IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-70024

TAI CHIN PREYOR,

Petitioner - Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:10-CV-857

Before JOLLY, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

Tai Chin Preyor was convicted and sentenced to death in Texas for the

2004 capital murder of Jami Tackett while in the course of committing and

attempting to commit burglary. He requests a certificate of appealability (COA)

to appeal the district court’s denial of federal habeas relief. The request for a

COA is DENIED for the reasons that follow.

United States Court of Appeals

Fifth Circuit

F I L E D

July 25, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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I.

The State presented the following evidence at trial. Over an extended

period of time the victim, Jami Tackett, sold illegal drugs to Preyor, who then

sold them to others. On February 25, 2004, Preyor, whose nickname was “Box,”

called Tackett and said that he was coming to her apartment that night. Tackett

was entertaining friends, including Jason Garza, at her apartment. After the

last guest left at about 4:00 a.m. on February 26, Tackett and Garza locked the

front door, turned out the lights, and went to bed. Garza testified that when

they were almost asleep, he heard two or three loud bangs at the door. Then a

man peeked into the bedroom and Tackett said, “Box, what the hell are you

doing here.” Preyor, who was dressed in black and wearing a hood and gloves,

said “F*** this,” and attacked Garza. After Preyor stabbed Garza, Garza

escaped and asked neighbors to call for help. Preyor then stabbed Tackett

numerous times and cut her throat, severing her trachea, jugular vein, and

carotid artery.

Several of Tackett’s neighbors heard her screaming and saw Preyor when 

he left her apartment. They saw Tackett on the floor, covered in blood and

making gurgling sounds. Jaclyn Villanueva asked Tackett if the man who came

out of the apartment wearing black clothing hurt her. Although Tackett was

unable to speak, she nodded her head affirmatively. Tackett died before the

paramedics arrived. 

Preyor left Tackett’s apartment and went downstairs, where his vehicle

was parked, but returned to Tackett’s apartment where he apparently searched,

unsuccessfully, for his keys. After the murder, David Pointer, Tackett’s former

boyfriend, found some car keys in her apartment and turned them over to the

police, who determined that they were the keys to Preyor’s vehicle.

When Preyor left Tackett’s apartment the second time, he encountered

police officers. When they ordered him to stop and get on the ground, Preyor

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refused to comply. The police had to use pepper spray to subdue him. Preyor

was covered in blood, which DNA analysis later indicated was Tackett’s. 

Police found Preyor’s gloves and the murder weapon on the ground next

to a vehicle in the parking lot, later identified as Preyor’s vehicle. They also

discovered a loaded shotgun on the bumper of the vehicle and found blood on the

driver’s-side door handle of the vehicle. The pattern on Preyor’s boots matched

the pattern of the bloody footprints found in Tackett’s apartment. Tackett’s

DNA profile was also consistent with blood found on the knife, gloves, car door

handle, a swab from Preyor’s face, and a swab from his hand and boot. Garza’s

DNA profile was consistent with blood found on Preyor’s watch and knit cap. 

Blood consistent with a mixture of Tackett’s and Preyor’s DNA profiles was

located on various items, including a nail clipping from Tackett and a swab from

Preyor’s face.

At trial, Detective Barney Whitson read aloud the statement Preyor made

to the police after he was taken into custody, quoted below in relevant part:

The truth about what happened was I went over to Jami’s to

buy some drugs from her. Jami was my connect. I buy my drugs

from her and I sell them to people I know. This morning I went over

to Jami’s apartment to buy some drugs. I had called Jami earlier

that day and asked her what was up. Jami told me nothing. Jami

told me I needed to come and talk to her. Jami told me she had

company, so I told her I would hook up with her later. It was about

11:30 p.m. on Wednesday that I talked to Jami. When I told Jami

I would hook up with her later, Jami told me to come. Jami said she

was just kicking with her home boy from the studio and everything

was cool.

When Jami told me she was kicking it with someone from the

studio, I thought she was hanging out with my man, Keith, because

Keith is a rapper. I was over to one of my home boy’s house when

I talked to Jami. I left his crib and went to a pay phone to call Jami. 

I called Jami from the pay phone. After I finished talking to Jami,

I went back to my boy’s crib. I don’t want to give my boy’s name,

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because I don’t want him involved in this. I stayed over at my boy’s

crib until I went back over to Jami’s apartment.

It was about 4:00 or 5:00 in the morning when I got to Jami’s

apartment. I knocked on the door and Jami opened the door and let

me in. I had felt the phone call from Jami was funny, because Jami

usually tell[s] me who she has over to her place. When I got to

Jami’s apartment, she let me in. When I got inside the apartment

was totally dark inside the apartment. I could see a dude sitting on

the sofa inside the living room. I could see the guy because of the

TV light from the TV. The guy was a Hispanic dude with short,

slick, black hair. The dude was shorter than me, but he was stocky

build.

When I saw the guy, I didn’t trip but I was very

uncomfortable. Jami sensed that I was uncomfortable. I didn’t even

sit down. Jami went to lock the door behind me, and the dude

started to get up. I bolted down the hallway to the back rooms and

pushed open the doors to the rooms to the back. I was trying to see

how many people were in the house. I was trying to turn on some

lights, but I didn’t know where the switches were.

There was no one else in the apartment. I went back up to the

front of the apartment. When I got to the front of the apartment,

old boy tried to grab me, so I started fighting with him. I was

getting the best of the guy until Jami started helping him. Jami

grabbed me and started grabbing for my face. That’s when she

scratched my face. I felt like I was being overwhelmed and I didn’t

have the upper hand anymore, so I pulled my knife. I pulled my

knife and poked the dude with it. After I poked him – I don’t

remember how many times I poked him, he took off. He opened the

door and bolted out of the apartment. Jami was still there and she

was still trying to fight. She was scratching and grabbing at me and

I was still slashing at her. She grabbed me, so I started poking her. 

She fell down and I ran out of there.

I ran across the apartment courtyard and was yelling for help. 

I know that I had cut myself on my finger. The dude was holding

me, so I tried to slice his hand. He pulled away and I sliced my own

finger. I didn’t know I had all that blood on me. I knew I had some

blood on me, but not that much. I didn’t run when the police got

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there, because I felt like I was a victim. I was the one being robbed,

and I defended myself. I had no idea how bad I had hurt Jami. I

wouldn’t have hurt [her] that bad. When I walked down the stairs

and started to cross the courtyard, the police ran up behind me. 

They were yelling, stop, or I’ll shoot. I turned around and put my

hands in the air. I told them I had no weapons, but I would not stop

walking. I told them they would have to shoot me ifthey wanted me

to stop walking.

Ten seconds later after that I got tackled. The officers cuffed

me and one of them pepper sprayed me while I was laying on the

ground handcuffed. I didn’t tell the truth in my first statement,

because I didn’t want to admit I was buying drugs. I didn’t want

that to get out. This is all I know about this incident, this all

happened in the City of San Antonio, Bexar County, Texas. This is

the end of my two-page statement, I have read and understand this

statement. I have signed this statement indicating it’s true and

correct. I gave this statement voluntarily without the promise of

anything or being threatened.

I felt like I was the victim, so I didn’t run, but know that the

whole thing was over drugs so I didn’t want to reveal that. I felt like

it was going to be worked against me.

Preyor did not call any witnesses at the guilt-innocence phase, and the

jury was instructed that Preyor had “elected not to testify.” Trial counsel

requested and obtained jury instructions on self-defense and the lesser-included

offenses of murder and aggravated assault. The jury found Preyor guilty of

capital murder.

At the punishment phase, the State presented evidence that Preyor had

committed a prior drug offense in Syracuse, New York, in 1999. A Syracuse

police officer testified that he discovered a bag containing nearly four ounces of

crack cocaine, with a street value of approximately $10,000, when conducting a

pat-down search of Preyor. Preyor fled, and another officer later tackled and

handcuffed him. Preyor pled guilty to possession of a controlled substance in

exchange for a one-year sentence and the dismissal of a charge of resisting

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arrest. Preyor told his probation officer that he had used cocaine since he was

an adolescent, and that he had started using it consistently in 1998, when he

had an affair with a woman who was a drug abuser. Preyor also told his

probation officer that the crack cocaine was for his own personal use. However,

when he was interviewed by a clinical psychologist, Dr. Murphy, prior to his

capital murder trial, he acknowledged that he had been selling drugs.

After serving time for his drug offense in New York, Preyor moved to San

Antonio, where he was joined by his wife and children. About a month before

the murder, on January 14, 2004, the police went to Preyor’s apartment on a

“family violence call.” Preyor was angry and he was pacing, yelling, and

screaming, but he calmed down when his brother, a San Antonio police officer,

arrived. His wife, who was pregnant with their fourth child at that time, did not

appear to be injured and said that she did not need assistance.

Preyor committed several minor disciplinary infractions while in the Bexar

County Jail awaiting trial: (1) possession of ten Tylenol tablets (eight more than

the two that he was allowed to possess); (2) disobeying an order from staff; and

(3) engaging in “loud, boisterous behavior or communication with other inmates.” 

The State also presented evidence that Preyor had the dates of his drug offense

and the murder tattooed on his body. He told Dr. Murphy that the tattoos were

to remind him of mistakes that he did not want to repeat.

The jury found beyond a reasonable doubt that there was a probability

that Preyor would commit criminal acts of violence that constituted a continuing

threat to society, and that there were insufficient mitigating circumstances to

warrant a sentence of life imprisonment.

On direct appeal, Preyor was represented by Michael Gross, one of the

attorneys who had represented him at trial. The Texas Court of Criminal

Appeals affirmed Preyor’s conviction and death sentence in an unpublished

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opinion. Preyor v. State, No. AP-75119, 2008 WL 217974 (Tex. Crim. App. Jan.

23, 2008).

Terry McDonald was appointed to represent Preyor in state postconviction proceedings. McDonald filed a state habeas application on behalf of

Preyor in November 2007, raising the following claims:

(1) trial counsel was ineffective in failing to investigate the facts and

develop a consistent trial strategy;

(2) trial counsel was ineffective in failing to investigate and present

evidence that a burglary did not occur;

(3) trial counsel was ineffective in failing to have a correctional system

expert appointed to aid the jury in understanding the degree of safety in prison

society;

(4) the trial court failed properly to instruct the jury on mitigation;

(5) lethal injection is cruel and unusual punishment in violation of the

Eighth Amendment; and

(6) his due process rights were violated because the same act involved in

burglary was the act that killed the victim, in violation of the merger doctrine.

The trial court scheduled an evidentiary hearing on Preyor’s first state

habeas application. Prior to that hearing, notwithstanding that Preyor was

represented by McDonald, Preyor’s current federal habeas counsel, Brandi

Estelle from Beverly Hills, California, who apparently had been hired by the

family, filed another state habeas application in the trial court on December 1,

2008,1 raising the following claims for relief:

1 The record reflects that the state habeas application filed by Estelle on December 1,

2008 filing was preceded by several unsuccessful attempts by Estelle to be admitted pro hac

vice. A state habeas application that appears to be substantially identical to the December

1, 2008 filing, was received by the Texas Court of Criminal Appeals on September 29, 2008.

In a letter to the Court dated October 10, 2008, Estelle stated that the application received by

the Court on September 29, 2008 “IS A NEW AND SEPARATE PETITION and should not be

considered in conjunction with any other Petition filed by any other lawyer for Appellant. .

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(1) trial counsel rendered ineffective assistance by failing to allow Preyor

to testify;

(2) trial counsel rendered ineffective assistance by failing to investigate

and adequately prepare for a defense at trial;

(3) trial counsel rendered ineffective assistance by failing to object during

voir dire to the prosecutors’ lecturing to prospective jurors, using brainwashing

tactics instead of asking questions, and indoctrinating prospective jurors;

(4) trial counsel rendered ineffective assistance by failing to conduct voir

dire regarding racial bias or prejudice;

(5) trial counsel rendered ineffective assistance by making inconsistent

arguments in opening statement and closing arguments and by failing to

produce any evidence to support the theory of self-defense asserted in closing

arguments.

This December 1, 2008 application included the following paragraph:

There is another habeas corpus petition pending, (No. AP75119), and no request is made to consolidate that with this

Petition, in that THIS Petition is based on ineffective assistance of

APPELLATE COUNSEL. . . . The other Petition filed on behalf of

the Defendant does not raise a colorable claim as to ineffective

assistance of trial counsel. The within Petition, however, does.

Both McDonald and Estelle were present, on February 9, 2009, at the state

evidentiary hearing held on Preyor’s first state habeas application. At that

hearing, McDonald stated that he had been informed by the Texas Court of

Criminal Appeals that it was considering the application filed by Estelle as a

second writ, “which is not provided for under Texas law.” McDonald stated that

he had spoken with Preyor and that it was his desire to have the writ filed by

Estelle considered by the court. In response to questions from McDonald, Preyor

. . This Petition is based on grounds that Appellant suffered from INEFFECETIVE [sic]

ASSISTANCE FROM TRIAL AND APPELLATE COUNSEL, which have never previously

been asserted by Appellant.”

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testified under oath at the hearing that his family had retained Estelle to

represent him and that he wished to proceed with the habeas application filed

by Estelle, rather than the one filed by McDonald.

On March 26, 2009, the trial court submitted findings of fact and

conclusions of law recommending that Preyor’s first state habeas application be

denied. The Texas Court of Criminal Appeals adopted all but one of the trial

court’s factual findings, adopted all of the trial court’s legal conclusions, and

denied Preyor’s initial application on October 28, 2009. Ex parte Taichin Preyor,

No. WR 72,660-01, 2009 WL 3474097 (Tex. Crim. App. Oct. 28, 2009). On that

same date, the Texas Court of Criminal Appeals, construing the December 1,

2008 filing by Estelle as a subsequent application, dismissed it, pursuant to

Texas Code of Criminal Procedure Article 11.071, Section 5(a), as an abuse of the

writ. Ex parte Taichin Preyor, No. WR 72,660-02, 2009 WL 3474097 (Tex. Crim.

App. Oct. 28, 2009).

Estelle filed a third state habeas application on behalf of Preyor in the

trial court on December 21, 2009, raising a conflict of interest claim based on

trial counsel’s “fraternizing, laughing, and having a conversation” with the

victim’s stepfather during a recess at trial. Preyor asserted that this claim could

not have been presented previously because the factual basis for it was not

discovered by his counsel until February 9, 2009. This third application also

appears to raise an ineffectiveness claim with regard to McDonald: It asserts

that before withdrawing or abandoning his client, McDonald made no effort to

either replace his petition with that of Estelle’s or to supplement his application

with the claims asserted in the application filed by Estelle on December 1, 2008. 

The Texas Court of Criminal Appeals dismissed the third state habeas

application as an abuse of the writ on November 9, 2011. Ex parte Taichin

Preyor, No. WR 72,660-03, 2011 WL 5438390 (Tex. Crim. App. Nov. 9, 2011).

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Preyor filed a federal habeas petition on October 21, 2010. He alleged that

trial counsel rendered ineffective assistance by (1) failing to allow him to testify

at trial; (2) failing to investigate and adequately prepare for a defense at trial;

(3) failing to object to the prosecutor’s lecturing to prospective jurors and use of

brainwashing tactics and indoctrination during voir dire; (4) failing to conduct

voir dire regarding racial bias or prejudice; and (5) making false, inconsistent

and confusing representations to the jury in opening statement and closing

argument. He alleged that appellate counsel was ineffective in failing to present

ineffective assistance of trial counsel claims on direct appeal. Finally, he alleged

that his first state habeas counsel rendered ineffective assistance by (1) arguing

trial strategy in the state writ; (2) failing to produce any evidence at the

evidentiary hearing; (3) abandoning his client by failing to prepare proposed

findings of fact and conclusions of law; and (4) failing to make a motion for

appointment of federal habeas counsel.

Preyor filed an amended federal habeas petition on December 11, 2010, in

which he added a claim that trial counsel had a conflict of interest based on his

laughing and talking with the victim’s stepfather, a prosecution witness, during

a trial recess.

In its answer, the State asserted that most of Preyor’s claims were

procedurally defaulted because the state court had dismissed them as abusive. 

In his traverse to the State’s answer, filed on June 28, 2011, Preyor requested

an evidentiary hearing and asserted that trial counsel should have investigated

the ownership of the shotgun found by police on the bumper of Preyor’s vehicle

and should have produced evidence of the local weather conditions and

temperature at the time of the murder. He did not respond to the State’s

procedural default claims.

The district court held that most of Preyor’s complaints of ineffective

assistance of trial counsel were procedurally defaulted because they were raised

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only in his second and third state habeas applications, both of which were

dismissed as abusive by the state court. Alternatively, the district court

addressed the claims on the merits, de novo, and held that Preyor’s complaints

about the performance of his trial counsel all were without merit. The district

court held that Preyor was not entitled to an evidentiary hearing to develop new

facts and new evidence in support of the claims the state habeas court rejected

on the merits, and that he had failed to allege sufficient specific facts to warrant

a federal evidentiary hearing with respect to the claims that the district court

rejected on de novo review. The district court denied relief and denied a COA.

Preyor filed a motion for reconsideration, citing Martinez v. Ryan, 132 S.

Ct. 1309 (2012). Although Martinez was decided on March 20, 2012, nearly

three months before the district court’s decision denying relief on June 15, 2012,

Preyor waited until his motion for reconsideration to argue, for the first time,

that ineffective assistance of initial state habeas counsel excused his procedural

default. The district court denied the motion. It stated that under Martinez,

only substantial complaints of ineffective assistance of trial counsel can be cause

for a procedural default, and none of Preyor’s complaints about the performance

of his trial counsel are substantial because he failed to demonstrate either

deficient performance or prejudice. 

II.

Preyor requests a COA for the following claims:

(1) Trial counsel rendered ineffective assistance by (a) failing to inquire

into racial bias at jury selection; (b) failing to present any witnesses or evidence

of self-defense; (c) withdrawing Preyor’s only plausible defense; (d) presenting

contradictory defense theories in opening statement and closing argument; and

(e) having a conflict of interest as a result of inappropriate contact with the

victim’s stepfather.

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(2) Trial counsel’s decision not to call Preyor as a witness violated his

constitutional right to testify.

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

of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree with the district

court’s resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.” 

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529

U.S. 473, 484 (2000)). “[A] claim can be debatable even though every jurist of

reason might agree, after the COA has been granted and the case has received

full consideration, that petitioner will not prevail.” Id. at 338. In making the

decision whether to grant a COA, this Court’s examination is limited to a

“threshold inquiry,” which consists of “an overview of the claims in the habeas

petition and a general assessment of their merits.” Id. at 327, 336. This Court

cannot deny a COA because it believes that Preyor ultimately will not prevail on

the merits of his claims. Id. at 337. On the other hand, “issuance of a COA must

not be pro forma or a matter of course.” Id. “While the nature of a capital case

is not of itself sufficient to warrant the issuance of a COA, in a death penalty

case any doubts as to whether a COA should issue must be resolved in the

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

(brackets, internal quotation marks, and citations omitted).

Before addressing Preyor’s claims, we first turn to consider whether

Preyor has established cause to excuse the procedural default of most of his

claims.

A. Procedural Bar

The district court held that most of Preyor’s claims are procedurally

defaulted because he raised them for the first time in subsequent state habeas

applications that were dismissed by the state court as abusive. Preyor contends

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that the ineffective assistance of his first state habeas counsel, Terry McDonald,

serves as cause to excuse the procedural default. 

A federal court may consider the merits of a procedurally defaulted claim

if the petitioner shows “cause for the default and prejudice from a violation of

federal law.” Martinez, 132 S. Ct. at 1316 (citing Coleman v. Thompson, 501

U.S. 722, 750 (1991)). In Martinez, the Supreme Court answered a question left

open in Coleman: “whether a prisoner has a right to effective counsel in

collateral proceedings which provide the first occasion to raise a claim of

ineffective assistance at trial.” 132 S. Ct. at 1315. The Court held:

Where, under state law, claims of ineffective assistance of trial

counsel must be raised in an initial-review collateral proceeding, a

procedural default will not bar a federal habeas court from hearing

a substantial claim of ineffective assistance at trial if, in the initialreview collateral proceeding, there was no counsel or counsel in that

proceeding was ineffective.

Id. at 1320. The standards of Strickland v. Washington, 466 U.S. 668 (1984),

apply in assessing whether initial-review habeas counsel was ineffective. Id. at

1318.

Although Texas does not preclude prisoners from raising ineffective

assistance of trial counsel claims on direct appeal, the Court held in Trevino v.

Thaler, 133 S. Ct. 1911 (2013), that the rule of Martinez nevertheless applies to

Texas cases because “the Texas procedural system–as a matter of its structure,

design, and operation–does not offer most defendants a meaningful opportunity

to present a claim of ineffective assistance of trial counsel on direct appeal.” Id.

at 1921.

To succeed in establishing cause to excuse the procedural default of his

ineffective assistance of trial counsel claims, Preyor must show that (1) his

underlying claims of ineffective assistance of trial counsel are “substantial,”

meaning that he “must demonstrate that the claim[s] ha[ve] some merit,”

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Martinez, 132 S. Ct. at 1318; and (2) his initial state habeas counsel was

ineffective in failing to present those claims in his first state habeas application. 

See id.; Trevino, 133 S. Ct. at 1921.

To establish ineffective assistance of his initial state habeas counsel,

Preyor must show both that habeas counsel’s performance – in failing to present

the ineffective assistance of trial counsel claims in the first state habeas

application – was deficient and that he was prejudiced by the deficient

performance – that is, that there is a reasonable probability that he would have

been granted state habeas relief had the claims been presented in the first state

habeas application. See Strickland, 466 U.S. at 687. The Strickland standard

also applies to Preyor’s underlying ineffective assistance of trial counsel claims.

“[T]he proper standard for attorney performance is that of reasonably

effective assistance.” Id. “[T]he defendant must show that counsel’s

representation fell below an objective standard of reasonableness.” Id. at 688.

Judicial scrutiny of counsel’s performance must be highly

deferential. It is all too tempting for a defendant to second-guess

counsel’s assistance after conviction or adverse sentence, and it is

all too easy for a court, examining counsel’s defense after it has

proved unsuccessful, to conclude that a particular act or omission of

counsel was unreasonable. A fair assessment of attorney

performance requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time. Because of the difficulties

inherent in making the evaluation, a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy. There

are countless ways to provide effective assistance in any given case. 

Even the best criminal defense attorneys would not defend a

particular client in the same way.

Id. at 689 (internal quotation marks and citations omitted).

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With respect to the duty to investigate,

strategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation. In other words,

counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations

unnecessary. In any ineffectiveness case, a particular decision not

to investigate must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel’s

judgments.

Id. at 690-91. See also Williams v. Taylor, 529 U.S. 362 (2000); Wiggins v.

Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005). The

Supreme Court recently stated that these three post-Strickland cases, each of

which granted relief on ineffective assistance claims, did not establish “strict

rules” for counsel’s conduct “[b]eyond the general requirement of

reasonableness.” Cullen v. Pinholster, 131 S. Ct. 1388, 1406-07 (2011). “An

attorney need not pursue an investigation that would be fruitless, much less one

that might be harmful to the defense.” Harrington v. Richter, 131 S. Ct. 770,

789-90 (2011). Preyor’s trial counsel, as well as his state habeas counsel, were

“entitled to formulate a strategy that was reasonable at the time and to balance

limited resources in accord with effective trial tactics and strategies.” Id. at 789.

To demonstrate prejudice, Preyor 

must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.

Strickland, 466 U.S. at 694. “The likelihood of a different result must be

substantial, not just conceivable.” Richter, 131 S. Ct. at 792 (citation omitted). 

This showing is intentionally difficult to satisfy: “In assessing prejudice under

Strickland, the question is not whether a court can be certain counsel’s

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performance had no effect on the outcome . . . . Instead, Strickland asks whether

it is ‘reasonably likely’ the result would have been different.” Richter, 131 S. Ct.

at 791-92 (citations omitted). 

Even if Preyor establishes that ineffective assistance of his initial state

habeas counsel constitutes cause for the default of his ineffective assistance of

trial counsel claims, “[a] finding of cause and prejudice does not entitle [him] to

habeas relief. It merely allows a federal court to consider the merits of a claim

that otherwise would have been procedurally defaulted.” Martinez, 132 S. Ct.

at 1320. In this case, the district court considered the merits of the procedurally

defaulted claims and held that Preyor was not entitled to relief because he had

failed to demonstrate that his trial counsel rendered deficient performance or

that he was prejudiced. Because the district court addressed the merits of

Preyor’s ineffective assistance of trial counsel claims, it is arguable that Preyor

has received the relief available to him under Martinez and Trevino. And, as we

have noted, when it denied Preyor’s motion for reconsideration, the district court

held that Martinez offered no sustenance for Preyor because his ineffective

assistance of trial counsel claims were not substantial, because they lacked

merit.

We conclude that, in this case, it makes no difference to the outcome

whether the ineffectiveness of Preyor’s first state habeas counsel excused the

procedural default of Preyor’s ineffective assistance of trial counsel claims,

because reasonable jurists could not debate the district court’s conclusion that

Preyor’s claims are not substantial or its alternative conclusion, on de novo

review, that he failed to demonstrate that trial counsel rendered deficient

performance and that he was prejudiced.

We now turn to address each of Preyor’s COA requests.

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B. Ineffective Assistance of Trial Counsel

1. Failure to Inquire into Racial Bias at Jury Selection

Preyor asserts that this is a racially sensitive case because he is black and

the victim, Tackett, was white, and that trial counsel rendered ineffective

assistance by failing to conduct a reasonable inquiry into racial bias and

prejudice of prospective jurors.

The district court held that this claim is procedurally defaulted because

it was first presented in Preyor’s second habeas petition, which the state court

dismissed as an abuse of the writ, and that Preyor had failed to establish cause

and prejudice to excuse the default. Alternatively, the district court held that

the claim lacks merit. The district court concluded that Preyor had failed to

allege any facts showing that racial issues were inextricably intertwined with

the facts of the offense or the circumstances of trial, and detailed the conclusory

nature of Preyor’s claim: (1) although Preyor argued that his trial counsel

should have questioned venire members about their relationships with black

people, interracial couples, and their feelings about black people generally, he

did not identify any member of the venire who should have been questioned in

such a manner; (2) he did not identify any venire member whose questionnaire

responses, physical appearance, demeanor, or background information suggested

that he or she might have racially biased or prejudiced views that would impair

his or her ability to render a verdict based solely on the evidence and the law; (3)

he did not allege or identify any venire member who was excused for cause

because of racial bias or prejudice; (4) he did not allege any specific facts showing

that racial bias or prejudice was so prevalent in the community at the time of his

trial as to require questioning every venire member about racial bias or

prejudice; and (5) he did not allege any specific facts showing that his race or

ethnicity or the race or ethnicity of his victims played any role in his offense or

in the outcome of the trial, and identified no evidence showing that his offense

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was racially motivated. The district court held that, under such circumstances,

trial counsel cannot reasonably be faulted for failing to question each member

of the venire about racial bias or prejudice.

Reasonable jurists would not debate the district court’s conclusion that

Preyor failed to allege any specific facts showing that trial counsel should have

been aware at the time of voir dire of the potential for racial bias or prejudice

among the venire. As the district court pointed out, there is no per se rule

requiring voir dire on racial bias or prejudice in every case in which the

defendant and the victim are of different races. Ristaino v. Ross, 424 U.S. 589,

596 n.8 (1976). Instead, whether such voir dire is necessary requires “an

assessment of whether under all of the circumstances presented there was a

constitutionally significant likelihood that, absent questioning about racial

prejudice, the jurors would not be as ‘indifferent as (they stand) unsworne.’” Id.

at 596 (quoting Coke on Littleton 155b (19th ed. 1832)). Reasonable jurists

would agree with the district court that Preyor failed to show the existence of

any such circumstances. Accordingly, Preyor’s request for a COA for this claim

is denied.

2. Failure to present witnesses or evidence of self defense

and right to testify

Preyor argues that self-defense was his only plausible defense and that

trial counsel rendered ineffective assistance by failing to present any witnesses

or evidence to support that defense. He does not identify any evidence that

should have been presented other than his own testimony.2 This claim is largely

duplicative of Preyor’s claim that trial counsel “withdrew” the defense of self2 Preyor also speculates – without any supporting evidence – that, if trial counsel had

investigated the shotgun found on the bumper of his vehicle, the investigation would have

shown that the gun was connected to a prosecution witness. He does not explain, however,

how such evidence would have supported his claim that he cut Tackett’s throat with a knife

in self-defense.

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defense, and that counsel’s decision not to call him as a witness violated his

constitutional right to testify. We therefore address all of these claims together.

Preyor asserts that he wanted to testify at trial and was assured by

defense counsel that he would be called to testify, but that defense counsel made

the decision not to call him as a witness and thus prevented him from testifying. 

Preyor argues that because he was the only other person present at the scene,

his testimony was essential to the theory of self-defense and that the defense

was essentially “withdrawn” when counsel did not call him to the witness stand. 

He contends that defense counsel’s decision not to allow him to testify deprived

him of his constitutional right to take the stand and also deprived him of a

potentially meritorious defense. He contends further that the admission into

evidence of his statement was not an adequate substitute for his testimony.

The district court referred to the strong presumption that counsel made

all significant decisions in the exercise of reasonable professional judgment and

concluded that Preyor had not presented any specific factual allegations or

evidence showing that trial counsel did anything which prevented Preyor from

exercising his constitutional right to testify on his own behalf at the guiltinnocence phase of his capital murder trial, or that the decision not to have him

testify was anything other than an informed, voluntary decision made by him in

consultation with his trial counsel.3 Specifically, Preyor did not present an

affidavit stating (1) that his trial counsel failed to advise him of his right to

testify at trial, (2) that he ever advised his trial counsel that he wished to testify,

and (3) what information he was prepared to offer had he been called to testify. 

The district court noted that Preyor’s version of the events surrounding his

fatal assault on Tackett was admitted into evidence in the form of his written

statement, which could not be cross-examined. If Preyor had testified at trial in

3 The jury charge stated specifically that Preyor had elected not to testify.

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a manner consistent with his written statement, the district court found that it

is likely that he would have been subjected to damaging cross-examination about

(1) why he said in his statement to police that Tackett opened the door and let

him into her apartment, when photographs of the door indicated that it had been

broken in;4(2) why numerous witnesses heard a woman screaming but no one

claimed to have heard him; (3) why he wore gloves and brought a knife to

Tackett’s apartment; (4) why he disposed of his bloody gloves and knife by

throwing them over a fence not far from where his vehicle was parked and then

returned to the apartment complex courtyard (a fact omitted from his written

statement to police); (5) why he resisted when the police tried to secure him in

handcuffs; (6) why he suffered no serious injuries, while Garza sustained a

serious chest wound and Tackett was sliced or stabbed numerous times over her

body and had numerous defensive wounds; and (7) why he remained in Tackett’s

apartment after Garza left. The court concluded that, viewed objectively, there

were reasonable strategic reasons why trial counsel may have believed that

calling Preyor to testify at the guilt-innocence phase of trial would have proven

more risky than potentially beneficial. The district court also pointed out that

if Preyor had testified, he could have been cross-examined about his prior

conviction for possession of almost $10,000 worth of crack cocaine and his

admissions that he was again dealing drugs after his move to San Antonio. The

district court concluded that Preyor had failed to carry his burden of overcoming

the presumption that the decision by trial counsel not to call him to testify at

4 Preyor argued in the district court that trial counsel should have presented evidence

that the door to Tackett’s apartment was broken out from the inside, rather than broken in

from the outside. The district court held that any such attempt would have been futile

because photographs admitted into evidence at trial show a door still on its hinges, an

undamaged exterior door frame, and an interior door frame shattered to pieces, suggesting

force was applied to the exterior of the door.

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trial constituted adequate assistance and was made in the exercise of reasonable

professional judgment.

The district court also held that Preyor could not establish prejudice. 

Based on its independent review of the entire record, the district court held that

there is no possibility, much less a reasonable probability, that, but for the

failure of trial counsel to call Preyor to testify at trial, the outcome of either

phase of the trial would have been different.

The district court noted that in his pleadings, Preyor claimed that he

would have testified that: (1) he was attacked by Tackett and Garza shortly

after his arrival at Tackett’s apartment; (2) shortly before his arrival at her

apartment, Tackett directed him in a telephone conversation to come over to her

apartment; (3) both Tackett and Garza appeared to be “under the influence”; (4)

Tackett immediately snatched his money clip from his hand; and (5) the shotgun

found on the bumper of his vehicle had absolutely no connection to him.

The district court observed that the jury already was aware, from Preyor’s

written statement, of his assertions that he telephoned Tackett the evening

before the murder and arranged to visit her apartment and that Tackett and

Garza attacked him when he arrived at her apartment. Thus, his first two

pieces of proposed testimony offered nothing of substance and would have been

cumulative of the information contained in his written statement. Further, 

Garza admitted in his trial testimony that he used cocaine and drank a large

amount of beer on the night of the murder, and the medical examiner testified

that Tackett’s blood contained a metabolite of cocaine but was negative for

alcohol and other drugs. Thus, testimony by Preyor that Tackett and Garza

were “under the influence” also would have been cumulative of other evidence

before the jury. If Preyor had testified that Tackett grabbed his money clip when

he entered her apartment, the district court found that the prosecution would

likely have cross-examined him as to why police found his money clip next to his

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vehicle in the apartment complex’s parking lot and why he failed to mention this

detail when he described the events at Tackett’s apartment for police in his

written statement (which does not mention an attempted robbery by Tackett and

Garza). Such testimony also would have raised the likelihood of crossexamination about what happened to the money, in the light of the fact that the

money clip police found in the parking lot contained no cash, no cash is visible

in the photographs from Tackett’s apartment, the medical examiner did not find

any cash at the autopsy, and there is no evidence that police officers or evidence

technicians found any cash inside Tackett’s apartment. Thus, any testimony by

Preyor about the alleged theft of his money clip by Tackett would likely have

raised more difficult questions for Preyor than the defense could have hoped to

gain from such testimony.

Reasonable jurists could not debate the district court’s conclusions that

Preyor’s allegation that counsel refused to allow him to testify is conclusory and

that he failed to establish deficient performance or prejudice with respect to his

claims regarding the presentation of evidence of self-defense, including his

testimony. Accordingly, we deny Preyor’s requests for a COA for these

interrelated claims.

3. Presentation of Contradictory Defense Theories

Preyor contends that trial counsel rendered ineffective assistance by

presenting inconsistent defense theories in his opening statement, in which

counsel suggested that David Pointer, Tackett’s former boyfriend, was the killer

and that Preyor was not present, and in closing argument, in which he claimed

that Preyor killed Tackett in self-defense.5

5

It is arguable that this claim was presented in Preyor’s first state habeas application

and is not procedurally defaulted. In any event, reasonable jurists would not debate the

district court’s decision, on de novo review, that it fails on the merits.

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The district court held that the factual premise of this claim is inaccurate

because in his opening statement, trial counsel did not explicitly argue either

that Preyor was not present at the scene on the night of Tackett’s murder or that

David Pointer was the real perpetrator. The district court characterized the

opening statement as pointing an accusatory finger toward Pointer and

theorizing a motive for Pointer to murder Tackett. The district court also found

that Preyor misrepresented the contents of counsel’s closing argument.

The district court rejected Preyor’s contention that, because Pointer had

an alibi and was a witness for the prosecution, trial counsel’s reference to

Pointer as a possible suspect undermined trial counsel’s credibility. The district

court pointed out that Pointer’s alibi was not air-tight, because his alibi witness

was asleep at the time of the murder. In addition, during cross-examination of

Pointer, defense counsel elicited evidence, consistent with defense counsel’s

opening statement, of Pointer’s obsession with Tackett and his depression

following the demise of their relationship.

Based upon its review of the entire record, the district court concluded that

there was no inconsistency between trial counsel’s opening statement and

closing argument. In the opening statement, trial counsel attempted to focus the

jury’s attention on the relationship between Tackett and Pointer. In closing

argument, trial counsel argued that Garza, acting under the influence of alcohol

and cocaine, had mistaken Preyor for Pointer and had attacked Preyor without

warning; that the fatal wound to Tackett was delivered without much force, as

Preyor attempted to restrain her and protect himself from Garza’s attack; and

that Preyor did not intentionally cause Tackett’s death as he defended himself.

Reasonable jurists would not find the district court’s assessment of this

claim debatable or wrong. We therefore deny Preyor’s request for a COA for this

claim.

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4. Conflict of Interest

Preyor’s conflict of interest claim is based on an allegation that, during a

recess at the guilt-innocence phase of the trial, Michael Gross, one of the

attorneys who represented him at trial, talked and laughed with the victim’s

stepfather, Charles Dickinson, who was a witness for the prosecution. Preyor

contends that Gross’s contact with Tackett’s stepfather in such a social and

friendly manner during the trial violated his Sixth Amendment right to conflictfree representation.

The district court held that this claim was procedurally defaulted and,

alternatively, that it has no merit. The district court pointed out that Preyor

had alleged no specific facts establishing that Gross had any interpersonal

contact with Tackett’s stepfather other than the one occasion described in his

pleadings; he presented no allegations that Gross was involved in a friendship

with any member of Tackett’s family; he presented no allegations or evidence

showing that Gross engaged in any topic of conversation with Dickinson

inappropriate for discussion between a criminal defense counsel and a

prosecution witness; he cited no authority to support the contention that a

criminal defense lawyer is constitutionally prohibited from engaging in

conversation with a relative of his client’s victim; and he did not identify any

action trial counsel could have undertaken to cross-examine Dickinson more

thoroughly or differently or to otherwise elicit any helpful testimony from him.6

The district court held that Preyor’s conclusory assertions that counsel

fraternized, socialized, and laughed with Dickinson, bereft of any facts showing

what they said to each other, failed to establish that Gross operated under a

conflict of interest. 

6 We note that Preyor’s lead counsel, John Economidy – not Gross – cross-examined

Dickinson.

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For the first time in this court, Preyor presented the unnotarized affidavits

of Margaret Mendez and Nathaniel Johnson, in which they claim they witnessed

the incident and gave that information to Preyor’s current counsel in February

2009 at the state court evidentiary hearing. We do not consider new evidence

presented for the first time on appeal. In any event, the affidavits do not help

Preyor because the affiants do not describe the contents of the conversation

between Gross and Dickinson and offer no new information that would call into

question Gross’s loyalty to Preyor.

Reasonable jurists would not find the district court’s assessment of this

claim to be debatable or wrong, and we therefore deny Preyor’s request for a

COA.

III.

In sum, we conclude that reasonable jurists would not debate the district

court’s conclusions regarding any of Preyor’s claims. He offered no evidence –

not even his own affidavit – to support his conclusory allegation that he was

denied his constitutional right to testify. As the district court noted, his

allegations of ineffective assistance of trial counsel are all either conclusory or

are based on misrepresentations of the record. Furthermore, reasonable jurists

would all agree that Preyor was not prejudiced. His theory of self-defense was

inconsistent with the physical evidence, and his actions in disposing of the knife

and bloody gloves and resisting arrest all are inconsistent with self-defense. 

Because Preyor has not made a substantial showing of the denial of a

constitutional right, his application for a COA is

DENIED.

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