United States Court of Appeals

for the Fifth Circuit

No. 20-40563

Ronald Blake Fears, 

Petitioner—Appellant,

versus

Bobby Lumpkin, Director, 

Texas Department of Criminal Justice, Correctional Institutions Division, 

Respondent—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

No. 1:19-CV-184

Before Smith, Clement, and Haynes, Circuit Judges.

Per Curiam:*

A Texas jury convicted Ronald Fears of continually sexually abusing 

his stepdaughter. Fears says his trial counsel inadequately defended him by 

allowing the introduction of harmful, inadmissible evidence. The Texas 

Court of Criminal Appeals (“CCA”) disagreed; it denied Fears’sstate habeas

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 30, 2022

Lyle W. Cayce

Clerk

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corpus petition after concluding that he had suffered no prejudice.

Fears tried again in federal court but met the same fate. We review 

that denial under the unforgiving standard required by the Antiterrorism and 

Effective Death Penalty Act (“AEDPA”). Although Fears’s claim is compelling, we cannot say that every reasonable jurist would agree that he suffered 

prejudice. We affirm the denial of his habeas petition.

I.

A.

When Fears’s stepdaughter, C.T., was fourteen years old, she confided 

to a friend that Fears had been sexually abusing her for years. C.T.’s friend 

persuaded her to tell an adult family friend about the abuse. That friend 

reported C.T.’s account to police and Child Protective Services.

Investigators deemed C.T.’s story credible. But physical examinations 

failed to turn up corroborating evidence. That does not necessarily indicate

that no abuse occurred, but it meant that the state’s case against Fears would 

live or die on C.T.’s credibility.

C.T., however, had a history of deception. So some had difficulty 

believing her claims. In fact, at the time of Fears’s trial, neither C.T.’s mother 

nor her grandmother believed Fears had abused C.T. Fears relied in part on 

their testimony to make his case that C.T. had fabricated her story.

In response, the state highlighted the consistency of C.T.’s recitals 

over time. One way it did that was through the testimony of those who had 

interviewed C.T. But it needed to tread lightly because Texas law strictly 

limits witnesses’ ability to comment on other witnesses’ credibility.

Texas law requires lay witnesses to stick to matters rationally within 

their perception that can aid the jury. Tex. R. Evid. 701. Similarly, expert 

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stand the evidence or to determine a fact in issue.” Tex. R. Evid. 702. 

Under those rules, experts cannot “give an opinion that [a] complainant . . . 

is truthful,”1 and lay witnesses cannot give “[d]irect opinion testimony about 

the truthfulness of another witness[ ] without prior impeachment.”2 Some 

Texas courts have described those principles as one rule: A witness cannot 

“offer a direct opinion as to the truthfulness of another witness.”3

 That rule 

“applies to expert and lay witness testimony alike.”4

Fears points to five instances where witnesses strayed at least close to 

the line marked by that rule.

First, the state asked C.T.’s friend, “[D]id you believe that [oral sex] 

had happened between [C.T.] and her stepfather?” She replied, “Yes.”

Second, the adult who reported C.T.’s allegations to the police testified 

that she was “close enough to [C.T.] to believe she would not mislead [her].”

Third, Fears’s lawyer asked a witness, after describing him as a “veteran police officer,” whether it was a good idea to have interviewed C.T. in 

detail about the alleged abuse. The officer said that it was. And he said he 

thought “a crime had occurred just based solely on [C.T.’s] testimony.”

Fourth, another officer said he “believe[d] that [the] crime had 

occurred” because of C.T.’s “consistent statements . . . and the details that 

1 Yount v. State, 872 S.W.2d 706, 712 (Tex. Crim. App. 1993) (en banc).

2 Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011). Once a witness’s 

“character for truthfulness has been attacked,” another witness may offer testimony about 

that witness’s reputation for truthfulness or his opinion about that witness’s truthfulness. 

Tex. R. Evid. 608(a).

3 Blackwell v. State, 193 S.W.3d 1, 21 (Tex. App.—Houston [1st Dist.] 2006, pet. 

ref’d).

4 Id. (citing Arzaga v. State, 86 S.W.3d 767, 776 (Tex. App.—El Paso 2002, no pet.), 

and Fisher v. State, 121 S.W. 3d. 38, 41 (Tex. App.—San Antonio 2003, pet. ref’d)).

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she gave.” He explained that he doesn’t always refer cases for prosecution 

but that he had referred C.T.’s case, further implying that he believed her. He 

later dismissed the suggestion that C.T. was just “being rebellious” and 

opined that children do not “use that type of an outcry for rebellion against 

the parent.” He said his assessment of C.T.’s truthfulness was based on her 

“demeanor change[ ]” as the interview’s topic shifted to sexual abuse.

Because she showed strong “emotion,” the officer thought C.T. had been 

“traumatized.”

Fifth, an investigator for Child Protective Services told the jury that he 

had found “reason to believe” Fears had abused C.T. He based that conclusion on the “consisten[cy]” of C.T.’s testimony and the “details” she gave.

Fears’s lawyers did not object to any of that testimony. In some cases, 

they elicited it.

The jury convicted Fears of several serious sex crimes. He was 

sentenced to fifty years’ imprisonment.

Fears unsuccessfully appealed, then filed a state habeas petition. He 

claimed that his trial counsel had been constitutionally ineffective in failing 

to object to the five opinions we have just described. Fears’s petition languished in procedural limbo for a few years.

Eventually, a state district court recommended that Fears receive a 

new trial. It found that the original “trial court would have granted a motion 

in limine to exclude opinion testimony [concerning C.T.’s] credibility.” Reasoning that the evidence in question “made . . . the State’s case significantly 

more persuasive by improperly bolstering C.T.’s credibility in a case where 

her credibility was paramount,” it concluded that Fears’s counsel had prejudiced his defense with constitutionally deficient representation.

The CCA disagreed. It tersely reported that it had “review[ed] the 

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record” and “conclude[d] that [Fears] ha[d] not shown that he was prejudiced” under the second prong of Strickland v. Washington, 466 U.S. 668 

(1984). So it denied his petition.

B.

Fears petitioned the federal district court for habeas relief. Among 

other grounds, he again asserted that his trial representation was constitutionally deficient. He said the failure to object to the bolstering testimony 

prejudiced him because the case turned on C.T.’s credibility.

The court denied his petition in a summary judgment. As relevant 

here, it adopted the magistrate judge’s report, which recommended concluding that the challenged evidence did not prejudice Fears even if it was

erroneously admitted. Applying AEDPA’s deferential standard, it explained 

that the CCA might reasonably have concluded that the bolstering evidence 

added little to the state’s case because the jury otherwise heard enough evidence to “formulate its own opinion of [C.T.’s] credibility.”

The district court also denied Fears a certificate of appealability 

(“COA”) after concluding that none of his claims raised issues that were 

“debatable among jurists of reason[ ] and that Fears fail[ed] to make a ʻsubstantial showing of the denial of a constitutional right.’” (Quoting 28 U.S.C. 

§ 2253(c)(2).)

Fears then asked this court for a COA regarding only his ineffectiveassistance claim. We granted the COA to decide “whether the state courts’ 

rejection of the claim of ineffective assistance of counsel . . . was entitled to 

deference under [AEDPA].”

II.

Our review is de novo because the district court denied Fears’s petition 

in a summary judgment. Guy v. Cockrell, 343 F.3d 348, 351–52 (5th Cir. 2003). 

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And we review only the question contained in the order granting the COA. 

See 28 U.S.C. § 2253(c)(1)(A).

The AEDPA standard under which federal courts review state merits 

adjudications of prisoners’ constitutional claims is familiar. A habeas petition 

arising from a state merits adjudication “shall not be granted” unless the state 

system’s final decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme 

Court of the United States.” § 2254(d)(1). Contrariness means that a decision “relies on legal rules that directly conflict with prior” Supreme Court 

decisions or “reaches a different conclusion . . . on materially indistinguishable facts.” Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004). An unreasonable application “correctly identifies the governing legal principle . . . but 

unreasonably applies it to the facts of the particular case.” Id. (quoting Bell v. 

Cone, 535 U.S. 685, 694 (2002)). In either case, a petitioner must show “that 

the state court’s ruling on [his claims] was so lacking in justification that there 

was an error well understood and comprehended in existing law beyond any 

possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 

103 (2011).

Fears advances two reasons to discard that deference here. Both reasons rely on the brevity of the CCA’s opinion. Neither is ultimately 

dispositive.

A.

First, Fears invokes Andrus v. Texas, 140 S. Ct. 1875 (2020) (per curiam). There, the Court vacated a CCA decision in another ineffectiveassistance case and remanded for the CCA to “address the prejudice prong” 

of the legal standard. Id. at 1887. Fears says his case is similar because the 

CCA again “fail[ed] to conduct a meaningful prejudice analysis” by issuing 

an essentially summary denial. That, he claims, continues a “practice of 

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summarily rejecting without explanation a habeas trial judge’s fact-findings 

and recommendation to grant relief.”

Irrespective of whether the CCA has any such “practice,” it has nothing to do with Andrus. That decision turned on the Supreme Court’s inability 

to discern the analytical prong on which the CCA had rejected a petition. Id.

at 1886–87. Here, the CCA left no doubt: It said Fears had “not shown that 

he was prejudiced.” We thus have no difficulty identifying the decision 

entitled to our deference, so Andrus is inapposite.

Summary rulings are entitled to AEDPA deference. Richter, 562 U.S. 

at 99. This case is no exception.

B.

Second, Fears reasons that we must “look through” the CCA’s decision to the lower state court’s decision because the CCA “provided no rationale for its no-prejudice decision.” That position relies on Wilson v. Sellers, 

138 S. Ct. 1188 (2018), where the Court authorized a similar procedure in 

some circumstances. The idea is that it can be hard to figure out whether a 

state decision has been faithful to clearly established federal law if the state 

court does not explain itself. Id. at 1192. In such cases, federal courts can 

“presume that the unexplained decision adopted” the reasoning of the “last 

related state-court decision that does provide a relevant rationale.” Id.

Here, we cannot look through to the state trial habeas court’s decision 

for two reasons. First, Fears has forfeited his position. Second, it makes no 

sense to attribute the lower state court’s reasoning to the CCA where the 

CCA disagreed about how to resolve the case.

Fears never told the federal district court that it ought to have examined the state habeas court’s reasoning. Instead, he told the magistrate judge 

that the CCA’s decision “involved an unreasonable application of [federal 

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law] and appears to have been based on an unreasonable determination of the 

facts.” In other words, he recited the ordinary AEDPA standard. The magistrate judge then cited Wilson in support of the contrary proposition: that the 

magistrate judge’s review was of the CCA’s “decision alone.” (Quotation 

omitted.) Still, Fears said nothing of deference in his objections to the magistrate judge’s report.

The first time Fears mentioned Wilson or looking through the CCA’s 

decision was in his application to this court for a COA.

But Fears cannot raise this position for “the first time on appeal.” 

Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021). To preserve it 

for our review, he needed to “identify it as a proposed basis for deciding the 

case.” Pickett v. Tex. Tech Univ. Health Scis. Ctr., 37 F.4th 1013, 1037 (5th Cir. 

2022) (quotation omitted and alterations adopted). In other words, he 

needed to tell the district court to grant his petition at least in part because it 

needed to defer to the lower state court’s reasoning recommending that he 

get a new trial. See id. But he never even mentioned that possibility to the 

district court.

Parties may forfeit their pleas to attribute a lower state court’s reasoning to a state court of last resort. That’s because looking through under Wilson does not alter the standard of review.

Standards of review cannot be forfeited. United States v. Vasquez, 

899 F.3d 363, 380 (5th Cir. 2018). So parties cannot forfeit the question 

whether to apply AEDPA at all. Ward v. Stephens, 777 F.3d 250, 257 n.3 (5th 

Cir. 2015), abrogated on other grounds, Ayestas v. Davis, 138 S. Ct. 1080 (2018).

This question is different. Regardless of whether we look through to 

the trial court’s reasoning, the standard of review is the same: We apply 

AEDPA to the state highest court’s decision. To “look through” is just to 

attribute another court’s reasoning to the high court. Wilson, 138 S. Ct. 

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at 1192 (instructing courts to “presume that the unexplained decision 

adopted the same reasoning”). Because it does not alter the standard of 

review, Fears’s position is an ordinary merits contention that can be forfeited. 

See Howard v. Davis, 959 F.3d 168, 172 n.9 (5th Cir. 2020) (collecting cases).

But Fears need not worry that his forfeiture altered the outcome. His 

position is also foreclosed by Thomas v. Vannoy, 898 F.3d 561, 569 (5th Cir. 

2018), which held that we “cannot ʻlook through’ the [state high court’s] 

opinion [where it] was the only state court to consider and reject [a] claim.” 

After all, Wilson’s look-through procedure is a rebuttable presumption. Wilson, 138 S. Ct. at 1192. What could better rebut the presumption that a state 

high court adopted a lower state court’s reasoning than the fact that the two 

courts reached different conclusions?

Accordingly, we apply AEDPA deference to the CCA’s decision holding that Fears has “not shown that he was prejudiced.”

III.

To prevail, Fears must identify “an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” 

Richter, 562 U.S. at 103. He posits such an error in the CCA’s application of

Washington.

Washington established a two-part test for evaluating trial counsel’s 

effectiveness. First comes deficiency. To satisfy the Sixth Amendment, a 

defendant’s lawyer must provide “reasonably effective assistance”—

assistance, that is, that conforms to “prevailing professional norms.” Washington, 466 U.S. at 687–88. Next comes prejudice. Even if a lawyer’s performance was not reasonably effective, the Constitution is not offended “if the 

error had no effect on the judgment.” Id. at 691.

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ceed in that order. We should not address the deficiency prong if we conclude 

that the defendant suffered no prejudice. Bouchillon v. Collins, 907 F.2d 589, 

595 (5th Cir. 1990). Our objective is “not to grade counsel’s performance.” 

Washington, 466 U.S. at 697. So if a defendant cannot get relief, there is no 

sense in debating deficiency.

That is true here. Because we conclude that Fears cannot satisfy the 

AEDPA standard on the prejudice prong, our inquiry begins and ends there.

A.

A defendant shows prejudice where “there is a reasonable probability 

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

would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

Fears must show that the CCA’s application of that standard was 

“unreasonable.” See Richter, 562 U.S. at 112. And our deference to the CCA 

in this area is further heightened—we must apply “doubly deferential judicial 

review.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Our review is 

doubly deferential because AEDPA and Washington require deference to the 

state court and the trial lawyer, respectively. Richter, 562 U.S. at 105. Double 

deference applies to both the deficiency and prejudice prongs.5

Satisfying that doubly deferential standard means that “every reasona5 Richter, 562 U.S. at 105; Cullen v. Pinholster, 563 U.S. 170, 202 (2011); Anaya v. 

Lumpkin, 976 F.3d 545, 554 (5th Cir. 2020). Our decisions contain some contrary statements, but those must yield to Pinholster and Anaya because no case holding that double 

deference does not apply to the prejudice prong is precedential. See Sanchez v. Davis, 

888 F.3d 746, 749 (5th Cir. 2018) (single-judge order); Spicer v. Cain, No. 18-60791, 2021 

WL 4465828, at *9 (Sept. 29, 2021) (unpublished). Nor could those cases displace Pinholster, since neither construed its holding. See Gahagan v. U.S. Citizenship & Immigr. Servs., 

911 F.3d 298, 302 (5th Cir. 2018).

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ble jurist would conclude that it is reasonabl[y] likely that” Fears would have 

been acquitted had his trial counsel objected to the bolstering testimony. 

Adekeye v. Davis, 938 F.3d 678, 684 (5th Cir. 2019). “[E]ven a strong case for 

relief” may not be enough. Id. (quoting Richter, 562 U.S. at 102).

B.

Fears’s strongest rationale for finding prejudice is that the state’s case 

turned on C.T.’s credibility. He thinks the bolstering testimony—particularly 

that of the three investigators with substantial experience investigating childsex-abuse cases—“carr[ied] exceptional weight and an aura of reliability” in 

the jurors’ minds. (Quotation omitted.) Although those witnesses were not 

qualified as experts, Fears contends the jury likely thought of them as similarly authoritative. The case, he maintains, “depended on [C.T.’s] credibility,” and the conflicting evidence on that point meant that the jury needed 

help deciding whom to believe.

But the importance of C.T.’s credibility cuts both ways. As the state 

observes, the jury knew that its task was to decide whether C.T. was telling 

the truth. The jury had plenty of opportunities to assess her credibility 

itself—it could compare her trial testimony with her prior accounts, scrutinize her demeanor in court, and consider the evidence of her past perfidy. 

What’s more, even if the investigators had kept their assessments of C.T.’s 

truthfulness to themselves, their belief in her story would have been implicit 

anyway because the investigation progressed to an indictment and a trial

based on their conclusions.

On that view, the challenged testimony was just cumulative evidence 

of C.T.’s credibility. And the introduction of cumulative evidence is 

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harmless.6

Fears replies that, under Texas law, the bolstering evidence could not 

have been cumulative because bolstering evidence is treated differently from 

other evidence of credibility. That is, after all, the whole point of a rule 

against “offer[ing] a direct opinion as to the truthfulness of another witness.” 

Blackwell, 193 S.W.3d at 21.

The question, however, is one not of Texas law but, instead, is

whether, as a matter of federal constitutional law, an error was sufficiently 

likely to have influenced the jury that it “undermine[s] confidence in the outcome.” Washington, 466 U.S. at 694. It would be different if Texas law treated 

the introduction of improperly bolstering evidence as per se reversible error. 

If that were true, we would know that counsel’s failure to object changed the 

outcome. But that’s not so. Consider Lopez v. State, 343 S.W.3d at 143, where 

the CCA reversed a conviction based in part on bolstering testimony but remanded for further development on the question “why trial counsel failed to 

object” to its introduction. If the introduction of bolstering testimony were 

per se reversible error, remanding would have been pointless: No “reasonably 

sound strategic motivation” could have explained the decision not to object. 

Id.

Given that Texas law does not control the outcome, the appropriate 

resolution is debatable by reasonable jurists. One rationally could conclude 

that the bolstering evidence gave the jury nothing it didn’t already have. 

From that perspective, the investigators’ conclusions were based on the same 

facts available to the jury, and their belief in C.T.’s story was already implicit 

6 United States v. El-Mezain, 664 F.3d 467, 526 (5th Cir. 2011); United States v. Escamilla, 852 F.3d 474, 487 (5th Cir. 2017); United States v. Hall, 500 F.3d 439, 444 (5th Cir. 

2007).

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because each of them advanced the case against Fears. That perspective is 

reconcilable with the applicable Supreme Court caselaw.

AEDPA requires us to defer to the CCA’s no-prejudice decision. The 

judgment is AFFIRMED.

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