IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-70026

TRACY LANE BEATTY,

Petitioner–Appellant,

v.

WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, 

Correctional Institutions Division,

Respondent–Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

Before OWEN, ELROD, and HAYNES, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Petitioner Tracy Lane Beatty was convicted of the capital murder of his 

mother and sentenced to death. The Texas Court of Criminal Appeals affirmed 

on direct appeal and denied habeas relief. The district court denied Beatty’s 

federal habeas petition and denied a certificate of appealability (“COA”). 

Beatty argues on appeal that he is entitled to a COA on two ineffectiveassistance-of-counsel claims. Because the district court’s decision is not 

debatable, we DENY Beatty’s application for a COA.

I.

As explained in detail by the Texas Court of Criminal Appeals, Beatty 

murdered his mother, Carolyn Click, on November 25, 2003. See Beatty v. 

State, No. AP-75010, 2009 WL 619191, at *1 (Tex. Crim. App. Mar. 11, 2009) 

United States Court of Appeals

Fifth Circuit

FILED

July 16, 2014

Lyle W. Cayce

Clerk

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(direct appeal). Beatty and Click had a “volatile and combative relationship.” 

Id. at *1. According to witnesses Betty McCarty and Lieanna Wilkerson, each 

a neighbor and friend to Click, Beatty had assaulted Click several times in the 

past. Id. Indeed, Wilkerson testified that once Beatty “had beaten [Click] so 

severely that he had left her for dead.” Id. at *2 (internal quotation marks 

omitted). 

Nevertheless, Beatty, an adult who had been out on his own, moved back 

in with his mother in October 2003. Id. at *1. The relationship never 

improved. McCarty testified that Click told Beatty to leave in October 2003. 

Id. The separation was short, however; Beatty soon returned to his mother’s 

home. Id. McCarty testified that Click again told Beatty to leave on November 

25, 2003, the day of Click’s murder. Id. At approximately 4:00 p.m. that day, 

Click said to McCarty: “I told [Beatty] to leave today.” Id. (internal quotation 

marks omitted). According to McCarty, Click said about Beatty: “I put up with 

all I’m going to put up with.” Id. (internal quotation marks omitted).

Wilkerson testified that Beatty and Click fought daily when they lived 

together and that “[s]everal times [Beatty] had said he just wanted to shut 

[Click] up, that he just wanted to choke her and shut her up.” Id. at *2 (internal 

quotation marks omitted). Wilkerson described a conversation she had with 

Beatty in which he expressed his anger about Click refusing to drive him to a 

job interview because “she just didn’t feel like it.” Id. (internal quotation marks 

omitted). Beatty told Wilkerson that he had thought about killing Click with 

a hammer and shoving her under the house but that he “couldn’t do it” because 

she would have “started stinking.” Id. (internal quotation marks omitted). 

Despite Beatty’s obvious troubles, Wilkerson befriended Beatty, sometimes 

allowing him to stay at her house to give Beatty and Click an opportunity for 

some time apart. Id. The night of November 25, 2003, Beatty ate dinner at 

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Wilkerson’s house, arriving at approximately 6:00 p.m. and leaving at 

approximately 10:00 p.m. Id. at *3. 

In the days that followed, Beatty told differing stories about Click’s 

murder. Id. The most succinct version—and the final version put forth in the 

Texas Court of Criminal Appeals’ narrative—came from Wilkerson. Wilkerson 

testified that the “last thing” that Beatty told her about the night of Click’s 

murder was that “when he left [Wilkerson’s] house, he went directly across the 

street to [Click’s] house and that [Click] was waiting for him, and that when 

he came through the door, they had a horrible fight.” Id. (internal quotation 

marks omitted). Beatty told Wilkerson that he “chok[ed] Click until she fell to 

the floor” and that he did not realize that she was dead “until he woke up the 

next morning.” Id. at *4. Beatty then crudely buried his mother behind the 

home. Id. at *3. 

The day after Click’s murder, Beatty took a turkey to Wilkerson’s house. 

Id. Beatty told Wilkerson that he had picked up the turkey for Thanksgiving 

but that he no longer needed it because Click had gone out of town. Id. In the 

weeks after Click’s death, Beatty used Click’s credit and debit cards to make 

purchases and disposed of her belongings. Id.

Beatty was indicted for capital murder. The state alleged that Beatty 

had murdered Click in the course of committing either robbery or burglary. At 

trial, where Beatty was represented by Robert Perkins (lead counsel) and Ken 

Hawk (co-counsel), the state presented evidence of the above-described facts. 

The defense team did not put on any evidence after the state rested its casein-chief. 

The trial court instructed the jury that a person commits capital murder 

if the person commits murder “in the course of committing or attempting to 

commit the offense of robbery or burglary.” See Tex. Penal Code § 19.03(a)(2). 

The trial court further instructed the jury that a person commits “burglary” “if, 

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without the effective consent of the owner [of a habitation], he enters [the] 

habitation with intent to commit a felony, theft, or an assault.” See Tex. Penal 

Code § 30.02(a)(1).

In closing argument, lead counsel Perkins did not argue that Beatty had 

not committed murder. Instead, Perkins argued that the state had not 

satisfied its burden to prove capital murder:

When they get through arguing, ask yourself, am I convinced 

beyond a reasonable doubt of this, for the commission of 

intentional murder, along with the commission of burglary or 

robbery to be capital murder? The intent to commit the offense of 

robbery or burglary must be formed prior to or concurrently with 

the murder. . . . Where is the proof of that?

More specifically, Perkins focused on the relationship between Beatty and his 

mother to show that there was no burglary: 

Let’s talk about why Tracy Beatty killed his mother . . . . They’ve 

had a stormy relationship. I mean, I don’t need to dig all those 

letters out. He had written letters for years that the State put into 

evidence about trouble and “didn’t like her” and “don’t ever put me 

in a room with her; I’ll walk out, and I’ll be mad at anybody”—

whoever tried to get him and her together again. Y’all remember 

those. I don’t need to go through all of those again.

It’s showing his threats. You know, remember the hammer thing. 

“I was helping her put the underpinning on the house, and she 

handed me a hammer, and all I could think about was hitting her 

in the head with it.”

Now, I could see why that might be important to the State if he 

said, “All I could think about was how bad I wanted that car, and 

I thought about hitting her in the head and killing her,” or “I sure 

wish that I had money,” or “I wish that she would give me some 

money.” There’s not any evidence that he was—I mean, he didn’t 

have any money, but how much money did she have?

There’s not any evidence that there had ever been any kind of theft 

or robbery or that she had thrown him out for stealing from her. 

There is nothing like that. What it is, is his sorry attitude. That’s 

the only evidence.

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To emphasize that the murder occurred as the result of a fight and not in 

pursuit of stealing Click’s possessions, Perkins argued: “He killed her but not 

in the course of . . . committing burglary . . . . [F]urther indication that there 

was a verbal confrontation between the two of them [is] [t]he fact that the 

attack was at her throat to shut her, shut up, shut up, shut up, beat her up, 

shut her up, killed her.” Perkins invoked the testimony of both McCarty and

Wilkerson: “Betty McCarty and Lieanna Wilkerson, they came in as . . .

witnesses to these arguments, the fact that they couldn’t get along.” Perkins

even gave the jury a reason for the murder: 

[L]et’s talk about a reason that makes more sense. He was 

frustrated with her. He was tired of her. He had indicated in those 

letters, year after year after year, she’s controlling him. . . . The 

most sound theory, if you will, what the evidence supports the most 

is, is that he killed her because they had a longstanding, stormy 

relationship.

Perkins also touched on intent-to-commit-assault burglary. Perkins

addressed the intent issue by arguing that, if Beatty had the intent to commit 

an assault, then he did not have the requisite intent to commit murder: 

[I]f Tracy Beatty entered that house with the intent to commit 

assault, he’s committing burglary of a habitation. That’s true. . . . 

[But] if his intent is to commit a bodily injury or serious bodily 

injury and he enters a habitation with the intent to do that and he 

goes in there with the intent to cause bodily injury or serious bodily 

injury and he commits an act clearly dangerous to human life, that 

ain’t capital murder. 

As for the unlawful entry element of burglary, Perkins discussed the lack of 

evidence to show that Beatty that did not have consent to enter: 

But this “kicked out,” “told to leave,” “asked to leave” business, let 

me make sure that y’all all understand one thing. There is no 

evidence that Carolyn Click ever told Tracy Beatty that. There is 

no evidence of that. You know what the evidence is? The evidence 

is that Carolyn Click told Betty McCarty that she said that. You 

see the difference?

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. . . . 

Carolyn Click told Betty McCarty that she had asked him to leave 

before. . . . So what kind of kicking out is that?

The jury returned a verdict of guilty, indicating on the special verdict 

form that the state had proved beyond a reasonable doubt that Beatty had 

committed murder in the course of committing a burglary.

During the punishment phase, the state presented evidence in support 

of the death penalty. The defense team did not present any evidence. Prior to 

resting, the defense team explained in a hearing that it had obtained the 

assistance of a psychiatrist and a psychologist but that neither would testify 

because each believed Beatty to be a future danger to society. The defense 

team also explained that it had considered calling two witnesses and putting 

Beatty himself on the stand but that, on balance, it had decided that those 

witnesses would be more harmful than beneficial. Beatty orally confirmed to 

the trial court that he agreed with that explanation. 

The trial court instructed the jury regarding the “special issues” provided 

in Article 37.071 of the Texas Code of Criminal Procedure. Answering the 

special issues, the jury found that Beatty would commit criminal acts of 

violence constituting a continuing threat to society and that the mitigating 

circumstances were not sufficient to warrant a sentence of life instead of death. 

Accordingly, the trial court imposed a sentence of death.

The Texas Court of Criminal Appeals affirmed Beatty’s conviction and 

sentence on direct appeal. Beatty, No. AP-75010, 2009 WL 619191. The court 

concluded that the evidence was sufficient under Jackson v. Virginia, 443 U.S. 

307 (1979): “A rational jury could infer that [Beatty] was angry after Click told 

him to get out and that he entered Click’s house [without consent and] with

intent to assault her again or kill her, or at least take some of her money or her 

possessions.” Beatty, 2009 WL 619191, at *5 (emphasis added). Judge

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Johnson, joined by Judges Price and Holcomb, dissented, reasoning that while 

the state “amply proved murder” it did not prove the underlying burglary 

felony because it did not prove a “lack of consent to enter [the habitation] or 

entry with the intent to commit a felony, theft, or assault.” Beatty v. State, No. 

AP-75010, dissenting slip op. at 5 (Mar. 11, 2009) (Johnson, J., dissenting). 

The dissent reasoned that the evidence reflected an ambiguity regarding 

whether Beatty’s entry was “without consent of the owner.” Id. at 3 (internal 

quotation marks omitted). The dissent further reasoned that the evidence at 

trial demonstrated only speculation about Beatty’s intent as he entered the 

home. Id. at 4.

Beatty filed his first and only state habeas application in 2007, asserting 

ten grounds for relief. After a hearing, the habeas court issued findings of fact 

and conclusions of law, recommending that the application be denied. The 

Texas Court of Criminal Appeals adopted the habeas court’s findings and 

conclusions (except for “Findings of Fact, paragraphs 29, 60, 61, 65, 81, 100, 

131, 132, 143, 154, and 160” and “Conclusions of Law, last sentence of 

paragraph 170”) and denied habeas relief. Ex Parte Beatty, No. WR-59939-02, 

2009 WL 1272550 (Tex. Crim. App. May 6, 2009). Beatty filed his federal 

habeas petition in the district court soon thereafter, asserting ineffectiveassistance-of-counsel claims. The district court denied the petition and denied 

a COA. Beatty v. Dir., TDCJ-CID, No. 4:09-cv-225, 2013 WL 3763104 (E.D. 

Tex. July 16, 2013). Beatty now requests a COA from this court. Beatty has 

narrowed the litigation to two issues: (1) whether his trial counsel was 

ineffective for failing to investigate and present mitigating evidence at the 

punishment phase of his trial; and (2) whether his trial counsel was ineffective 

for failing to investigate and present evidence to show that the crime was 

murder, not capital murder.

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II.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 

governs our consideration of Beatty’s request for a COA. Under AEDPA, a 

petitioner must obtain a COA before he can appeal a district court’s denial of 

habeas relief. 28 U.S.C. § 2253(c)(1); see Miller-El v. Cockrell, 537 U.S. 322, 

336 (2003) (describing a COA as a “jurisdictional prerequisite” without which 

“federal courts of appeals lack jurisdiction to rule on the merits of the appeals 

from habeas petitioners”). A COA is warranted upon a “substantial showing 

of the denial of a constitutional right.” § 2253(c)(2). A petitioner satisfies this 

standard if “reasonable jurists would find the district court’s assessment of the 

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 

484 (2000). The issue is “the debatability of the underlying constitutional 

claim, not the resolution of the debate.” Miller-El, 537 U.S. at 342; see also

Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000) (“[A]ny doubts as to 

whether a COA should issue must be resolved in [the petitioner’s] favor.”). 

“This threshold inquiry does not require full consideration of the factual or 

legal bases adduced in support of the claims. In fact, the statute forbids it.” 

See Miller-El, 537 U.S. at 336. To obtain a COA when the district court has 

denied relief on procedural grounds, such as procedural default, a petitioner 

must show “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 find it debatable whether the district court was correct in its 

procedural ruling.” Slack, 529 U.S. at 484.

We evaluate the debatability of Beatty’s constitutional claims through 

the lens of AEDPA’s highly deferential standard. See Renico v. Lett, 559 U.S. 

766, 773 (2010). We may not grant habeas relief unless the petitioner first has 

exhausted state remedies with respect to the claim at issue. 28 U.S.C. 

§ 2254(b)(1)(A). If the petitioner has met the exhaustion requirement, he must 

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prove that the state court’s constitutional adjudication: (1) “resulted in a 

decision that was contrary to, or involved an unreasonable application of, 

clearly established Federal law, as determined by the Supreme Court of the 

United States”; or (2) “resulted in a decision that was based on an unreasonable 

determination of the facts in light of the evidence presented in the State court 

proceeding.” § 2254(d)(1)–(2). 

Clearly established federal law is comprised of “the holdings, as opposed 

to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant 

state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A statecourt decision is contrary to clearly established federal law when it “arrives at 

a conclusion opposite to that reached by [the Supreme] Court on a question of 

law or if the state court decides a case differently than this Court has on a set 

of materially indistinguishable facts.” Id. at 413. A state-court decision fails 

the “unreasonable application” prong if it “identifies the correct governing legal

rule from [the Supreme] Court’s cases but unreasonably applies it to the facts 

of the particular state prisoner’s case.” Id.; see White v. Woodall, 134 S. Ct. 

1697, 1706 (2014) (“Section 2254(d)(1) provides a remedy for instances in which 

a state court unreasonably applies [the Supreme] Court’s precedent; it does not 

require state courts to extend that precedent or license federal courts to treat 

the failure to do so as error.”). We accept a state court’s factual findings as

correct “unless contravened by clear and convincing evidence.” Moody v. 

Quarterman, 476 F.3d 260, 267–68 (5th Cir. 2007).

III.

A.

Beatty contends that he is entitled to a COA and, ultimately, to habeas 

relief because he received ineffective assistance of counsel at trial. An 

ineffective-assistance-of-counsel claim derives from the Sixth Amendment’s 

enshrinement of the right of every defendant to the “assistance of counsel for 

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his defence.” To prevail on such a claim, a defendant must show: (1) that 

counsel’s performance was deficient; and (2) that such deficient performance 

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984) 

(denying relief to habeas petitioner challenging death sentence). This twopronged approach requires the defendant to demonstrate that counsel’s errors 

were “so serious as to deprive the defendant of a fair trial, a trial whose result 

is reliable.” Id. The defendant must meet both prongs; otherwise, “it cannot 

be said that the conviction or death sentence resulted from a breakdown in the 

adversary process that renders the result unreliable.” Id. Thus, at the COA 

stage, we must examine whether jurists of reason would debate whether the 

defendant established both prongs. See Slack, 529 U.S. at 484.

The first Strickland prong requires the defendant to show that counsel’s 

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

Any such showing must overcome a “strong presumption” that the 

representation did fall “within the wide range of reasonable professional 

assistance.” Id. at 689. In an ineffectiveness claim that relies on a failure to 

develop evidence, the deficient performance question depends on whether “the 

investigation supporting counsel’s decision . . . was itself reasonable.” Wiggins 

v. Smith, 539 U.S. 510, 523 (2003). Counsel is not required to “pursue an 

investigation that would be fruitless, much less one that might be harmful to 

the defense.” Richter, 131 S. Ct. at 789–90. Moreover, counsel is “entitled to 

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

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

Under the second prong, “[t]he defendant must show that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Strickland, 

466 U.S. at 694.

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Because this case arises under AEDPA, Strickland is not the only 

standard we must keep in mind. When a petitioner brings a Strickland claim 

under AEDPA, the “pivotal question” is not whether the petitioner was 

deprived of his right to counsel under the Sixth Amendment. Harrington v. 

Richter, 131 S. Ct. 770, 785 (2011). Instead, “the question is whether the state 

court’s application of the Strickland standard was unreasonable.” Id. Both 

the Strickland standard and AEDPA standard are “highly deferential,” and 

“when the two apply in tandem, review is doubly so.” Id. at 788 (internal 

quotation marks omitted).

B.

Beatty asserts two claims: (1) a claim based on the defense team’s alleged 

failure to investigate and present mitigating evidence at the punishment phase 

(“punishment-phase claim”); and (2) a claim based on the defense team’s 

alleged failure to investigate and present evidence to show that Beatty did not 

commit a burglary (“guilt-phase claim”). In Part III.B.1 below, we discuss the 

habeas evidence on which Beatty relies to support these claims. Next, in Part 

III.B.2, we address whether Beatty has procedurally defaulted on his guiltphase claim. Last, in Part III.B.3, we consider Beatty’s entitlement to a COA 

on each of his ineffective-assistance-of-counsel claims, assuming arguendo that 

he could survive the procedural hurdle for the guilt-phase claim.

1. Habeas Evidence

Fifteen people testified at the hearing regarding Beatty’s state habeas 

application. The district court’s opinion thoroughly describes the witnesses’ 

testimony and the habeas court’s findings regarding their testimony. See 

Beatty, 2013 WL 3763104, at *6–*9. Beatty focuses in his brief on the 

testimony of selected individuals.

Beatty relies on the habeas testimony from Tim Day, who was married 

to Click from 1978 to 1984. Tim Day testified at the habeas hearing that Click

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had mental problems and that he once observed Click and Beatty in a physical 

altercation. Tim Day was not contacted by defense counsel. Beatty also points 

to the testimony of Chad Day and Kamie Bently, Tim Day’s son and daughter, 

both of whom lived with Click for a period of time. Chad Day and Bently

testified that Click physically and emotionally abused them but not Beatty. 

For example, according to Chad Day and Bently, Click would require them to 

walk around in circles outside in the heat all day. Furthermore, Chad Day and 

Bently testified that, when beating them, Click would force them to take their

clothes off and that Click herself would be in the nude during the beatings. 

Bently also testified that one time, when Click was beating her, Beatty said to 

Click: “That’s enough.” Bently admitted that this incident demonstrated that 

Beatty was aware of the abuse and yet let it go on for a certain period of time. 

Neither Chad Day nor Bently was contacted by defense counsel. Dr. Edward 

Gripon, a forensic psychiatrist, testified that Click’s abusive behavior and 

mental problems could be considered mitigating evidence.

Beatty relies on the habeas testimony of Lieanna Wilkerson—the same 

Wilkerson who testified at trial. Wilkerson testified at the habeas hearing that 

she “didn’t feel like [she] was asked very much [at trial] about Ms. Click herself, 

that the way that they portrayed her was a poor little weak, disabled lady.” 

Wilkerson went on to agree that Click could be a “hateful, vindictive, two-faced 

old bitch.” Beatty also relies on the testimony of Twyla Johnson. Johnson lived 

across the street from Click and once witnessed an argument between Click 

and Beatty. Johnson heard Click say to Beatty: “Are you stupid? That’s not 

where I told you I wanted that. Are you just retarded?” Johnson also testified 

that Beatty and Wilkerson brought a turkey—the same turkey Beatty had 

taken to Wilkerson—to her house on November 26, 2003, the day after the 

murder. Johnson was not contacted by defense counsel.

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Holly Randall, the defense team’s mitigation investigator, also testified. 

Randall testified that she interviewed Beatty prior to trial. Randall was aware 

of Tim Day, but she testified that Beatty had not provided her with the names 

of Tim Day’s children. In conversation with Randall, Beatty did not refer to 

his mother as “mother” but instead as the “bitch.”

The habeas court found that Tim Day, Chad Day, and Bently would have 

presented evidence that was significantly more aggravating than potentially 

mitigating. The habeas court pointed to evidence that Tim Day described 

Beatty as a “very high strung, hot-headed person” and that he once kicked 

Beatty out of the house because Beatty had stolen and crashed Click’s car; that 

Chad Day would have told the jury that Beatty “stayed in trouble a lot”; and 

that Bently would not have had anything good to say about Beatty. The habeas 

court did not credit Wilkerson’s testimony, finding that she was a “biased 

witness who may let her relationship with [Beatty] taint her testimony to paint 

him in a better light.” The habeas court pointed out that Johnson’s testimony 

about Click yelling at Beatty, if presented at trial, would have been 

accompanied by Johnson’s testimony that Beatty had come to her home with a 

turkey the day after he murdered and buried his mother.

Beatty does not mention in his brief the habeas testimony of Roy Linn, 

an investigator appointed to assist in Beatty’s defense. The habeas court found 

that Linn travelled to various locations—Dallas, Cherokee, Van Zandt, 

Henderson, and Anderson counties—“in search of character witnesses over an 

eight-week period of time.” The habeas court found that Linn met with 

Wilkerson and contacted several other neighbors and witnesses, none of whom 

had anything positive to say about Beatty. Relying on Linn’s testimony, the 

habeas court further found that Beatty “was not very helpful and was very 

hard to communicate with” and that “[o]ther members of the defense team also 

had a difficult time getting [Beatty] to provide any information.” Linn also met 

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with Randall, the mitigation investigator, for over four hours about the case. 

Beatty does not dispute these findings regarding Linn.

The habeas court further found that lead counsel Perkins followed up on 

the names of any witnesses provided by Beatty and that none of the 

information discovered ultimately “panned out” to be, in the defense team’s 

view, “more mitigating than aggravating.” Beatty does not dispute these 

findings. Moreover, co-counsel Hawk explained the problem with putting on 

evidence to taint the victim:

Every time we tried to find evidence, especially if anything came 

up about Ms. Click, the victim in this case, from a strategic 

standpoint, the danger you have in trying to make the victim of a 

homicide, who is the mother of a defendant, into the reason for her 

own death, has got to be clear, nearly to the point of a smoking 

gun, before you can float that out there, because the potential for 

an offensive take from a jury . . . .

Hawk also candidly admitted: “[I]n retrospect we’d do almost everything 

different, because now we know what we tried lost. But at the time, we had to 

process it through what we knew to make it the best possible position for the 

best possible result.”

2. Procedural Bar

The district court’s procedural ruling on the guilt-phase claim is a 

threshold issue. See Slack, 529 U.S. at 484–85. In this claim, Beatty alleges 

that the defense team failed to investigate and present evidence to show that 

Beatty did not commit a burglary. The district court concluded that Beatty 

procedurally defaulted by not raising the claim in the Texas habeas court. 

Beatty, 2013 WL 3763104, at *15. We agree. Because Beatty did not raise the 

claim in the Texas court in his initial state habeas application, the claim would 

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now be procedurally barred in Texas.1 Therefore, it also is barred in federal 

court. See § 2254(b)(1)(A); see also Finley v. Johnson, 243 F.3d 215, 220 (5th 

Cir. 2001) (“If a petitioner fails to exhaust state remedies, but the court to 

which he would be required to return to meet the exhaustion requirement 

would now find the claim procedurally barred, then there has been a 

procedural default for purposes of federal habeas corpus relief.”).

Furthermore, Beatty cannot show “cause” for the procedural default 

under the Supreme Court’s decisions in Martinez v. Ryan, 132 S. Ct. 1309 

(2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013). To succeed in 

establishing cause under Trevino and Martinez, the petitioner must show: 

(1) that his claim of ineffective assistance of counsel at trial is “substantial” 

(i.e., “has some merit”); and (2) that his habeas counsel was ineffective for 

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

132 S. Ct. at 1318. 

This claim is not substantial for the reasons explained more fully below 

in Part III.B.3. See Wilkins v. Stephens, __ F. App’x __, 2014 WL 1202524, at 

*5 (5th Cir. Mar. 25, 2014) (“Concluding that [the petitioner] has failed to state 

any substantial [ineffective-assistance-of-counsel] claims, we deny a COA.” 

(citing Trevino, 133 S. Ct. 1911)); see also Preyor v. Stephens, 537 F. App’x 412, 

422 (5th Cir. 2013) (concluding that the ineffectiveness of the petitioner’s first 

state habeas counsel “ma[de] no difference to the outcome” because reasonable 

1 The abuse-of-the-writ doctrine prohibits defendants in death penalty cases from 

bringing a subsequent application for a writ of habeas corpus unless the application contains 

specific facts showing that: (1) the claim could not have been presented in the initial 

application because the factual or legal basis for the claim was unavailable at the time the 

initial application was filed; (2) no rational juror could have found the defendant guilty; or 

(3) no rational juror would have answered the special issues in the affirmative. Tex. Code 

Crim. Proc. art. 11.071, § 5.

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

claims were “not substantial”). 

In the alternative, jurists of reason would not debate that Beatty has 

failed to demonstrate that his state habeas counsel was ineffective for failing 

to raise this issue. Beatty argues simply that there was “no reason not to argue 

the ineffectiveness of trial counsel on this issue, particularly in light of the 

vigorous and substantial dissent.” As explained further below in Part III.B.3, 

the connection between the habeas evidence and the guilt phase of the trial is 

neither clear nor strong enough to establish that Beatty’s habeas counsel was 

ineffective for failing to raise this issue. See Garza v. Stephens, 738 F.3d 669, 

676 (5th Cir. 2013) (agreeing with the district court that “habeas counsel was 

not ineffective in failing to raise [a] claim at the first state proceeding” because 

“there was no merit to [the petitioner’s] claim”), cert. denied, No. 13-9380, 2014 

WL 1254822 (June 30, 2014). Beatty makes no further attempt to explain why 

his state habeas counsel was ineffective. Accordingly, the district court’s 

procedural decision on the guilt-phase claim is not debatable.2 Because Beatty 

procedurally defaulted, he is not entitled to a COA on this claim.

3. Ineffective-Assistance-of-Counsel Claims

We now consider whether Beatty has made a “substantial showing of the 

denial of a constitutional right.” See § 2253(c)(2). Beatty asserts two claims: 

(1) the punishment-phase claim (i.e., a claim based on the defense team’s 

alleged failure to investigate and present mitigating evidence at the 

2 Because the district court conducted a Trevino/Martinez review, see Beatty, 2013 WL 

3763104, at *16 (“There is nothing else pending before the court that arguably supports relief 

based on Trevino.”), this case stands in contrast to those in which this court has remanded 

for further consideration of a petitioner’s right to seek relief pursuant to Trevino. See, e.g., 

Neathery v. Stephens, 746 F.3d 227, 229 (5th Cir. 2014) (“[W]e are unable to determine from 

the record which, if any, of [the petitioner’s] ineffective assistance of counsel claims may be 

preserved for review under Trevino.”). 

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punishment phase); and (2) the guilt-phase claim (i.e., a claim based on the 

defense team’s alleged failure to investigate and present evidence to show that 

Beatty did not commit a burglary). We discuss the claims together because the 

arguments and evidence supporting each claim are very much intertwined.

Beatty complains that the defense team failed to present the circumstances of 

his relationship with his mother and facts to show “the actual character of Ms. 

Click as cold, arrogant, demanding.” Beatty argues that the state “was allowed 

to offer un-rebutted evidence as to the loving nature of the decedent” and that 

“[n]othing was offered by the defense to rebut this damaging testimony.” 

“Consequently,” Beatty goes on, “the only belief the jury could have had is that 

this ex-con killed his mother to obtain her property.” Beatty asserts that 

“[w]itnesses that could describe the tumultuous relationship between [Beatty] 

and his mother, and witnesses who could describe the eccentricity and 

bizarreness of Ms. Click’s personality were never contacted.” 

Beginning with Strickland’s first prong, we conclude that the district 

court’s decision on the deficiency question is not debatable. The defense team 

developed a strategy and made a strategic decision not to present evidence that 

had the potential to be a “two-edged sword.” See Richter, 131 S. Ct. at 789–90;

Neal v. Puckett, 286 F.3d 230, at 237 (5th Cir. 2002) (non-exhaustive set of 

factors used to evaluate reasonableness of defense counsel’s investigation: 

“what counsel did to prepare for sentencing, what mitigating evidence he had 

accumulated, what additional ‘leads’ he had, and what results might he 

reasonably have expected from these leads”).

As to the punishment-phase claim, the habeas court found that the 

investigations carried out by investigator Linn and lead counsel Perkins did 

not turn up any witnesses who would have had anything good to say about 

Beatty or any evidence that was more mitigating than aggravating. See

Richter, 131 S. Ct. at 789–90. Dr. Gripon’s testimony that evidence of Click’s 

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abusive behavior could have been mitigating does not reflect significantly on

the defense team’s investigation and decision-making with respect to the 

punishment phase of the trial. Thus, under the circumstances and applicable 

law here, the failure to pursue further evidence of Click’s personality did not 

fall below “an objective standard of reasonableness.” Strickland, 466 U.S. at 

688.3

Our analysis of the guilt-phase claim leads to a similar result. Perhaps, 

in hindsight, the defense team would have conducted the guilt phase 

differently, as co-counsel Hawk explained. At the time of the trial, however,

the defense team made the decision to attack the evidence supporting the 

burglary element of the capital murder charge. Lead counsel Perkins’s closing 

argument makes that decision readily apparent. The failure to investigate 

even more evidence regarding the dysfunctional relationship between Beatty 

and Click was not deficient for purposes of AEDPA review. Thus, Beatty 

cannot make the requisite showing with respect to deficiency for his guiltphase claim. Put simply, we agree with the district court that the defense 

team’s representation “cannot be characterized as deficient for failing to 

present to the jury minimal additional statements that his mother was a mean 

cold-hearted bitch.” Beatty, 2013 WL 3763104, at *16.

Turning to the second prong, even if the defense team was deficient,

Beatty has not given us any reason to doubt the district court’s disposition with 

respect to prejudice for either claim. Beatty makes no discrete argument as to 

why the defense team’s alleged failure to investigate mitigating evidence 

prejudiced Beatty at the punishment phase. See Strickland, 466 U.S. at 695 

(“[T]he question is whether there is a reasonable probability that, absent the 

3 We also refer back to the defense team’s concern, as far as evidence about Click’s 

behavior goes, about the “potential for an offensive take from a jury.”

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errors, the sentencer . . . would have concluded that the balance of aggravating 

and mitigating circumstances did not warrant death.”). We see no reason to 

conclude that more evidence highlighting Click’s personality problems would 

have swayed the outcome. Given the “two-edged” nature of the evidence on 

which Beatty focuses here, there is no debate over the district court’s 

conclusion that the evidence was not enough to satisfy the prejudice prong for 

the punishment-phase claim.

As to the guilt-phase claim, Beatty argues that the “omitted evidence”—

i.e., the habeas evidence summarized above—would have been “strong 

additional support” for the jury to conclude that the murder “was committed 

not in pursuit of financial gain, but rather in a moment of anger. At worst, in 

light of the otherwise absence of evidence of intent to commit the burglary, it 

is sufficient to raise a reasonable doubt.” It is unclear how the failure to 

investigate and present evidence of Click’s personality, behavioral problems, 

or past abuse of other children prejudiced Beatty at the guilt stage. Indeed, 

within the confines of AEDPA, we cannot conclude that such evidence likely 

would have affected the jury’s decision that Beatty entered the house with the

requisite intent. As explained by the Texas Court of Criminal Appeals, it was 

rational for a jury to conclude that Beatty had the intent to commit assault.4 

Whether Beatty was “in pursuit of financial gain” is irrelevant to whether

Beatty intended to commit assault. Furthermore, apparently neither the jury 

nor the Texas Court of Criminal Appeals was swayed by the defense team’s 

argument that Beatty had only the intent to commit assault the entire time he 

was inside the house and never formed the intent to commit murder. On the 

unlawful entry element of burglary, the jury heard the testimony from 

4 This evidence actually might have made a guilty verdict an even easier choice for the 

jury. In any case, that is not the point. Beatty has failed to demonstrate the debatability of 

the district court’s decision on the prejudice prong.

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McCarty and apparently decided that it was enough, in spite of Perkins’s 

closing argument. None of the habeas evidence on which Beatty relies creates 

any doubt about the district court’s decision on the prejudice prong for the 

guilt-phase claim.

IV.

Beatty’s first claim, which involved allegations of ineffective assistance 

at the punishment phase of the trial, does not warrant full consideration on 

the merits. Moreover, Beatty procedurally defaulted on his second claim, 

which involved allegations of ineffective assistance at the guilt phase of the 

trial. Even assuming arguendo that Beatty has not procedurally defaulted on 

that claim, we conclude that the claim does not warrant a COA. The

application for a COA is DENIED.

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