### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-70004

CARLOS TREVINO,
Petitioner
v. RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent

Appeal from the United States District Court for the Western District of Texas USDC No. 5:01-CV-306

Before DAVIS, SMITH, and DENNIS, Circuit Judges. W. EUGENE DAVIS, Circuit Judge. * Petitioner Carlos Trevino was convicted of capital murder in Texas state court and sentenced to death. The district court denied each of Trevino’s eight claims for habeas relief, but granted a certificate of app e alability (“COA”) pursuant to 28 U.S.C. § 2253(c) on three of these issues. Trevino now petitions t h is court to issue COAs authorizing appeal from the district court’s denial o f habeas corpus relief regarding the five issues on which the district court denied U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 14, 20 11 Lyle W . Cayce Clerk

Purs uant to 5 C IR

. R. 47.5 , the Court has d ete rm inedt hat this op inion sho uld not T H * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 C IR

. T H R. 47.5 .4. Case: 10-70004 Document: 00511665311 Page: 1 Date Filed: 11/14/2011No. 10-70004

C O A

. B ecause reasonable jurists would not find it debatable that the district court correctly rejected these five claims, we DENY Trevino’s petition for COA regarding these issues. We furthe r a d d r e ss the three issues on which the district court did grant COA. Finding these claims without merit, we AFFIRM the district court’s denial of relief on these grounds. I. A. We summarize the key facts and procedural background recited at length by the district court. United States v. Trevino , 678 F. Supp. 2d 445, 449-55 (W.D. Tex. 2009). The body of 15-year old Linda Salinas was discovered in Espada Park in San Antonio Texas on June 10, 1996. T h e S a n Antonio Police Department began an invest i g a t i o n into Salinas’s death. Following the investigation, on April 8 , 1 9 9 7, a Bexar County, Texas grand jury indicted Trevino on a charge of capital murder for intentionally and knowingly causing the death of Linda Salinas by cutting and stabbing her with a deadly weapon while in the course of committing and attempting to commit the aggrav a t ed sexual assault of Salinas. Trevino rejected the state’s subsequent plea offer and chose to go to trial. Testimony at Trevino’s trial established that on the e v e ning of June 9, 1996, he accompanied Santos Cervantes, B r y a n Apolinar, Seanido “Sam” Rey, and Juan Gonzales (Trevino’s cousin), on a trip in Apolinar’s car to a store to buy beer for a party they had been attending. Cervantes enticed 15-year old Linda Salinas to get into Apolinar’s car with the assurance Apolinar would take Salinas to a nearby fast-food restaurant. Instead of driving to the restaurant, Apolinar drove the group to Espada Park, where Cervantes, Apolinar, and Rey sexually assaulted Salinas while she unsuccessfully struggled to escape. Gonzales testified as the prosecution’s key witness regarding the follo w i n g : (1) Gonzales saw Trevino hold Salinas down

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w h i l e Rey raped her; (2) at one point, Trevino urged Gonzales to rape Salinas, but Gonzales refused; (3) Gonzales overheard Apolinar, Cervantes, and Trevino discuss their mutual desire not to leave any witnesses behind; ( 4) Gonzales heard Re y s a y “we don’t need no witnesses” and heard Cervantes repeat the

same comment, then heard Trevino reply “we’ll do what we have to do”; (5) at that point, Gonzales returned t o t h e group’s vehicle; (5) when the others returne d , G o n z al e s noticed that Cervantes and Trevino had blood on their shirts. Gonzales further testified that following the incident, during the group’s ensuing drive away from the scene, C e rv a n tes made a comment that it was “neat” or “cool” about how Trevino had “snapped” Salinas’s neck, and also made

a comment about a knife. Trevino responded with the comments “I learned how to kill in prison” and “I learned how to use a knife in prison.” Gonzales also testified that, after the incident, Trevino told Gonzales not to say anything to the police. Further, Gonzales testified that when he asked Cervantes why he killed the girl, Cervantes responded “mind your own business.” Gonzales additionally testified that while he never saw Trevino or anyone else with a knife at the scene of the murder, Gonzales had seen Cervantes w i t h a k n i fe a few days before Salinas’s murder and, two days after the m u r d e r , Cervantes told Gonzales he had broken the knife and thrown it into a river. Salinas’s body was discovered in Espada Park the day after the murder. According to expert testimony at Trevino’s trial, an autopsy revealed (1) Salinas suffered two stab wounds to the left side of her neck, one of which was fatal; (2) Salinas sustained soft tissue damage in her vaginal area and at her anal opening; (3) Salinas sustained no internal injuries to her neck other than those caused by the two stab wounds, and there was no physical evidence anyone had attempted to “snap” her neck; and (4) there were scratches on Salinas’s legs and fresh bruises on her breasts.

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Other evidence during the guilt/innocence phase of Tr evino ’ s tri al inclu d ed testimony from forensic and DNA experts establishing (1) the examination of a pair of blue women’s shorts and a pair of white women’s panties found at the crime scene, both identified by Linda Salinas’s mother as b e longing to Linda, revealed the presence of polyester and cotton fibers which were consistent with

a pair of slacks owned by Trevino; and (2) a blood stain found on Linda Salinas’s white panties contained a mixture of the DNA from at le a s t t w o persons, with DNA testing elim i n a t i n g a s possible sources of the DNA all but Salinas and Trevino from among those identified by Gonzales as present at the scene. 1 The jury returned a guilty verdict. During the punishment phase of trial, the prosecution presented evidence regarding Trevino’s culpability and future dangerousness, including his former arrests and his admitted membership in a violent street gang. As miti g a t i n g evidence, the defense presented Trevino’s aunt, who testified generally that she knew Trevino to be a good person and that he had experienced certain difficulties in his life, including the absence of his father and his mother’s alcohol problems. The jury returned its verdict at the punishment phase of trial, finding (1) that Trevino would commit criminal acts of violence in the future which would constitute a continuing threat to society; (2) Trevino actually caused the death of Linda Salinas or, if he did not actually cause her death, he intended to kill her

or another, or he anticipated a human l i fe would be taken; and (3) there were in s uf f icient mitigating circumstances to warr ant a s e nt e nc e o f lif e i m p ri s o n m e nt

. In accordance with the jury’s verdict, the state trial court imposed a sentence of death.

The st ate’ s expe rt tes tif ied that 1 of every 2,68 4 me mbe rs of the so uthw es ter n Unit ed 1 Sta tes H isp anic pop ulati on hast he sam e D NA pr ofi le ide ntif iedon the pant ies and t hat the DNA evide nce did no mo re than rule out as pos sib le so urc es of the blood the othe r individual s pr es ent at the sc ene excep t forTr evino and Sali nas . 4 Case: 10-70004 Document: 00511665311 Page: 4 Date Filed: 11/14/2011No. 10-70004

Trevino directly appealed his conviction and sentence, asserting 19 claims f o r r e l i e f. The Texas Court of Criminal Appeals affirmed his conviction an d sentence. Trevino v. S t ate , 991 S.W.2d 849 (Tex. Crim. App. 1999). While his direct appeal was still pending, Tre vi n o f iled an application for state habeas
corpus relief in which he urged 46 grounds for relief. The state habeas trial court held an evidentiary hearing during which Trevino’s forme r t ri a l counsel testified in part that (1) the defense contacted Gonzales prior to trial and knew what testimony he would give; (2) Trevino never denied pa r t i c ipating in the offense and admitted he was present when Salinas was killed; (3) when defense counsel pressed Trevino about the facts of the offense, Trevino responded he was too stoned at the time of the offense to recall details; and (4) Trevino never denied saying “I learned to kill in prison.” The state habeas trial court denied the habeas corpus application. The Texas Court o f Criminal Appeals adopted the state habeas trial court’s findings and conclusions and denied Trevino’s state habeas corpus application. Ex parte Carlos Trevino , WR-48,153-01 (Tex. Crim. App. April 4, 2001). On March 14, 2002, Trevino filed his original petition for federal habeas
corpus relief in th e d i s trict court, asserting four claims for relief. He subsequently filed, and the district court granted, an unopposed motion for stay, seeking leave to return to state court and explore a potential mental retardation claim, as well as other unexhausted claims. Trevino then filed his second state habeas corpus application, a s serting

new claims that (1) his trial counsel rendered ineffective assistance by failing to adequat e l y investigate, develop, and present available mitigating evidence during the punishment phase of trial; and (2) the Supreme Court’s holding in Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002) precludes his execution because he suffers from fetal alcohol syndrome. The T e x a s C o u rt of Criminal Appeals dismissed Trevino’s second state habeas corpus application pursuant

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to the Texas writ-abuse statute in an unpublished, per curiam order. Ex parte Carlos Trevino , WR-48, 1 5 3

- 0 2 , 2 0 0 5 WL 3 1 1 9 0 6 4 (Tex. Crim. App. November 23, 2005). Thereafter, Trevino filed, and the district court granted, another motion for stay in which Trevino sought to return to state court and exhaust a new claim b a sed on his federal habeas counsel’s discovery in the state’s files of a written witness statement dated June 12, 1996 giv e n b y Rey indicating that Cervantes, not Trevino, stabbed the victim. Trevino then filed a motion for appointment of counsel in state court, seeking legal representation in connection with this new claim. Ho w e v e r , for

over two years the state judicial officers either failed or refuse d t o appoint counsel for Trevino to pu r s u e t h i s claim, despite entreaties from the district court. The district court then lifted the stay and federal proceedings resumed. B. On December 8, 200 8 , T r e vino filed his amended petition for federal habeas corpus relie f, i n w h ich he asserted eight claims for relief. The district court denied reli ef on all claims, but granted COA on three of these claims. Trevino now appeals the district court’s rejection of those three claims. Trevino also seeks COAs to authorize appeal of t h e c l a ims on which the district court denied COA. Trevino’s primary assertion in th e c urre nt ap p e al i s that prosecutors failed to disclose Rey’s June 12, 1996 written statement which suggested that Santos Cervantes stabbed Salinas and that this no n disclosure violated Trevino’s constitutional rights pursuant to Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194 (1963). The record evidence indicates that this June 12, 1996 statement was the second of three signed, written statements Rey gave to police on June 12 and 13, 1996 during the investigation of Salinas’s death. A report created by Detective

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Charles Gresham summarized all of the witness statements made during the investigation, including Rey’s three statements. In his first statement made on June 12, 1996, Rey essentially denied any involv e m e n t i n the crime. Gresham’s report accurately summarizes this first statement. When Gresham confronted Rey with contradictory testimony from witnesses, Rey made a second statement the same day. In the pertinent part of this second statement, Rey stated that he and his friends drove with the victim from the store to Espada Park where Santos Cervantes took the victim into the woods by himself and then returned alone about 15 minutes later. According to Gresham’s summary, when Rey asked Santos Cervantes where the girl was, “Santos told him he killed h er.” The full written statement is lengthier and includes more detail. This second statement forms the basis for Trevino’s Brady claim on this petition. On June 13, 1996, Gresham obtained arrest warrants for Rey and Trevino. After being taken into custody, R e y m ade a third signed, written statement to the police on June 13. This third statement reads in pertinent part as follows: T h is is the third statement I have given to the police. Everything I have said in my second statement about how the girl Linda ended up in the car is true.

. . . We got to the park. Santos [Cervantes] and the girl got out of the car and went down the hill. I stayed on the top of the h i l l where we parked the car. Me, Bryan [Apolinar], Thate [Gonzales], and Carlos [Trevino] stayed with the car for about five minutes. Al l o f u s e went down to where Santos [Cervantes] was. When I got to where Santos [Cervantes] and Linda were Linda had he[r] pants down to her ankles a nd her shirt was up. I could see her breasts she did not have her bra on . . . . Santos [Cervantes] was having sex with Linda

. . . . After Santos [Cervantes] finished, I think Carlos [Trevino] had sex with her. Carlos [Trevino] had sex with her about ten seconds. I had sex with Linda next. I only went about ten seconds. After me Thate [Gonzales] had sex with Linda. He went about ten seconds. Bryan [Apoli nar] had sex with Linda next he w e nt about a minute. Santos [Cervantes] had sex with Linda again. Carlos [Trevino] and Bryan [Apol i n a r] at the same

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time told me and Thate [Go n z a l e s ] to go up and look out. Santos [Cervantes] was still having sex with Linda. Up to this point I did not see anyone hit Linda. No one yelled at her that I kn o w of. Thate [Gonzales] and me went back up the hill to the car. Thate [ G o n z a l e s ] and me got in the car. We both got in the back. T h e y were down ther e ab o ut five minutes, Santos [Cervantes], Bryan [Apolinar] and Carlos [Trevino]. Thate [Gon z a l e s ] and me were wondering what was taking so long. All three of them came up the hill. I asked wha t h a p p e n ed Carlos [Trevino] said they killed her that they cut h e r throat. Santos [Cervantes] said they cut her throat, we killed her[.] I asked how they said we cut he r t h r o a t. Carlos [Trevino] said don’t tell anybody. Carlos [Trevino] started to brush his shoes off with his hand, I saw they had blood on them. (underlined emphasis added). Gresham’s report included an accurate summary of Rey’s third s t a t e ment. The summary contained the following description of the most relevant part of Rey’s third statement: Seanido [Rey] stated Santos [Cervantes], Bryan [Apolin a r] , and Carlos [Trevino] then returned to the car and when he asked Carlos [Trevino] what had happened he was told they had cut her throat. He reported he observed Carlos [Trevino] brushing hi s s h oes off with his hand and he could see there was blood on them. 2

Ac cor ding to Gr es ham ’s rep ort , Rey’s thir d st atem ent wa s largel y cons ist ent wi th 2 Apol inar and Cervant es ’ st atem ents

. Gr es ham sum mar ized Apol inar’ s st atem ent as fol low s: Bryan [Ap olinar] rep ort ed Carlo s [Tr evino] st art ed jerk ing on her and he coul d tel l he wa s tryin g to brea k her neck

. Bryan [Ap ol i n a r] s t a t e d at this tim e he coul dn’ t handl e i t any m oreandhew alk ed backto the car

. H e s tat ed abouta mi nute late r they all com e back up the slo pe excep t Linda [S alinas ] and he coul d se e Carlo s [Tr evino] had blood all over him that he wa s wi ping off wi th a shi rt. Bryan [Ap olinar] s t a t e d he coul d als o se e Carlo s [Tr evino] had a kn ife thathew as als o w ipi ng of f and thatnoon e e lsehadbl oodont hem

. Apol inar wa s convic ted of se xually ass aulti ng Sali nas . In upho l d i n g Ap olinar ’s co nvict ion, the Texas Court of App eals too k note of Apol inar’ s st atem ent that he wi tnes se d Trevino “s tab the victi m. ” Ap oli nar v. Texas , No. 04-9 9-00 644- CR, 2000 WL 1210922 , *1 (Tex. Ct. Ap p. Aug. 16, 200 0) (unp ublis hed)

. Cervant es ple ade d guilty to Sali nas ’s mur der

. Gr es ham ’s sum mar y of Cervant es ’s st atem ent cont ains a sim ilard es cri pt ion of the cri me :

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Following the t r i a l of this case, Rey pleaded guilty to murder and is currently serving a 50-year sentence. I n c o nnection with his guilty plea, Rey stipulated to the facts contained in Gres h a m ’ s p o l ice report and his witness statements, all three of which were attached to his stipulation. See State v. Rey , No. 97-CR-1717C (290th Dist. Ct., Bexar County, T ex. Mar. 25, 1998) (factual stipulations and attached exhibits). 3 At some point during the instant action, Trevino’s federal habeas counsel discovered Rey’s s e c o n d June 12, 1996 written statement. The full, signed statement had been kept in one o f t h e s t ate’s separate files and, thus, had not been previously turned over to Trevino’s lawyers. Nevertheless, t h e original prosecutors in Trevino’s case have provided affidavits in connection with this action asserting that they provided Trevino’s trial c o u n s e l with a copy of

He rep ort ed he then se e Carlo s [Tr evin o ] grab up Linda and he had her by the neck wi th both arm s and wa s pus hing wi th them

. Sant os [Cerva n t es ] st ated Carlo s [Tr evino] put her dow n and Sam [Rey] put his foo t on her neck and tol d her ‘do n’t mo ve bitc h.’ Sant os [Cervantes ] st ated he coul d hear gurgling nois es com ing fr om Linda
w h i l e t h i s wa s going on. He st ated he then saw Sam [Rey] mo ve his foo t and Car l o s [Tr evino] grabbedLind a [ Sali nas ] up by t he hair and st abs he r tw ice.
This app eal has b e e n c o mp lica ted by the fac t that Trevino ’s couns el plac ed Rey’s 3
se cond wr itt en st atem ent into the rec ord , but Rey’s thir d wr itt en st atem ent inexp licably doe s not app ear in the rec ord on app eal. The dis tri ct cour t, t here for e, didno t have the benef it of revie wi ng Rey’s thir d wr itt en st atem ent. Never thel es s, all thr ee of Rey’s signe d, w r i t t en st atem ents app ear in the rec ord of Rey’s mur der cas e in Bexar County di s t r i c t c o urt

. The exis tenc e and the co nten t of thesestat em ents are beyonddis put e and, mor eover , ourreview of Tre vino’s Brad

yclaimis de nov o . Theref ore , w e tak e judic ial noti ce of Rey’s thirdwri tte n st atem ent. See Brow n v. Lip pa rd , 350 F. App ’x 879, 883 n.2 (5t h Cir. 2009) (t ak ing judic ial noti ce of st ate cour ts rec ord s outs ide the rec ord on app eal)

. This is cons ist ent wi th our rout ine pr act ice in habe as app eals of tak ing jud icia l n oti ce of all rela tedp roc eed ings brou ght by the app ellant , incl udin g stat e pro cee dings , “eve n whenthe pri or st ate ca seis not m adea part of the recor d on app eal. ” See Moore v. Estel le , 526 F.2d 690, 694 (5t h Cir. 1976)

. If we fai led to tak e judic ial noti ce of

Rey’s thir d w rit ten s tat em ent, the cour t’s under st andi ng of the rec ord evide nce w ouldbe incom ple te. See id . ( “Fora pr ope r unde rs tand ing of pr otr act ed lit igatio n we may draw upon the recor ds of all the prece ding cases .” ). Becaus e Trevinohas not had an opp ort unity to have inpu t into our dec isi on to tak e judic ial noti ce of doc ume nts in the st ate cour t pr oce edi ngs involving Rey, we aff ord him the right to rais e a ny object ion he may have by me ans of a pet itio n for rehe aring, wh ich objec tio n we wi ll cons ide r fil ed bef ore our opi nion iss ued. 9 Case: 10-70004 Document: 00511665311 Page: 9 Date Filed: 11/14/2011No. 10-70004

G r esham’s entire report before trial, including Gresham’s summary of R e y ’ s three statements. Trevino’s two trial attorneys, Gus Wilcox and Mario Trevino, have provided counter-affidavits stating t h a t they do not recall ever seeing Gresham’s summaries of Rey’s statements. However, the record o f T r evino’s first state habeas proceeding is inconsistent with the affidavits of Trevino’s attorneys. During that proceeding, Wilc o x an d Mario Trevino both gave testimony strongly suggesting that th ey h a d evaluated the witness statements in Gresham’s report. Mario Trevino testified that he had been given access to statements of the prosecution ’ s p otential witnesses, as well as various police reports, and that he was awa r e of at least “two guys that gave stateme n t s t h a t were pointing the finger to Mr. Trevino.” Wilcox went further and t estified that because he knew that all of the state’s potential witnesses would inculpate Trevino, Wilc o x had adopted a trial strategy of not calling any witnesses while instead relying on cross-examinatio n in an attempt to create a reasonable doubt. The potential witness list that prosecutors provided to Trevino’s attorneys prior to trial included Rey. 4

Thef ollo wi ng exc hange wi th Wilc ox t ookp laceatt he st ate habeas p roc eed ing: 4 Q. [W] hat theo ry of or wh at def ens ive pos tur e did you dec ide to tak e in fr ont of the jury at guilt/innoc ence ? A. Well , I think wh at we we re hopi ng to be able to so me how to do, is so me how sho w thathew as me rely pr es ent and didno thing to com mi t the cri me . Q. In ord er to do it thr ough a wi tn e s s , y o u wo uld have had to call one of the Sta te’ s pot enti al wi tnes se s, r ight? A. Well , right

. That’ s par t of the pr oblem

. So, I me an, I wa s going to - - We wo uld try and deve lop that thr ough cro ss -exam inati on at bes t, real ly. That’ s wh at we we re going to have to do. Q

. Becaus e, cor rec t me if I’m wr ong, but if you wo uld have call ed any o f t h o s e wi tnes se s, t hey w ouldhavep ut your clie nt at the sc ene, r ight? A. That’ s right

. Q. Andhe nce cor robo rat ed the wi tnes se s call ed by t he Sta te; c orr ect ? A. Well , yeah. Q. So you mad e a st rat egic dec isi on to try to pr es ent a cas e of reas onable doub t thr ough the cro ss exam inati on of the Sta te’ s wi tnes se s? A. That’ s bas ical ly it

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On this petition, Trevino relies on Rey’s second written statement to argue t hat if that statement had been disclosed, the defense could have shown tha t Cervantes, rather than Trevino, killed th e vi c t i m . Trevino asserts that the alleged nondisclosure of the entire written statement had a prejudicial effect at both the guilt and sentencing stages of his trial in violation of his rights under Brady. Trevino has also raised various other cl aims, including a claim that his trial counsel failed to effectively invest i g a t e a nd present available mitigating information during the sentencing phase of Trevino’s trial. As discussed further below on a claim-by-claim b a s i s, the district court rejected each of Trevino’s claims for relief. II.

Under the Antit e rrorism and Effective Death Penalty Act (“AEDPA”), “[b]efore an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first seek and obtain a COA

. . . .” Miller-El v. Cockrell , 537 U.S. 322, 335, 123 S. Ct. 1029, 1039 (2003); 28 U.S.C. § 2253(c)(1). Trevino is entitled to a COA only if he can make “a substantial showing of the denial of

a constitutional right.” Miller-El , 537 U.S. at 336, 123 S

. C t

. a t 1039 (citing § 2253(c)(2)). To meet this standard, Trevino must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that issues presented were adequate to deserve encouragement proceed further.” I d

. (i n ternal quotations and citations omitted); accord Tennard v. Dretke , 542 U.S. 274, 288, 124 S. Ct. 2562, 2572 (2004).

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In making a COA inquiry, w e must consider that AEDPA required the district court to defer t o t he state court’s resolution of Trevino’s claims, except in limited circumstances. Foster v. Quart e r m a n , 466 F.3d 359, 365 (5th Cir. 2006). Under AEDPA, federal courts may not grant habeas relief with respect to a claim adjudicated on the merits in state court unless that adjudication (1) resulted in a decision that was contrary to, or involved an unr e a s o nable application of, clearly e s t ab lished federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U

. S

. C

. § 2254(d)(1)-(2); see also Penry v. Johnson , 532 U.S. 782, 792, 121 S. Ct. 1910, 1918 (2001). We “must presume that the state court’s factual findings a r e correct unless [Trevino] meets his burden of rebutting th a t presumption by clear and convincing evidence.” Reed v. Quarterman , 555 F.3d 364, 368 (5th Cir. 2009) (citing 2 8 U

. S.C. § 2254 (e) (1)). “[A]bsent special circumstances, a federal habeas petitioner must exhaust his state remedies by pressing his c l a i m s i n state court before he may seek federal habeas relief.” Orman v. Cain , 228 F.3d 616, 619-20 (5th Cir. 2000); 28 U.S.C. § 2254(b)(1). Special circumstances permitting federal courts to review

a claim before it has been exhausted in state court include (1) when there is an absence of available state corrective process; or (2) when circumstances exist that render such process ineffective to protect the federal habeas p e t i t i o n er’s rights. 28 U.S.C. § 2254(b)(1)(B)(i)-(ii). In reviewing an issue on which the district court granted COA, “we review the district court’s findings of fact for clear error and i t s conclusions of law de

novo , applying the same standards to the state court’s decision as did the district court.” Busby v. Dretke , 359 F.3d 708, 713 (5th Cir. 200 4).
III.

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We first address the five issues on which the district court denied COA. A. Trevino first argues that the state violated his constitutional rights under Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194 (1963) by failing to disclose Rey’s second written statement dated June 12, 1996. He contends that had the state properly disclosed this statement , he likely could have established reasonable doubt regarding his guilt. Because the state courts never effectively addressed th e m erits of this issue or dismissed it as procedurally defaulted, the district court reviewed this claim de novo pursuant to 28 U.S.C. § 2254(b)(1). The district court determined 5 that unresolved questions of fact exist as to whether the government suppressed

or properly disclosed Rey’s statement, but concluded that the statement did not meet Brady’s materiality requirement with regard to the guilt/innocence phase

o f the trial. On our own de novo review, we agree with the district cour t regarding the statement’s lack of materiality. There are three basic elements to a Brady claim: (1) the evidence must be favor ab l e t o t h e accused, either because it is exculpatory or because it may be used as impeachment evidence; (2) the evidence must have been suppressed by the state; and (3) the evidence must be “material.” Banks v . D re t k e , 540 U.S. 668, 691, 124 S. Ct. 1256, 1272 (2004). Evidence is “material,” i.e., prejudicial, when there exists a “r e a s onable probability” that had the evidence been disclosed the result at trial would have been different. Banks, 540 U.S. at 698-

The dis tri ct cour t expla ined that wh en Trevino ’s fed eral habeas couns el dis cover ed 5 Rey’s st atem ents , the dis tri ct cour t st ayed its pr oce edi ngs to allow Trevi no to pur sue the Brad y clai m in st ate cour t. The st ate autho rit ies , how ever, fai led or ref use d to app oint couns el for Trevino , des pit e expli cit entr eati es fr om the dis tri ct cour t. The dis tri ct cour t held that the st ate’ s fai lure or ref

usa l to app oint couns el rend ere d the st ate pr oce ss “ine ff ect ive” to pr ote ct Trevino ’s cons tit utio nal right s, pur sua nt to 28 U. S. C. § 2254(b)( 1), thus per mi tti ng the dis tri ct cour t to revie w the clai m wi thou t it having fir st been adjud icat ed in st ate cour t. See Tre vi no , 678 F. Sup p. 2d at 458. We agree that , unde r the cir cum st ance s, t h e d i st ric t cour t wa s autho rizedund er 28 U .S .C. § 2254(b)( 1) to revie w the clai m de nov o . 13 Case: 10-70004 Document: 00511665311 Page: 13 Date Filed: 11/14/2011No. 10-70004

9 9, 124 S. Ct. 1276; see also Miller v. Dretke , 404 F.3d 908, 913-16 (5th Cir. 2005). 1. As an initial matter, although the district court did not resolve the factual issues surrounding whether the state suppressed Rey’s second w r i t t en statement, the record evidence st r o n gl y indicates that the prosecution did not suppress the statement. Given the evidence discussed above indicating that the 6 prosecution disclosed Gresham’s accurate summary of Rey’s three statements to Trevino’s attorneys prior to trial, this should have put defense counsel on notice that Rey had made one statement to police suggesting that Cervantes stabbed the victim. The onus was then on Trevino’s lawyers to request a copy of the full statement. See generally Re c t o r v. Johnson , 120 F.3d 551, 558 (5th Cir. 1997) (failure to discover material evidence must not be t h e r esult of the lack of due diligence). Regardless, even assuming that the state failed to properly disclose Rey’s second written statement, this state m e n t d o es not meet the requisite standard of materiality for the following reasons. 2. In light of Rey’s third written statement to the police inculpating Trevino in Salinas’s murder, it is indisputable that Rey’s second written statement was immaterial to Trevino’s case. If Trevino’s law y ers had been successful in introducing Rey ’ s s e c o nd statement to suggest that Cervantes was solely 7

The st ate argued that Rey’s wr itt en st atem ent wa s availabl e to the def ens e unde r the 6 st ate’ s “op en- fil e” pol icy. The dis tri ct cour t held that it need not r e s o l v e t h e fac tual iss ues regar ding wh ethe r th e state had sup pr es se d the st atem ent given the dis tri ct cour t’s conc lus ion thatt he st atem ent wa s not mat eria l. Rey’s se cond wr itt en st atem ent wo uld lik ely have been inad mi ss ible hear say. See 7 F E D

. R. E VID

. 801(c) ; T E X

. R. E VID

. 801( d)

. In th i s c i r c u i t , inad mi ss ible evide nce may be mat eria l unde r Brad

y if it so me how lead s to othe r excul pat ory evide nce; the ke y is st ill “w heth er the dis clos ure of the evide nce wo uld have cre ated a reas onable pr obabil ity that the res ult of the pr oce edi ng wo uld have been dif fer ent. ” Fel der v. Johns on , 180 F.3d 206, 212 (5t h 14 Case: 10-70004 Document: 00511665311 Page: 14 Date Filed: 11/14/2011No. 10-70004

responsible for Salinas’s murd e r , t he prosecution undoubtedly would have introduced Rey’s third statement. Introduction of Rey’s third statement would 8 have dest r o y e d a ny benefit Trevino would have otherwise gained from the second statement. Not only does Rey’s third statement ex p ressly retract his second state m e n t’s assertion that Cervantes took Salinas to the woods by himself, Rey’s third statement plainly describes Trevino’s active participation in Salinas’s rape and murder. Rey’s third s t atement contains the following testimony: (1) Trevino raped Salinas; (2) Trevino, Cervantes, and Apolinar were present when Salinas was killed; (3) when Trevino, Cervantes, a n d Apolinar returned to the car without Salin a s , Rey “asked what happened [and] Carlos [Trevino] said they killed her that they cut her throat”; (4) Trevino had blood on his shoes; and (5) Trevino said “don’t tell anybody.” In the extremely unlikely event that Rey had attempted to testify at Trevino’s trial to the facts contained in his sec o n d s t a t e ment, the prosecution would have undoubtedly impeached Rey with his third statement to the police. Accordingly, it is very clear that even i f T r e vino’s counsel had been permitted to use Rey’s second written statement at trial, this would have failed to benefit Trevino. To the contrary, admission of R ey’s written statements would have been extremely damaging to Trevino’s interests. Under these circumstances, Rey’s second writ t en statement cannot be considered material because t h e r e is not a “reasonable probability” that the outcome of Trevino’s trial would have been different if the full statement had

Cir. 199 9). See, e. g., F E D

. R. E VID

. 806 (“When a hear say st atem ent

. . . h a s b e e n a dm itt ed in 8 evide nce, the cre dibi lity of the dec laran t may be att ack ed, and if att ack ed may be sup por ted , by any evidencewhic h woul d be adm iss ible for thos e pur pos es if de clar ant hadtes tif iedas a wi tnes s . . . .) ; ac cor dT E X

. R. E VID

. 806 15 Case: 10-70004 Document: 00511665311 Page: 15 Date Filed: 11/14/2011No. 10-70004

been disclosed. In fact, quite the opposite is true—it is almost certain that the outcome would have been the same. 3. Additionally, we note our agreement with the district court that the evidence presented at Trevino’s trial supports t h e j u ry’s verdict of conviction under Texas’s law of the parties. As explained, Rey’s written statements cast 9

no do ub t o n the substantial, uncontroverted evidence presented during the guilt/innocence phase of the trial supporting the conclusion that Trevino acted with intent to commit the offense and aided or attempted to aid other members of the group in commission of Salinas’s murder. Rey’s third written statement is consistent with the trial evidence. There is no reasonable probability that but for t h e a l leged failure of the prosecution to disclose Rey’s second written statement, the jury would have found Trevino not guilty of capital murder under Texas’s law of the parties. Jurists of reason cannot find the district court’s denial of Trevino’s Brady claim on these grounds debatable. See Miller , 404 F.3d at 916 (denying COA in capital murder case regarding suppression of evidence that defendant had not shot the victim because “uncontroverted, overwhelming evidence” showed that defendant participated in the crime and was, thus, guilty under Texas’s law of

Such law , a c c o r d i n g to the ins tru cti on given to the jury, pr ovide s, inter al ia, the 9 fol low ing: [A] p ers on is cri mi nally res pons ible as a par ty to an off ens e if the off

ens e is com mi tte d by his ow n cond uct , o r b y the cond uct of anot her for wh ich he is cri mi nally res pons ible, or both. Each party to an off ens e may be char ged wi th com mi ss ion of the off

ens e. . . A per so n is cri mi nally res pons ible for an o ff ens e com mi tte d by the cond uctof ano therif

ac ting wi th inte nt to pr om oteorass ist the comm iss ion of the off ens e he so lici ts , enco urages , dir ect s, aids or att em pt s to aid the othe r per so n t o c om mi t the off ens e. See Tre vi no, 678 F. Sup p. 2d 445 (quo ting a n d e x p lainin g the ins tru cti ons given to the jury regar ding Texas ’s la w of par tie s) ; seea ls oT E X

. P E N AL C ODE§ 7.02 ( 2011)

. 16 Case: 10-70004 Document: 00511665311 Page: 16 Date Filed: 11/14/2011No. 10-70004

the parties). We, therefore, a f f i r m t h e district court’s denial of a COA on this issue.
B.
We next turn to Trevino’s request for COA regarding the district court’s denial of his claim f o r i neffective assistance of counsel during the guilt/innocence phase of trial based on his counsel’ s f a i l u re to discover Rey’s second written statement. It is c l e a r that this argument fails for the same reasons described above. To prove ineffective assistance of counsel, Trevino must generally show (1) that his counsel’s performance was deficient; and (2) that this deficiency prejudiced the defendant

. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 205 9 ( 1 9 84). Trevino cannot show prejudice based on his counsel’s failure to uncover Rey’s second written statement for the same reasons that he cannot show that the statement was material under Brady

. The record evidence suggests, moreover, that because Trevino’s attorneys had access to Gresham’s accurate summaries of all three of Rey’s witness s t atements, they appreciated the import of Rey’s third statement. The record demonstrates that Tre vi no’s attorneys reasonably believed all of the state’s potential witnesses—including Rey—would inculpate Trevino if called to test i f y. This is why Trevino’s attorneys did not attempt to call Rey or any other w i t n e s s e s. Nothing in the record remotely suggests that disclosure of the full text of Rey’s second written statement would have changed this strategic ca l c u l a tion made by Trevino’s attorneys, particularly in light of Rey’s third statement. Jurists of reason cannot debate the district court’s conclusion on this issue. Therefo r e , w e affirm the district court’s denial of a COA regarding this issue.
C.

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We next consider Trevino’s argument that a COA should issue regarding the district court’s rejection of Trevino’s claim that his trial counsel failed to investigate an d d eve l o p m iti gating evidence during the sentencing phase of trial. The district court held that this claim was procedurally d e f a ulted because Trevino failed to raise it during his first state habeas proceeding, which resulted in dismissal by the Texas Court of Criminal Appeals on the basis of Texas’s “abuse of the writ” doctrine when Trevino presented the issue in his second state habeas suit. SeeT E XA S C O D E O F C R I M

. P. AN N

. AR T . 11.071 § 5(c) (2011). A claim is procedurally defaulted when a state court clearly and expressly bases its dismissal of a claim on a state procedural rule and that rule provides

an independent and adequate ground for dismissal. Coleman v. Thompson , 501 U.S. 722, 729, 111 S. Ct. 2546, 2253-54 (1991). When such a dismissal based on independent and adequate state law grounds has occurred, we do not reach the merits of the federal habeas claim. Id

. The dis t rict court rightly observed that we have expressly held “Texas’s abuse of the writ doc t ri n e i s a valid state procedural bar foreclosing federal habeas review.” Coleman v. Quarterman , 456 F.3d 537, 542 (5t h C i r . 2 0 05); accord Hughes v. Quarterman , 530 F.3d 336, 342 (5th Cir. 2008). Moreover, we recently addressed a “perfunctory” dismissal order by the Texas Court of Criminal Appeals—s i mil ar to th e o r d er di s mi s s ing Trevino’s second state habeas petition—that cited Article 11.071, Section 5 of the Texas Code of Criminal Procedure in dismissing a claim for ineffective assistance of counsel, without further explanation. Balentine v. Thaler , 626 F.3d 842, 849-57 (5th Cir. 2010) (panel rehearing). We held that this dismissal order could not be read as having reached the merits of the federal claim, but rather must be viewed as resting on independent and adequate state law grounds for purposes of procedural default

. I d

. Accordingly, we agree with the district court that Trevino’s cl a i m f o r ineffective assistance of c o u n s el, which the Texas Court of Criminal Appeals

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dismissed on abuse-of-writ grounds under Section 5 o f Ar t i cle 11.071 of the Texas Code of Criminal Procedure, was dismissed on independent and adequate

s t a te grounds and is, thus, procedurally defaulted. Reasonable jurists can n o t disagree with the district court’s procedural ruling in this regard. We, therefore, affirm the district court’s denial of COA for this claim. 1 0
D.
We also affirm the district court’s denial of COA regarding Trevino’s claim that the factors in Texas’s capital sentencing sc heme—such as “future dangerousness”—are vaguely defined and fail t o p r operly channel the jury’s discretion. As the district court correctly held, we have repeatedly rejected similar arguments. See, e.g., L e a l v . Dretke , 428 F.3d 543, 553 (5th Cir. 2005) (citing numerous cases rejecting vagueness challenges to the terms of Texas’s capit a l s e n t e ncing scheme). Because jurists of reason cannot debate that the district cou r t c o r r ectly held that this claim has no merit under binding precedent, we affirm the district court’s denial of a COA.
E. Finally, we affirm the district court’s denial of a COA regarding Trevino’s

ar gu m e nt th at T e x a s p ro c edure unconstitutionally prevent e d th e tri al c o urt f ro m informing the jury of the effect of a hung jury during Trevino’s sentencing. The district court noted first that Trevino raised this same claim d u r i n g h is direct appeal in state court and during his first state habeas proceeding; the Texas courts rejected the claim. The district court al s o correctly explained that the Supreme Court and this court have rejected similar claims numerous times. See Jones v. United States, 527 U.S. 373, 382, 119 S. Ct. 2090, 2098 (1999) (holding

The dis tri ct cour t grant ed COA on the iss ue of wh ethe r Trevino coul d m e e t the 1 0 “f undam enta l mi sc arr iage of just ice” excep tio n to the pr oce dur a l def ault of his inef

fec tiveass ist ancec laim , and wew ill add res s thatis sues epa rat ely below

. 19 Case: 10-70004 Document: 00511665311 Page: 19 Date Filed: 11/14/2011No. 10-70004

that the Eighth Amendment does not require a capital sentencing jury t o be i nstructed regarding the effect of a “breakdown in the deliberative process”). 11 Reasonable jurists cannot debate the district court’s disposition of this issue. Thus, we affirm the district court’s denial of a COA on this ground. IV. We next consider t h e three claims on which the district court granted COA. A. The district court granted COA on Trevino’s Bra dy claim regarding the prosecution’s alleged suppression of Rey’s second written statement during the punishment phase of hi s tri al. Trevino argues that had the prosecution disclosed Rey’s second written statement, it is reasonably probable that the jury would not have sentenced him to death. For substantially the same reasons that we reject this claim with regar d t o the guilt/innocence phase of trial, we hold that the government’s alleged suppression of Rey’ s second written statement was not material to the punishment phase of Rey’s trial under Brady

. Admission of Re y ’ s w ritten statements at the sentencing phase of trial would not have tended to prove that Trevino lacked culpability in the stabbing death of Salinas. As explained, Rey contradicted all of the salient facts of his second written statement in the third written statement he made to the police after his arres t

. S ubsequently, Rey pleaded guilty to Salinas’s murder, stipulating to the truth of his third statement. Whatever probative value the second written statement may have had, therefore, was negated by Rey’s third

See also Turn er v. Q uar term an , 481 F.3d292 , 300 (5t h Cir. 2007) (rec ognizing that 1 1 pr ece dent pr eclu des any argum ent that the Eighth Ame ndm ent or the Du e Proc es s claus e of the Fourt eent h Ame ndm ent requ ires a Texas cap ital se nten cing jury t o be info rm ed of the eff ectof f ailur e t o r eacha unanim ous ver dic t)

. 20 Case: 10-70004 Document: 00511665311 Page: 20 Date Filed: 11/14/2011No. 10-70004

statement and, later, by his guilty plea. As such, a reasonable jury could not have given Rey’s second statement any credence during sentencing. Accordingly, Rey’s second written statement was not material to Trevino’s sentence because there is no “reasonable probability” that the prosecution’s disclosure of the statement would have changed the outcome of the sentencing phase of Trevino’s trial. B. The district court granted COA regarding Trevino’s claim that he received ineffective assistance of counsel based on his trial attorneys’ failure to discover and present Rey’s second written statement during the sentencing phase of trial. Trevino argues that such failure meets the standard for prejudice established by the Supreme Court. See Strickland , 466 U.S. at 687, 104 S. Ct. at 2064. This claim has no merit for the rea s o n s s t a t ed above. The record evidence clearly shows that Rey’s s e c o n d statement had no materiality and that, accordingly, Trevino ’ s attorneys’ alleged failure to seek out the full statement and attempt to present it to the jury did not prejudice Trevino’s interests during sentencing under the meaning of Strickland

. C. Finally, the district court granted COA regarding Trevino’s claim that it would be a “fundamental miscarriage of justice” if Trevino were not permitted to pursue his claim that his tr i a l c ounsel failed to investigate and present compelling m i t i g a t i ng evidence at the sentencing phase of trial. As explained above, we agree with the di s trict c o urt th at Tr evino’s ineffective-assistance claim regarding his counsel’s alleged failure to discover and use “new,” potentially mitigating evidence is procedurally barred under Texa s ’s abuse-of-writ doctrine. Thus, the only issue on which the district court granted COA is whether Trevino’s claim qualifies for the narrow exception to the prohibition on habeas review of procedurally barred claims when there exists a “fundamental

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miscarriage of justice.” Coleman v. Thompson , 501 U.S. 722, 749-50, 111 S. Ct. 2546, 2564-65 (1991). To satisfy the “miscarriage of justice” test, a petitioner must supplement his constitutional claim with a colorable showing of “actual innocence.” Sawyer

v. Whitley , 505 U.S. 333, 335-36, 112 S. Ct. 2514, 2519 (1992). In the context of the sentencing phase of a capital murder trial, the Supreme Court has held that

a showing of actual innocence is made when a peti tioner shows by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found petitioner eligible for the death penalty under applicable law. Id

. at 3 4 6

- 4 8 , 1 1 2 S. Ct. at 2523. This “actual innocence” inquiry, thus, must b e carefully focused on mitigating evidence related to the legal factors that render

a capital defendant eligible for a death sentence. Rocha v. Thaler , 619 F.3d 387, 405 (5t h Cir. 2010). We recently explained this actual-innocence inquiry at length: When a claim of actual innocence contests a sentence of death, the habeas petitioner’s claim must tend to negate not j u s t t h e jury’s d i s c r e tion to impose a death sentence but the petitioner’s very eligibility for that punishment. That is, a habeas petitioner who is unquestionably eligibl e f o r the sentence received can never be actually innocent of the death p e n alty. This is so because late-arriving constitutional err o r that impacted only a jury’s sentencing discretion is not sufficiently fundamental as to excuse the failure to raise it timely in prior state and federal proceedings. The actual innocence requirement must, then, focus on those elements that render a defendant eligible for the death penalty, and
no t o n a d ditio n al mitigating evidence that was prevented from bein g introduced as a result of a claimed constitutional error. Id. at 405 (internal quotations and citations omitted). Thus, if a defendant is eligible for the death penalty, the actual-innocence i nquiry does not take into account the e ntire universe of potential mitigating evidence that a defendant

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m a y s e e k to present that could have affected a jury’s discretion to impose the death penalty. Id. 1 2 The “new” mitigating evidence on which Trevino relies relates primarily to his difficult, abusive childhood a n d his struggles with alcohol and illegal substances. The subject matter of this evidence is somewhat cumulative of the

1 3 testimony of Trevino’s a u n t , w ho testified that Trevino had experienced difficulties involving the absence of his father and his mother’s alcohol problems. But the volume of new evidence identified by Trevino is much greater than what

was presented by his trial attorneys. Notwithstanding the volume of this potentially mitigating evidence or the effect it might have had on the jury’s sympathies, this evidence does not satisfy the demanding standard of “ a ctual innocence” because it bears no relationship to Trevino’s eligibility for the death penalty.

See also Ha

ynes v. Q u a rter ma n , 526 F.3d 189, 195 (5t h Cir. 2008) (“ The ‘ac tual 1 2 innoc ence ’ requ irem ent mus t foc us on thos e elem ents that rend er a def enda nt eligibl e for the d e ath pena lty, and not on add itio nal mi tigat ing evide nce that wa s pr event ed fr o m b e i n g intr oduc ed as a r es ult of clai m of cons tit utio nal err or. ”)

.

As des cribed by the dis tri ct cour t, this “new” mi tigat ing evide nce can be sum mar ized 1 3
as fol low s: (1) the pet itio ner’ s mo ther wa s an em oti onally unst able, phys ical ly abus ive alco holic wh o abus ed alco hol th r o u ghout her pr egnancy wi th pet itio ner; (2) pet itio ner we ighed only fou r poun ds at birt h and requ ired cons ide rable hos pit al car e dur ing his fir st few we ek s of lif e; (3) for the res t of his lif e, pe t i t i o ner suf fer ed fr omt he del ete riou s ef fec ts of FetalAlcohol Syndr om e, as we ll as his mo ther ’s phys ical and em oti onal abuse; (4) petitioner suffe red num ero us se riou s head injurie s as a child for wh ich he rec eived litt le or no me dic al car e due to the neglec t of his m othe r and the abs enceof his f athe r; (5) pe tit ionerwas expos ed to alco hol and dr ug abus e fr om an earl y age and began abus ing both alco hol and mar ijuana him se lf bef ore he reac hed age tw elve; (6) pet itio ner beca me involved in st ree t gangs and st ree t cri me by age tw elve; (7 ) pet itio ner expe rien ced a lifetime of adver sit y, dis advant age, and dis abilit y; (8) pet itio ner att ende d school irr egular ly and per for me d poo rly in sc hool; and (9) pet i tio ner suf fer s fr om im pair ed cognit ive abilit ies

. Tre vi no , 678 F. Sup p. 2dat467

. 23 Case: 10-70004 Document: 00511665311 Page: 23 Date Filed: 11/14/2011No. 10-70004

Th e evi d e nc e p r e s e nt e d during the guilt/innocence phase of trial, co mb in e d with the evidence presented during the sentencing phase, re n d e red Trevino l e g a l ly eligible for the death penalty. Trevino became eligible for the de a t h penalty during the sentencing phase on the jury’s affirmative answer to the special question asking whet h e r T r e vino represented a continuing threat to society. See T E X

. C O D E C R I M

. P. AR T

. 37.071 § 2(b) (2011). The potential 1 4 mitigating evidence Trevino discusses would have had no appreciable effect on the jury’s decision regarding this future dangerousness question. Ample e vidence was presented during the guilt/innocence phase of trial entitling the jury to determine that Trevino represented a continuing threat to society. Much of the testimony arrayed against Trevino indicated future d a n g e rousness, including Gonzales’s testimony that Trevino made callous, menacing comments following Salinas’s murder such as “I learned how to use a knife” and “I learned how to kill in prison.” The prosecution also pr e s e n t e d additional evidence regarding Trevino’s future dangerousness such as Trevino’s past convictions for various crimes, including unlawful possession of a handgun; his membership in a notorious street gang; and tattoos indicating that he closely identified himself with this gang. None of the new mitigating evidence Trevino discusses

—which relates primarily to the circumstanc e s o f hi s chil dhood—would have been relevant to the jury’s consideration of Trevino ’ s f u t u r e threat to society. As the district court pointed out, if anything, this t y p e of mitigating evidence is “double-edged,” in that it could just as easily be interpreted to support the conclusion that Trevino

A cri mi nal def

enda nt’ s eligibilit y for thedeathpenalt y require s thejury to “convic t 1 4 the def enda nt of mur der and find one ‘aggravat ing cir cum st ance ’ (or its equivale nt) at eit her the guilt or pena lty phas e.” Tui la ep a v. Cal if orni a , 512 U. S. 967, 972, 114 S. Ct. 26300, 2634- 35 ( 1994) (inte rnal cit atio n o mi tte d)

. 24 Case: 10-70004 Document: 00511665311 Page: 24 Date Filed: 11/14/2011No. 10-70004

represents a future danger as it could be interpreted to undermine such a conclusion. Furthermo r e , Tr evino ’ s ar gu m e nt th at thi s n ew mitigating evidence would have rendered him ineligible for the death penalty pursuant to the jury’s second special question at the sentencing phase is without merit. In Texas’s c a pital sentencing scheme, the second special question permits the jury to make a n in divi dualized determination of the defendant’s moral culp ab ility b y c o n s i d e rin g the circumstances of his offense as well as his character and background. See T E X

. C O D E C R I M

. P. AR T

. 37.071 § 2 ( e )

- (f ) (2011). This question implicates the jury’s discretion to impose the death penalty and, thus, is viewed as a “selection” issue rather than an “e l i gibility” issue in the parlance of the Supreme Court’s death-penalty jurispruden c e . See Tuilaepa , 512 U.S. at 971-73, 114 S. Ct. at 2634-35. As with other “actual innocence” claims t h at we have rejected, Trevino’s argument s i m p l y “reduces to an assertion that mitigating evidence could have influenced the jury’s discretion in considering a sentence of death; he does not argue that this evidence would have rendered him ineligible for the death penalty.” Rocha , 619 F.3d at 405. 1 5 Accordingly, Trevino f a i l s to satisfy the actual-innocence standard. The “fundamental miscarriage of justice” exception to the prohibition against habeas revie w of procedurally barred claims, therefore, does not apply to Trevino’s claim regarding ineffective assistance of counsel.
V.
For the foregoing reasons, we conclude that a C O A i s not warranted for
any of the five issues that Trevino has raised on this petit i o n; moreover, the

See also Ha

ynes , 526 F.3d at 195 (“ The evide nce that wa s allege dly not pr es ente d 1 5 dur ing Ha ynes ’s se nten cing dea ls exclus ively wi th mi tigat ing evide nce and this evide nce doe s not sho w thatH aynes w as act ually innoc ent of a d eath -el igible off ens e.” ). 25 Case: 10-70004 Document: 00511665311 Page: 25 Date Filed: 11/14/2011No. 10-70004

district court correctly denied relief on the t h r ee claims on which the district court granted COA. Accordingly, we AFFIRM the district court’s order denying habeas relief to Trevino.

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DENNIS, Circuit Judge, dissenting. Sam Rey, an accomplice t o t h e r ape and murder of Linda Salinas on June 9, 1996, gave a d e t a i l e d , sworn, written statement to police on June 12, 1996, which completely exculpated Carlos Trevino. This statement by Rey contradicted the testimony o f Juan Gonzales, the state’s chief prosecution witness, who said that Trevino participated in the rape and s h o rtly after the crime, Trevino made statements to Rey, Gonzales, and others inculpating himself in Salinas’ murder. In his federal habeas petition, Trevino contends that the state failed to disclose Rey’s June 12th written statement in vi o l a t i o n of Bra d y v. Maryland , 373 U.S. 83 (1963); and that if the statement had been disclosed and available, his attorneys failed to discover and use it, rendering their assistance ineffective in violation of Stricklan d v . W as h i n gto n , 4 66 U.S. 668 (1984). The majority concludes t h a t T r evino is not entitled to habeas relief because Rey’s June 12th st a t e m e nt is not “material” under Brady and Strickland

. The majority reasons that Rey’s statement is not material because the prosecutor i n T r e vi n o’s trial would have used a subsequent, June 13th, written statement by Rey, which inculpated Trevino, to contradict Rey’s earlier June 12th statement. However, that later statement does not appear anywhere in the record before the district court in this case; ind e e d , t h e majority has produced it sua sponte by going outside of the record in this case, to a record of another state court case to which Trevino was not a party. Neither the state nor Trevino had ever before mentioned Rey’ s Ju n e 1 3 th statement, let alone litigated the significance of it—for all we know, neither Trevino nor the state’s attorneys in Trevino’s criminal trial, nor the state’s attorneys in Trevino’s habeas proceedings, has ever seen or heard of this state m e n t b e f o re the majority sua sponte obtained a copy of it after this appeal was fully briefed. I respectfully disagree with the majority’s course in taking judicial notice of Rey’s June 13 t h written statement and using it to resolve this case on its

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merits. The majority provides no authority that permits us, without request or agreement of the parties, to go outside of the record before the district court, to

a state court record of a different case, of a different defendant, to find a statement b y a n o n - party witness who did not testify at the petitioner’s trial. Moreover, the majority makes a determination that Rey’s June 13th statement is more truthful than his June 12th statement, and therefore is a retraction of it; however, such a credibility determination is not a kind of fact that may be judicially noticed, viz. , a fact “not subject to reasonable dispute in that it is either (1) generally known within the territori a l j u risdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fe d

. R. Evid. 201(b). Rather than using judicial notice to improperly supersede Rey’s June 1 2 t h s t a tement with his June 13th statement that was not part of the district court’s record, we should vacate the distric t c o u rt’s judgment and remand the case for an evidentiary hearing or stipulations of the parties a s to the context and circumstances surrounding Rey’s June 12th and 13th statements and for decisions upon the issues arising out of them. I do not share the majorit y ’ s c o n fidence in their ability as appellate judges with nothing but a paper record to neatly reconstruct the likely outcome of this case had a l l of Rey’s statements been disclosed to defense counsel before trial, since Rey’ s t h i r d statement, upon which the majority so he avi l y r elies in affirming the death penalty, has never been introduce d o r s ubjected to any trial court adversary proceedings in this case. Accordingly, I respectfully dissent. I. Carlos Trevino was convicted by a Texas jury of the June 9, 1996, sexual assault and murder of Linda Salinas in San Antonio, and sentenced to death. The state’s case at the guilt-innocence p h a se of Trevino’s trial hinged on the testimony of Jua n G onzales. He testified that Trevino and three other young

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men, Santos Cervantes, Sienido (Sam) Rey, and Bryan Apolinar picked up Salinas at a gas station and drove her to Espada Park where t h e y sexually assaulted her; that Cervantes alone had lured Salinas int o t h e c a r; that Gonzales had seen Cervantes with a knife before Salinas’ murder and Cervantes t old Gonzales that he had disposed of the knife after Salinas’ murder; that Gonzales heard Cervantes say something about a knife in the car after Salinas

was killed; and that Gonzales believed Cervantes killed Salinas. Gonzales also testified that after the sexual assault, he heard Cervantes and Apolinar say, “we don’t need no witnesses,” and Trevino say, “we’ll do what we have to do”; that he left before Salinas was stabbed, but shortly afterwards, he saw blood on Trevino and Cervantes; and that as the five men drove away from the park, Cervantes said it was “cool” or “ n e a t” h ow Trevino had “snapped” Salinas’ neck, and Trevino responded that he had “learned how to kill in prison.” The prosecutor relied heavily on Gonzales’ testimony about Trevino’s statement in t h e car to argue to the jury that Trevino was the actual killer. At the sentencing phase of the trial, the state again rested its case heavily on Gonzales’ testimony that after Salinas’ murder Trevino said that he had “learned how to kill in prison.” On March 25, 1998—nearly nine months after Trevino’s conviction—Rey pleaded guilty to murder and received a fifty-year sentence. On May 5, 1998, 1 Cervantes pleaded guilty to capital mu r der and received a life sentence. 2 Apolinar went t o t rial and was convicted of aggravated sexual assault. 3

See State v. Rey , No. 97-CR- 1717C (290 th Di st

. Ct. , Bexar Cnty. , Tex. Mar

. 25, 1998) 1 (c rim inal doc ke t she et entry); seea ls o Tex. Pen. Cod e § 19. 02. See State v. Cerv antes , No. 97-CR- 1717B (290 th D i st

. Ct. , Bexar Cnty. , Tex. May 5, 2 1998) (c rim inal doc ke t she et entr y); see also Texas Pen. Code § 12.3 1 (“An individual adjud ged guilty of a cap ital fel ony in a cas e in wh ich the st ate doe s not se ek the death penalty shall be puni she d by im pr iso nme nt in the Texas D epa rtm ent of Crim inal Jus tic e f or . . . lif e wi thou t par ole. ”)

.See Ap oli nar v. State , No. 04-9 9

- 0 0644- CR, 2000 WL 1210922 (Tex. Crim

. App

.

3 Aug. 16, 2000) (unpub lis hed) ; seea ls o Tex. Pen. Cod e § 19. 03. 29 Case: 10-70004 Document: 00511665311 Page: 29 Date Filed: 11/14/2011No. 10-70004

G o n z ales, the only one of the group who testified against Trevino, w a s n o t charged. During his federal habeas proceedings, Trevino’s counsel uncovered a sworn, written statement that Sam Rey gave to Detective Barry Gresham, the lead detective investigating Salinas’ murder, on June 12, 1996, three days after Salinas was killed. That statement, which is attached to Trevino’s federal habeas petition, reads in its entirety : 4 My name is Seanido Rey I was born on 07-29-75. I am 20 years old. I live at 1 1 3 1 San Fernando with my sister the phone number is 226-0391. I have already given Det. Gresha m a s t atement, but I would now like to tell the truth of what really happened on last Sunday night. Everything I said was true about what h a p pened up to the part when we were at the Pic Nic. While we we r e t h e r e I saw a girl talking on the telephone. Santos was talking to her. Det. Gresham showed me a picture of a girl and this was the same girl I saw on the telephone. I signed and dated this photograph. When I went to the car the girl Det. Gresham told me was named Linda came also she was with Santos. We all got in the car with Linda. Linda was in the front right seat sitting in Santo’s lap. [Bryan ] was driving the car 5 and I was sitting in the back of t h e car in the middle. Carlos was sitting to the right of me and [Juan ] was on my left. When we left 6 the store Linda and Santos was kissing. [Bryan] went to Mission Rd. and went towa r d s Military Hwy. We then went by a park called E s p a da. Before we got to the park I saw Santos throw a b r a t o [Bryan] that Linda had taken off. [Bryan] threw the bra out of the

The st atem ent i s q u o t ed as it app ears in the rec ord , inclu ding any ort hograp hic 4 irr egular itie s. Rey ref err ed to the ow ner of the car as “Jas on” in his fir st st atem ent to De t. Gr es ham 5 and in this st atem ent. In a late r st atem ent he “s tat ed [t hat] he had been conf use d about the nam e of the dr iver of the car and rem em bere d now the dr iver’ s nam e is Bryan not Jas on. ” In ord er to avoidc onf

usi on, I have changed“Jas on” in Rey’s quo teds tat em ent to “[ Bryan] .”
In se veral of

the sus pec ts ’ st atem ents , Juan Go nzales was refe rre d to as “Thatie ” or 6 “Tat i.” See Tre vi no v. Tha le r , 678 F. Sup p . 2 d 4 4 5 , 4 6 0 (W. D. Tex. 2009)

. Again, to avoid conf usi on, I have changed“ Thatie ” in Rey’s quo teds tat em ent to “[Juan] .” 30 Case: 10-70004 Document: 00511665311 Page: 30 Date Filed: 11/14/2011No. 10-70004

car before we stopped. [Bryan] then parked the car in a parking lot. The whole time we w ere driving out there Santos and Linda were making out. When we stopped the car Santos and Linda got out. I saw they were holding hands. I knew that he was going to have sex with her. I saw them walking towards the woods. I saw they walked down toward the creek. We all got out and was standing against the car listening to the radio. I never heard any noise coming from the creek. About ten or fifteen minutes later Santos came back from the creek. I think when all this was happening was about 10:30 or so at night but I didn’t look at a watch. When Santos comes back up the creek I asked him where the girl was at. He told me “Fuck that bitch, she didn’t want to give i t u p s o I stabbed her”. I asked him why he did that and I don’t remember what he said. Everybody else was close when he said this a n d I t h i n k they heard him also. We then just all get back i n t o t h e car and leave. We then went to Santo’s friends house. On the way everbody was quiet and was not talking about what happened. Santo’s friends house is on S. Flores street somewhere but I’m not sure where. When we get to the house Santos tells us to just be quiet about what had happened. I was just in shock about what had happened and didn’t say anyt h i ng. The house is gang house and there was alot of guys and girls there just hanging out. We just drank beer and hung out. We stayed there to about 3:00 i n t h e m o rning and then [Bryan] took me [Juan] and Carlos back to Carlos’s house. [Bryan] and Santos t h e n l eft they didn’t say where they were going. I don’t know Santos last name but I have agreed to take you to the house that we pick e d h i m up at. This guy named [Bryan] is a fr i e n d o f [Juan] I don’t know his last name or where he lives. I have read the above statement and It’s true and correct. Also attached to Trevino’s federal habeas petition are affidavits from Trevino’s two trial attorneys in which they swore that they had never seen this written statement by Rey before Trevino’s trial. One of the attorneys swore that Rey’s statement “was never produced or shown to us” before Trevino’s trial; and the other attorney swore, “I do not recall seeing

. . . the June 12, 1996 statement of Sean i d o R e y p rior to 2006, and certainly never saw [it] prior to trial in June 1997.”

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The habeas record in this case also includes a report by Det. Gresham, d a t e d a little more than a month after the crime. The report details Det. Gresha m ’ s investigation of Salinas’ murder, and includes a summary of three purported statements by Rey. Det. Gresham’s summary of R ey’ s p urp o rt e d first statement says that Rey “read the statement he had given me and signed it,” indicating that a separate written statement existed. The summary of Rey’s purported second statement provides a brief recapitulation of the sworn, written statement reproduced above, but does not include the rich detail of Rey’s written statement. For instance, Det. Gresham’s summary leaves out critical facts, such

as Rey’s statement that “[o]n the way [to Santos’ friend’s house] ever[y]body was quiet and was not talking about what happened,” which contradicts Gonzales’ testimony that Trevino h ad made incriminating statements during that car ride. There is also nothing in Det. Gresham’s report that suggests that Rey swore to, and signed a separate, full written statement

— a s o p p osed to simply giving Det. Gresham an oral statement. Det. Gresham’s summary of Rey’s purported third statement contradicts parts of Rey’s second st atement and includes i n c u l patory allegations against Trevino. As with Det. Gresham’s summary o f Rey’s purported second statement, the summary of Rey’s purported third statement in no way indicates that a separate, written statement existed. Attached to Trevino’s federal habeas petition are affidavits from Trevino’s trial attorneys in whi c h they swore that they could not remember having seen Det. Gresham’s report before Trevino’s trial. Trevino raised two claims for habeas relief based on Rey’s second written statement: (1) The state’s failure to disclose this statement violated Brady ; and, (2) if the state did not in fact suppress this statement, Trevino’s trial counsel’s fai l u r e t o uncover it and utilize it violated Trevino’s right to the effective assistance of counsel under Strickland

. These two contentions share an overlapping elemen t : materiality of the evidence. See Brady , 373 U.S. at 87

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(suppressed evid e n c e must be “material”); Strickland , 466 U.S. at 694 (explaining that a claim of ineffective assistance of counsel requires a showing of “prejudice,” and that “the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution”); see also Youngblood v. West Virginia , 547 U.S. 867, 869-70 (2006). In Uni te d States v. Bagley , the Supreme Court expressly adopted “the Strickland formulation of the

. . . test for materiality” for Brady claims. 473 U.S. 667, 682 (1985) (opinion of Blackmun, J.); see Cone v. Bell , 129 S. Ct. 1769, 1783 (2009). Therefore, Trevino must make the s a m e s h o wing of the materiality of Rey’s second statement for his Brady claim a n d f o r his Strickland claim. That is, Trevino must show that Rey’s statement “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley , 514 U.S. 419, 435 (1995). The district court concluded that T r e vi n o failed to show that Rey’s statement was mat e r i a l a n d therefore denied habeas relief for both phases of Trevino’s trial without reaching the oth er component of either the Brady or Strickland claims—w h e t h e r the statement was suppressed under Brady or whether Trevino’s trial counsel’s perform a n ce was objectively unreasonable under Strickland

. Therefore, the only issue befo r e u s on Trevino’s Brady and Stricklandclaims is whether Rey’s statement is material. After this appeal was fully briefed, the majority, sua sponte , requested the state c o u r t record for Rey’s murder conviction. That record contains three written statements by Rey, the second of which forms the basis of Trevino’s claims in this case, and is the only written statement by Rey that was introduced into the habeas record before the district court. The other two statements do not appear in the distr i c t c o u r t record in this case and have never been addressed

or litigated by the parties. Nonetheless, the majority now reasons that it can take judicial notice of Rey’s third (June 13th) statement, and give credit to it in

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lieu of Rey’s second (June 12th) statement. In my view, that course is not supported by precedent or authority. II. To conclude that Rey’s second statement is not material, the majority takes judicial notice of a third written statement by Rey, which the majority has produced sua sponte from a state court recor d f or a different case to which Trevino was not a party. The majority reasons that “[i]f Trevino’s lawyers had been successful in int r oducing Rey’s second statement” to question Trevino’s guilt, then “the prosecution undoubtedly would have introduced Rey’s third statement” to undermine that defense; and, likewise, that if “Rey had attempted to testify at Trevino’ s t r i al to the facts contained in his second statement, the prosecution would have undoubtedly impeached Rey with his third statement to the police.” Majority Op. 14-15. The majority’s reliance on Rey’s third statement is a significant error because (A) the parties have n ever had an opportunity to litigate the significance or veracity of that statement; (B) the credibility determinations that the majority draws from that statement are not the proper subject of judicial notice; and (C) even assuming arguendo that we could take judicial notice of Rey’s third statement, it would not necessarily prevent the defense counsel in a hypothetical retrial from effectively using Rey’s second statement as t e n d i ng to exculpate Trevino and challenge the credibility of the state’s witnesses against him i n t h e guilt and penalty phases of his capital murder trial. A. The majority sua sponte produced Rey’s third written statement, without
any request or agreement by the parties, from a state court record of a different

case to which Trevino was not a party. It was not part of the record before the district court, as the majority acknowledges, Majority Op. 9 n.3, nor was it ever

once mentioned by the parties b elow or on appeal. For all we know, neither

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Trevino nor the state’s attorneys in Trevino’s criminal trial n o r i n his habeas proceedings has eve n s een or been informed of this statement. It certainly stands to reason that if the state’s attorneys in Trevi n o ’ s case had been aware of this st atement, as the majority’s argument presupposes, then they would have relied upon it in responding to Trevino’s habeas petition; but they did not. As such, the parties have never litigated the admissibility or r e l e v a nce of that statement to Trevino’s Bradyand Stricklandclaims. B. The majority contends that we can sua sponte take judicial notice of t h e statement. Majority Op. 9 n.3. However, that is not allowed by Federal Rule of Evidence 201, which governs judicial notice in the district cour t s a s w e l l as in the courts of appeals. See Fed. R. Evid. 201(f) (“Judicial notice may be taken at any stage of the proceeding.”); see also 21B Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5110.1, at 299 (2d ed. 2005) (“Rule 201(f) does not distinguish between taking judicial notice on appeal and appellate review of the trial court j u d i c i a l notice.

. . . [It] places the appellate court under the same limitations as the trial judge whether the appellate court is reviewing trial court notice o r n oticing facts for the first time.”); 1 Jack B. Weinste i n , W

e i nstein’s Federal Evidence § 201.32 (2011) (“Because Rule 201 authorizes the taking of judicial notice ‘at any stage of the proceeding,’ judicial notice may be taken by an appellate court.

. . . However, appellate c o u r t s are still subject to the limitations imposed by Rule 201 on the types of facts that may be judicially noticed and the procedures for noticing them.”). Rule 201 provides, in relevant part: (a) Scope of rule. This rule governs on l y j udicial notice of adjudicative facts. (b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of

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accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. (c) When discretio n a ry. A court may take judicial notice, whether requested or not. (d) When mandatory. A court shall take judi c ial notice if requested by a party and supplied with the necessary information. (e) Opportunity to be heard. A party is entitle d u p o n timely request to an opportunity to be heard as to t h e propriety of taking judicial notice and the tenor of the m a t t e r noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. (f) Time of taking n o tice. Judicial notice may be taken at any stage of the proceeding. The majority’s taking judicial notice of Rey’s third written statement in order to conclude that it retracts and makes immaterial Rey’s second statement, is not authorized by law; it judicially notices a kind of adjudicative fact that courts m a y n o t t ake notice of under Federal Rule of Evidence 201. The majority’s contention is that the prosecutors would have used Rey’s third statement to undermine any beneficial use defense counsel could have made of Rey’s second written statement, and thus, that the second statement is immaterial. To reach this conclusion requires the majority to take notice of the following facts: that Rey made a third written statement; that he made it before Trevino’s trial; that the prosecutors in Trevino’s case were aware of the existence of that written statement at the time of Trevino’s trial; that the prosecutors in Trevino’s trial would have used that statement if defense counsel had called Rey

as a witness or used his second written statement to attack the state’s case; and that the jury would have given credit to Rey’s third written statement in lieu of his second written statement. However, these facts are “subject to reasonable dispute” and are not “capable of accurate and ready determination by resort to s o urces whose
accuracy cannot reasonably be questioned.” Therefore, they are not the “kinds of facts” of which Rule 201 allows a court to take judicial notice. B a sed on the

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record before the district court, supplemented by the record from Rey’s state court criminal proceeding, we cannot properly know or judicially notice whether the state’s attorneys in Trevino’s criminal trial were aware of R e y’s third statement. (The prosecutor in Rey’s case was not the same as in Trevino’s case.) It is not at all certain that the state’s attorneys would have known of or resorted to using Rey’ s t hird statement at trial, because they did not use it or even mention it in Trevino’s f e d e ral habeas proceedings. Moreover, the majority’s argument rests on an improper determination of the relative truthfulness of one statement by Rey vis-à-vis another by him. However, the truth of a statement is not a proper matter for judicial notice. See Wright & Graham, supra , § 5106.4, at 231-36 (“It seems clear that a court cannot notice pleadings or testimony [in court records] as true simply because these statements are filed with the court.

. . . [A] court cannot take judicial notice of the truth of a document simply b ecause someone put it in the court’s files

. . . . [Courts] can notic e [t h a t a n] assertion was made, but not that it was true . . . .”). The majority’s sua s

p o n te c o ur s e of taking judicial notice here also conflicts

w ith Rule 201’s requirement that the parties be heard on the court’s taking judicial notice, and it will not prevent another round of litigation regarding Rey’s third statement. Instead, as the majority concedes, see Majority Op. 9 n.3, it will put the parties in the untenable position of litigating an issue of fact in a petition for rehearing in an appellate court. Rule 201 entitles the parties “upon timely 7 request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.” Fed. R. Evid. 201(e); see also id. advisory

The majo rit y off

ers the fol low ing plac ebo: “[W]e aff ord [Tr evino] the right to rais e any 7 objec tio ns he may have by me ans of a pet itio n for rehe aring, wh ich objec tio ns we wi ll cons ide r fil ed bef ore our opi nion issue d. ” Majo rit y Op

. 9 n.3. I fai l to unde rs tand wh at eff ect this has as Trevinounq ues tio nably has t he rightt o r ais e “ each poi nt of law or fac t that [he ] belie ves the court has overl ook ed or mis app rehe nded” in a pet itio n for rehe aring. Fed. R. App

. P. 40. This doe s not allevia te, how ever, the pr oblem of liti gating a fac t iss u e f or the fir st tim e in a pet itio n f

or rehe aring in an a pp ellat e c ourt

. 37 Case: 10-70004 Document: 00511665311 Page: 37 Date Filed: 11/14/2011No. 10-70004

committee note (1972) (“Basic considerations of procedural fairness demand an opportunity to be heard on the propriety of taking judicial notice and the tenor of the matter noticed.”). This rule applies in the appellate courts as much as it does in the district courts. See Wr i ght & Graham, supra , § 5110.1, at 299-300 (“[T]he appellate court must follow the procedures in Rule 201(e) in giving the parties an opportunity to be heard.”); Weinstein, supra (“[A]ppellate courts are still subject to the limitations imposed by Rule 201 on the types of facts that may b e j u d i c i ally noticed and the procedures for noticing them.

. . . An appell a t e court contemplating original judicial notice should notify the parties so that the propriety of taking notice and the tenor of the matter to be noticed c a n be

a r gu e d. If oral argument has already been completed, the court should, a t a minimum, afford the parties an opportunity to submit s u p plemental briefs.” (foo t n o te omitted) (quoting Massachusetts v. Westcott , 431 U.S. 322, 323 n.2 (1977), as saying, “T h e p a rties were given an opportunity to comment on the propriety of our taking notice of the license, and both sides agreed that we could properly do so.”)). Rule 201 als o p r o vi d e s that “[i]n the absence of prior notification, the request may be made after judicial notice has been taken.” Fed. R

. Evid. 201(e). The majority has not given the parties an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed, and therefore, they will be forced to litigate this issue for the first time in a petition for rehearing. Finally, the m a

j o rity’ s o nly s up p o rtin g autho riti e s f o r t aking judicial notice of Rey’s third statement are inapposite. The majo r i t y c i t e s Brown v. Lippard , 350 F. App’ x 879 (5th Cir. 2009) (unpublished), but Brown is nothing like this

case. There, we took judicial notice merely of a “docket entry establishing the existence of the 2001 transcript” of a court proceeding. Id. at 882 n.2. Here, the majority takes judicial notice of facts that are subject to reasonable dispute, and

are not analogous to the fact that a c o urt docket entry exists. Nor is the

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majority’s reliance on Moore v. Estelle , 526 F.2d 690 ( 5th Cir. 1 9 7 6) , any more persuasive. There, we said quite plainly that we will “take judicial notice of prior habeas proceedings brought by this appellant in connection with the same conviction

. ” I

d

. at 694 (emphasis added). Of course, Sam Rey’s state court criminal proceedings are not “prior habeas proceedings brough t b y [Carlos Trevino] i n c o n n ection with [Trevino’s] conviction.” Id. Indeed, the majority concedes this point when it describes “our routine practice in habeas appeals” as “taking judicial notice of al l r e l ated proceedings brought by the appellant , including state proceedings, even when the prior state case is not made a p art of the record on appeal.” Majority Op. 9 n.3 (empha s i s a d d ed) (internal quotation marks omitted). Therefore, the maj o r i t y has provided no relevant authority for its sua sponte decision to take judicial notice of facts outside of the record on appeal in this case and contained in a record in a state court proceeding for a different case of a different defendant. C. Assuming arguendo that the majority lawfully could take judicial notice of Rey’s third statement, the existence of that statement does not p r e v e nt defense co u n s e l f

ro m ar guing that the state’s suppression of Rey’s second written statement casts a different light on Trevino’s c a p i t a l murder trials so as to undermine confidence in those proceedin g s . R ey’ s thir d writt e n s t at e ment shows that Rey was not even present when Salinas was killed and, therefore, could not credibly say who stabbed Salinas. Nor it does it contradict the portion of Rey’s second statement in which he said that nobody, including Trevino, said anything in the car following Salinas’ murder. See Majority Op. 7-8 (quoting Rey’s third written statement). Therefore, Rey’s second statement would stand unchallenged in contradicting the critical aspect of Gonzales’ testimony that in the car after Salinas’ murder, Cervantes said it was “cool” or “neat” how Trevino

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had “snapped” Salinas’ neck, and that Trevino responded that he had “learned how to kill in prison.” III. For these reasons, the fair and proper course would be for the majority to vacate the judgment and remand this case to the district court to consider all of Rey’ s s t at ements and any additional evidence relevant thereto, and to determine whether all of that evidence undermines confidence in Trevino’s capital murder guilt and penalty trials. It is clear that on the record before the distric t court, Rey’s second statement is m a t e ri a l—otherwise, the majority would not have found it necessary to commit serious legal error by sua sponte goi n g outside of the district court’s record to take notice of facts not judicially noticeable under Federal Rule of Evidence 201 in order to reach t h e contrary conclusion. Moreover, as I e x p l a i n i nfra in Part IV.A, Trevino’s trial attorneys could have put Rey’s second statement to good use to cast doubt on his guilt, and the record before us is insufficiently developed for us to decide whether Rey’s third statement actually would have eviscerated defense counsel’s every use of Rey’s second statement in Trevino’s guilt and death penalty trials. Therefore, in my view, it is necessary to remand this case because now that Rey’s third statement has been produced, the parties should be allowed an opportunity to litigate the significance of that statement, spe c i f i c ally, whether it undermines the materiality of Rey’s second statement, and the district court should reconsider this case in light of those arguments and all of the available relevant evidence. When the Eleventh Circuit was confronted with a similar situation—i.e., whether t o consider extrarecord evidence that may have been significant in resolving the habeas petitioner’s claim—that cou r t r e manded to the district court t o f

i r s t f i nd the necessary facts. See Ross v. Kemp , 785 F.2d 1467, 1477 (11th Cir. 1986). In contrast, the majority si mply assumes the facts that it thinks the district court would have found after a full and fair hearing, providing

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no authority for its course of action, and plainly stepping beyond the bounds of its limited authority to judicially notice certain kinds of facts under Federal Rule of Evidence 2 0 1

. T h e majority’s course is unfair for the resolution of a highly controversial issue based on uncertain evidence from murky and questionable, self-interested recollections of death penalty defendants. I would instead follow the course taken by the Eleventh Circuit and remand this cas e t o t h e d i strict

c ourt to allow the parties to litigate the issues given rise to by th e s t a t e ’ s apparent suppression of Rey’s second and third statements. IV. In concluding that Rey’s second statement was not material the majority also errs, in my view, by (A) reasoning that Rey’s second statement “would likely have been inadmissible, ” and ignoring the substantial use that Trevino’s trial attorneys could have m a d e o f t hat statement even without admitting it into evidence; (B) purporting to make a factual fi n d i n g that the state did not suppress Rey’s statement, a finding which is the subject of a factual dispute that the district court expressly left unresolved; (C) concluding that Rey’s statement

was not material because “the evidence presented at Trevino’s trial supports the jury’s verdict of conviction under Texas’s law of the parties.” Majority Op. 14-17. A. The majority mistakenly asserts t h a t “Rey’s [second] written statement would likely have been inadmissible.” Majority Op. 14 n.7. This is perplexing considering that the majority expressly acknowledges that “inadm i s s ible evidence may be material under Brady .” Spence v. Johnson , 80 F.3d 989, 1005 n.14 (5th Cir. 1996) (citing Sellers v. Estelle , 651 F.2d 1074, 1077 n.6 (5th Cir. 1981)); see Majority Op. 14 n.7 (citing Felder v. Johnson , 180 F.3d 206, 212 (5th Cir. 1999)). Indeed, this court has of t e n “r e af f ir m [e d] that ‘inadmissible evidence
may be material under Brady .’ Thus, we ask only the general question whether the disclosure of the evidence would have created a reasonable probability that

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the result of the proceeding would have been different.” Felder , 180 F.3d at 212 (citations omitted) (quoting Spence , 80 F.3d at 1005 n.14); see also United States

v. Brown , 650 F.3d 581, 2011 WL 3524412, at *5 & n.12 (5th Cir. 201 1 ) (“The suppressed evidence need not be admissible to be material under Brady ; but it must, somehow, create a reasonable probability that the result of the proceeding would be d i f

ferent.” (citing Felder , 180 F.3d at 212)); Spence , 80 F.3d at 998, 1005 n.14 (same); Sellers , 651 F.2d at 1077 n.6 (same); Martinez v. Wainwright , 621 F.2d 184, 188 (5th Cir. 1980) (holding that evidence was material even if it

“ w e r e h eld to be hearsay and not admissible” because “it at least would h av e provided the defense the ability to contact the appropriate” people to gather the evidence in adm i s s ible form). Moreover, in Wiggins v. Smith , 539 U.S. 510 (2003), the majority of the Supreme Court squarely rejected Justice Scalia’s dissenting view that because undiscovered mitigation evide n ce was likely inadmissible under state law during the punishment phase of a capital murder trial, it was not material under Strickland

. Se e 5 3 9 U.S. at 536; id. at 554-57 (Scalia, J., dissenting). Writing for seven members of the Court, Justice O’Connor explained, “had the jury been con f r o n t e d with this considerable mitigating evidence, there i s a r e a sonable probability that it would have returned with a different sentence

. In reaching this conclusion []”—that the evidence was material under Strickland —“ we need not, as the dissent suggests, make the state-law evidentia ry findings that would have been at issue at sentencing .” Id. at 536 (majority opinion) (emphasis added) (citation omitted). In Sellers , under extremely similar circumstances as this case, w e also rejected the contenti on that evidence must be admissible to be material under the Brady

- Strickland standard. 651 F.2d at 1077 n.6. There, t h e s u p p r essed police reports included a written statement of a friend of Santos Cantera, which alleged that Cantera had told him that Cantera was the actual kil l e r . I d. at 1075-77. The lower court held that the evidence was immaterial in part because

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this statement was inadmissible. Id. at 1076, 1077 n.6. We held that “[s]uch a conclusion [was] unwarranted,” and explained why the written statement of C antera’s friend, although apparently inadmissible, was still material: “Fir s t , b y enabling the defense to examine [t h e s uppressed evidence], Sellers may have been able to produce witnesses whose testimony or written statements may have been admissible. Martinez v. Wainwright , 621 F.2d 184 (5th Cir. 1980). Second, the evidence

. . . suppressed was material to the preparation of [Sellers] defense, regardless of whether it was intended to be admitted into e vi dence or not.” Sellers , 651 F.2d at 1077 n.6; see also Spence , 80 F.3d at 998 (“The district court concluded that the undisclosed evidence was not material because under Texas law it would not have been admissible at trial. The Fifth Circuit has expressly found otherwise in Sellers v. Estelle ,” 651 F.2d 1074 (5th Cir. 1981).). For s ub s t anti ally s i m il ar r e a s o n s , Rey’ s s econd statement would have been

e x t r e m e ly useful to Trevino’s trial attorneys regardless of whether it wa s admissible. First, Rey’s second statement may have led Trevino’s counsel to call Rey to testify in contradiction to Gonzales’ testimony, particularly his testimony about the statements Trevino allegedly made in the car after Salinas was killed. See Kyles , 514 U.S. at 445-46 (discussing the possibility of d e f e n s e counsel calling “as an a dv e r s e witness” an alternative suspect whose statements had been suppressed); Sellers , 651 F.2 d a t 1077 n.6; Martinez , 621 F.2d at 188 (“If the [suppressed] rap sheet were held to be hearsay and not admissible to prove the [state’s wit n e s s ’ s] prior convictions, it at least would have provided the defense the ability to contact the appropriate p e n al facilities to acquire an official record which would have been admissible.”). This, in fact, is exactly what Tre vi n o ’ s trial counsel swore that he would have done with Rey’s written statement: “I would have definitely used it

. . . to further discredit Juan Gonzales

. . . .” Thus, the majority is simply mistaken that “ [ n] o t hing in the record

r e m otely suggests that disclosure of the full text of Rey’s second statement woul d

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have changed th[e] strategic calculation made by Trevino’s attorneys.” Majority Op. 17. The majori t y ’ s only reason for why this does not make Rey’s second statement material is based on its mistaken reliance on Rey’s third statement. 8 Second, Rey’s second statement was important to the prepar a t ion of Trevino’s defense, regardless of whether it was i n t e n ded to be admitted into evi d e n ce or not. See Sellers , 651 F.2d at 1077 n.6. As the Court explained in Kyles , competent counsel “could have examined [Det. Gresham] to good effect on [his] knowledge of [Rey’s out-of-court] statement[] and so have attacked the reliability of the investigation.” 514 U. S

. at 446. That is, competent counsel 9 could have used Rey’s second statement to cast particular as p e r s i o n on Cervantes as the only person culpable f o r Salinas’ murder, and to show that D e t

. Gresham’s investigation focused on Trevino, despite Rey’s statement exculpating Trevino; and that Det. Gresham never pu r s u ed a more rigorous investigation of Cervantes, d e s p i te Rey’s statement that inculpated only Cervantes. Again, Trevi n o ’ s trial counsel swore he would have used Rey’s statement for t h i s e xact purpose, “in the cross-examination of [D]etective

The majo rit y conc lude s that “[i]n the extremely unlik ely event that Rey had att em pt ed 8 to tes tif y at Trevino ’s tri al to the fac ts cont ained in his se cond st atem ent, the pr os ecut ion wo uld have undo ubte dly im pea ched Rey wi th his thir d st atem ent, ” Majo rit y Op

. 15; by wh ich the majo rit y se em s to me an that in thei r view , the jury wo uld have cer tainl y belie ved the cont ents of Rey’s thir d st ate m ent and not his live tes tim ony to the cont rar y. Ho we ver, as I expla ined in Part II.B, this cre dibi lity det erm inati on is bas ed on tak ing judic ial noti ce of Rey’s thir d st a t em ent, and suc h a cre dibi lity det erm inati on is not a ki nd of fac t that may be judic ially noti ced

. See Fed. R. Evid. 201(b) (Provid ing for judic ial noti ce of a fac t “not subject to reas onable dis put e in that it is eit her (1) genera lly kn ow n wi thin the ter rit oria l juris dic tio n of the tri al cour t or (2) cap able of acc urat e and read y det erm inati on by res ort to so urc es wh os e acc urac y ca nnotr eas onably be ques tio ned. ”)

. There wo uld be no hear say pr oblem in usi ng Rey’s st atem ent to att ack the cre dibi lity 9 of De t. Gr es ham ’s inves tigat ion sin ce “‘[h]e ars ay’ is a st at e m e n t

. . . off ere d in evide nce to pr ove the tru th of the mat ter ass ert ed. ” Tex. R. Evid. 801( d)

. Rey’s st atem ent wo uld not have been off ere d intoevi denc e, and it wo uld not have been use d to pr ove the tru th of the mat ter ass ert ed in the st atem ent, but to sho w that De t. Gr es ham ’s inves t i g a t i o n wa s unrel iable beca useitw as not thor ough, im par tialandobject ive. 44 Case: 10-70004 Document: 00511665311 Page: 44 Date Filed: 11/14/2011No. 10-70004

Gresham to show the jury that Santos Cervantes and not

. . . Trevino[] stabbed

a n d k i l led [Salinas]”; which again contradicts the majority’s assertion tha t “[n]othing in the record remotely suggests that disclosure of the full text of Rey’s second statement would have changed th[e] strategic calculat i o n m a de by Trevino’s attorneys.” Majority Op. 17. The majority does not address the impact that undermining the investigation would have had on the jury’s assessment of the evidence. “In any event, contrary to the [majority’s] assertion, it appears that [Rey’s second statement] may have been admissible under [Texas] law.” Wiggins , 539 U.S. at 536. If Det. Gresham h a d u s e d Rey’s second statement to refresh his memory before testifying at Trevino’s trial then Trevino would have been “entit l ed

. . . to introduce in evidence those portions which relate to the testimony of the witness.” Tex. R. Evid. 612. Of course, Tr e vi n o ’ s a ttorneys

were unable to ask Det. Gre s h a m whether he had used Rey’s second written statement to refresh his memory because they were unaware of i t s existence. Therefore , t he majority is mistaken that Rey’s second statement was inadmissible. B. The majority also mistakenly contends that “the record evidence strongly indicates that the prosecution did not suppres s [R e y’s second] statement.” Majority Op. 14. However, as the majority admits, whether the state suppressed the statement turns on a factual dispute that the district court did not resolve. Majority Op. 14 n.6. Also, the majority fails to appreciate that in addition to 1 0

See Tre vi no , 678 F. Sup p. 2d at 459- 60 (“ There are man y unres olved fac tual dis put es 1 0 bef ore this Court conc erni ng pr ecis ely wh at doc ume ntat ion wa s mad e availabl e to [Tr evino’ s] tri al couns el by the pr os ecut ion bef ore and dur ing [Tr evino’ s] cap ital mur der tri al. Mo re sp ecif ical ly, there app ears to be a genuine issu e of mat eria l fac t regar ding wheth er . . . Rey’s st atem ent, wh ich indi cat ed Cervant es adm itt ed to Rey that he st abbed Sali nas , wa s ever mad e a vailable to [Tr evino’ s] tri al couns el. It is unnec es sar y to res olve thes e dis put es b e c a u s e , having revie we d the evide nce fr om both phas es of [Tr evino’ s] tri al, this Court conc lude s Rey’s 45 Case: 10-70004 Document: 00511665311 Page: 45 Date Filed: 11/14/2011No. 10-70004

a Brady claim, Trevino has raised a Strickland claim based on Rey’s s e cond statement, viz. , if the statement was not suppressed, then h i s attorneys were constitutionally ineffective in failing to discover the statement. Therefore, even if Rey’s second statement was not supp r e s s e d, there still exists another unresolved factual question of whether Trevino’s attorneys’ failure to discover the statement rendered their performance constitutionally deficient. Moreover, in resolving this factual dispute, the majority seriously errs in its assessment of the evidence regarding the state’s suppression of Rey’s second statement: (1) The majority ignores the record evidence that Trevino’s trial attorneys swore in affidavits that Rey’s second statement “was never produced

or shown to us” before Trevino’s trial, and that, “I

. . . certainly never saw [Rey’s statement] p r i o r to trial in June 1997.” (2) The majority is mistaken that Det. Gresham’s report “should have put defense counsel on notice that Rey had made [a] statement to police to police suggest i ng that Cervantes stabbed the victim” and that “[t]he onus was then on Trevino’s lawyers to request a copy of the full statement.” Majority Op. 14. Nothing in Det. Gresham’s report suggests that there was a separate, written and signed statement by R e y e xculpating Trevino. If a n ything, Det. Gresham’s report suggests just the opposite: Det. Gresham’s report includes a summary of Rey’s first statement, and notes that Rey “signed the statement.” (R. at 38 5 )

. However, there is no such indication in the r e p ort that Rey signed his second statement, the statement that is at t h e h e art of this appeal. Nothing in Det. Gresham’s report should have alerted Trevino’s attorney to the existence of a second, written stat e m e n t

. ( 3) The state d o e s not even contend that it disclosed Rey’s second statement. See Resp’t Br. 26 (Rey’s second “statement itself may not have been in the State’s file

st atem ent doe s n o t s a t isf y the ‘m ater ialit y’ pr ong for pur pos es of Brad y analys is. ”) ; see also id. at466 -67 (ad dr es sin g onl y t he pr ejudi ce pr ong o f Trevino ’s Stric kla ndc laim ). 46 Case: 10-70004 Document: 00511665311 Page: 46 Date Filed: 11/14/2011No. 10-70004

. . . .”). In sum, if anything, the record evidence indicates that the prosecution suppressed Rey’s second statement. C. Finally, the majority errs by concluding that Rey’s second statement was not material because “the evidence presented at T r e vi n o ’s trial supports the jury’s verdict of conviction under Texas’s law of the parties.” Majority Op. 16. 1 1 The majority reasons that “Rey’s writte n s tatements cast no doubt on the

s ub s t anti al , u nc o ntrove rt e d evi d e nc e p re s e nt ed during the guilt/innocence p h a s e of the trial supporting the conclusion that Trevino acted with intent to commit the offense an d a i d e d or attempted to aid other members of the group in commission of Salinas’s murder.” Majority Op. 16. This is clearly incorrect. Rey’s second statement fully exculpates Trevino of any involvement in the rape and murder of Salinas, and thus absolves Trevino of criminal responsibility for her killing, even under Texas’ law of the parties. Moreover, Rey’s second statement casts doubt on Gonzales’ crucial te s t i mony that Trevino made incriminating state m e n t s after Salinas’ murder, which would have been significant fo r the jury’s determination of whether Trevino was guilty under Texas’ law of the parties, that is, whether he “intended to kill [Salina s ] or anticipated that a human life would be taken.” This case is distinguishable from Miller v. Dretke , 404 F.3d 908 (5th Cir. 2005), another case charged under Texas’ law of the parties cited by the majority. Majority Op. 16. In Miller , there was “uncontroverted, overwhelming evidence of [the defendant’s] involv e ment in th[e] conspiracy [to commit a robbery] and the nature of the robbery” and the alleged Brady evidence merely suggested that the other participant in the robbe r y , a n d n ot the defendant, actually shot the victims. 4 0 4 F

. 3 d at 916. Here, by contrast, there was

Texas ’ lawof

t he partie s doc tri ne is cod ifi ed in Texas Pen al Code§ 7.02

. 1 1 47 Case: 10-70004 Document: 00511665311 Page: 47 Date Filed: 11/14/2011No. 10-70004

d isputed and weak circumstantial evidence that Trevino participated i n t h e assault on Salinas, and the Brady evidence indicates that Tr evino did not participate in any aspect of the crime, not just that someone other than Trevino committed the murder. Therefore, even under Texas’ law of th e parties, Rey’s second statement would have been critical to defense counsel to cast doubt on Trevino’s culpability. V. In my view, the majority has fallen into error by taking judicial notice of Rey’s third statement and unproven fa c t s r e l ated to that statement; and improperly assessing the credibility and weight of those statements, without their surrounding facts and circumstances, and other evidence in t h i s c ase, in order to render judgment in favor of the state. Now that Rey’s third statement has been produced, I would remand this case to the district cou rt t o a llow the parties an opportunity to liti gate the significance of that statement, and consider all of Rey’s statements and additi o n a l evidence relevant thereto to determine whether all of that evidence undermines confidence in Trevino’s capital murder trials. For these reasons, I respectfully dissent.

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