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

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 C hin Preyor was con v i c t e d and sentenced to death in Texas for the 2 0 0 4 c apital murder of Jami Tackett while i n the c ourse of committing and attempting t o commit burglary. He r e quests a c ertificate of a ppealability (COA) t o appeal the district court’s denial of federal h abeas relief. The request f o r a COA is DENIED for the reasons that follow. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D J uly25, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

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

. R. 47. 5. 4. Case: 12-70024 Document: 00512320753 Page: 1 Date Filed: 07/25/2013No. 12-70024 I. The State presented the f o llowing evidence at tri a l

. Over an extended period of time the victim, Jami Tackett, sold illegal d r u gs 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 f

riends, including Jason G arza, at her apar t m e n t

. After the last guest left at about 4:00 a.m. on February 26, Tackett and Garza locked the front door, turned out the l i gh t s , a n d went to b ed. G arza testified that when they were almost asleep, he heard two or three loud bangs at the door. Then a

m a n p e e k e d i nto the b edroom and Tackett said, “Box, what the h ell are you doing here.” Preyor, who was dressed in black and wearing a hood and gloves,

s a i d “ F * ** this,” and attacked Garza. After Preyor stabbed Garza, Gar z a escaped and asked neighbors to call for h elp. P reyor then stabbed Tackett

numerous times and cut her throat, severing her trachea, jugular ve i n , and carotid artery. Several of Tackett’s neighbors h eard her screaming and saw Preyor when h e left her apartment. They saw Tackett o n the floor, covered in blood a n d making gurgling sounds. Jaclyn Villanueva a sked Tackett if th e man who came out of th e a partment wearing black clothing hurt her. Although Tackett was unable to speak, she nodded her head affirmatively. Tackett d i e d b efore the paramedics arrived. Preyor left Tackett’s a partment and went d ownstairs, where his vehicl e

was parked, but returned to Tackett’s apartment where he apparently s earched, unsuccessfully, for his keys. After the murder, David Pointer, Tackett’s former boyfriend, found some car keys in her a partme n t a n d turned them over to the police, who determined that they were the keys to Preyor’s vehicle. When Preyor left T ackett’s apartm e n t the second time, he encountered polic e o f f i c e r s . Wh en they ordered him to stop a nd get on the ground, Preyor

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refused to comply

. T h e 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 a nd the m urder weapon on the gr o u nd next to a vehicle i n the parking lot, later iden t i f i e d as Preyor’s vehicle. They also discovered a loaded shotgun on the bumper o f the vehicle and f ound blood on the driver’s-side door h andle of the vehicle. The p attern on Preyor’s boots matched the pattern of the bloo d y f o o t p r ints found in Tackett’s apartment. Tackett’s DNA profile was also consistent with blood found o n the knife, gloves, car door handle, a swab from Preyor’s face, and a swab from his hand and b oot. Garza’s DNA profile was consistent with blood found on Preyor’s watch and k n it cap. Blood c onsistent with a mixture of Tackett’s and Preyor’s DNA profiles was located on various items, including a nail clipping f rom Tackett and a s wab 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 t o Jami’s to buy som e d r u g s f

r o m her. Jami was my connect. I buy my drugs from her a nd I sell them to people I know. This morning I w ent over to Jami’s apartment to buy s ome drugs. I h a d called Jami e arlier that day and asked h er what was up. Jami told me nothing. Jami told me I n e e d e d t o come and talk to her. Jami told m e 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 w ould hook up with h er later, Jami told me to come. J ami said she was just kicking with her home boy from the s tudio and everything was cool.
When J ami told me she was kicking it with someone f rom th e studio, I thought she was hanging out with my man, Keith, because Keith is a rapper. I was ove r t o o ne of my home boy’s house wh e n I t alked to Jami. I left his crib and w ent to a pay phone t o call Jami. I c alled 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 b o y ’ s n ame,

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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 t o J ami’s apartment. I knocked on the door and Jami opened the door and let me in. I had felt the phone call from Jami w as funny, because Jami usually tell[s] me who she has o v e r t o 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 o n t h e s o f a inside th e living room. I could s ee the guy because of th e TV light from the TV. The guy was a H ispanic dude with short, slick, black hair. The dude was shorter than m e, but he was stocky build.
When I saw t h e gu y , 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 t h e d oor behind me, and the dude started to get up. I bolted down the h allway to the back rooms and pushed open the doors to the r ooms to the back. I was trying to s ee how many people were in the house. I was try i n g to turn on some lights, but I didn’t know where the switches were.
There w as no o ne else i n the apartment. I went back up to th e front of the apartment. When I got to t h e f r ont of the apartment, old b oy tried to grab m e, so I s tarted fighting wi t h him. I was getting the best o f the guy until Jami started helping him. Jami grabbed m e a nd started grabbing for my f a ce. That’s when she scratched my face. I f

elt like I w as being overwhelmed and I didn’t have the u p p e r h a n d a nymore, s o I pulled my knife. I pulled my knife and poked the dude with it. Af t e r I p oked him – I don’t remember how many times I poked him, he took off. He opened th e door and bolted out of the apartment. J ami was still there and she was still trying to fight. She was s c r atching and grabbing at m e 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 w as yelling for help. I k n o w t h at I had cut myself on my finger. The dude was holdin g me, so I tried t o slice his hand. He pulled away and I sliced my own finger. I didn’t know I h ad all that b lood on me. I knew I had some blood on me, but not that m u ch. 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, a n d I d efended myself. I had no idea h ow bad I had h urt Jami. I wouldn’t h ave hurt [her] that bad. When I walked down the s tairs and started to c ross the cour t y a r d , the police ran up behind me. T h e y were yelling, stop, or I’ll shoot. I turned around and put m y 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 if they wanted me to stop walking.
Ten seconds later after that I got tackled. The officers cuffed me a n d o n e of them pepper sprayed me while I was laying on th e ground ha n d c u f

f e d

. I didn’t tell the truth in my first statement, because I didn’t want to admit I w as 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, T exas. This is the end of my two-page statement, I have read and understand this statement. I have signed this s tatement indicating it’s true and correct. I gave this statement voluntarily without the p r o m ise of anything or being threatened.
I felt like I was the victim, so I didn’t run, but know that th e whole thing was over drugs s o I didn’t want t o reveal that. I f elt like it was going to be worked against me. Preyor did not call any wi t n e s s e s a t the guilt-innocence p hase, and the jury was instructed that Preyor had “ elected not to testify.” Tria l counsel requested a nd obtained jury instructions on self-defense and the lesser-included offenses of murder and aggravated assault. The jury found Prey o r gu i l ty of capital murder. At the punis h m ent phase, the State presented evidence that Preyor had committed a p rior drug offense in Syracuse , N e w 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 o f P r eyor. Preyor fled, and another officer later tackled and handcuffed him. P reyor p led guilty to possession of a c o n t r o lled substance in exchange f

or a one-year sentence and t h e dismissal of a charge o f resisting

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arrest. Preyor told his probation officer that he had u sed c ocaine since he was

an adolescent, and that he had started using it consiste n t l y in 1998, when he had an af

f a i r w i t h a w oman who was a drug abuser. Preyor also told his probation officer th at the crack cocaine was f or his own personal u se. H owever, when he was interviewed by a c linical psychologi s t , D r . Murphy, prior to his capital murder trial, he acknowledged that he had been selling drugs. After s erving time for his drug offense in N ew York, Preyor moved to San Antonio, where he wa s j o i n e d by his wife a nd children. A bout a month before the murder, on January 1 4 , 2004, the police went to Preyor’s a partment on a

“ f a m i l y violence call.” Preyor was angry a nd he w as 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. Pr e yo r c o m m itt e d s ev e r al m i n o r di s c ip li n ary infractions while in th e B e x ar 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, b o i s t e ro u s b e h avi o r o r c o m m u nic ation with other inmates.” The S tate also presented evidence that Preyor h ad the d ates of his drug offense and the murder tattooed on his body. He told D r. Murphy that the tattoos were to remind him of mistakes that he did not want to repeat. The jury found beyond a r easonable doubt that there was a probability that P reyor would c ommit c riminal acts of violence that constituted a continuing threat to society, and that there were i n sufficient m i t i gating circumstances to warrant a sentence of life imprisonment. On direct a ppeal, Preyor was represe n t ed by Michael Gross, one of the attorneys who had represented him at trial. T he Texas Court of Criminal Appeal s a f

f i rmed Preyor’s conviction and death sentence i n an unpublished

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opinion. Preyor v. State , No. AP-75119, 2008 WL 217974 (Tex. Crim. App. Jan. 23, 2008). Terry McDonal d w a s a ppointed 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 ineffectiv e i n failing to investigate the facts and develop a consistent trial strategy; (2) trial counsel was i neffective in failing to investi g a t e and present evidence that a burglary did not occur; (3) trial counsel w as ineffective i n f a iling to have a correctional system expert appointed to aid the j u ry 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 cru e l a n d u n usual punishment in violation of the Eighth Amendment; and (6) his due process rights were violated because the same act involved in burglary was the a ct that killed the victim, in violation of the merger doctrine. The trial court scheduled an evidentiary hearing o n Preyor’s f irst state habeas app l ication. Prior to that hearing, notwithstanding that P reyor was represented by McDonald, Preyor’s cu r r e n t federal habeas counsel, Brandi Estelle from Beverly Hills, C a l i f o r nia, who apparently had been hired by the family, filed another s tate habeas application in the trial court on December 1, 2008, 1raising the following claims for relief:

1 The record ref

lects that the s tate habeas ap p lication f iled by Es telle on D ecem ber 1, 2008 filing w as p reced ed by s everal uns ucces s ful attem p ts by Es telle to be ad m itted p ro hac vice. A s t a t e h abeas ap p lication that ap p ears to be subs tantially id entical to the D ecem ber 1, 2008 f iling, w as received by the Texas Court of Crim inal Ap p eals on Sep tem ber 29, 2008. In a letter to the Court d ated O ctober 10, 2008, Es telle stated that the ap plication received by the Court on Sep tem ber 29, 2008 “IS A N EW AN D SEPARATE PETITIO N and s hould not be cons id ered i n c o njunction w ith any other Petition f iled by any other law y er for Ap p ellant.

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(1) trial counsel r endered ineffective assistance by f ailing t o allow Preyor to testify; (2) trial counsel rendered i neffective assistance by f ailing to i nv e stigate and adequately prepare for a defense at trial; (3) trial counsel rendered ineffective a ssistance 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 c onduct voir dire regarding racial bias or prejudice; (5) trial counsel r endered i neffective assi s tance by m aking inconsistent arguments in opening statement and closin g a rguments and by failing to produce any evidence t o support the th eory of self-defense asserted in closing arguments. This December 1, 2008 application included the following paragraph: There is another habeas corpus p etition pendi n g , (No. AP75119), a nd n o request i s m ade to consolidate that with this Petition, in that THIS Petition is based on ineffective a ssistance of APPELLATE COUNSEL. . . . The other Petition filed on behalf of the Defendant does not raise a colorable claim as t o i n e ffective assistance of trial counsel. The within Petition, however, does. Both McDonald and Estelle were p resent, on February 9, 2 0 0 9 , at the state evidentiary hearing held on Preyor’s first state habeas applic a t i o n. At that hear i n g , McDonald stated that he had been informed b y the Texas C ourt of Criminal Appeals that it w as considering the application filed by Estell e a s a second writ, “which is not provided for under Texas l aw.” McDonald stated that he had s poken with Preyor and that it was his desire to h ave the writ f i l e d by Estelle considered by the court. In response to questions from McDonald, Preyor

. . This Petition is bas ed o n gr ound s that Ap p ellant s uf f ered f rom IN EFFECETIVE [ s ic] ASSISTAN CE FRO M TRIAL A N D AP P E LLATE CO U N SEL, w hich have never p revious ly been as s ertedby Ap p ellant. ” 8 Case: 12-70024 Document: 00512320753 Page: 8 Date Filed: 07/25/2013No. 12-70024

testified under o ath at the hearing that his family h a d r e tained 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, th e t r i a l c ourt 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 o n e o f t h e trial court’s factual findings, adopted all of the trial court’ s l e g a l conclusions, and denied Preyor’s initial a pplication on October 2 8, 2009. Ex parte T aichin Preyor , No. WR 7 2,660-01, 2 009 WL 3474097 (Tex. Crim. App. Oct. 2 8, 2009). On that

same date, the Texas Court of Criminal Appeals, construing the December 1, 2008 filing b y Estelle as a s ub s equent 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 f iled a third s t a t e h abeas application on behalf of P r eyor in the trial court on December 21, 2 009, raising a c onflict of interest c laim based on trial counsel’s “ fraternizing, laughing, and h aving a conversation” with the victim’s stepfather during a recess at trial. Preyor asserted that this claim could not have bee n p resented previously because the factual basis for it was not discovered by h i s c o unsel until February 9, 2009. This third application also
appears to raise an ineffectiveness claim with regard t o McDonald: It asserts that before withdrawing or abandoning his client, McDonald made no effort to either replace his p etition with that of E stelle’s or to supplement his application with the claims asserted in the application f iled by Estelle o n December 1, 2008. The Texas Court o f Criminal Appeals dismissed the third s t ate 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; a nd (5) m a k i n g false, inconsistent and confusing representations to the jury in o p e n i n g statement and closing argument. He alleged that appellate counsel was ineffective in f ailing to present ineffective assistance of trial counsel claims on direct appeal. Finally, h e alleged that his first state habeas c ounsel rendered ineffective assistance by (1) arguing t r i a l strategy in the state w rit; (2) failing to produce a ny evidence a t t h e evidentiary hearing; (3) abandoning his client by failing to prepa r e p r o p osed findings of fact and conclusi o n s of law; and (4) failing t o make a motion for appointment of federal habeas counsel. Preyor filed an a mended federal habeas petition on December 11, 2010, in which he added a claim that trial c ounsel had a c o nflict 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 o f Preyo r ’ s c l a i ms were procedurally d efaulted because the state c ourt h ad dismissed th em as abusive. In his traverse to the State’s answer, filed o n June 28, 2 011 , P r eyor requested

an evidentiary hearing and asserted that trial counsel should have investigated the ownership of the shotgun found by police on the bumper of P reyor’s vehicle and should h ave produced evidence of the local w e a t h e r c onditions 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 P r e y or’s c o mplaints of ineffective assistance of trial c ounsel were procedurally defaulted b ecause they were raised

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only in his second and third state habeas a pplications, both of whic h w ere dismissed as abusiv e by the state court. Alternatively, the district court addressed the claims on the merits, de novo, and h e ld 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 t o allege sufficient specific facts to warrant

a federal evidentiary hearing with respe c t t o t h e 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 M a r c h 2 0 , 2012, nearly three months before the district court’s decision denying relief on June 15, 2012, Preyor w aited until his m o tion for reconsideration t o a r gue, for the first time, that ineffective assistance of initial s tate habeas counsel excused his procedural default. T h e d i s t r i c t court denied the m otion. It stated that under Martinez , only substantial c omplaints of ineffective assistance of trial counsel can b e cause for a procedural default, and none of Preyor’s c o mplaints about the performance of his trial counsel are substantial because he failed t o de m o nstrate either deficient performance or prejudice. I I. 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 p resent any witnesses or evidence of self-defense; (c) w ithdrawing Preyor’s only plausible defense; (d) presenting contradictory defense theories in opening statement and closing argument; and (e) ha v i n g a c onflict of i nterest as a r esult of inappropriate contact with the victim’s stepfather.

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(2) Trial co u n s el’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 r i gh t

. ” 2 8 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists o f reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues prese n t e d a r e adequate t o deserve e ncouragement to proceed further.” Miller-El v. Cockrell , 537 U. S

. 322, 327 (2003) (citing Slack v. McDaniel , 529 U.S. 473, 4 84 (2000)). “[A] cl a i m c a n b e 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 n ot prevail.” Id

. at 33 8

. I n 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 c laims. Id

. at 337. On the o ther h and, “issuance of a COA must not b e pro forma or a matter of course.” Id

. “While the nature o f a capital case is not of itself sufficient to warrant the issuance of a COA, i n a death penalty

case any d oubts as to whether a C OA should i ssue must be resolve d i n the petitioner’s favor.” Ramirez v. D retke , 398 F .3d 691, 6 94 (5th C ir . 2005) (brackets, internal quotation marks, and citations omitted). Before addressing Preyor’s claims, w e f irst t urn to consider whether Preyor has established cause to e xcuse the p r o c edural default of most of his claims. A. Procedural Bar The district court held that mo s t o f 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 a s abusive. Preyor contends

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that the i neffective assistance of his first state habeas counsel, Terry McDonald, serves as cause to excuse the procedural default. A federal court may consider the merits o f a p r ocedurally defaulted claim if the p etitioner s hows “cause for the d efault and prejudice f rom a violation of federal law.” Martinez , 132 S. Ct. at 1316 (citi n g Co le m a n v. Thompson , 501 U.S. 722, 750 (1991)). In Martinez , the Supreme Court answered a question left
open in Co le m an : “whether a prisoner has a right to effective counsel in collateral proceedings which provide the first occasion to r a i s e a claim of ineffective assistance at trial.” 132 S. Ct. at 1315. The Court held: Where, under stat e l a w , claims o f ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court f rom hearing a substantial claim of ineffective assistance at trial if, in the initialreview collateral proceeding, there w as no counsel or c ounsel in that proceeding was ineffective. Id

. at 1320. The standards of Strickland v. W ashington , 466 U

. S

. 668 (1984), apply in assessing whether initial-review habeas counsel was ineffective. Id

. at 1318. Altho u gh Texas does not preclude prisoners from raising ineffective assistance of trial counsel claims on direct appeal, the Court h eld in Trevino v. Thaler , 133 S. Ct. 1 911 (2013), that the rule of M artinez nevertheless applies to Texas c ases b ecause “the Texas procedural system–as a matter o f it s structure, design, and operation–does not offer most d efendants a meaningful opportunity to present a claim of ineffective assistance of trial counsel on direct a ppeal.” I d

. at 1921. To succeed in establi s h ing cause to excuse the procedural default of his ineffective assistance of trial counsel c l a i m s , P reyor must show that (1) his

u n d e rlying claims of ineffective assistance of trial counsel are “substantial, ” meaning that he “must demonstrate that the c l a i m [s] ha[ve] some merit,”

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M artinez , 132 S

. C t. at 1 318; and (2) his initial state habeas counse l w a s ineffective in failing to present those c laims in his f irst state habeas application. See id .; Trevino , 133 S. Ct. at 1921. To establish i neffective assistance o f his initial state habeas counsel, Preyor must show both that habeas counsel’s performance – in failing to present the ineffective a s s i s t a n ce of trial counsel claims in the f irst state habeas appli cation – was deficient and that he w as prejudiced by the deficient performance – that i s, that there is a reasonable p robability that he would have been granted state habeas r elief had the claims been presented in the first state habeas a pplication. See Strickland , 466 U.S. at 687. The S trickland standard also a pplies to Preyor’s underlying ineffective assistance of trial c ounsel claims. “[T]he pr o p e r standard for attorney performance is that of reasonably effective ass i s t a n c e .” Id

. “[T]he defendant m ust show that c ounsel’s representation fell below an objective standard of reasonableness.” Id . at 688.

Judicial scrutiny of counsel’s performance must b e h i ghly deferential. It is all too tempting for a d efendan t t o second-guess counsel’s assistance after conviction or adv erse sentence, and it is all too e asy for a court, examining counsel ’ s d efense after it has proved unsuccessful, t o conclude that a particular act o r omission of cou n sel was unreasonable. A f air assessment of attorney performance r e q uires that every effort be m ade to eliminate th e distortin g e ffects of hindsight, to reconstruct the c ircumstances of counsel’s challenged conduct, and t o evalu a te the conduct from counsel’s perspective a t the time. Because of the difficulties i n h e r e n t in making the evaluation, a court m ust indulge a strong presumption that counsel’s conduct falls w i t h i n the wide range of reasonable professional assista nce; that is, the d efendant must o v e r come the presumption that, u nder the circumstances, th e challenged a ction might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the b est c riminal defense att orneys 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 c hoices made after thorough i nvestigation o f l aw and facts relevant t o plausible option s are virtually unchallengeable; and s t r ategic choices made after less than complete investigation a r e reasonable p recisely to the extent that r easonable professional judgments support the limitations on investigation. In o ther words, counsel has a duty t o make reasonable investigations or to make a reasonable decisi o n t h a t m a k e s p a r t i cular investigations unnecessary. In any ineffectiveness case, a particular decision n ot to i nvestigate must be directly assessed for reasonableness in all th e circumstances, applying a heavy measure o f deference t o counsel’s judgments. Id

. at 690-91. See also W illiams v. Tay lo r , 5 2 9 U.S. 362 (2000); Wiggins v. Smith , 539 U.S. 5 10 ( 2003); Rom p i l la v. Beard , 545 U.S. 374 (2005). The Suprem e C ourt recently s t ated that these three post- Strickland cases, each of which granted relief on ineffective assistance claims, did not estab l i s h “strict rules” for c ounsel’s conduct “[b]eyond the general requirement of reasonableness.” Cullen v. Pinholster , 131 S. Ct

. 1 3 8 8 , 1 406-07 ( 2011). “An attorney need not pursue a n investigation that would be fruitless, much less one t h a t might b e harmful to the defense.” Harrington v. Richter , 1 31 S. Ct. 7 7 0 , 789-90 (2011). P reyor’s trial counsel, as well a s his state habeas counsel, were “entitled to formulate a strategy that was reasonable at the time and to balance limited resources in a ccord with effective trial t actics and s trategies.” Id

. at 789. To demonstrate prejudice, Preyor

mu s t show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A r easonabl e p r o b ab ility is a probability sufficient to undermine confidence in the outcome. S t rickland , 466 U.S. at 694. “The likelihood of a different r esu l t m u s t b e 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 que s t i o n is not whether a court c a n b e certain c ounsel’s

15 Case: 12-70024 Document: 00512320753 Page: 15 Date Filed: 07/25/2013No. 12-70024

performance had no effect o n the outcome

. . . . Instead, S trickland a sks whether it is ‘reasonably likely’ the result would h ave been different.” Richter , 131 S. Ct. at 791-92 (citations omitted). Even if Preyor e s tablishes that in e f f e ctive 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 p rejudice does not entitle [him] to habeas relief. It merely allows a f e deral 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 m erits of the procedurally defaulted claims and held that Preyor w a s not entitled to r elief because he had failed to demonstrate that his trial counsel rendered deficient p erformance or that he w a s 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 a nd Trevino

. And, as we have n oted, when it denied Preyor’s motion f or reconsideration, the district court held that Martinez offered no suste n a n ce for Preyor because his ineffective assistance o f trial c o u n sel claims were n ot substantial, because they lacked merit. We conclude that, in this case, it makes no difference t o t h e o u tcome whether the ineffe c t iv e n e s s of Preyor’s first state habeas counsel excused the procedural default o f Preyor’s ineffective assistance o f trial counsel claims, because reasonable jurists could not debate the district court’s conclusion that Preyor’s claims are not substantial or its alt e rnative conclusion, on de novo review, t h a t h e failed to d emonstrate that trial counsel rendered deficient performance and that he was prejudiced. We now turn to address each of Preyor’s COA requests.

16 Case: 12-70024 Document: 00512320753 Page: 16 Date Filed: 07/25/2013No. 12-70024 B. Ineffective Assistance of Trial Counsel 1 . Failure to Inquire into Racial Bias at Jury Selection Preyor asserts that this is a racially s ensitive c ase because he is black and the victim, T ackett, was white, a n d t h at trial counsel rendered ineffective assistance by f

ailing to con d u c t a r e asonable inquiry into racial b ias and prejudice of prospective jurors. The d i s t r i ct court held that this claim is procedurally d efaulted because it was first presented in Preyor’s s econd habeas petition, which the state court dismissed as an abuse of the writ, a nd that P reyor had failed to establish cause and prejudice to excuse the default. Alternatively, the district cour t h e l d t h at the claim lacks merit. The district court concluded that Preyor had failed to allege a ny facts showi n g t h a t racial issues were inextricably intertwined with the facts of the o ffense or the circumstances of trial, and detailed the conclusory nature of Preyor’s claim: (1) although P r e y or argued that his trial counsel should have questioned venire members ab out their r elationships with black people, interracial couples, and their feelings about black people g e nerally, he did not i d entify any member of the venire who should have been questioned in such a manner; (2) he did not identify any venire member whose questionnaire

r e s p o n s e s , p hy s ic al appearance, dem e a n o r , o r b ack gro u n d i nf o r m ati o n s u g ge s t e d that he o r she might have racially biased o r 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 i dentify any venire m ember who was excu s e d f o r cause because of racial bias or prejudice; (4) he did not allege any specific facts showing that racial bias o r prejudice was so prevalent in the c ommunity at the time of his trial as to require questioning every venire m ember about racial b i as or prej u d i c e ; a nd (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 i n his offense or in the outcome of the trial, and identified no evidence showing that his offense

17 Case: 12-70024 Document: 00512320753 Page: 17 Date Filed: 07/25/2013No. 12-70024

was racially motivated. The district court held that, under such circumstances, trial counsel c annot reasonably be fa u l t e d for failing to question each member of the venire about racial bias or prejudice. Reasonable jurists w ould not debat e t h e d istrict court’s conclusion that Preyor failed to allege any specific facts s howing that trial c ounsel should have been aware at the time of v o i r dire of the potential f or racial bias o r prejudice among the venire. As t h e district court pointed out, there is no per se rule requiring voir d i r e o n r a c ial bias or p rejudice i n every case i n which the defendant and the victim are of different races. R istaino v. Ross , 424 U.S. 589, 596 n.8 (1976). Instead, whether such voir dire is necessary requires “an

assess m e n t o f w hether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning abo u t r acial prejudice, the jurors would n ot be as ‘ indifferent as (they stand) unsworne.’” I d

. at 596 ( quoting Coke on Littleton 155b (19th e d

. 1832)). Reasonable jurists would agr e e w ith the district court that Preyor failed t o 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 evide n c e to support that defense. H e does n o t identify any evidence that should have been p resented other than his own testimony. 2 This claim is largely duplicative of Preyor’s claim that t r i a l c ounsel “withdrew” the d efense of self2 Preyor als o s peculates – w ithout any s up p orting evid ence – that, if trial couns el had inves tigated the s hotgun f ound on the bum p er of his v e h icle, the inves tigation w ould have
s how n that the gun w as connected to a p ros ecution w itnes s . H e d oes not e xp l a i n , h ow ever, how s uch evid ence would have s up p orted his claim that he cut Tack ett’s throat w ith a k nif e in s elf

- def

ens e. 18 Case: 12-70024 Document: 00512320753 Page: 18 Date Filed: 07/25/2013No. 12-70024

d efense, and that counsel’s d ecision not to call him a s a witness violated his constitutional right to t estify. We therefore address all of these claims t ogether. Preyor a ssert s t hat he wanted to testify at trial and was a ssured by defense counsel that he would be called to testify, but that d efense counsel made the decision n ot to call him as a witness a nd thus prevented him from testifying. Preyor argues that because he was the only o ther person present at the scene, his testimony was essential to the theory of self-defense a nd that th e d efense

was e s s entially “withdrawn” when counsel did n o t call him to the witness stand. He c ontends that defense counsel’s decision not to allow him t o testify d eprived him of his constitutional r i gh t t o t a k e the stand and also deprived him of a potentially meritorious d efense. He contends further that the a dmission into evidence of his statement was not an adequate substitute for his testimony. The district court referred to the s trong presumption that counsel made all significant decisions i n the exercise of reasonable professional judgment and concluded that Preyor had n ot presented any specific factual a l l e gations 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 d ecision not to have him testify w as anything other than a n informed, voluntary decision made b y him in consultation with his tri a l counsel. 3 Specifically, P reyor did not present an affidavit st a t i n g ( 1 ) that his trial counsel failed to advise him of his right to testify at trial, (2) that h e ever advised his trial counsel that he wished to testify, and (3) what information he was prepared to o ffer had he been c alled to testify. Th e di s trict court noted that P reyor’s version of the events surrounding his fatal a ssault on Tackett was admitted into e v i d e n c e in the form of his written statement, which could not be cross-examined. If Preyor had testified at trial in

3 The jury charge s tated sp ecif ically that Preyor hadelected not to tes tif y. 19 Case: 12-70024 Document: 00512320753 Page: 19 Date Filed: 07/25/2013No. 12-70024

a manner c onsistent with his written statement, the district court f ound that it is likely that he w o ul d h ave b e e n subjected t o 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 i n dicated that it had been broken in; 4 (2) why numerous witnesses heard a woman scr e a m i n g but no one claimed to h ave heard him; (3) why he wore gloves a nd brought a knife to Tackett’s apartment; (4) why he disposed of h i s 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 fr o m h i s written statement to p olice); (5) why he resisted when the police tried to secure him in handcuffs; ( 6) why he suffered no se r i o u s i njuries, while Garza sustained a serious chest wound and Tackett was sliced or stabbed numerous times over her body and had numerous defensive wounds; a nd ( 7) why he remained in Tackett’s apartment after G arza left. The court concluded that, viewed objectively, there

were reasonable strategic reasons why t r ial counsel may have believed that calling Preyor to testify at the guilt-innocence p hase of trial would have proven more risky than potentially beneficial. The district c o urt also pointed out that if Preyor had testified, he c o u ld have been cross-examined about his prior

c o nviction for p ossession of almost $10,000 worth of crack cocaine and hi s admissions that h e was again dealing drugs after his move to San Antonio. The district court concluded that Preyor had failed to c arry his b urden of overcoming the presumption that the deci s ion b y trial counsel n ot to call him to testify at

4 Preyor argued in the d is trict court that trial couns el s hould have p res ented evid ence that the d oor to Tack ett’s ap artm ent w as brok en ou t f rom the ins id e, rather than brok en in f rom the outs id e. T h e d i s t r ict court held that any s uch attem p t w ould have been f utile becaus e p hotograp hs ad m itted into evid ence at trial s how a d oor s till on its hinges , an und am aged exterior door f ram e, and an interior door fram e s hattered to p ieces , s ugges ting f orce w as ap p lied to the exterior of the d oor. 20 Case: 12-70024 Document: 00512320753 Page: 20 Date Filed: 07/25/2013No. 12-70024

trial constituted adequate assistance and was made in the exercise of reasonable professional judgment. The distr i c t c ourt also held that Preyor could n ot establish prejudice. Based on its independent r eview of the entire record, the district court held that there is no p ossibility, much less a reasonable probability, that, but f o r the f a i l u r e of trial counsel to call Preyor to testify at trial, the outcome of eit h e r phase of the trial would have been different. The district c ourt n o t e d that in his pleadings, P reyor claimed that he would have testified that: (1) he was attacked by T ackett and G a r z a s h o rtly after his arrival at Tackett’s apartment; (2) shortly before his a r r iv a l at her apartment, Tackett directed him in a telephone conversation to come over to her apartment; (3) both T ackett and Garza appeared to be “under the influence”; (4) Tackett i mmediately snatched his money c lip from his hand; and (5) the shotgun found on the bumper of his vehicle had absolutely no connection to him. The district c ourt observed that the jury already was aware, from Preyor’s written s tatement, of his as s e r tions that he t e lephoned T ackett the evening before the murder and arranged to visit her a partment an d that Tackett and Garza attacked h i m when he arrived at her apartment. Thus, his first two pieces of proposed testimony offered nothing of substance and would have been cumulative o f the information contained in his writt e n s tatement. Further, Garza a dmitted in his trial t e s t i m o n y 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 m e t ab o l i t e of cocaine but was negative for alcohol and other drugs. Thus, testimony by Preyor that Tackett and Garza

were “under the i nfluence” also would have b e e n cumulative of other evidence before the jury. If Preyor had testified that Tackett grabbed his money clip when he entered her apartment, the district c our t f o u nd that the prosecution would likely have cross-examined him as to why police found his money clip next to his

21 Case: 12-70024 Document: 00512320753 Page: 21 Date Filed: 07/25/2013No. 12-70024

vehicle in the apartment complex’s p arking l ot a nd why he failed to mention this d etail when he described the events at T ackett’s apartment for police in hi s written statement (which do e s n o t mention an attempted robbery by Tackett and Garza). Such testimony also would have raised the likelihoo d o f c r o s sexamination 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 T ackett’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 t e stimony by Preyor about the alleged theft of his money clip by Tackett w oul d l i k e l y have raised more difficult questions for Preyor than the defense could have h oped to gain from such testimony. R e asonable jurists could not debate the district court’s conclusions th a t Preyor’s allegation that counsel refused to allow him to testify is conclusory and that he failed to establish d eficient performance or prejudice with respect to his claims r e garding the presentation of evidence of s elf-defense, including his testimony. Ac cordingly, we deny Preyor’s requests for a C OA for these interrelated claims.

3. Presentation of Contradictory Defense Theories Preyor contends that trial counsel r e ndered ineffective assistance by presenting i nconsiste n t d e f e nse theories i n his opening statement, in which counsel suggested that David Pointer, Tackett’s f ormer boyfriend, was the killer and that Preyor was n ot present, a nd in closing argument, i n which he claimed that Preyor killed Tackett in self-defense. 5

5 It is arguable that this claim w as p res ented in Preyor’s f irs t s tate habeas ap p lication and is n o t proced urally d ef aulted

. In any event, reas onable juris ts w ould not d ebate the d is trict court’s d ecis ion, on de novo review , that it f ails on the m erits

. 22 Case: 12-70024 Document: 00512320753 Page: 22 Date Filed: 07/25/2013No. 12-70024

The district court held that the factual premise of this claim is inaccurate because in his o pe n ing 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 w a s the real perpetrator. The district cour t c h a r a c t erized the opening statement a s pointing a n a c c usatory finger toward Pointer and theorizing a motive f

or P ointer 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 r eference to Pointer as a p ossible suspect undermined trial counsel’s credibility. The district court pointed o u t that Pointer’s alibi was not air-tight, because his alibi witness

was asleep at the time of the murder. I n a ddition, during cross-examination of Pointer, defense counsel elic i ted evidence, consistent with defense c ounsel’s opening statement, of P ointer’s obsession with Tackett and his depression following the demise of their relationship. Based upon its r eview of the entire record, the district court conclud e d that there was no inconsistency bet w een trial counsel’s opening s tatement and closing argument. In the opening statement, trial c ounsel attempted to f ocus the jury’s attention on the relationship between Tackett and Pointer. In closing argument, trial counsel argued that Garza, a cting under the influence of alcohol and cocaine, had mistaken Preyor for P ointer and h ad attacked Preyor without warning; that the fatal wound to Tackett was d elivered without much force, as Preyor attempted to restrain her and protect himself from G arza’s attack; and that Preyor did not i ntentionally cause Tackett’s death a s he defended himself. Reasonable jurists would not find the di strict court’s as s e ssment of this claim debatable o r wrong. We therefore deny Preyor’s request for a C OA for this claim.

23 Case: 12-70024 Document: 00512320753 Page: 23 Date Filed: 07/25/2013No. 12-70024 4. Conflict of Interest Preyor’s c onflict of interest claim is based on an allegation that, during a

recess at the guilt-innocence phase of the trial, Michael Gross , o ne of the attorn e y s w h o r epresented him at trial, talked and laughed with the victim’s stepfather, Charles D i c k inson, who was a witness for the prosecution. Preyor contends that G r o ss’s contact with T ackett’s s tepfather in such a social and friendly m a nner during the trial violated his S ixth Amendment right to conflictfree representation. The district court held that this claim was procedurally defaulted and, alternatively, that it has n o m e r i t. The district court pointed out that Preyor had alleged n o specific facts establ i s h i n g 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 T ackett’s family; h e p r e s e n ted no allegations or evidence showing that Gross engaged in any topic of co nv e r s ation with Dickinson inappropriate for d i s c u s sion between a criminal defense counsel and a p r o s ecution witness; he cited no authority to support the contention tha t a

c riminal defense lawyer is constitutionally prohibited from engaging in conversat i o n w i t h a relative of his client’s victim; and he did not identify any action trial counsel could have undertaken t o c r o ss-examine Dickinson more thoroughly o r differently or to otherwise e licit any h elpful testimony from him. 6 The district court held that Preyor’s c o nclusory assertions t h a t counsel fraternized, socialized, and laughed with Dickinson, bereft of any facts showing

w h a t t h e y said to each o ther, failed to establish that Gross operated under a conflict of interest.

6 We note that Preyor’s l e a d couns el, John Econom id y – not Gros s – cros s- exam ined D ick ins on. 24 Case: 12-70024 Document: 00512320753 Page: 24 Date Filed: 07/25/2013No. 12-70024

For the first time in this court, Preyor p resented the u n n o t ari z e d af f idavits of Margaret Mendez and N athaniel Johnson, in which they claim they witnessed the incident and gave that information to Preyor’s current counsel i n February 2009 at the state court evidentiary hearing. We d o n o t consider new evidence presented for the first time on appeal. In any event, the affidavits do not help Preyor because the affiants d o not d escribe the content s o f t h e conversation between Gross and Dickinson and offer no new information that would call into question Gross’s loyalty to Preyor. R e asonable jurists would not find the district court’s a ssessment of this

c l aim to be debatable or w rong, and we therefore deny P reyor’s reques t f o r a COA. III. In sum, we conclude that reasonable j urists w ould not d ebate the district court’ s c o n c l u s ions regarding any of Preyor’s claims. H e offered no evidence

– not even his own affidavit – to s upport his conclusory allegation that he was denied his constitutional right t o t e s t i f y . As the district court noted, his allegations o f ineffective assistance of trial counsel are all either c onclusory or

are based on misrepresentations of the record. Furthermore, reasonable jurists would all agree that Preyor was not prejudiced. His theory of s elf-defense was inconsistent with the physical evidence, and his actions in disposing of the knife and b lo o d y gl o v es and resisting arrest all are inconsistent with self-defense. Because P r e y or h as not made a s ubstantial showing of the denial of a constitutional right, his application for a COA is D ENIED.

25 Case: 12-70024 Document: 00512320753 Page: 25 Date Filed: 07/25/2013