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certainly intended to cajole B yrom into confessing using her emotions and a

measure of deception, they did not constitute coercion. Byrom first implicated herself after the s heriff implored Byrom to not leave Junior “hanging out there to b ite the big bullet.” The sheriff made that s tatemen t e a r l y during the interview, after a series of denials f r o m Byrom. While the statement c ertainly suggested that Junior was facin g s e ri o u s l egal consequences regarding Edward’s murder, the police did not make any thr e a t s , p r omises, or other coercive statements. Insofar as the sheriff made other, subsequent statements, Byrom had already confessed and continued to do so. In any event, B y r o m was not promised l eniency and she was not t h r e atened i n any capacity. The sheriff merely utilized an appeal t o e m o t i o n a nd urged her to confess t o spare Junior harsher legal consequences, a perm i s s ible tactic since B yrom was not thereby deprived of knowledge e ssential to a n understanding of her rights and t he consequences of waiving them. H opkins , 325 F.3d at 584. Byrom relies on cases like Lynumn to claim that law enforcement threats regarding relatives , especially one’s children, are particularly coercive. In Lynumn , the police made serious threats r egarding unrelated matters, such as the d efendant’s access to welfare benefits a nd custody of her children, a nd they d i d s o i n a way that left the defendant with “no reason not to believe th a t t h e police h ad ample power to carry out their threats.” 372 U.S. a t 53 4 ( “ T h e se threats w ere made wh i l e s h e was encircled in h er apartment by three police officers and a twice convicted felon who had purportedly ‘set h er up.’ There was

no friend or adviser to whom she might turn.”). H o w e v e r , no comparable conduct occurred here. The sheriff told B yr om that she and Junior were at risk

as long as the t riggerman remained free and state d t h a t Junior’s confession meant he was facing serious repercussions. The s heriff’s statements implicated Byrom’s son, but only because he was in fact a suspect. It was not incorrect to tell Byrom that admitting her r o l e i n the plot could spare Junior a harsher

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punishment. J unior was not threatened with physical harm, a nd Byrom was not threatened by the s heriff. Byrom was in a safe setting and w as not encircled by law e nforcement officials. There was n o official over r e a c h o r direct coercion. Since neither AEDPA exception ap p l i e s , w e deny Byrom’s claim. Se e Richter , 131 S. Ct. at 787. D. Consideration of Mitigating Evidence Byrom also claims that the trial c ourt erred when it failed to consider all of the mitigating evid e n c e s h e presented at sentencing. Specifically, Byrom urged the court to consider (1) that she h ad no significant criminal history; (2) that s he committed the crime under the influence of e xtreme m e n tal and emotional disturbances; (3) that Edward was a participant in the crime since his abuse provoked the crime; and (4) that her ability t o appreciate the criminality of her conduct or conform it t o t h e r e q u irements o f the law was substantially impaired. At sentencing, the court made the following oral statement: The Court, likewise, considered the mitigating factors, specifically, that the defendant had no prior criminal record of any kind, so far as the record indicates. And, further, the C ourt has considered th e assertion that the defendant w as acting while under the i nfluence of some extreme m ental or emotional disturbance. Parenthetically, the C o u rt would observe that these factors are the o nly factors suggested which w ould appear a n d b e ar c o nsideration by this Court. Byrom claims t h a t t h is portion of the trial court’s colloquy indicates that the court f ailed to c o n s i d e r some of Byrom’s mitigating evidence, thereby undermining her d eath sentence. She argues that the trial court c o n ceded its failure to fully consider Byrom’s mitiating evidence when it noted that only two of her mitigating claims “bear consideration.” The Mississippi Supreme Court subsequently d enied Byrom’s claim, finding that th e tri al c o u rt i n f a c t c o nsidered all mitigating circumstances. See Byrom v. State , 863 So. 2d 836, 881–82 (Miss.

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2 0 03). For the r easons that follow, the M ississippi Supreme Court d i d n o t misapply clearly established federal law when it denied Byrom’s claim. In capital cases, the sentencer may not r e fuse to conside r m itigating evidence. Hitchcock v. Dugger , 4 8 1 U.S. 393, 3 94 (1987). The exclusion of mitigating evidence can invalidate a death sentence. Id. at 399. “The sentencer, and the Court of Criminal Appeals on review, m a y d etermine the weight to be given relevant mitigating evidence. But they ma y n o t give it no weight by excluding such evidence from their consideration.” Eddings v. Oklahoma , 455 U.S. 104, 114–15 (1982). Byrom’s claim fails for two reasons. First, and most importantly, the trial court did in fact c onsider all of Byrom’s mitigating evidence. The trial court’s sentencing determination was not limited to the o ral statements made in court. The court also entered a formal written sentencing order. In that order, the trial court’s sentencing determination was prefaced by the following language, which clearly establishes that the court considered all mitigating evidence: The court, having conside re d e ac h of t h e m i t igating factors suggested by the Defendant and all other mitigating circumstances concerning the Defendant’s character and history and t h e c ircumstance[s] of the offense which might be considered mitigating on b ehalf of the Defendant , a nd h aving weighed the aggravating factor[s] a gainst the mitigating fa c t ors finds that the m itigating factors do n ot outweigh or overcome the aggravating circumstances and that the death penalty should be imposed. (emphasis added)
As this text makes clear, the trial court c onsidered all of B yrom’s mitigating evidence a nd simply d etermined that it did not overcome the aggravating circumstances also deemed present. Second, to the extent B yrom claims that the court’s colloquy conflicts with the written sentencing order, the language cited b y Byrom does not actually demonstrate that the trial court refused to consider m itigating evidence. When the trial court stated that only two of B yrom’s proposed mitigating factors “bear

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consideration,” t h e c o u r t was not refusing to consider the o ther two factors. R a t h e r , the court used the verb “bear” in the sense of “to call for” or “to hav e relevance.” The A merican Heritage Dictionary of the English Language 161 (3d ed. 1996). As the court c larified in its written s entencing order, two of Byrom’s proposed mitigating factors lacked merit. That is, the trial court evaluated all of the mitigation factors proposed b y Byrom, but found two had little relevance to the f i n a l sentencing determination. In that sense, they did not “bear consideration.” Fair minded jurists c ould not disagree. See Richter , 1 31 S. Ct. at 786. Therefore, we deny Byrom’s claim. E. Ineffective Counsel Regarding Mitigating Evidence Byrom’s last claim alleges that she received i neffective assistance of counsel b ecause her trial attorneys f ailed to adequately investigate and present mitigating evidence a t the penalty phase of the tri a l

. I n o r d er to m ake an ineffective assistance of counsel claim, B yrom must s h ow that her a ttorneys’ performance “fell below a n objecti v e standard of reasonableness” and that the deficient performance prejudiced her case. Strickland v. Washington , 466 U.S. 668, 688 (1984). T h e a t torneys’ representation must fall below an objective standard of r e a s o n ableness such that “counsel was not functioning as the ‘counsel’ guaranteed

. . . by the Sixth Amendment.” Feldman v. Thaler , 695 F.3d 372, 377–78 (5th Cir. 2012) ( quoting Strickland , 466 U.S. at 687). Byrom “must

overcome the presumption that, under the c ircumstances, the challenged action might be considered sound t r i a l strategy.” Id. at 378 (quoting Strickland , 466 U.S. at 689). Further, under AEDPA, the crucial question is whether the s t a t e court unreasonably a pplied Strickland

. Harrington v. Rich ter , 131 S. Ct. 770, 785 (2011); Williams v. Thaler , 6 84 F.3d 597, 6 04 (5th Cir. 2012). When considering

a hab e a s petition, o ur inquiry f ocuses on “whether there is a ny reasonable argument that counsel s atisfied Strickland’s deferential standard.” Richter , 131

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S. Ct. a t 788. “[A] habeas court must d etermine wh a t a r g u m e n t s or theories supported or, as h ere, c ould have supported, the s tate court’s decision; and then it must ask whether i t is possible fairminded jurists c o u l d disagree that those arguments or theories are i nconsis t e n t w i th the h olding in a prior decision of this Court.” Id. at 786. Prejudice is shown when there is “a reasonable p robability that, but for counsel’s unprofessional e rrors, the result of the p roceeding would h ave been different.” Strickland , 466 U.S. at 6 94. In the sentencing c ontext, Byrom must establish “a reasonable probability that a competent attorney, aw a r e o f [the

m iti g ati ng evidence available], would have introduced it at sentencing,” a n d th at there is a reasonable probability that the sentence w ould have b een different as

a r esult. Wong v . Belmontes , 130 S. C t

. 383, 386 (2009) (quoting Wiggins v. Smith , 539 U.S. 510, 535, 536 (2003)) (alteration i n original). “[T]he question is whether there is a reasonable probability th at, absent the errors, the s entencer

. . . would have concluded t h a t t he balance of aggravating and mitigating

c i r c u mstances did not warrant death.” Cullen v . Pinholster , 131 S. C t. 1388, 1408 (2011) (alteration in original) (quoting Strickland , 466 U.S. at 695). Byrom claims that she received ineffective assistance of counsel because her trial attorneys failed to adequately investigate potential m itigating evidence before sentencing a nd f ailed to present mitigating ev i d e n c e at sentencing. Counsel interviewed a number of Byrom’s family members, but Byrom claims counsel s h o u l d have pursued further leads after u ncovering evidence of persistent abuse in B yrom’s childhood and adult life. Moreover, at sentencing, Byrom’s trial c o u n s el only o ffered psychiatric reports and m edical evaluations detailing Byrom’s abuse and the numerous mental and physical ailme n ts she has suffered fro m. As the record makes clear, Byrom s uffered a childhood of mental, physical, and sexual abuse at the hands of her stepfather, and yet more abuse a t t h e h a nds of Edward. Despite the availability of at least six family

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members able and willing to personally attest to t he violence Byrom was

s ubjected to, trial counsel did not present a single live w itness a t sentencing

. Instead, trial counsel relied on p s y c h i a tric r e ports and medical records, supposedly because of a tactical decision to withhold w i t ness testimony in anticipation of a new trial. B yrom has pressed these ineffective assistance of counsel claims a t e a c h stage of review. Because the Supreme Court of Mississippi issued a reasoned opinion on point, i t is that decision we review in applying the standard o f r eview provided by AEDPA. Jackson v . Johnson , 194 F.3d 641, 651 (5th Cir. 1999). A divided Missis s i p pi Supreme Court decided that Byrom had not received ineffective assistance of counsel at her s entencing. Despite finding th at Byrom’s trial counsel made a “perplexing” c hoice by not p res e nting l ive mitigating evid e nce, the majority opinion nevertheless held a s “speculative” the proposition that testimony already known to the t rial judge w o u l d have “been any more convincing or persuasive if presented through witness testimon y . ” Byrom v. State , 927 So. 2 d 709, 720–21 (M i s s . 2 0 0 6 )

. On the o ther hand, the dissent struggled to find “a more egregious c a s e of ineffective assistance of counsel during the sentencing phase of a capital case. ” I d. at 732 (Dickinson, J., dissenting). F or the r easons that follow, applying § 2254(d)(1), the Mississippi Supreme Court did not u nreasonably appl y S t r ickland t o Byrom’s c laim of failure to investigate or to her claim of failure to present mitigating evidence. 1. Investigation of mitigating evidence. Byrom claims that h er trial counsel were aware of her e x t e n s i v e history

as a vict i m o f abuse, b ut that they entirely failed to investigate p otential evidence on point. However, trial counsel clearly stated that they interviewed potential witnesses, including members of B yrom’s f amily. I n fact, counsel went

so far a s to make arrangements so that out-of-state family m embers could be in Iuka, M ississippi for Byrom’s trial. Indeed, in October 2000, one of Byrom’s

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attorneys furnished a list of nine witnesses for trial, most of whom were family members who could confirm Byrom’s history as a victim of abuse. In support of her claim, Byrom primarily relies on the fact that her trial attorneys could n ot r ecall the specific names of which family members they interviewed in anticipation of trial. S he also points t o s t atements from family members c laiming that they were not contacted by trial counsel. Nevertheless, other f amily members c apable of providi n g further corroboration of abuse suffered were both i n terviewed by counsel and present in I uka f or the trial. Byrom has not iden t i f i e d what a dditional i nformation would have been uncovered had her trial c ounsel interviewed additional family members. While those who were interviewed presented a picture of abuse, their accounts largely overlap and c over nearly identical details. Such claims thus do not demonstrate that the state court’s application of Strickland was unreasonable or contrary to established federal law. F a i r m inded jurists could not disagree with the Mississippi Supreme Court’s determination that Byrom’s attorney conducted a reasonable investigation under Strickland

. Ac c o r di n gly , w e d e ny Byrom’s claim. Richter , 131 S. Ct. at 786. 2. Presentation of mitigating evidence. At sentencing, Byrom’s attorneys declined to present wi t n e s s t estimony regarding Byrom’s history of abuse, and instead opted to present two psychiatric reports detailing Byrom’s claims of abuse and the various maladies diagnosed, as well as a medical evaluation detailing B yrom’s many other illnesses. There

are at least six f

amily m embers Byrom’s a t t o r n e ys could h ave presented at sentencing, some of whom had directly witnessed the abuse Byrom suffered at the hands of both her stepfather and husband. These witnesses w o u l d have substantiated claims regarding the alcoholism of Edward a nd Byrom’s stepfather, as well as both men’s verbal, p hy s i c a l , and sexual abuse of Byrom. The psychiatric repo r t s p r esented at sentencing n evertheless covered much of

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the same information; and Byrom’s history a s a victim of abuse was addressed at trial as well. Despite acknowledging that Byrom’s attorneys made a “perplexing” decision i n t heir refusal to present witness testimony at sentencing, the Mississippi Supreme Court he l d that the witnesses’ potential testimony, of which the trial judge was already aware, would not l i kely have been any more persuasive if presented through live witness testimony. Byrom v. State , 927 So. 2d 709, 721 (Miss. 2006). The state court viewed this decision as a strategic one; Byrom’s attorneys sought to reserve the family members’ t estimony in the event of a new trial. Further, the Mississippi Supreme Court held th at Byrom’s claim of prejudice was specula t i v e a t b est. Id. As explained below, the Mississippi Supreme Court did not unreasonably apply Strickland

. “[E]vidence about a defendant’s background and character is relevant because of the belief, l ong held by this socie t y , t h at defendants who commit crimina l a c t s that are a ttributable to a disadvantaged background, or to emotional and mental problems, may be less c ulpable than defendants who have

no such excuse.” Penry v . L ynaugh , 492 U

. S. 302, 319 (1989). The ri ght to have mitigating evidence presented means little, however, if counsel f ails to present

a case for mitigation at sentencing. Strickland v. W ashington , 466 U.S. 6 68, 706 (1984) ( Brennan, J., concurring) (citing H elen G redd, Comment, Washington v . Strickland : Defining Effective Assistance of Counsel at Capital Sentencing , 83 C o l u m . L. Rev. 1 544, 1 549 (1983)). That s aid, Strickland does not “requir e defense counsel to present mitigating evidence at sentencing in every case.” Wiggins v. Smith , 539 U.S. 510, 533 (2003). A petitioner challenging the adequacy of counsel’s conduct must s how th at c o unsel’ s c o n duct f ell below the standard guarantee by the Sixth Amendment, a s well as prejudice: a reasonable probability that, but f

or c ounsel’s unprofessional errors, the proceeding’s result would have been different. Id. at 534.

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Here, B yrom’s counsel made the unusual d ecision to withhold mitigating witness testimony a t s e n t e n c ing in hopes of reserving said testimony for an anticipated retrial. Counsel instead elected to rely on a series of medical reports detailing Byrom’s abuse a nd the various illnesses she s u ffered as a result of the abuse. However, even assuming arguendo that counsel’s strategic decision fell below the standard required by Strickland , i t c a n n o t b e said that Byrom was prejudiced. In order to find prejudice here, there must exist a reasonable probability that Byrom would not have r eceived a death sentence had counsel intro du c e d th e live testimony of Byrom’s family members. The S upreme Court has instructed that “[a] reasonable probability is a probability su f f icient to undermine confidence in the outcome.” Strickland , 466 U.S. at 6 9 4

. In Wiggins , the Supreme Court found p rejudice where the petitioner’s attorney had failed to investigate and present s ubstantial mitigating evidence at the petitioner’s jury sentencing. 539 U.S. a t 534–36. The omitt e d mitigating evidence included would-be accounts of substantial ab u se and neglect at the hands of the petitioner’s mother and r epeated i nstances of abuse, molesta t i o n , and rape suffered at various foster homes throughout Wiggins’s childhood. Id. at 516–17. H o w e v e r, while Wiggins and Byrom each s uffered substantial abuse prior t o committing their respective crimes, their cases are otherwise distinguishable. Wiggins’s c ounsel fail e d to present to the sentencing jury substantial mitig a t i n g e v i dence that the jury had no other access to. On that basis, the Supreme Court found that a t least one jur o r w ould have voted differently had the jury been presented w i th Wiggins’s “excruciating life history.” I d. at 537. Byrom, on the other hand, was sentenced by the same judge that conducted her trial, and the mitigating evidence at i ssue was substantively addressed both at trial a nd s entencing. In other words, to the exte n t the judge that s entenced Byrom was not already aware of Byrom’s mitigating evidence from trial, he was

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certainly made a ware o f Byrom’s hi s t o r y o f abuse b y virtue of the mitigating evidence presented a t sentencing. The trial judge reviewed Byrom’s medical records, which i ncluded details of the abuse Byrom had suffered, before closing arguments at sentencing. The l i v e testimony withheld by counsel w ould thus have added little to the judge’s sentencing decision. It cannot be said that there exists a reas o n ab l e probability that the outcome of Byrom’s sentencing would have been different had counsel introduced th e t e s t i mony o f Byrom’s family members. In considering Byrom’s claim, the Mississippi Su p reme Court reasoned that [t]he gist of the family m embers’ testimony from the affidavits was that Byrom was a good person who had lived a difficult life a nd that whatever she did was because she was sick and in a terrible situation. However, to argue that this testimony, which was already known to the trial judge, would have b een a n y m ore convincing or persuasive if presented through witness t es t i m ony, is, at best, speculative. Byrom v. State , 927 S o . 2d 709, 721 (Miss. 2006). In light of the reasoning above, it cannot be said that the state court unreasonably applied Strickland

. See Richter , 131 S. Ct. at 786 (“[A] habeas court must determine what arguments or theories supported or, as h ere, could have supported, the state court’s decision; and then it must ask whether it is possible fairminded j urists c o uld disagree that those arguments or theories are inconsistent w ith the holding i n a p rior decision of this Court.”). Therefore, we deny Byrom’s claim. IV. Conclusion For the above r easons, we DENY Byrom’s m o t i o n f or an expanded Certificate of Appealability, AFFIRM the j udgment of the district cou r t , a nd DENY Byrom’s petition for habeas relief.

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