* Pursuant to 5 TH C IR

. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 04-70008

_____________________

ROBERT ALAN SHIELDS,

Petitioner - Appellant

v.

DOUG DRETKE, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

--------------------- Appeal from the United States District Court for the

Southern District of Texas, Galveston

(3:99-CV-753)

---------------------

Before JOLLY, WIENER, and DENNIS, Circuit Judges.

PER CURIAM: *

Petitioner-Appellant Robert Alan Shields seeks a certificate

of appealability (“COA”) on multiple issues that the district

court deemed unworthy of collateral review. Shields also appeals

the di strict court’s order granting summary judgment in favor of

respondent-appellee Doug Dretke (“the State”). Shields further

appeals the district court’s order denying an evidentiary hearing

under 28 U.S.C. § 2254(e)(2). United States Court of Appeals

Fifth Circuit 

## F I L E D

February 17, 2005

Charles R. Fulbruge III

Clerk1 See Shields v. State , No. 72,278 (Tex. Crim App. Feb. 25,

1998) (unpublished).

2 See Ex parte Shields , No. 94CR1685-83 (112nd Judicial

District Court of Galveston County, Texas, Oct. 14, 1998).

2 Because Shields has failed to make a substantial sh owing of

the denial of a constitutional right, we deny his application for

a COA on all of his claims after a threshold inquiry on the

merits. We further find that the district court did not abuse

its discretion when it denied Shields an evidentiary hearing.

I. PROCEEDINGS

In 1994, a Texas grand jury indicted Shields for the murder

of Paula Stiner while in the course of committing and attempting

t o commit burglary and robbery. In 1995, a jury found Shields

guilty of capital murder. After the penalty phase, the jury

recommended the death penalty, and, in October 1995, the trial

court sentenced Shields to death.

Shields directly appealed his conviction and sentence to the

Texas Court of Criminal Appeals (“TCCA”). In 1998, the TCCA

affirmed Shields’s conviction and sentence. 1 Shields filed a

motion for rehearing, which that court denied.

Shields timely filed an application for a writ of habeas

corpus in the state trial court. The trial court entered

findings of fact and conclusions of law, recommending that relief

be denied. 2 The TCCA adopted the trial court’s findings of fact3 See Ex parte Shields , No. 72,278-01 (Tex. Crim. App. Dec.

9, 1998).

4 See T EX

. C ODE C RIM

. P ROC . art. 11.071 § 5 (Vernon’s 1999).

3 a nd conclusions of law and denied relief after its own review of

the record. 3

In 1999, Shields timely filed a petition for a writ of

habeas corpus in the United States District Court for the

Southern District of Texas. Shields’s federal habeas petition

contained numerous unexhausted claims. After the state filed its

opposition to Shields’s petition, in whic h it argued that the

majority of Shields’ s claims were unexhausted and therefore

procedurally barred, Shields moved to stay the proceedings

pending his return to state court to exhaus t the unexhausted

claims. The district court granted the motion and allowed

Shields to return to state cou rt to exhaust his claims. The

order further permi tted Shields to refile his federal petition

within 90 days if the TCCA de n ied relief. Pursuant to the

distric t court’s order, Shields filed a successive habeas

application with the TCCA.

In 2002, the TCCA den ied Shields’s successive state habeas

application as an abuse of the writ under state statute. 4

Shields then refiled his federal petition in the district co urt.

In 2003, the district court denied Shields’s petition, denied his4

request for an evidentiary hearing, and rendered summary judgment

in favor of the State. Shields filed a motion in the district

court to alter or to amend its judgment under Federal Rule of

Civil Procedure 59(e), and the district court denied the motion.

In February 2003, Shields sought a COA in the district court

on 28 issues. Based on the TCCA’s dismissal of Shields’s

successive habeas petiti on, the district court rejected the

majority of Shields’s claims as p rocedurally barred. After a

threshold inquiry on the merits, the district cou rt rejected

those claims on which Shields had not procedurally defaulted.

Shields now seeks a COA on these issues from this court.

II. FACTUAL BACKGROUND

A. Guilt-Innocence Phase

The evidence adduced at trial showed that Tracy Stin er, the

victim’s husband, arrived home from work shortly before 6:00 p.m.

on S eptember 21, 1994. He discovered his wife’s body in the

laundry room. Mrs. Stiner’s body lay on its right side on the

floor of th e laundry room with her back to the washer and dryer.

The room and the victim were covered in blood. The breakfast

area of the house was in disarray, and the contents of Mrs.

Stiner’s purse were strewn about. There was also a hammer on the

f loor of the breakfast area. As Mr. Stiner searched the house,

he noticed that several items —— including several pair of socks,5

shirts, a book bag, and a kitchen knife

—— were missing. Mr.

Stiner testified that he later learned that, at 11:37 a.m. —— a

time when his wife would have been at work —— a telephone call

had been made from his home to the home of one of Shields’s

friends in Spring, Texas.

Dr. William Korndoffer, Galveston County’s Chief Medical

Examiner, testified that Mrs. Stiner had s uffered a blunt trauma

to the head and had been repeatedly stabbed in the throat, chest,

and torso. Mrs. Stiner also suffered a number of defensive

wounds, which indicated that she had struggled with her assailant

before she died.

Detective Michael Wayne Tollett of the Friendswood Police

Department testified that he was notified of Mrs. Stiner’s murder

around 6:16 p.m. on September 21 and arrived at the Stiner

residence shortly thereafter. Tollett testified that police

lift ed Shields’s fingerprints from the laundry room and that

bloody shoe prints at the scene were consistent with Shields’s

shoes. Tollett found blood on the purse, the carpet, and a large

amount of blood in the laundry room. He also found one

screwdriver on the carpet below a broken window and a woodenhandled screwdriver outside. A cigarette butt found at the scene

had saliva on it consistent with Shields’s saliva. Mrs. Stiner’s

car was also missing.6

The Shields family lived next door to the Stiners.

Christine Shields, Shields’s mother , testified that a police

officer informed her of Mrs. Stiner’s murder when she returned

home on September 21. The next day, Mrs. Shields noticed that

some items were out of place in her garage

—— cushions had been

arranged to form a makeshift bed, and some drinks were nearby.

Mrs. Shields also found Shields’s pager and one of his shirts

near the cushions, although Shields had not lived with his

parents for several months and was not welcome in their home

without at least one parent present. When Mrs. Shields learned

from neighbors that a wooden-handled scr ewdriver like one that

she and her husband owned had been used to break into the Stiner

home, she began to suspect that her son was involved in the

crime. She contacted the police and gave them Shields’s friends’

phone numbers where he might be reached.

Shields was arrested on September 24, 1994. At the police

station, police noticed c uts on his hands. There was also a cut

on his right chin and what appeared to be blood on his shoes,

which the police took to the lab for analysis. Shields’s

underwear was also saturated with blood.

Shields’s fingerprints were found on Mrs. Stiner’s

checkbook, on the door leading from the laundry room to the

garage, and in Mrs. Stiner’s car. Mr. Stiner identified several7

of the items in Mrs. Stiner’s car as havi ng been in his home

before his wife’s murder. The bloody shoe impression at the

crime scene matched the shoes that Shields wore at the time of

his arrest. The blood obtained from Shields’s underwear and from

a paper towel at the Stiner home were consistent with Shields’s

blood.

Further, evidence showed that Shields had used Mrs. Stiner’s

credit card after the murder to purchase a suit. Mark Lang was

manager of Dejaiz’s Men’s Clothing in Willowbrook Mall and was

working on September 21. He testified that Shields came into the

store around 6:15 p.m. and purchased a suit with a credit card in

the name of Paula Stiner. Shields signed the credit card slip in

the name of Tracy Stiner, Mrs. Stiner’s husband. When Lang

noticed a horizontal cut on Shields’s finger, Lang was told by

Shields that he had cut his finger while splicing wire s at work.

Shields also had a bandage around his middle finger on his left

hand.

Several of Shields’s friends also testified for the

prosecution. Troy Sterner testified that he knew Shields in 1994

and, at that time, Shields was staying in vacant houses in the

Woodlands area. Shortly after the murder, Sterner saw Shields

with cuts on his hand. Shields told Sterner that he had cut them

while working at a store.8

Gina Cykala, a friend of Shields, testified that on the day

of the murder she saw Shields at McDonald’s at around 8:45 p.m.

Shields was driving a big white car that s he had never seen

before. Shields told Cykala that he had borrowed the car from a

friend.

Colin Checketts also testified that on September 21, Shields

wa s driving a white car. Shields told Checketts that he had

obtained the car from a friend, Ray Holt, and wanted to sell it

for $500. He told Checketts that he had cut his hands while

working at a store. He then gave Checketts the suit that he had

purchased at Dejaiz’s Men’s Clothing Store. David Chastain and

Jarrod Moore, two of Shields’s friends, testified the same.

The defense put no witnesses on the stand during the guiltinnocence phase. After hearing all of this evidence, the jury

returned a verdict of guilty.

A. Penalty Phase

1. Evidence by the State

At the penalty phase, the State introduced evidence that

S hields had been assessed deferred adjudication probation for

theft/burglary of a motor vehicle in 1992, after which Shields

completely disregarded the terms of his probation.

Authorities also arrested Shields in Florida in 1994 for

grand theft auto. In January 1994, Shields and two friends,9

Chastain and Checketts, broke into a car in Friendswood, stole a

checkbook and a credit card and charged $150 in cigarettes before

the card was reported stolen. Around the same time, the three

friends broke into a house next door to Shields’s and stole cash,

car keys, and, later, the car itself. They then drove to Florida

in the car, shoplifting along the way. They were arrested in

Florida for grand theft auto. They had also attempted to break

into a home in Florida, but they fled when a neighbor spotted

them. The jury also heard testimony that in July 1994, Shields

had been involved in stealing credit cards and a cell phone from

another car.

Based on the testimony of Shields a nd his mother, the

Florida court liaison officer recommended, and the court ordered,

that the conditions of probation be amended to allow Shields to

enter St. Joseph’s Psychiatric Hospital for at least one month to

receive psychiatric evaluation and possible drug treatment.

After twelve days, the court allowed Shields to report on an

outpatient basis. Shields later missed two appointments in July

1994. On August 10, Mrs. Shields urged the court officer to

issue a warrant for Shields so that she could retrieve her

missing car, which Shields had stolen.

John Matz elle, a friend of Shields, testified that in June

1994, Shields loaded a pistol and pointed it at him. When10

Matzelle objec ted, Shields stood up and shoved the gun in

Matzelle’s face, stating that he “could point the fucking gun in

[his] face if he felt like it.” Shields later went in the

backyard and fired the gun twice over the fence, returning to

tell his friends that he “had just shot at his mail carrier.”

Detective Tollet testified that no mail carrier r ecalled a

shooting incident on his route that day.

To refute the defens e psychiatric testimony, the State also

called Dr. Ed ward Gripon as a rebuttal witness. Responding to a

hypothetical question that paralleled the facts of Paula Stiner’s

murder, Dr. Gripon testified that such an offend er lacks concern

and remorse for his own action. He further testified that

Shields’s psychiatric records demonstrate poor impulse control

and aggressiveness. Dr. Gripon diagnosed Shields with

“personality disorder with features of aggressivity, f eatures of

antisocial personality, which is the absence of a social

conscience, not caring wh at one does, that sort of thing.” Dr.

Gripon testified that in his opinion, Shields is a future danger.

Dr. Gripon never personally interviewed Shields.

2. Evidence by the Defense

Mrs. Shields testified that Shields had a close relationship

with his family until two years after they moved to Colorado from

Texas. At that point, Shields became withdrawn and did not get11

along with his father. When the family moved back to Texas,

Shields’s grades were average, and he was a typical fifteen-year

old. Shields’s relationship with his family deteriorated after

an arrest for theft. He began to associate with “undesirable”

people and at times would disappear from home for a day or two.

To ensure his graduation, the Shields decided to drop him off and

to pick him up every day from high school. A month or two before

graduation, however, Shields moved out of his parents’ home

without notice. Shields returned only to inform his parents that

he could no t live by his father’s rules. When Shields left

again, it was to Florida in a neighbor’s stolen car.

Mrs. Shields arranged professional counseling for Shields in

1993, but he quit after three or four visits. Shields then

refused to see another professional. By June 1994, Shields was

no longer taking the anti-depressant medication that the St.

Joseph’s doctor had prescribed, and his behavior d eteriorated.

Shields left his parents’ home for good in July 1994 to live in

an abandoned house in the Woodlands. Mrs. Shields testified that

in her opinion, Shields could not have murdered Mrs. Stiner

unless Mrs. Stiner confronted him first. She also testified that

she did not believe that he had entered the home with the intent

to hurt Mrs. Stiner. On cross-examination, Mrs. Shields admitted

that she and her husband had twice changed the locks on the house12

to prevent Shields from breaking in and stealing.

Clinical social work e r Fran St. Peter performed a

biopsychosocial assessment on Shields. St. Peter performed a

three-hour assessment on Shields the night before her testimony

and interviewed Shields’s mother, father, sister, and brother-inlaw. St. Peter testified that one of Shields’s close friends had

be en killed when Shields was eleven. The incident, she

testified, traumatized him. The family’s move to Colorado then

isolated him and caused him to withdraw. St. Peter testified

that Shields’s first intr oduction to narcotics occurred when he

was a thirteen- to fourteen-month old ba by, when doctors

prescribed medication to him to ease the pain after he burned

h imself. Shields tried Valium when he was eleven. St. Peter

also testified that Shields had consumed al c ohol continuously

since the age of fourteen. By the age of seventeen, 70 to 75 per

cent of Shields’s time related to procuring, using, or recovering

from drugs and alcohol. St. Peter questioned the Shields’

attentiveness to their son and stated that the family essentially

led separate lives.

Dr. Fred Fason testified as to Shields’s alleged future

dangerousness. He testified that a psychiatrist would need to

perform a scientifically-based medical evaluation on an

individual before making a diagnosis of future dangerousness. He13

also stated that the American Psychiatric Society has recommended

that its members not testify as to future dangerousness because

no test has demonstrated that these opinions are scientifically

valid. Responding to a hypothetical question that traced the

facts of Paula Stiner’s murder, Dr. Fason admitted that his

diagnostic impression was that “he’s a sociopath or antisocial

personality disorder.”

Dr. James Marquart, a professor of criminal justice at Sam

Houston Univers ity and a sociologist, testified as to study

results that show that the majority of former death row inmates

in the general prison population do not commit acts of violence

in the pr ison any more than any other prison inmate. Dr.

Marquart testified that it is difficult to predict accurately

future dangerousness based solely on the offense committed.

Perry Evans and Jose Lozano, e mployees of the Galveston

County Sheriff’s Department, testified t hat Shields was involved

in four instances of jail misbehavior in over a year. Although

officials had classified Shie lds as a minimum security inmate,

they based this classification on Shields’s representations that

he had no prior criminal record, no chemical d ependency problem,

and lived at his family home. While in jail awaiting trial,

Shields was involved in a fight, was in an unauthorized area, and

destroyed, altered, or damaged county property or the property of5 28 U.S.C. § 2253(c)(1)(A).

6 Id. § 2253(c)(2).

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

Slack v. McDaniel , 529 U.S. 473, 483 (2000)).

14 another.

A fter hearing both the State’s and the defense’s evidence,

the jury answered the special issue question of future

dangerousness in the affirmative and recommended death.

III. LAW

Section 2253 of the Antiterrorism and Effective Death

Penalty Act (“AEDPA”) fo recloses appeal from a state habeas

proceeding unless a circuit justice or judge issue s a COA. 5 We

may issue a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 6 To make this

showing, Shi elds must demonstrate that “jurists of reason could

disagree with the district court’s resolution of his

constitutional claims or that jurists could conclu de the issues

presented are adequate to deserve encouragement to proceed

further.” 7 If the district court denies relief on p rocedural

, as

opposed to co nstitutional grounds, “a COA should issue when the

prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find8 Slack , 529 U.S. at 484 (emphasis added); Matchett v.

Dretke , 380 F.3d 844, 847-48 (5th Cir. 2004).

9 Miller-El , 537 U.S. at 327.

10 Id. at 336.

11 Id.

12 Hernandez v. Johnson , 213 F.3d 243, 248 (5th Cir. 2000).

15 it debatable whether the district court was correct in its

procedural ruling.” 8

To determine whether to grant a COA, we are limited “to a

threshold inquiry into the underlying merit of [Shields’s]

claims.” 9 This threshold inquiry “does not require full

consideratio n of the factual and legal bases adduced in support

of the claims.” 1 0 Instead, we base our determination on “an

overview of the claims in the habeas petition and a general

assessment of their merits.” 1 1 When the district or state court

has imposed the death penalty, “any doubts as to wh ether a COA

should issue must be resolved in [petitioner’s] favor.” 12

Shields seeks a COA from this court on multiple issues:

(1) The district court erred when it found that Shields

procedurally defaulted on the majority of his

ineffective assistance of counsel claims.

(2) Trial counsel was ineffective in that he failed to

present a viable defense during the guilt-innocence

phase.

(a) The district court overlooked issues of disputed

fact that entitled Shields to proceed on appeal as

to all of his ineffective assistance of counsel13 470 U.S. 68 (1985).

16 claims.

(b) Trial counsel failed to present evidence to

contradict the state’s theory that Shields had

been “lying in wait” for the victim.

(c) Tria l counsel was ineffective in that he refused

to permit Shields to testify to present an

alternative version of events and because he

switched defense theories midway through trial.

(3) Trial counsel was ineffective during the guiltinnocence phase of the trial in that he:

(a) failed to object to the introduction of the hammer

and knives found at the scene of the crime.

(b) failed to object to the testimony of Shields’ s mother, Christine Shields.

(c) failed to object to t h e admission of Shields’s

out-of-cou rt statements to the Woodland

subdivision witnesses.

(d) failed to consult with forensic evidence experts

to rebut the state’s case.

(4) Trial counsel’s performance during opening and closing

arguments at the guilt-innocence phase constituted

ineffective assistance of counsel.

(a) Trial counsel failed to object to the state’s

opening argument that allegedly consisted of

victim impact information and characterized the

evidence of guilt as conclusive.

(b) Trial counsel failed to present an adequate

closing argument.

(5) Trial counsel was ineffective during the guilti nnocence and punishment phases in that he failed to

obtain a confidential defense psychiatric expert under

Ake v. Oklahoma 13 to examine Shields.

(6) Trial counsel’s performance during the state’s case-inchief at the punishment phase constituted ineffective

assistance of counsel because he:

(a) failed to require the state to prove the

extraneous offenses admitted as evidence of future

dangerousness.14 451 U.S. 454 (1981).

17 (b) allowed incompetent witnesses to testify and

failed to investigate the witnesses to impeach

them effectively.

(7) Trial counsel’s performance during the defense’s casein-chief at the punishment stage constituted

ineffective assistance of counsel because he:

(a) failed to present the theory of self-defense and

Shields’s alleged lack of intent to the j ury as mitigating evidence.

(b) failed to investigate and to prepare Shields’s

background history and incompetently presented

punishment phase evidence.

(c) failed to prepare adequately the mitigation

specialist witness, Fran St. Peter.

(d) admitted damaging evidence through the mitigation

specialist that would have otherwise been barred

under Estelle v. Smith

. 14

(e) failed to present effectively mitigating evidence.

(f) faile d to present a viable insanity defense or to

present evidence on Shields’s alleged diminished

capacity.

(g) failed to use effectively defense experts Dr.

Fason and Dr. Marquart.

(h) elicited positive answers to the special issues ——

that the jury was to consider to determine whether

to impose a life sentence or death

——from two

defense witnesses.

(8) Trial counsel was ineffective in that he failed to

present a coherent defense to the state’s case on

future dangerousness.

(9) Trial counsel’s performance at the punishment phase was

ineffective in that he:

(a) opened the door to the rebuttal test imony of Dr.

Gripon by introducing psychiatric records produced

by the state’s mental health expert.

(b) introduced into evidence exhibits that suggested

an affirmative answer to the special issues.

(c) failed to object to the state’s hypothetical

questions posed to Dr. Gripon.15 509 U.S. 579 (1993).

16 Martinez v. Johnson , 255 F.3d 229, 238 (5th Cir. 2001)

(citing 28 U.S.C. § 2254(b)).

18

(d) failed to request a hearing un der Texas Rule of

Evidence 705(b) and to object under Daubert v.

Merre ll Dow Pharmaceuticals, Inc. 1 5 to determine

the scientific foundations of Dr. Gripon’s

opinion.

(10) Trial counsel was ineffectiv e at the punishment phase

in that he failed to object to the state’s comment that

Shields lacked remorse.

(11) The cumulative effect of trial counsel’s errors prejudiced him and deprived him of effective assistance

of counsel.

(12) Trial counsel conducted a defici ent voir dire, thereby

depriving Shields of his Sixth Amendment right to an

impartial jury.

IV. COA: Procedural Default

Whether the trial court erroneously concluded that

Shields proce durally defaulted on the majority of his

ineffective assistance of counsel claims.

We have always required that a habeas petitioner exhaust his

claims in state court before proceeding to federal court on those

claims: “[A] state prisoner seeking to raise claims in a federal

petition for habeas corpus ordinarily must first p resent those

claims to the state court and must exhaust state remedies.” 16

“Under the procedural default doctrine, a federal c ourt may not

consider a state prisoner’s federal ha beas claim when the state

based its rejection of that claim on an adequate and independent17 Martin v. Maxley , 98 F.3d 844, 846 (5th Cir. 1996).

Shields also argues that Texas’s abuse-of-the-writ doctrine is

not an adequate and independent state ground. For the reasons

stated infra

, see n. 70, we reject this argument.

18 Ogan v. Cockrell , 297 F.3d 349, 356 (5th Cir. 2002)

(citing Martinez , 255 F.3d at 239).

19 Id.

20 McCleskey v. Zant , 499 U.S. 467, 497 (1991) (quoting

Murray v. Carrier , 477 U.S. 478, 492 (1986)) (emphasis in

original).

21 Murray , 477 U.S. at 494 (quoting United States v. Frady

, 456 U.S. 152, 170 (1982)) (emphasis in original).

19 state groun d.” 1 7 If the petitioner fails to present his claims

to the appropriate state court, his claims are procedurally

defaulted. Defaulted claims “will not be regarded as a basis for

granting federal habeas relief.” 18 Nevertheless, a petitioner

may ove rcome any procedural default “if he can demonstrate cause

for the defa ult and actual prejudice as a result of the alleged

violation of federal law.” 19 “‘Cause . . . requires a showing of

some external impediment pre venting counsel from constructing or

raising the claim.’” 20 T o demonstrate prejudice, a petitioner

must show “‘not merely th at the errors at . . . trial created a

possibility of prejudice, but that they worked to his actual and

substantial disadvantage, infecting his entire trial with error

of constitutional dimensions.’” 21

A petitioner may also overcome proced ural default by22 Coleman v. Thompson , 501 U.S. 722, 750 (1991).

23 Sawyer v. Whitley , 503 U.S. 333, 339 (1992) (quoting

Kuhlmann v. Wilson , 477 U.S. 436, 454 (1986)).

24 Schlup v. Delo , 513 U.S. 298, 329 (1995).

25 Sawyer , 503 U.S. at 336.

20 demonstrating that “failure to consider the claims will result in

a fundamental miscarriage of justice.” 2 2 To demonstrate a

“fundamental miscarriage of justice,” the petitioner must

“establish that under the probative e vidence he has a colorable

claim of factual innocence”

—— or , “actual innocence.” 2 3 A

petitioner may demonstrate actual innocence during the guiltinnocence phase by showing that, in view of th e identified

constitutional error, “it is more likely tha n not that ‘no

reasonable juror’ would have convicted him.” 2 4 When the

petitioner challenges a sentence of death, he must establish

actual innocence by showing that “but for a constitutional error,

no reasonable juror would have fou nd the petitioner eligible for

the death penalty under the applicable state law.” 25

Shields contends that the district court erred when it held

that he procedurally defaulted on the majority of his ineffective

assistance of counsel claims. The district court held that

Shields had procedurally defaulted on all of his claims except ——

as numbered in this opinion —— 3(a), (9)(c), and (9)(d). Shields26 Ogan v. Cockrell , 297 F.3d 349 (5th Cir. 2002)

27 Id. at 356.

21 argues that during his state habeas proceeding, he filed in the

TCCA an Emergency Motion to Abate Habeas Appeal and for Dismissal

with Prejudice in which he (1) informed the court that habeas

counsel was ineffectiv e in failing to present numerous claims to

the court; (2) asked the court to dismiss his habeas counsel; and

(3) asserted his right to self-representation. Without providing

reasons, the TCCA denied this motion outright.

Shields maintains that the state court’s denial of his

e mergency motion

—— which, he urges, was a denial of his Sixt h

Amendment right to self-r epresentation —— constitutes cause and

prejudice to excuse the procedural default. The State, on the

other hand, contends that Shie lds merely asserts a claim for

ineffective assistance of habeas counsel and that our precedent

controls here. 26

In Ogan v. Cockrell

, the petitioner argued for the first

time on appeal that the state court had denied him meaningful

access to the courts, equal protection, and due process when it

refused to “remedy its earlier er ror of appointing him

ineffective [habea s] counsel.” 2 7 While the application to the

Texas Court of Criminal Appeals was pending, Ogan wrote a letter

to the court, in which he asked the court to dismiss his habeas28 See id. at 365 n. 3.

29 See id.

30 See id. at 356.

31 See id. at 357.

22 counsel and appoint another attorney. 28 The letter also included

a pro se motion that requested the removal of Ogan’s appellate

counsel and provided examples of counsel’s alleged

incompetence. 29

The district court rejected Ogan’s argument and dismissed

several of Ogan’s claims as pro cedurally barred because Ogan’s

ap pointed habeas counsel had failed to raise them before the

state courts. 30 We affirmed the district court and in so doing,

reaffirmed our long-standing holding that an ineffective

assistance of state habeas counsel claim do es not constitute

sufficient cause to overcome the procedural bar because there is

no constitutional right to competent habeas counsel. 31

On its f ace, O gan clearly forecloses Shields’s arguments.

Shields argues, however, that this mat ter is distinct from O gan

because he asser ted his Sixth Amendment right to selfrepresentation to the TCCA, which denied him that right. Noting

that “cause” requ ires a force external to the petitioner that

prevents him from developing the record and from asserting his

claims to the state courts, Shields argues that the “Texas Court32 528 U.S. 152, 163 (2000).

23 of Criminal Appeals’ denial of Shields right to selfrepresentation was the ‘external force’ and interference that

made compliance not only impractical but impossible.”

Shields’s arg ument, although novel, is meritless. First,

neither we nor the Supreme Court has established a federal

constitutional right to self-representation on collateral review.

Further, in Martinez v. Court of Appeal

, the S upreme Court

explicitly held that there i s no federal constitutional right to

self-representation on direct appeal from a criminal

conviction. 32 It is implausible, therefore, that there would

exist such a right on collateral review. Accordingly, the TCCA’s

denial of Shields’s right to s elf-representation on collateral

review does not demonstrate a substantial showing of the denial

of a constitutional right sufficient to support the granting of a

COA or to excuse his procedural default. Accordingly, we are

barred from considering those claims that Shields failed to raise

before the Texas courts a nd which the TCCA later dismissed as an

abuse of the writ. Notwithstanding this bar, however, our

independent review of the record demon strates that the district

court held that Shields ha d procedurally defaulted on one claim

that we find he raised in his state petition.33 Shields also asserts that he preserved the other claims

in his federal habeas petition before the district court that

challenge errors at the guilt/innocence phase of the trial.

Shields’s state habeas petition belies this assertion. The only

aspects of the trial challenged in Shields’s state habeas

application were the failure of trial counsel to object to (1)

the testimony of Lang as to the credit card purchase of the suit

two hours after the murder, and (2) the admission of the hammer

and the knives. Whether on purpose on through inadvertence of

counsel, Shields does not seek a COA on the failure to object to

Lang’s testimony at the guilt/innocence phase (although, as we

discuss below, he does challenge the inclusion of this extraneous

offense in the hypotheticals posed to Dr. Gripon at the

punishment phase). As noted below, Shields has properly

preserved his challenge to the hammer and the knives.

24 In his reply brief, Shields specifically argues tha t he did

not procedurally default on claims (6) through (11). 33 Claim

(11) charges that the cumulative effect of trial counsel’s errors

prejudiced him and deprived him of effective assistanc e of

c ounsel. Shields specifically raised this issue in his state

habeas application and thus has not waived it.

Less clear is whether Shields raised claims (6) through (10)

in his state habeas petition. Shields argues that these five

claims specif ically challenge trial counsel’s performance at the

punishment phase and are not procedurally b arred because his

state habeas application specifically challenged trial counsel’s

performance during the punishm ent phase. In effect, Shields

argues that because his state habeas application challenged trial

counsel’s performance at his punishment phase, he did not25

procedurally default on any claims that he raises in his federal

petition that concern his punishment phase. We do not read

Shields’s state habeas petition so broadly.

Claim (6) alleges that trial counsel w as ineffective during

the punishment phase of the trial because he failed to require

the state to prove the extraneous offenses, and allowed

incompetent witnesses to testify. The substance of claim (6)

challenges the testimony of John Hernandez, the probation

officer, who testified that: (1) Shields committed car theft (for

which he was never charged or prosecuted); (2) Shields had been

instit utionalized and had not continued his counseling when

released; and (3) Shields’s own family did not like him.

Further, Claim (6) challenges the testimony of Chastain, Holt,

and Matzelle.

Shields mentione d none of these witnesses in his state

habeas applic ation. Neither did Shields mention the extraneous

offenses. Although Shields, in his state habeas application,

mentions trial counsel’s ineffectiveness in allowing testimony on

the extraneous off enses a t the guilt-innocence phase

, the only

witness (and extraneous offense) that the st a te habeas

application challenged was Lang, who testified as to the purchase

that Shields made after the murder u sing Mrs. Stiner’s credit

card. Lang did not testify during the punishment phase of the34 In his state habeas petition, Shields raised this claim

of error with respect to the testimony of Fran St. Peter, who

testified only during the punishment phase of the trial.

26 trial. Accordingly, to the extent that Shields now challenges

any “extraneous offense” evidence at his punishment phase,

Shields did not fairly present this claim to the state court and

has procedurally defaulted on it.

Shields also asserts that he did not procedurally default on

claim (7), w hich contains eight sub-claims. With the exception

of sub-claim (7)(f), we find no mention of the other claims in

Shields’s state habeas petit ion. Shields specifically argued in

his state habeas applica tion that his trial counsel failed to

present evidence on Shields’s alleged brain defects during the

punishment phase of his trial. 34 In his federal petition,

however, Shields alleges in sub-claim (7)(f) that trial counsel

was ineffective in failing to present a viable ins anity defense

and e vidence on Shields’s alleged diminished capacity during the

guilt/innocence phase of the trial. We find no mention in

Shields’s state habeas petition that trial counsel was

ineffe ctive for failing to produce evidence of diminished

capacity or insanity at the guilt/innocence phase, which, Shields

argues, would have provided him with an affirmative defense to

murder. Accordingly, Shields did not fairly present this claim35 In any event, the arguments in this claim are somewhat

preserved in federal sub-claims (9)(c)-(d).

27 to the state court and is procedurally barred from bringing it

now.

Claim (8) of Shields’s federal petition alleges that trial

counsel was ineffective at the punishment phase because he failed

to present a coherent defense to the state’s case on future

dangerousness. Specifically, Shields contends that trial counsel

failed to familiarize themselves “with the met hods of risk

assessment of future dangerousness” and failed to cross-examine

Dr. Gripon “on the erroneous correlations in his analysis.” In

his state habeas application, Shields chall enged the State’s

hypothetical questions posed to Dr. Grip on and trial counsel’s

failure to object to Dr. Gripon as an expert. Neither of these

claims

—— properly preserved in federal sub-claims (9)(c)-(d) ——

challeng ed trial counsel’s failure to present a “coherent

defense.” Accordingly, Shields has procedurally defaulted on

this claim. 35

Federal sub-claims (9)(a)-(b) contend that trial counsel was

ineffective because he (a) opened the door to the rebuttal

testimony of Dr. Gripon by introducing psychiatric records

produced by the State’s mental health expert, and (b) introduced

into evidence exhibits that suggested an affirmative answer to36 380 U.S. 609 (1965).

28

t he special issues. Shields has procedurally defaulted on these

two sub-claims. Nowhere in his state habeas petition did he

challenge the introduction of exhibits at the pun ishment phase.

Accordingly, Shields procedurally defaulted on these claims.

Federal claim (10 ) alleges that trial counsel was

ineffective at the punishment phase in that he failed to object

to the state’s comment d uring closing argument that Shields

lacked remorse. Specifically, Shields alleges that the State

violated Griffin v. California 36 because the comment that Shields

lacked remo rse indirectly commented on Shields’s refusal to

testify, whi ch is protected by the self-incrimination clause of

the Fifth Amendment. After careful review of Shields’s state

habeas petition, we find no mention

—— direct or i ndirect —— of

this claim. It is, therefore, procedurally barred from our

review.

Accordi ngly, we conclude that jurists of reason would not

disagree with the district court’s conclusion that Shields is

procedurally barred from assertin g the majority of his

ineffective assistance of counsel claims. We agree with the

district court that Shields properly preserved claims (3)(a),

(9)(c), and (9)(d). We disagree with the district court that37 See Slack , 529 U.S. at 484.

38 See id. at 485 (“Section 2253 mandates that both showings

be made before the court of appeals may entertain the appeal.”).

39 28 U.S.C. § 2254(d).

29 Shields procedurally defaulted on claim ( 11), his cumulative

error claim. We hold that jurists of reason could disagree

whether the district court was correct in its pro cedural ruling

on this claim. 37 Because Shields must also demonstrate the

denial of a constitutional right on this claim, 38 however, we

resolve below whether Shields i s entitled to a COA on the four

claims that he has properly preserved.

V. COA: Preserved Claims (3)(a), (9)(c), (9)(d), and (11)

A. Legal Standard

To be entitle d to relief under the AEDPA, a habeas

petitioner must show that the state court resolution of his case

was either “contrary to, or involv ed an unreasonable application

of, clearly established federal law, as determined by the Supreme

Court of the United States,” or “resulted in a decision that was

based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 39 Our

review on a request for a COA is similarly circumscribed by the

AEDPA, and “our duty is to determine not whether [Shields] is

entitled to relief, but whether the di strict court’s conclusion40 Thacker v. Dretke , —— F.3d ——, 2005 WL 18542, at *2 (5th

Cir. Jan. 5, 2005); see Williams v. Puckett , 283 F.3d 272, 277

(5th Cir. 2002).

41 Strickland v. Washington , 466 U.S. 668, 687 (1984).

42 See id. at 697.

43 Soffar v. Dretke , 368 F.3d 441, 472 (quoting Strickland

, 466 U.S. at 688).

44 Strickland , 466 U.S. at 688.

30 (that the state court adjudication was not contrary to or an

unreasonable application of federal law) is one about which

jurists of reason could disagree.” 40

As all of Shields’s preserved cl aims relate to the

ineffective assistance of his trial counsel, he must show both

(1) that counsel’s representation was deficient, and (2) that

trial counsel’s deficien t performance prejudiced him. 4 1 I f

Shields fails to carry his burden on either element, we may

reject his claim. 42

To establish that counsel’s performance was deficient,

Shields must show that “counsel’s representation ‘fell below an

objective standard of reasonableness.’” 43 Although no specific

guidelines exist to eva luate attorney conduct, “[t]he proper

measure of attorney performance remains simply reasonableness

under prevailing professional norms.” 44

To show that a deficient performance by trial counsel was45 Id. at 694.

46 Id. at 691.

47 Soffar , 368 F.3d at 478.

48 Williams v. Cain , 125 F.3d 269, 279 (5th Cir. 1997)

(citing Strickland , 466 U.S. at 694).

31 prejudicial, Shields must demonstrate “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” 45 “An err or by counsel,

even i f professionally unreasonable, does not warrant setting

aside the judgment of a criminal proceeding if the error had no

effect on the judgment.” 46 R ather, we must determine whether

“there is a reasonable probability that counsel’s errors affected

the outcome of the trial.” 47 “A reasonable probability need not

be proof by a preponderance that the result would have been

different, but it must be a showing sufficient to undermine

confidence in the outcome.” 48

B. Claim (3)(a)

Shield’s first properly-preserved claim alleges that his

trial counsel was ineffective during the guilt-innocence phase of

the trial because he failed to object to the admission into

evidence of the hammer and knives found at the scene of the

crime. With regard to both weapons, Shields specifically argues

that he mer its a COA on this claim because no evidence connected49 F ED

. R. E VID

. 403; T EX

. R. E VID . 403.

50 F ED

. R. E VID . 403 advisory committee’s note; see also

Jackson v. Johns-Manville Sales Corp. , 750 F.2d 1314, 1334 (5th

Cir. 1985).

32 the weapons to the crime, or, stated diff erently, no witness

testified and no testing revealed that the weapons introduced by

the prosecution were the weapons used during the crime.

Citing Texas Rule of Evidenc e 403, the district court

rejected this claim on the grounds that the probative value of

the hammer and the knives outwe ighed their prejudicial effect,

and trial counsel need not raise a meritless objection. Agreeing

with the state court, the district court found that if trial

counsel had objected to the admission of this evidence, the state

trial court would not have been wrong to overrule the objection.

We agr ee. Under both the Federal Rules of Evidence and the

Texas Rules of Evidence, relevant evidence may be excluded if its

probative value is subs tantially outweighed by the danger of

unfair prejudice. 49 The advisory committee’s notes to Rule 403

define “unfair prejudice” as “an undue tendency to suggest

decision on a n improper basis, commonly though not necessarily,

an emotional one,” and we have adopted this definiti on. 5 0 When a

defendant challenge s evidence on the basis of Rule 403, we

require courts to “look at the ‘incremental probity’ of the

evidence in question in analyzing the offering party’s need to51 Jackson , 750 F.2d at 1334 (citing United States v.

Beechum , 582 F.2d 898 (5th Cir. 1978) (en banc)).

52 Evidence presented at trial showed that Paula Stiner left

work early on the 21st to visit the doctor’s office and, when she

left, she was carrying a folder of X-Rays.

33 make this form of proof and the tendency of the questioned

evidence to invite an irrational decision.” 51

Viewing the hammer and the k nives within this rubric, we

find that their admiss ion neither suggested a decision on an

improper basis nor invited an irrational decision. The hammer

and the knives were highly probative of the state’s case. Tracy

Stiner discovered the hammer on the floor of his home when he

discovered his wife’s body. He testified that this hammer was

his and that it was in the garage when he left fo r work that

morning. Detectives called to the scene found the hammer in the

breakfast room together with an over turned chair, a purse, a

checkbook, and an X-Ray folder from the doctor’s office. 5 2 In

addition, the medical examiner, Dr. Korndorffer, t estified that

Paula Stiner suffered a laceration on the top of her head and a

contusion on her forehead consistent with blunt force trauma.

Dr. Korndorffer testified further that these wou nds were

consistent with the hammer found at the scene. He also testified

that Paula Stiner suffered blunt force trauma to her hands, which

bent and damaged h er rings and knocked the stone out of one of34

them.

Dr. Korndorffer testified additionally that the knife wounds

to Paula Stiner’s body were caused by a knife with a blade that

was five inches long and three-fourths of an inch wi de. Tracy

Stiner testified that a knife with a blade of five inches length

and a wid th of three-fourths of an inch was missing from the

knife set on the counter, and the prosecution introduced the set

of knives from the Stiner home to show that the missing one fit

the descriptions of Dr. Korndorffer and Tracy Stiner.

We conclude that the probative value of the hammer and the

knives is not outweighed by unfair prejudice. The record clearly

demonstrates that the hammer was the one found at the scene.

Record evidence regarding the knives belies Shield s’s assertion

that they were irrelevant, given Mr. Stiner’s testimony that the

one knife missing from the set fit the description of the weapon

that caused the stab wounds to Paula Stiner’s body.

More importantly, because Shields specifically argues that

no testimony or evidence proved that these were the weapons used

to perpetrate the crime, we view Shields’s claims of error to the

admissibility of the weapons as a challenge to their “chain of

custody.” As we have explained, “[i]n cases where the defendant

questions whether the evidence offered is the same as the items

actually seized, the role of the district court is to determine53 United States v. Sparks , 2 F.3d 574, 582 (5th Cir. 1993).

54 Id. (citing United States v. Shaw , 920 F.2d 1225, 1229-30

(5th Cir. 1991)); see also United States v. Dixon , 132 F.3d 192,

197 (5th Cir. 1997) (quoting Sparks ).

35 whether the government has made a prima facie showing of

authenticity.” 53 A “break in the chain of custody simply goes to

the weight of the evide nce, not its admissibility.” 5 4 The abovenoted record evidence establishes that the State made out a prima

facie c ase of authenticity. Consequently, any possible break in

the chain of custody would only go to the weight the jury

accorded the hammer and the knives.

We cannot say that trial counsel was ineffective for failing

to object to the admission of the hammer and the knives. Shields

has failed to make a substantial showing of the denial of a

constitutional right with regard to his evidentiary challenge.

Thus, we decline to issue a COA on this claims.

C. Claim (9)(c)

Shields advances that trial counsel was ineffective because

he failed to object to the hypothetical questions on future

dangerousness that the State posed to Dr. Gripon at the

punishment phase of the trial. The prosecutor posed three such

questions to elicit Dr. Gripon’s opinion on Shields ’s future

dangerousness:

I would like to go over a hypothetical question36

with you, Doctor: Assume with me that the murder was committed, the murder of Paula Stiner was committed by

a 19-year-old male who burglarized her home and who

laid in wait for his victim, Paula Stiner, for 5 1⁄2

hours. And during that time he used the phone, he

gath ered up items that he wanted to steal, he fixed

himself some food in a skillet, he selected his weapons

which were a hammer and a knife.

Assume further with me the victim entered the

ho use who was immediately assaulted with the hammer,

then the knife, struck some 27 or more times; and

during her horrific struggle to surviv e, was overcome

and died 10 to 15 minutes after the initial assault

began.

Assume with me further that immediately after the

assault on the victim that the Defendant went over to

the victim’s purse which was only a very short distance

away from her body, rummaged through the purse, taking

what he wanted, including credi t cards, [and] the keys

to her car, which was parked in the garage.

Assume that the person drove to a shopping mall in

Paula Stiner’s car. Within about an hour and a half of

having committed the murder, he was at the mall. He
purchased items of clothing. He was described as cool,

polite, calm. He said that the card was his mother’s

credit card.

Tell us, D octor, what does that behavior tell you

as a psychiatrist?

Assume further that the man, about two hours or so

later, met with some friends of his at a fast food

restaurant and again acted normal; was not intoxicated,

according to them; claimed that the car he was driving

was borrowed from a friend, that it was even for sale.

Assume further that later that evening he went out

with one of his friends to a nightclub in the

Montgomery County area, acted normal, had some beers,

just had a good time.

What does that behavior tell you, D octor, about

that person?

Assume that during the year prior to the murder

that the man stole from his parents, he burglarized his55 Shields relies heavily on this argument because in the

affidavit of an investigator who interviewed the jurors after the

jury imposed the death penalty —— attached to his state habeas

application —— one of the jurors stated that Dr. Gripon made a

better presentation on future dangerousness than the defense

witnesses and that “[s]he believe[d] that all of the other jurors

felt the same way about Dr. Gripon.”

37 parents’ home. What does that tell you? What does

that behavior tell you, Doctor?

In response to these hypothetical examples, Dr. Gripon

testified that the described behavior demonstrates premeditation,

viciousness, and a lack of conc ern for the victim shown by “the

going about [of] the normal activities of life as if nothing had

actual ly happened.” He stated that “[a] person who can do that

has little concern for their fellow m an, if any.” Dr. Gripon

also stated that such behavior demonstrates a lack of

responsibility and a “rather callous, very hard nature.” 55

Shields asserts that the hypothetical scenarios exaggerated

and mischaracterized the facts of t he crime. Shields also

contends that the extraneous offenses

—— such as the credit card

purchase

—— should not have been included in th e hypothetical

questions.

Shields’s arguments are meritless. He does not explain how

the hypothetical examples mischaracterize or exaggerate the facts

that the State presented at trial. Based on our review of the

record, the hypothetical presentations neither mischaracterized56 See Clark v. Collins , 19 F.3d 959, 966 (5th Cir. 1994);

Koch v. Puckett , 907 F.2d 524, 527 (5th Cir. 1990) (citing Murray
v. Maggio , 736 F.2d 279, 283 (5th Cir. 1984) (per curiam)).

38 nor exaggerated the facts of Paula Stiner’s murder. Rather, they

paralleled the evidence that the state introduced at trial. If

trial counsel had objected, his objection would have been

meritless. The failure to raise meritless, futile objections

does not constitute ineffective assistance of counsel. 56

As for Shields’s “extraneous offenses” argument, he fails to

point to an extraneous offense in the hypothetical examples. Our

review of Shields’s state habeas petition does rev eal, however,

that he referred to Mark Lang’s testimony about the credit card

purchase of the suit that occurred two hours after the murder.

The record clearly reflects that Lang testified to the facts that

the prosecutors included in the hypothetical questions.

Further, we reject any possible argument that Shields makes

with regard to the admissibility and use of such testimony.

T racy Stiner testified that when he arrived home on the day of

the murder, he found his wife’s purse and its contents scattered

around on the floor of their breakfast area. He also testified

that Mrs. Stiner carried several credit cards in her purse. Lang

testified that on that same day, Shields used a credit card to

purchase $271.71 in clothing from DeJaiz’s. The name on the card57 T EX

. R. E VID

. 404(b). This language tracks that of federal

Rule of Evidence 404(b).

58 See United States v. Posada-Rios , 158 F.3d 832, 871 (5th

Cir. 1998); Alba v. State , 905 S.W.2d 581, 585 (Tex. Crim. App.

1995).

59 Skidmore v. State , 530 S.W.2d 316, 321 (Tex. Crim. App.

1975); see also United States v. Price , 877 F.2d 334, 337 (5th

Cir. 1989) (“Where evidence is inextricably intertwined with the

charged offense, it is relevant and not extraneous. If the

challenged extraneous evidence is inseparable from the evidence

of the charged offense, it is unnecessary to consider its

39 was Paula Stiner. Shields, identified by Lang, signed the charge

u sing the name Tracy Stiner, the victim’s husband. Lang’s

testimony tied Shields to th e scene of the crime —— where he

stole the credit card —— and to the attack itself.

Such testimony is clearly admissible. Any objection to this

testimony under Texas Rule of Evidence 404(b), as Shields appears

to urge, would have been futile. Under Texas Rule of Evidence

404(b), “[e]vidence of other crimes, wrongs, or acts is not

a dmissible to prove the character of a person in order to sho w

that he acted in conformity therewith.” 57 The prosecution did

not use the testimony of Lang —— or any corroborating evidence ——

to prove the character of Shields. This evidence had relevance

apart from any possible tendency to prove Shields’s character. 58

Further, under our and Texa s law, “[f]ruits of the same

crime are admissible and do not constitute an extraneous

offense.” 59 Shields’s use of Paula Stiner’s credit cardadmissibility under Rule 404(b).”) (citations and quotations

omitted).

60 Contrary to the state’s argument and the district court’s

finding, Shields explicitly argued in his state habeas petition

that Dr. Gripon testified on the basis of reports that were never

admitted at trial.

40 constituted fruits of his crime. We are satisfied that jurists

of reason would not debate the district court’s ruling in this

regard, and we deny a COA on this claim.

D. Claim 9(d)

Shields insists that his trial counsel was ineffect ive for

failure to (1) object to Dr. Gripon’s testimony based on the

in admissible reports on which Dr. Gripon based it, 6 0 and (2)

challenge Dr. Gripon under Texas Rule of Criminal Evidence 702.

Specifically, Shields em p hasizes that trial counsel failed to

voir dire Dr. Gripon under Texas Rule of Criminal Evidence 705(b)

to determine the foundations of his opinion. Shields also

contends that trial counsel fa iled to challenge Dr. Gripon’s

qualification as an expert under Texas Rule of Criminal Evidence

702. We reject Shields’s arguments and decline to issue a COA on

this claim.

Texas R ule of Criminal Evidence 705(b) “allows counsel to

voir dire expert witnesses outside the presence of the jury to61 Saenz v. State , 103 S.W.3d 541, 546 (Tex. Ct. App. 2003);

see Brown v. State , 974 S.W.2d 289, 292 (Tex. Ct. App. 1998).

62 Saenz , 103 S.W.3d at 546; Brown , 974 S.W.2d at 292.

63 Saenz , 103 S.W.3d at 546; Brown , 974 S.W.2d at 292.

64 Saenz , 103 S.W.3d at 546; Brown , 974 S.W.2d at 292.

41 l earn what facts the expert is basing his or her opinion on.” 6 1

“[N]either the rule nor the case law creates a presumption of

error if couns el fails to request voir dire.” 6 2 Texas courts

have often held that the rule is not violated when nothing in the

record indicates that counsel did not know on what facts the

expert witness based his opinion. 63 In other words, when defense

counsel knows the basis of the expert’s opinion, there is no need

to invoke this rule. 64

Here, the recor d confirms beyond cavil that defense counsel

was cognizant of the reports on which Dr. Gripon based his

opinion. Although Shields points to no specific reports in his

federal petition, in his state habeas petition, he challenged Dr.

Gripon’s reliance on the reports of Drs. Felthous, Barrett,

Hungerford, Franke, and Freedman. If Shields knew of the basis

of Dr. Gripon’s opinion, his counsel must have. Further, Dr.

Gripon explicitly testified at trial that he based his opinion on

these reports. It is thus clear that because defense counsel

knew of t he basis of Dr. Gripon’s opinion, it would have been65 Joiner v. State , 825 S.W.2d 701, 707-08 (Tex. Crim. App.

1992) (citing Nethery v. State , 692 S.W.2d 686, 702 (Tex. Crim.

App. 1985)).

66 509 U.S. 579 (1993).

42 futile to invoke Rule 705(b).

In addition, we note that Shields provides no explanation as

to why any of the reports on which Dr. Gripon based his testimony

would have been inadmi ssible. In any event, under Texas Rule of

Criminal Eviden ce 703, an expert “can . . . base his opinion

partially on facts or data which is inadmissible, if such

information is commonly relied upon by experts within his

field.” 65 We perceive no ineffective assistance in counsel’s

failure to challenge Dr. Gripon’s reliance on, inter alia

, the

autopsy rep ort of Dr. Hungerford and psychiatric reports on

Shields from 1993. In addition, our review of the trial

transcript convinces us that defense counsel cross-examined Dr.

Gripon, including questioning him at the opening of his testimony

with regard to the validity of his expert opinion. There is no

merit to this claim.

Shields also insists that trial co unsel was ineffective

because he failed to object to Dr. Gripon on the basis of Daubert

v. Merrel l Dow Pharmaceuticals, Inc. 6 6 Specifically, Shields

argues that “the methodology used by Dr. Gripon was inadequate

and unreliable under the D aubert test because he based his67 See Flores v. Johnson , 210 F.3d 456, 458 (5th Cir. 2000)

(Garza, J., specially concurring).

43 a ssessment of future dangerousness e ntirely on his judgment, not

on any empirical data concerning base rates of violence of lifesentenced prisoners convicted of capital murder, nor on any other

data that the science of violence risk assessment recognizes.”

As noted, though, Dr. Gripon based his psychiatric opinion

on future dangerousness on the records that related to Shields

and Paula Stiner’s murder. Even though we are somewhat troubled

by the absence of a personal interview of Shields by Dr.

Gripon, 67 we cannot say that counsel was ineffective in failing

to make a Daubert objection to Dr. Gripon’s testimony. Our

review of the record demonstrates th at Dr. Gripon adequately

established his expert credentials, which included prior

testimony as to the fut ure dangerousness of a perpetrator on

between twelve to eighteen occasions. We have also noted our

awareness of no clearly establ ished law that prevents a

psychiatrist from basing his opinion on the records of the case

and the psychiatric records of the perpetrator. Shields has

established no prejudice here.

Although trial counsel did not object to the testimony of

Dr. Gripon, the defense did put on its own expert witnesses

during the punishment phase to rebut Dr. Gripon’s testimony. Dr.68 See United States v. Moye , 951 F.2d 59, 63 n.7 (5th Cir.

1992) (“Because we find no merit to any of Moye’s arguments of

error, his claim of cumulative error must also fail.”).

44 Fas on testified as to the possible unreliability of future

dangerousness testimony, and Dr. Marquart testified that studies

reveal that capital inmates are no more likely to commit future

violent acts than any other inmates. Trial counsel was not

ineffective whe n he elected to rely on rebuttal witnesses to

discredit Dr. Gripon’s testimony instead of futilely filing a

Daubert objection. We reject Shields’s arguments and deny a COA

on this claim.

E. Claim (11)

In his final properly-preserved claim of error, Shields

argues that he deserves a COA on his cla im that the cumulative

effect of trial counsel’s error denied him ineffective assistance

of couns el. As we conclude that there was no such error,

however, there can be no cumulative error. 68

F. Conclusion

For the fore going reasons, we deny a COA on Shields’s

properly-preserved claims . We hold that jurists of reason would

not debate the district court’s rulings. The district court did

not err when it denied Shields a COA on these claims and granted

summary judgment in favor of the State.69 Section 2254 provides

(2) If the applicant has failed to develop the factual

basis of a claim in State court proceedings , the court

shall not hold an evidentiary hearing on the claim

unless the applicant shows that ——

(A) the claim relies on ——

(i) a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was

previously unavailable; or

(ii) a factual predicate that could not have been

previously discovered through the exercise of due

diligence; and

(B) the facts underlying the claim would be sufficient

to establish by clear and convincing evidence that but

for constitutional error, no reasonable factfinder

would have found the applicant guilty of the underlying

offense.

28 U.S.C. § 2254(e)(2) (emphasis added).

45 VI. Evidentiary Hearing

Shields also urges that the district court erred when it

failed to grant his request for an evidentiary hearing on his COA

claims. Shields reiterates many of the arguments that he raised

in his challenge to the district court’s ruling on his procedural

default claims. Shields contends that 28 U.S.C. § 2254(e)(2)

does not bar an evidentiary hearing here b ecause he did not fail

t o develop the factual bases of his claims in state cour t. 6 9

Shields asserts that because the Texas courts impeded the factual

development of his claim —— thus involving no failure on his part

—— Section 2254(e)(2) does not apply. Shields maintains that he

is entitled to an evidentiary hearing to resolve factual disputes

that concern70 Shields also contends that he is entitled to an

evidentiary hearing on whether Texas’s abuse-of-the-writ doctrine

is an adequate and independent state ground. This argument is

foreclosed by our holding in Emery v. Johnson , 139 F.3d 191, 195-

96 (5th Cir. 1997), that Texas’s abuse-of-the-writ doctrine

constitutes an adequate state ground. In Barrientes v. Johnson

, 221 F.3d 741, 759-60 (5th Cir. 2000), we held that the doctrine

has constituted an independent state ground since the TCCA’s

decision in Ex parte Berber , 879 S.W.2d 889 (Tex. Crim. App.

1994).

71 See Williams v. Taylor , 529 U.S. 420, 429-30 (2000);

McDonald v. Johnson , 139 F.3d 1056, 1059 (5th Cir. 1998).

46 proce dural default, and those relating to “cause” and

“prejudice” include the competence of counsel, whether

state action impeded Petitioner’s ability to present

hi s claims on direct appeal and on state habeas,

whether the basis of trial counsel’s decisions we r e

tact i cal or negligent and prejudicial, and the many

other factual issues detailed herein.

Shields further contends that the district court erred when it

did not grant him an evidentiary hearing because the state court

never “adjudicated” his claims, but only issued a perfunctory

one-page denial to the 600-plus-page petition. 70

Accordingly, pursuant to Section 2254(e)(2), because Shields

does not contend that his claims of error rely on a new rule of

constitutional law or a factual predicate that he could not have

discovered with due diligence, he is not entitled to an

evidentiary hearing if he failed to develop a factual basis for

his claim in the state court proceedings. 71

Shields was not diligent in pursuing the factua l predicates

of his claims. He contends that he exercised due diligence by72 Dowthitt v. Johnson , 270 F.3d 733, 758 (5th Cir. 2000).

47 requesting an evident iary hearing in state habeas proceedings,

and that the state court impeded any factual discovery when it

perfunctorily denied his request. In sum, he asserts that

Section 2254(e)(2) is inapplicable her e. Shields concedes,

however, that he devoted only one line of his 600-plus-page state

habeas petit ion to his request for an evidentiary hearing, when

he asked that he “be accorded an evidentiary hearing on the

allegations in this petition.” Although the Supreme Court has

said that “failure to develop the factual basis of a claim”

connotes fault on the par t of the petitioner, we have held that

“[m]ere requ ests for evidentiary hearings will not suffice; the

petitioner must be diligent in pursuing the factual development

of his own claim.” 72 Shields points to no factual dispute that

the state court, or, for that matter, the district court, could

have resolved by granting his request for an evidentiary hearing.

Neither does Shields proffer any specific evidence that would

change the state or district courts’ resolution of his claims.

Even i f we were to determine that Shields did not fail to

develop the factual basis of his claimin state court,

“overcoming the narrow re striction of § 2254(e)(2) does not

guarantee a petitioner an evidentiary hearing, it merely op ens73 Murphy v. Johnson , 205 F.3d 809, 815 (5th Cir. 2000).

74 R ULES G OVERNING § 2254 C ASES 8(a); see Murphy , 205 F.3d at

815.

75 Id. at 815; see Robison v. Johnson , 151 F.3d 256, 268

(5th Cir. 1998).

76 Ogan , 297 F.3d at 357; see also Holland v. Jackson , —— U.S. ——, 124 S. Ct. 2736, 2738 (2004) (per curiam) (“Attorney

negligence, however, is chargeable to the client and precludes

relied unless the conditions of § 2254(e)(2) are satisfied.”).

48 the door for one.” 73 The district court still retains discretion

to grant or to deny an evidentiary hearing under Rule 8 of the

Rules Governing Section 2254 cases. 74 To obtain a hearing,

Shields would have “to show either a factual dispute which, if

resolved in his favor, w ould entitle him to relief or a factual

dispute that would require development in order to assess a

claim.” 75

Shields procedurally defaulted on the majority of his

claims. As such, we are barred from considering those claims,

evidentiary hearing or no t. The alleged ineffective assistance

of Shields’s state habeas counsel does not constitute cause for

the procedural default, and an evidentiary hearing would have

shed no light on this issue. 76

As to those claims on which Shields did not p rocedurally

default, the district court did not abuse its discretion when it

denied his request for an evidentiary hearing. We have held that77 Murphy , 205 F.3d at 816 (citing McDonald v. Johnson , 139

F.3d 1056, 1060 (5th Cir. 1998)).

78 See id. (citing Ward v. Whitley , 21 F.3d 1355, 1367 (5th

Cir. 1994)).

49 “where a district court has before it sufficient facts to make an

informed decision regar ding the merits of a claim, a district

court does not abuse its discretion in refusing to grant an

evidentiary hearing (even where no factual find ings are

explicitly made by any state court).” 77 Our review of the

instant record demonstrates that the district court revie wed the

pleadings, the record, and all of the evidence in support of

Shields’s claims. Indeed, even though the district court held

that Shields had procedurally defaulted on the majority of his

claims, it went on to address the merits of those claims, further

supporting our conclusion that it thoroughly reviewed the record.

Moreover, we have held that conclusional a n d unsupported

allegations do not entitle a habeas petitioner to an evidentiary

hearing. 78 Our review of this record demonstrates that Shields

offers us no specific evidence that the jury did not c onsider at

trial. Neither does he point to any specific evidence that would

create a factual dispute as to the four claims on which he did

not procedurally default. The district court had before it the

affidavit of Shields’s state habeas counsel and still determined,

as we have done, that state habeas counsel ’s alleged79 Id. at 816-17 (quoting Ward , 21 F.3d at 1367).

50 i neffectiveness does not constitute a sufficient factual dispute

to require an evidentiary hearing. The Rules Governing Section

2254 cases “‘do[] not authorize fishing expeditions.’” 79

VII. CONCLUSION

For the foregoing reasons, we hold that the distric t court

did not err when it denied a COA to Shields and denied Shields an

evidentiary hearing. We therefore deny Shields’s application for

a COA.

COA DENIED.