IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-70022

STEPHEN DALE BARBEE, 

 Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent - Appellee

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 4:09-CV-74 

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Stephen Dale Barbee, a businessman in his mid-thirties with no criminal 

record, was convicted and sentenced to death in Texas for the capital murder 

of his former girlfriend, Lisa Underwood, who was seven and a half months 

pregnant,1 and her seven-year-old son, Jayden. He requests a certificate of 

appealability (COA) to appeal the district court’s denial of federal habeas relief. 

 

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

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

CIR. R. 47.5.4.

1 Lisa was unsure whether Barbee or another man, Ed Rogers, was the father of her 

unborn child. DNA evidence introduced at trial established that Rogers was the father.

United States Court of Appeals

Fifth Circuit

FILED

November 23, 2016

Lyle W. Cayce

Clerk

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We GRANT a COA for his claim that trial counsel rendered ineffective 

assistance at the guilt-innocence phase of trial by confessing his guilt to the 

jury during closing argument without his permission, and DENY a COA as to 

all other claims. We further hold that the district court did not abuse its 

discretion when it cited extra-record evidence in its order denying Barbee’s 

motion to alter or amend the judgment.

I. Facts and Procedural History

The district court summarized the evidence presented at trial as follows:

Lisa Underwood owned a bagel shop in Fort Worth. She 

began dating Stephen Dale Barbee, a customer of the shop. Lisa 

became pregnant in July of 2004 and told Barbee that she believed 

he was the father of the unborn child. Lisa’s family and friends 

had planned a baby shower for Lisa at 4 p.m. on Saturday, 

February 19, 2005, but she never arrived. The Fort Worth police 

were notified and began an investigation into her disappearance.

Unbeknownst to the Fort Worth detectives at that time, 

Barbee had been stopped by a deputy sheriff earlier that same 

morning while walking along a service road near a wooded area in 

another county. He was wet and covered in mud. He gave the 

deputy a false name and fled on foot.

Lisa’s home, which she shared with her seven-year-old son 

Jayden, showed no signs of forced entry. Jayden’s shoes were on 

top of the fireplace hearth, and his glasses were next to his bed. 

Lisa’s blood was in the living room, on the rug, and on the 

furniture. Having learned that Barbee had been in a relationship 

with Lisa, the police inquired at the home of Barbee’s ex-wife, 

Theresa. Although divorced, Theresa and Barbee still operated a 

tree-trimming business and a concrete-cutting business together. 

Theresa lived in their former marital home with an employee of 

the concrete business named Ron Dodd. Theresa told Barbee that 

the police were looking for him and asked what he had done. She 

urged him to turn himself in.

On Monday, Lisa’s Dodge Durango was found in a creek 

approximately 300 yards from where Barbee had been stopped by 

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the deputy sheriff two days earlier. The windows were down, the 

hatchback was up, and there was a bottle of cleaning solution in 

the cargo area. On the same day, Fort Worth detectives traveled 

to Tyler to speak with Barbee, his wife, Trish, and Dodd. Barbee 

and Dodd were in Tyler working on a job trimming trees. They 

agreed to go to the Tyler Police Department for questioning.

Barbee initially gave a recorded interview stating that he 

had not seen or heard from Lisa in months. He then asked to use 

the bathroom. While in the bathroom with a detective, Barbee 

confessed that he killed Lisa by starting a fight with her and then 

holding her face down into the carpet until she stopped breathing. 

He also admitted that he held his hand over Jayden’s mouth and 

nose until he stopped breathing. Barbee said he did it because Lisa 

was going to ruin his family and his relationship with his wife. He 

said that Dodd had helped him plan the murder, had dropped him 

off at Lisa’s house beforehand, and had picked him up afterwards, 

near the area where he was stopped by the deputy. This “bathroom 

confession” was not recorded. Afterwards, Barbee gave another, 

recorded statement to police, which was ultimately suppressed. 

He then spoke with his wife, Trish, which was also recorded in the 

police interview room. The next day, Barbee took the police to the 

place where he had buried the bodies. Barbee recanted his 

confession a few days later.

The prosecution’s case at the guilt phase relied primarily on 

Barbee’s flight from the deputy sheriff, the bathroom confession, 

his recorded statement to Trish, and his knowledge of details about 

the burial site.

At the sentencing phase of trial, the State presented 

evidence from Theresa that, during the course of their marriage, 

Barbee had assaulted her on four occasions and had assaulted a 

driver in a road-rage incident. The State also presented evidence 

that Barbee had verbally abused a former coworker who had 

rejected his attempts to have a relationship. The defense 

presented testimony from a pastor at Barbee’s church, Barbee’s 

mother, his aunt, a niece, a church acquaintance, an ex-girlfriend, 

and the girlfriend of Barbee’s ex-roommate. The defense also 

presented testimony from a prison security expert, a confinement 

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officer who had known Barbee his whole life, and the courtroom 

bailiff, who described Barbee’s behavior in jail.

Barbee v. Stephens, No. 4:09-CV-074-Y, 2015 WL 4094055, at *1–2.

The jury found Barbee guilty of capital murder. The trial court 

sentenced him to death after the jury answered the special issue on future 

dangerousness affirmatively and the special issue on mitigation negatively. 

The Texas Court of Criminal Appeals (TCCA) affirmed his sentence and 

conviction on direct appeal, and the Supreme Court denied certiorari. Barbee 

v. State, No. AP-75359, 2008 WL 5160202 (Tex. Crim. App. Dec. 10, 2008), cert. 

denied, 130 S. Ct. 144 (Oct. 5, 2009).

In his first state habeas application filed in March 2008, Barbee raised 

four claims:

(1) Trial counsel rendered ineffective assistance at the pretrial stage by 

failing to properly challenge the veracity of the video recording of Barbee’s 

interrogation and confession;

(2) Trial counsel abandoned him at the trial stage by confessing his guilt 

to the jury during closing argument without his knowledge or consent;

(3) Trial counsel rendered ineffective assistance at the punishment 

phase by failing to present significant mitigating evidence of his history of head 

injuries, failing to prepare witnesses for testimony, and presenting witnesses 

who challenged the jury’s verdict, after defense counsel had admitted guilt in 

closing argument; and

(4) The police engaged in misconduct by withholding the complete video 

recording of Barbee’s interrogation by the police, and providing a version that 

had been edited to remove portions of the interrogation in which Barbee was 

coerced into confessing to the murders.

Along with his habeas application, he submitted affidavits from Amanda 

Maxwell, the mitigation specialist retained by trial counsel; Dr. Stephen K. 

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Martin, a neuropsychologist; Nancy Cearley, a pastor; and Jackie Barbee, his 

mother. He also submitted a letter from a psychologist, Dr. Kelly R. Goodness, 

who had been retained by trial counsel.

The trial court ordered trial counsel to file affidavits responsive to 

Barbee’s ineffective assistance claims. Trial counsel, Bill Ray and Tim Moore, 

submitted a joint affidavit.

Along with its response, the State submitted a handwritten statement 

from Barbee; a memorandum of understanding between trial counsel and 

Barbee; a letter from Barbee to Dr. Richard Leo, a false-confession expert; a 

letter from Dr. Leo to trial counsel; a letter from Dr. James G. Shupe, a 

psychiatrist, to trial counsel; a memorandum from Amanda Maxwell to trial 

counsel; an affidavit from Dr. Jack Randall Price, a psychologist; and an 

affidavit from one of the prosecutors at trial, Richard Kevin Rousseau.

The state habeas trial judge, who was not the same judge who presided 

at Barbee’s trial, did not conduct an evidentiary hearing. The judge adopted 

the State’s proposed findings of fact and conclusions of law and denied relief. 

The TCCA adopted the trial court’s findings and conclusions and denied relief 

in 2009. Ex parte Barbee, No. WR-71070-01, 2009 WL 82360 (Tex. Crim. App. 

Jan. 14, 2009).

Barbee filed a petition for federal habeas relief in October 2010, 

presenting 21 claims for relief, many of which had not been presented in state 

court. The district court held the proceedings in abeyance and allowed Barbee 

to return to state court to exhaust the claims that he had not presented to the 

state court previously.

In his second state habeas application, Barbee presented the following 

claims:

(1) Actual innocence; 

(2) Attorney conflict of interest; 

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(3) Trial counsel rendered ineffective assistance, pretrial, by (a) failing 

to properly challenge the veracity of the video recording of his interrogation 

and confession and to investigate whether it was coerced, and (b) failing to 

complete DNA testing prior to trial;

(4) Trial counsel rendered ineffective assistance at the guilt-innocence 

phase and completely abandoned Barbee by (a) failing to effectively present a 

case for actual innocence through expert testimony, (b) confessing Barbee’s 

guilt without Barbee’s permission, (c) failing to explain the cell phone records 

introduced into evidence, (d) failing to object to prejudicial speculation by the 

coroners;

(5) Trial counsel rendered ineffective assistance at the punishment 

phase by (a) presenting harmful testimony from Susan Evans, (b) failing to 

present mitigating evidence, (c) failing to present mitigating evidence 

regarding future dangerousness, (d) failing to present mitigating evidence of 

head injury and hydrocodone use, (e) failing to present evidence of low 

intelligence, (f) failing to present medical evidence of frontal lobe impairment, 

brain impairment, and neuropsychiatric evidence;

(6) His trial was conducted in an atmosphere that rendered it inherently 

unfair due to pervasive and extremely prejudicial pretrial and trial publicity;

(7) Trial counsel rendered ineffective assistance by failing to file a motion 

for change of venue;

(8) He was denied due process as a result of the state court’s failure to 

hold an evidentiary hearing on substantial, controverted and unresolved issues 

of fact;

(9) The trial court erred by refusing to grant a challenge for cause to juror 

Denise Anderson;

(10) The trial court abused its discretion by denying Barbee’s motion to 

suppress alleged statements made to Detective Carroll;

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(11) Texas’s 10-12 rule (prohibition against informing jurors that a single 

holdout juror will cause the imposition of a life sentence) violated his rights 

under the Eighth and Fourteenth Amendments;

(12) Lethal injection violates the Eighth Amendment;

(13) The second special issue on mitigation is unconstitutional because 

it omits a burden of proof and makes impossible any meaningful appellate 

review of the jury’s determination;

(14) The trial court erred by denying a motion to inform the jury that 

failure to answer a special issue would result in a life sentence;

(15) The evidence supporting special issue 1 (future dangerousness) was 

insufficient;

(16) The jury was unconstitutionally selected because the jurors were 

death-qualified;

(17) His death sentence violates international law;

(18) Appellate counsel rendered ineffective assistance;

(19) He was deprived of due process and a fair trial when the police 

provided an edited version of the videotape of his confession and withheld the 

complete video;

(20) The testimony of the coroners, and their lack of authority to perform 

autopsies, deprived him of a fair trial; and

(21) The cumulative effect of all of these errors deprived him of due 

process.

Barbee claimed that his initial state habeas counsel was ineffective in 

failing to adequately brief claims, failing to investigate and coherently present 

extra-record evidence, failing to perform research sufficient to understand 

basic principles of post-conviction practice, failing to present proper postconviction claims, and failing adequately to communicate with Barbee.

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The TCCA remanded the conflict of interest claim to the trial court for 

an evidentiary hearing. Ex parte Barbee, No. WR-71,070-02, 2011 WL 2071985 

(Tex. Crim. App. Sept. 14, 2011). The state habeas trial court conducted an 

evidentiary hearing on the conflict of interest claim on February 22–23, 2012. 

Following the hearing, the trial court adopted the State’s proposed findings of 

fact and conclusions of law and recommended that relief be denied on Barbee’s 

conflict of interest claim. The TCCA adopted the trial court’s findings and 

conclusions and denied relief on the conflict of interest claim; it dismissed the 

remaining claims as abusive. Ex parte Barbee, 2013 WL 1920686 (Tex. Crim. 

App. May 8, 2013).

Barbee filed an amended federal habeas petition on October 2, 2013, 

raising the same 21 claims that he had presented in his subsequent state 

habeas application. The district court denied relief and denied a COA. Barbee 

v. Stephens, No. 4:09-CV-074-Y, 2015 WL 4094055 (N.D. Tex. July 7, 2015). 

The district court also denied Barbee’s motion to alter or amend the judgment. 

Barbee v. Stephens, 2015 WL 5123356 (N.D. Tex. Sept. 1, 2015). Barbee timely 

appealed.

II. Discussion of Claims

Barbee requests a COA from this court for the following claims:

(1) Trial counsel had a conflict of interest;

(2) Trial counsel rendered ineffective assistance at the guilt-innocence

phase by confessing his guilt to the jury during closing argument without his 

permission; and

(3) Trial counsel rendered ineffective assistance at the punishment 

phase by (a) presenting the testimony of prison consultant Susan Evans; (b) 

failing to present mitigating evidence; and (c) failing to present evidence of 

head injuries and drug abuse.

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Barbee contends further that he was denied due process when the 

district court relied on extra-record evidence to discredit one of his declarants 

in its order denying Barbee’s motion to alter or amend the judgment.

In order to obtain a COA, Barbee must make a “substantial showing of 

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district 

court has rejected the constitutional claims on the merits, the showing required 

to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that 

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). With respect to claims dismissed on procedural grounds, the 

petitioner must show both “[1] that jurists of reason would find it debatable 

whether the petition states a valid claim of the denial of a constitutional right 

and [2] that jurists of reason would find it debatable whether the district court 

was correct in its procedural ruling.” Id.

When “reviewing [a] request for a COA, we only conduct a threshold 

inquiry into the merits of the claims [the petitioner] raise[s] in his underlying 

habeas petition.” Reed v. Stephens, 739 F.3d 753, 764 (5th Cir. 2014) (citing 

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). This “threshold inquiry” is not 

a “full consideration of the factual or legal bases adduced in support of the 

claims,” but rather “an overview of the claims in the habeas petition and a 

general assessment of their merits.” Miller-El, 537 U.S. at 336. In generally 

assessing the claims for relief in a COA application, “[t]he question is the 

debatability of the underlying constitutional claim, not the resolution of that 

debate.” Id. at 342. And “in a death penalty case, ‘any doubts as to whether a 

COA should issue must be resolved in [the petitioner’s] favor.’” Ramirez v. 

Dretke, 398 F.3d 691, 694 (5th Cir. 2005) (alteration in original) (quoting 

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

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For the reasons that follow, we DENY a COA for claims (1) and (3), 

because reasonable jurists would not debate the district court’s denial of relief 

as to those claims. We also hold that the district court did not abuse its 

discretion by citing extra-record evidence in its order denying Barbee’s motion 

to alter or amend the judgment.

Because this is a death penalty case and we are to resolve in Barbee’s 

favor any doubts as to whether a COA should issue, we GRANT a COA for 

claim (2). Barbee may file a supplemental brief with respect to the merits of 

that claim within thirty days of the date of this order. The supplemental brief 

should address only matters, if any, that have not already been covered in his

brief in support of the COA application. If Barbee files a supplemental brief, 

the State may file a response twenty days thereafter, to be similarly limited to 

matters that have not already been covered in its brief in opposition to Barbee’s 

COA application.

We now turn to address Barbee’s claim of actual innocence and the 

claims for which we deny a COA.

A. Actual Innocence

Barbee claims that he is actually innocent. He explains that this is a 

“gateway” claim through which any of his otherwise procedurally barred claims 

may be considered on the merits. 

Barbee contends that Ron Dodd, who was living with Barbee’s ex-wife 

Theresa, committed the murders and framed Barbee so that Dodd could take 

over Barbee’s businesses. He maintains that his confession was coerced by 

police threats of the death penalty, and Dodd’s threats to harm his family. 

Barbee admits that he helped Dodd conceal the bodies. He argues that trial 

counsel failed to take any reasonable steps to establish his innocence or to 

investigate the possibility that Dodd had committed the murders.

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Barbee’s version of the facts is set out in his 2010 declaration: Lisa 

wanted Barbee to tell his new wife, Trish, about Lisa’s pregnancy. Barbee 

wanted Lisa to have DNA testing to confirm his paternity. On the evening of 

Friday, February 18, 2005, Barbee asked Dodd to accompany him to Lisa’s 

house. Dodd drove Barbee to Lisa’s house and then left to have dinner with 

Theresa. Barbee later called Dodd to pick him up, and they returned to 

Theresa’s house. When they got there, Dodd asked if Barbee wanted Dodd to 

talk to Lisa about getting a DNA test, and Barbee agreed. They drove back to 

Lisa’s house. Barbee stayed in Dodd’s truck while Dodd entered Lisa’s house. 

Dodd came out after 15-20 minutes and said, “Your problems are solved, go get 

her truck.” Barbee went to the door of Lisa’s house and Dodd left. When 

Barbee went into the house, he saw Lisa and Jayden dead. He panicked 

because he thought he was going to be blamed. He dragged Lisa into the 

garage and put her and Jayden’s bodies in her vehicle and drove away. He 

called Dodd, who met him at a deserted place and helped him remove the 

bodies from the vehicle. Dodd threw a shovel to Barbee and left. After burying 

the bodies, Barbee called Dodd, who agreed to pick him up on the highway. 

While on the way to meet Dodd, Barbee was stopped by a deputy sheriff. He 

gave the deputy a false name and fled. He met Dodd and they returned to 

Theresa’s house where Theresa washed Dodd’s clothing.

As the district court noted, in his federal habeas petition Barbee listed 

the following as evidence of his innocence and Dodd’s guilt:

(1) A 2010 declaration from Theresa’s father, Jerry Dowling, in which he 

stated that his son, Danny Dowling, told him that Dodd had said right after 

the murders that he had to punch Lisa in the face 25–26 times before she went 

down.

(2) The same quote from Jerry Dowling, repeated in the 2010 declaration 

of Tina Church, an investigator. Although Danny Dowling later stated that 

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Barbee, not Dodd, had made that statement, Church said that would have been 

impossible because Danny had not been in contact with Barbee at that time.

(3) Theresa’s statement to Church that Dodd had his clothes washed at 

4:00 a.m. on Saturday, February 19, and Dodd’s admission that he powerwashed his vehicle that morning.

(4) A 2010 declaration from Jennifer Cherry, Barbee’s niece, in which she 

stated that Theresa had said how much she hated Barbee and wanted him 

gone, and that Theresa had said in Dodd’s presence that she wished Barbee 

would just die and that there had to be a way to get him out of the office.

(5) Dodd’s status as a parolee for aggravated assault, and his 

cohabitation with Theresa, who stood to gain the businesses as well as half a 

million dollars upon the demise of Barbee, and Dodd’s arrests or convictions 

for the misdemeanor offenses of telephone harassment, driving with a 

suspended license, failure to appear, criminal mischief, unauthorized use of a 

motor vehicle, and assault.

(6) 2010 declarations by Barbee’s mother, Jackie, in which she stated 

that soon after the murders, Theresa had Barbee sign over the businesses to 

Theresa, that Dodd was instrumental in causing a serious head injury to 

Barbee about a month before the murders, and that prior to the murders, 

Theresa had changed a $500,000 company bonding policy to a life insurance 

policy naming herself as the sole beneficiary.

(7) Church’s 2010 confirmation of Theresa and Dodd’s financial motive 

to have Barbee out of the way.

(8) Evidence of financial misdeeds by Theresa which were related to trial 

counsel, as described in the affidavit of mitigation specialist Amanda Maxwell.

(9) There was no forensic evidence connecting him to the murder.

Barbee submitted with his federal habeas petition the following 

character evidence as proof of his actual innocence:

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(1) A 2010 declaration from the father of his best friend in middle school 

stating that Barbee was well-behaved.

(2) A 2010 declaration from Barbee’s aunt, who said she has always 

known Barbee to walk away from any kind of confrontation.

(3) A 2010 declaration from a girlfriend of Barbee’s former roommate, 

who said she never saw Barbee angry, that he was crazy about Trish’s children, 

and it was hard to believe he was guilty.

(4) A 2010 declaration from his cousin stating that she did not believe 

Barbee was capable of such an act and that she believed him when he 

proclaimed his innocence to her.

Finally, he described in his federal habeas petition the following evidence 

of the falsity of his confession:

(1) His 2010 declaration, that his confession was false because the police 

had threatened him with the death penalty.

(2) A 2010 declaration from his niece, Jennifer Cherry, stating that 

Barbee told her he confessed because Dodd had threatened to hurt his family.

(3) A 2010 declaration from the author of a book about the murders, 

Lethal Charmer, stating that Barbee told her he confessed because Dodd 

threatened to hurt his family.

(4) A 2005 letter to trial counsel from false confession expert, Dr. Richard 

Leo, stating that Barbee maintained that the confession was coerced, the 

circumstances surrounding the bathroom confession were unusual, and the 

police selectively turned the recording device off and on.

In order to demonstrate actual innocence to excuse a procedural default, 

the petitioner must offer new, reliable evidence not presented at trial that 

establishes that, more likely than not, no reasonable juror would have found 

the petitioner guilty beyond a reasonable doubt. Schlup v. Delo, 513 U.S. 298, 

327 (1995). The innocence determination is based on a consideration of “all the 

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evidence, old and new, incriminating and exculpatory, without regard to 

whether it would necessarily be admitted” at trial. House v. Bell, 547 U.S. 518, 

538 (2006) (internal quotation marks omitted).

The district court began its analysis by describing the incriminating 

evidence in the record: Barbee was stopped by a deputy sheriff on the night of 

the murders about 300 yards from where the victim’s vehicle was later found; 

he was wet and muddy below the waist, gave a false name, and fled on foot. 

Two days later, Barbee led the police to the place where the victims were 

buried. Lisa’s business partner confirmed that Lisa had been in a relationship 

with Barbee and believed that he was the father of her unborn child. Barbee 

confessed to the police that he murdered Lisa because she was going to ruin 

his marriage to Trish. He explained that Dodd had dropped him off at Lisa’s

house to pick a fight with her, but she would not take the bait. Dodd picked 

him up and asked if they needed to hire a hitman. Barbee said no, he could do 

it, and Dodd took him back to Lisa’s house, where he started a fight with her, 

punched her in the nose, and held her face down in the carpet until she stopped 

breathing. He said that when Jayden came into the room, he put his hand over 

Jayden’s nose and mouth until the child stopped breathing. He put both bodies 

in Lisa’s vehicle and drove them to a deserted area where he buried them 

together and said a prayer. He admitted to the police that he had tried to clean 

the house and had covered a blood stain on the floor with a piece of furniture.

The district court pointed out that the quotation that Barbee had 

described in his habeas petition as a portion of a letter from Dr. Leo was not in 

fact part of that letter. The court noted that Dr. Leo actually concluded that 

Barbee’s confession was “far more likely to be true than to be false” because 

Barbee led the police to the bodies, Dodd had no motive to murder Lisa, Barbee 

did not recant his confession when his wife, Trish, came into the interrogation 

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room, and Barbee told his ex-wife, Theresa, that he had committed the 

murders.

The district court then described its review of the recording of Barbee’s 

conversation with his wife, Trish, in the police station immediately after he 

had confessed:

It begins with Trish, visibly shocked, stating, “You killed her? You 

killed her? Friday night?” and asking how Barbee did it. Barbee 

replies, “I held her down too long.” He says that Lisa called and 

threatened him for months, and states at various times that he 

“made a bad decision,” “it was an accident,” and he “can’t take it 

back.” Trish silently calculates that Lisa was eight months’ 

pregnant, that she and Barbee were dating eight months ago, and 

asks, “Why did you cheat on me?” and “How could you sleep with 

me and sleep with her?” She asks Barbee what she should tell his 

mom and dad. Barbee states that his life is over and he will “lose 

everything now.” Near the end, he states that he is “so glad” he 

told her because it would have eaten him alive. She sits in 

Barbee’s lap throughout most of the recording, holding his head, 

with Barbee’s arms wrapped around her.

The district court found that a reasonable juror could “conclude that their 

unconstrained crying, moaning, hyperventilating, and Barbee’s repeated 

expressions of regret and anxiety are genuine.”

The district court also pointed to Theresa’s testimony that Barbee had 

confessed to her the night after he had confessed to the police, but the following 

day, in the presence of his family, he said that they “had it all wrong,” and that 

he did not do it. 

The district court then turned to the evidence and argument that Barbee 

presented in support of his claim of innocence. It rejected Barbee’s contention 

that the State’s theory made little sense because he could not have “singlehandedly placed the pregnant 166-pound Lisa in her SUV,” noting that it was 

refuted by Barbee’s own 2010 declaration in which he stated: “I dragged Lisa, 

who weighed about 170 pounds, into the garage and placed her in the 

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Durango.” The court stated that Barbee’s claim of innocence made little sense 

because it did not account for the fact that Dodd could not have known that 

Barbee would confess.

The district court found that the character evidence that Barbee 

submitted was not sufficient to show that no reasonable juror would have 

found him guilty beyond a reasonable doubt.

The district court stated that Barbee had presented no authority that the 

double-hearsay statements made by Danny Dowling to Tina Church and to 

Jerry Dowling are trustworthy evidence contemplated by Schlup. The district 

court pointed out that Danny Dowling had attributed the statement “I had to 

hit [her] 25-26 times” to Barbee as well as to Dodd and that he ultimately could 

not remember who said it. Furthermore, when Dowling first saw the “Amber 

Alert” for the missing victims, he said to himself, “That’s probably something 

that [Barbee] would do.”

The district court stated that the fact that Dodd washed his clothing and 

power-washed his vehicle immediately after the murders did not negate 

Barbee’s involvement or necessarily prove that Dodd did anything more than 

help Barbee dispose of the bodies.

The court stated that Barbee’s headaches and the head injury caused 

when Dodd dropped the pipe on his head would not prove Barbee did not 

commit murder. Instead, such evidence provided an excuse for wrongdoing 

and is therefore inconsistent with a claim of actual innocence.

The court held that the evidence of financial misdeeds by Theresa, the 

purported motive for Dodd to commit murder, was not new, because Amanda 

Maxwell had reported it to trial counsel. Even assuming Dodd and Theresa 

had financial reasons to want Barbee out of the way, it was Barbee, not Dodd, 

who had the motive for wanting Lisa out of the way, because she was 

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demanding that he tell Trish about her pregnancy even though she refused to 

take a paternity test.

The district court stated that the post-conviction declarations by a book 

author and Barbee’s acquaintances that Barbee had confessed only because he 

was threatened merely repeated information originating from Barbee himself 

and are therefore neither new nor objectively reliable.

The district court stated that even if Barbee’s evidence were considered 

“new,” it was not the sort of compelling evidence required by Schlup. The court 

characterized Barbee’s theory of innocence as unsound and in conflict with his 

own declaration. Considering all the old and new evidence, both incriminating 

and exculpatory, without regard to its admissibility, the district court 

concluded that Barbee had failed to demonstrate that, more likely than not, no 

reasonable juror would find Barbee guilty beyond a reasonable doubt.

In its order denying Barbee’s motion to alter or amend, the district court 

stated that Barbee’s argument that his counsel should have presented a “Dodd 

did it” theory failed to acknowledge that there were no witnesses to say “Dodd 

did it” because Barbee refused to testify. The court pointed out that Dodd’s 

actions on the night of the murder were not those of a person trying to frame 

Barbee for murder, nor were Barbee’s actions those of a person who fears he is

being framed. The court stated that Danny Dowling was not a reliable witness 

to Barbee’s asserted innocence. It pointed out that Danny did not submit an 

affidavit. Instead, Barbee relied on Church’s description of what Danny told 

her. Although it was obvious from Church’s declaration that she believed 

Danny when he incriminated Dodd but did not believe Danny when he 

incriminated Barbee, the court found that based on Church’s report, Danny 

was a vacillating witness who ultimately could not remember whether Dodd or 

Barbee made the incriminating remark. Furthermore, Danny also made a 

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separate statement indicating he believed that the victims’ disappearance was 

“probably something that [Barbee] would do.”

Barbee argues that his theory of innocence does not depend on Dodd 

knowing that Barbee would later confess. He asserts that he would have been 

the prime suspect even if he had not confessed, because he was known to have 

been romantically involved with Lisa; he believed and told Dodd that Lisa may 

have been pregnant with his child; and he was in trouble with his wife because 

of his extramarital affairs. He contends that Dodd, knowing all of this, did not 

have to foresee that Barbee would confess in order to have a reasonable belief 

that an attempt to frame Barbee would be successful. He claims that when he 

helped Dodd conceal the bodies, he was unaware of Dodd’s intention to frame 

him for the murders. He argues that, to the extent the district court denied 

the actual innocence claim based on its dismissal of Danny Dowling as a 

vacillating witness, that holding is debatable, because the district court 

ignored Church’s explanation that Dowling could not have been referring to 

Barbee because he had not been in contact with Barbee at the time.

The evidence that Barbee offers as proof of his actual innocence, 

considered together with the evidence of his guilt, fails to establish that, more 

likely than not, no reasonable juror would have found him guilty beyond a 

reasonable doubt. Accordingly, we hold that the district court did not err when 

it held that actual innocence cannot serve as a gateway for consideration of the 

merits of Barbee’s procedurally defaulted claims.

B. Claim 1 – Conflict of Interest

Barbee contends that his lead counsel, Bill Ray, received a large number 

of probation revocation appointments from Judge Gill, the trial judge in 

Barbee’s case, based on a secret understanding that Ray would move the cases 

rapidly through the court process. According to Barbee, Judge Gill’s 

appointment of Ray to represent Barbee in the capital murder case was made 

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with the same understanding that Ray would move the case quickly, either by 

having Barbee plead guilty or by putting up only a minimal defense. Barbee 

argues that Ray’s financial interest in continuing to receive court 

appointments from Judge Gill created a conflict of interest that caused Ray to 

pressure him to plead guilty, fail to move for a change of venue despite 

prejudicial pretrial publicity, fail to investigate his innocence, confess his guilt 

to the jury, and fail to present significant mitigating evidence. Barbee asserts 

that there was no strategic reason for any of these failures and, therefore, the 

only reasonable explanation is that Ray and his co-counsel, Moore, wanted to 

move the case quickly through Judge Gill’s court so that they would keep 

getting lucrative court appointments from Judge Gill.

As we have earlier noted, the TCCA remanded Barbee’s conflict of 

interest claim to the trial court for an evidentiary hearing. We will now 

describe the evidence presented at that hearing.

Amanda Maxwell, the defense mitigation expert, testified that she 

obtained medical records which showed that Barbee had suffered a series of 

head injuries, had attempted suicide, and had been diagnosed with bipolar 

disorder. His most recent head injury occurred shortly before his arrest. He 

and Dodd were working on a site and Dodd dropped a 400-pound metal pipe on 

Barbee’s head, splitting his hard hat. He was knocked to the ground and taken 

to the hospital. Maxwell testified that Barbee experienced a lot of pain and 

suffered intense migraines following that injury and began taking hydrocodone 

that had been prescribed for his wife. She said that Barbee told her it made 

him itch all over and kept him wide awake at night. Maxwell thought this 

history of drug use was of significant mitigating value, primarily due to the 

reaction he had to it. 

Maxwell told trial counsel about hallucinations that Barbee was 

experiencing in jail (seeing spiders crawling on the walls). Maxwell felt that 

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Barbee’s history of head injuries could be of significant mitigating value at the 

punishment phase and recommended to defense counsel that a functional MRI, 

a CT scan, and a neuropsychological evaluation be conducted. Trial counsel 

did not respond to her recommendation.

Maxwell testified that she found out that Barbee’s ex-wife, Theresa, who 

was living with Ron Dodd at the time, had come to the jail and told Barbee that 

his DNA was all over the crime scene (which was not true) and that he had 

better sign over both businesses to her or the State would take them. Maxwell 

also found out that Theresa had been embezzling funds from the business and 

that she owed tens of thousands of dollars to Jackie Barbee. 

Maxwell testified that defense counsel were pressuring Barbee to plead 

guilty and that was always the overriding issue at all of their meetings. 

Maxwell stated that Ray and Moore had conveyed to her that they found 

Barbee disgusting because he cried. She said that Ray wanted the case to be 

done and to close the books on it. After the case was over he said, “we will all 

end up in federal court answering for this case.”

Maxwell completed her mitigation report at the end of January 2006 and 

delivered it to Ray. She never heard from him again. Ray had hired another 

investigator to re-interview all of the witnesses that she had previously 

interviewed.

Maxwell testified that she was present at trial. In her opinion, the 

mitigation testimony that was presented was not effective. Maxwell had 

prepared a document entitled “Crime Week Stressors,” that was not presented 

at trial. It included the following: Barbee was about to default on a tree job 

because his employees had quit; one of his employees had been drinking and 

wrecked one of his tree trucks; he had caught Theresa stealing from the 

company and gotten into an argument with her about it; his wife Trish 

threatened to leave him unless he collected the divorce settlement from 

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Theresa and took control of his business; he learned that his father was dying 

of colon cancer; and he was having migraine headaches and severe pain, for 

which he was taking a large amount of hydrocodone. 

On cross-examination, Maxwell admitted that some of the crime-week 

stressors could have also been aggravating. She acknowledged that she had 

learned both good and bad things about Barbee and that there were some 

negative things that Ray would not want to place before the jury. She was 

aware that Barbee’s mother was very unhappy with Ray and Moore and that 

his mother had a lifelong pattern of running interference for Barbee, including 

paying for his past acts of vandalism and theft. Maxwell stated that she had 

interviewed Barbee’s friend, Jeff Boyd, who provided negative information 

about Barbee regarding acts of vandalism and setting fires. Boyd also told her 

that Barbee had told him about pouring gasoline on baby hamsters and setting 

them on fire when he was a pre-teen.

 Maxwell testified that she interviewed Tim Davis on November 12, 

2005. She felt that the interview was very prejudicial, so she did not include 

that information in the Psychosocial History Report she prepared for defense 

counsel. According to Maxwell, Barbee and Davis were the victims of a road 

rage incident in which they were attacked by the two men in the other vehicle. 

She said that Davis did not tell her that Barbee had attempted to kill the driver 

of the other vehicle. However, she acknowledged that her report to Ray about 

the interview states that Davis said that Barbee “had no off button” and that 

“[w]hen he got started he didn’t know how to stop.” Further, Davis said that 

he had to pull Barbee off the older man to keep him from hurting the man “real 

bad.”

Maxwell admitted that she had provided Ray and Moore with 

information about Barbee’s girlfriends and a secret cell phone that he used to 

call another woman while he was married to Theresa. She also gave them 

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information about his behavioral problems in school, and his poor impulse 

control due to his ADHD diagnosis. Maxwell considered Barbee’s acts of 

vandalism to be youthful mischief, or a grief reaction to the loss of his brother 

and sister. She considered his robbing of a bait-and-tackle store, his breaking 

into a concession stand, and his breaking of 47 windows at a school to be acts 

of teenage mischief.

Tim Davis testified at the state habeas evidentiary hearing that he and 

Barbee were best friends and co-workers for eight to ten years and that he was 

the best man at Barbee’s wedding to Theresa. He described Barbee as easygoing, friendly, and respectful of others. He was not called to testify at trial but 

if he had been, he would have given his opinion that Barbee will not be a future 

danger to society. He said that Maxwell’s report of her interview of him in

2005 was not truthful and twisted his words regarding the “road rage” incident. 

He described the incident, which occurred in 1996 or 1997, as follows: The 

highway was icy; he and Barbee were in the right lane going slow; a truck with 

two people came up behind them, and then swerved into them and ran them 

off the road; the two men got out of the truck and approached; he and Barbee 

got out to defend themselves; it was a simple fistfight and no one was hurt; the 

other men were the aggressors, and the police were not called. Davis testified 

that this is the only incident where he saw Barbee get physical with anyone. 

He said that he did not tell anyone on the defense team that Barbee had 

attempted to kill the driver of the other vehicle, as stated in counsels’ joint 

affidavit presented in the initial state habeas proceeding.

Calvin Cearley, a pastor of a church Barbee attended, testified that he is 

married to Nancy Cearley, who testified at trial. He was not contacted by 

defense counsel. He testified that Barbee loved animals and children, and was 

polite and respectful. Had he been called as a witness at trial, he would have 

testified that Barbee would not be likely to commit future acts of violence.

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Nancy Cearley, Calvin Cearley’s wife and co-pastor, testified at the 

evidentiary hearing that Barbee was the children’s church leader and the 

children loved him. She described him as easy-going, friendly, very likeable, 

polite, and respectful. When she testified at trial, Barbee’s attorneys did not 

ask her anything about his character. If she had been asked, she would have 

testified that he is not likely to commit future acts of violence.

Mike Cherry testified at the evidentiary hearing that he was married to 

Barbee’s older sister Kathy, who died at age 20. Barbee’s older brother, David, 

also died at age 20, in a car accident. Barbee was close to his sister and brother 

and was devastated by their deaths. Cherry never saw Barbee physically 

abuse Theresa. He never talked to Barbee’s attorneys, but would have been 

willing to testify at trial that Barbee is very reserved and can control himself. 

He only saw Barbee get into one fight, with a belligerent, drunk man who was 

behaving inappropriately in front of children at a party and refused to leave.

Jennifer Cherry, Barbee’s niece (the daughter of Kathy and Mike 

Cherry), testified at the evidentiary hearing that she and Barbee are very close 

and that Barbee is more like a brother than an uncle to her. Barbee was very 

playful, always wanted to make her laugh, spoiled her, and took care of her. 

When he ran the children’s church program, the kids loved him. She testified 

that she worked as Theresa’s assistant at the Barbees’ concrete cutting 

business from 2002–2004. She said that Theresa paid personal bills with 

company money, and deposited large sums of cash. She heard Theresa say 

that she wished Barbee would die, and also heard her claim falsely that Barbee 

had hit her. She was aware that Theresa and Barbee had borrowed money 

from Barbee’s parents and that Theresa was still in debt when the murders 

occurred. She said that Barbee’s trial attorneys were not interested in what 

anyone in the family had to say and did not prepare her to testify. Had she 

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been asked, she would have testified at trial that Barbee would not be likely to 

commit future acts of violence.

Sharon Colvin, who knew Barbee from church, testified at the 

evidentiary hearing that Barbee was friendly, jovial, and had a really good 

attitude. She talked to Barbee’s attorneys shortly after he was arrested, and 

would have been willing to testify at trial, but was not asked to do so. Had she 

been asked, she would have testified that Barbee would not be likely to commit 

future dangerous acts.

Robert Gill, the trial judge (who was at that time an assistant criminal 

district attorney), testified at the evidentiary hearing that he appointed Ray in 

a lot of probation revocation cases in his court. He liked to appoint Ray because 

Ray prepared the cases and was available on Friday afternoons, when Gill 

liked to schedule revocation hearings. He admitted that a newspaper article 

had reported that a federal judge had criticized the way he handled plea 

bargaining in the revocation cases and had found that Ray rendered ineffective 

assistance in one revocation case. He admitted that Ray had contributed $1000 

to his campaign and that Moore had contributed $300. He testified that he did 

not interfere with Ray and Moore’s defense of Barbee and that there was no 

agreement between him and Ray about how Ray was to handle Barbee’s case.

Barbee’s mother, Jackie Barbee, testified at the evidentiary hearing that 

Ray and Moore came to her house once and talked to her on the telephone a 

couple of times prior to trial. Maxwell came to her house several times to 

discuss Barbee’s background and education, but very little of her work was 

presented to the jury. Mrs. Barbee testified that Barbee is a giver and has a 

very loving heart, is a hard worker, was involved with the church, and was in 

Sunday school since he was three years old. When she called Barbee to wish 

him a happy 20th birthday, he cried and said it was the worst day of his life. 

She realized that he thought he would die at age 20 because his only sister and 

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brother had each died at that age. She said that Barbee’s problem at school 

was that he loved to be funny and make people happy. He had some trouble 

completing his GED. She helped him and Theresa financially, loaning them 

money to buy a house and build a cabana. When Barbee and Theresa divorced, 

he let her have everything. Theresa still owed her money.

Mrs. Barbee testified that Ray and Moore wanted to show her the 

recording of Barbee’s confession, but she refused to watch it. They said they 

might be able to save Barbee’s life if he would plead guilty. She testified that 

she would have liked to have been able to tell the jury that Barbee had a very 

strong sense of right and wrong, but his lawyers told her to just answer the 

questions. She was shocked when Ray told the jury that Barbee was guilty. 

She heard, later on, about the road rage incident involving Tim Davis and 

thought it “was no big deal.” She was aware of Barbee’s breaking windows at 

the school, but was not aware of his involvement in the robbery of a fish and 

bait shop or breaking into a concession stand. Had she been asked, she would 

have testified that Barbee would not be a future threat to anyone. She 

described Barbee as “broken” after his lawyers visited him in jail.

William Ray, Barbee’s lead counsel at trial, testified at the evidentiary 

hearing that about 70–80 percent of his criminal practice in four counties was 

court-appointed, and that 25–75 percent of his court-appointed practice came 

from Judge Gill’s court. Ray earned $710,000 from his court-appointed work 

in Judge Gill’s court from 2001–2007. He testified that making contributions 

to judges’ campaigns was common practice and that he had contributed to the 

campaigns of more than ten judges in Tarrant County. He testified that he did 

not have any agreement or understanding with Judge Gill as to how he was to 

represent Barbee. He said that Judge Gill did not place any limitations on his 

handling of the defense, did not deny any requests for experts, and did not 

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make any threats, either implied or direct, that Ray would not receive future 

appointments.

Billing records introduced as exhibits at the hearing showed that Ray 

and Moore billed the court for 350 and 260 hours of out-of-court time, 

respectively. Ray hired Kathy Minnich as an investigator and when she moved 

out of state, he replaced her with Stanley Keaton. Amanda Maxwell was hired 

as the mitigation specialist. Ray hired as experts two forensic psychologists, a 

forensic psychiatrist, an expert on false confessions, a computer investigator, 

and a DNA expert.

According to Ray, the theory of the defense at the guilt-innocence stage 

was that Barbee should be acquitted of capital murder (he was charged with 

the intentional killing of more than one individual during the same criminal 

transaction) because the killing of Lisa Underwood was an accidental, 

unintended consequence of her advanced pregnancy. He said that when he 

talked to the medical examiner, he was told that because Lisa was pregnant, 

it would not take a lot of force to keep her from being able to breathe because 

the baby was taking up a part of her stomach and her diaphragm could not

move. Because Barbee refused to testify, Ray felt this was the only option 

available to him. The defense strategy at the punishment phase was to show 

that the Texas prison system was able to handle violent offenders and that 

Barbee could live peacefully in prison. In support of that theory, he offered 

good-character and social-history testimony from Barbee’s relatives and 

friends, testimony about prison security from a prison classification expert, 

and testimony about Barbee’s good behavior in jail from the bailiff.

Ray testified that he and Moore considered a motion for change of venue, 

but he did not believe that the prejudice against Barbee would have been worse 

in Tarrant County than anywhere else. He said it has been his experience that 

when you have a change of venue, if you go to somewhere outside the area, the 

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people in the town get the impression that whoever you are trying is such a 

notorious criminal that he is actually not treated as fairly there.

Ray testified that he attempted to investigate Barbee’s claim of actual 

innocence and his claim that Dodd committed the murders. He obtained 

Dodd’s criminal records. He was aware that Dodd had served time for 

aggravated assault and talked to the victim of that offense. He was also aware 

that Dodd had dropped a pipe on Barbee’s head. Ray obtained cell phone 

records through the use of sealed subpoenas. Those records showed that 

Barbee had placed a call to Dodd at 1:47 a.m. on the night of the murders, 

initiated from a cell tower near the Underwoods’ home. Those records also 

showed that Barbee had placed calls to Dodd from a cell tower near the location 

where the bodies were found.

Ray testified that presenting a defense based on a theory that Dodd 

committed the murders was made difficult by Barbee’s confessions to the 

police, his wife, and his former wife, by his refusal to testify, by Dodd invoking 

his Fifth Amendment right not to testify, by Dodd’s lack of a motive for killing 

the victims, and by the lack of credibility in a motive based on Dodd framing 

Barbee. Although Barbee was steadfast in maintaining his innocence after he 

recanted his confessions, he had two or three different theories of how it 

happened. In a letter that Barbee wrote to Ray about his confession to the 

police, Barbee stated that both of the murders were accidental. The first time 

Ray met with Barbee in person, Barbee told Ray he did not commit the 

murders. Ultimately, Barbee said he was not there at all, that Dodd did it, and 

he only helped Dodd conceal the bodies. 

Ray did not think he could prove that Dodd had a motive to kill the 

victims. He said that he would have wanted someone better than Barbee’s 

niece to testify that Theresa was embezzling money from the businesses. The 

financial motive evidence was weak, he said, because Dodd was already living 

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with Theresa in Barbee’s former home, and Barbee and Theresa were already 

divorced. Other than Barbee, who refused to testify, the defense had no way 

to show that Dodd had a motive to commit the murders. He did not want to 

call Theresa as a witness because he thought if she testified, she would repeat 

what she had told him—that Barbee simply “snapped” on the day of the 

murders. Ray’s biggest concern with the “Dodd did it” theory was that it did 

not take into consideration the fact that Barbee would confess. 

Ray was aware that Donald Painter, a prisoner in the Tarrant County 

Jail, was willing to testify that Dodd had admitted that he committed the 

murders. However, Ray’s investigation revealed that Painter had agreed to 

give that testimony in exchange for a promise of payment from Barbee. 

Although Ray thought the payment was Painter’s idea, he said that calling 

Painter as a witness would have been a bad idea.

Ray denied that he pressured Barbee to plead guilty. He testified that 

he recommended that Barbee consider a plea because Barbee’s confessions 

made an innocence defense difficult. In any event, the State never offered a 

plea deal. Ray said that he attempted to get Barbee’s family to view Barbee’s 

recorded confession because they refused to believe that Barbee had confessed. 

Ray explained that he was not trying to convince them that Barbee was guilty, 

but only trying to demonstrate to them that the confessions were a problem.

At Barbee’s request, Ray retained false-confession expert, Dr. Leo. Dr. 

Leo’s report was not favorable to the defense because he concluded that 

Barbee’s confession was more likely to be true than false. According to Ray, 

Dr. Leo’s opinion was based on three things: (1) Barbee’s leading the police to 

the bodies; (2) Dodd’s lack of a motive; and (3) the fact that Barbee did not 

recant his confession when his wife, Trish, came into the room after he had 

confessed to the police.

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Ray testified that he consulted with three mental health professionals: 

psychologists Dr. Kelly Goodness and Dr. Barry Norman, and psychiatrist Dr. 

James Shupe. He did not get any impression from any of them that a 

neuropsychological examination, as recommended by Amanda Maxwell, 

needed to be done.

Dr. Goodness examined Barbee and found no significant symptoms of 

head injury, no indication that Barbee had bipolar disorder, and no long-term 

or significant hydrocodone abuse. Dr. Goodness thought that Barbee had 

Lyme’s Disease, which can cause mood swings that mimic bipolar disorder, as 

well as rage and violent tendencies. Ray did not think Dr. Goodness’s 

testimony would be helpful to the defense. Dr. Shupe examined Barbee and 

his probable diagnosis was bipolar disorder and polysubstance abuse; some 

social stressors; history of closed-head injuries; and anti-social personality 

disorder. Dr. Shupe thought that Barbee was fixated on how his mother would 

view him and how it would kill her if she thought he had killed the 

Underwoods. Ray did not believe Dr. Shupe’s testimony would be helpful. Dr. 

Norman examined Barbee twice and found that he suffered some mild 

depression, but did not think anything was wrong with Barbee, mentally, as a 

result of his head injury. Ray said that if the defense had called one of the 

mental health experts to testify, the State would have been entitled to have 

Barbee examined by its own expert, who would probably reach the same 

harmful conclusions that the defense experts reached.

Ray testified that he decided not to present evidence of Barbee’s head 

injuries because none of the doctors found anything wrong with Barbee as a 

result of those injuries. Moreover, evidence of the head injuries, migraine 

headaches, and hydrocodone use would suggest a reason why Barbee 

committed the murders and undermine his claim of innocence. Ray said that, 

even at the punishment phase, he generally did not believe that “excuse” 

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evidence helped the client when the jury has just rejected the innocence 

defense and found the client guilty. Ray knew that the defense punishment 

witnesses were going to say that they believed that the jury had wrongly 

convicted Barbee, and he thought it would be inconsistent to offer evidence that 

excused the murders.

Ray testified that he did not call Tim Davis as a character witness 

because of the “road rage” incident. Ray thought the prosecutor was very well 

prepared and thought it likely that the prosecutor might know about that 

incident, as well as some other things that Barbee had allegedly done. 

Maxwell’s report to Ray about her interview of Davis stated:

Tim recollected that one day some men on the highway got angry 

because Steve had cut them off. The men gave them the finger and 

cut in front of their truck motioning them to pull over. Steve said 

“watch this.” Steve pulled over on the median as did the two men. 

It turned out to be an older man and his son. They walked back to 

Steve’s truck and reached in hitting Tim and Steve. They all ended 

up on the shoulder fighting. Tim said he had to pull Steve off of 

the old man to keep him from hurting him really bad. Then Steve 

started in on the son. Tim pulled Steve off of him as well and the 

two men left in Steve’s truck. Steve had managed to grab the keys 

to the two men’s truck. Steve threw them out the window about 

two miles down the road. “Steve had no off button. When he got 

started he didn’t know how to stop.” Tim had seen Steve fight on 

a couple of other occasions. “He could take care of himself.” Tim 

also said that Steve was stronger than two men put together. He 

could lift a tree stump that two men together couldn’t lift.

Ray testified that he met with Davis in his office on February 20, 2006, and 

Davis’s story did not differ from what Maxwell had reported. Although 

Maxwell stated in her report and in her testimony that she still thought Davis 

would be a good witness for Barbee, and although Davis had testified at the 

hearing that he did not say the things that Maxwell put into her report, Ray 

felt that it would be “malpractice or ineffectiveness, per se” to call Davis as a 

witness.

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Ray testified that he did not present any other lay opinion testimony 

regarding Barbee’s lack of future dangerousness, because that would have 

opened the witnesses up to cross-examination about whether they had heard 

of Barbee’s prior bad acts. In addition to the “road rage” incident involving 

Tim Davis, Ray had information that Barbee had engaged in acts of vandalism 

and theft, had poured gasoline on baby hamsters and set them on fire, had 

killed an animal when on a date, and had offered to pay Painter to testify that 

Dodd had confessed to the murders.

Ray testified that what he was trying to show through Evans’s testimony 

is that the prison system has the ability to react to inmate violence and had a 

way to take care of the problem if Barbee were to violate the rules. He also 

presented evidence that Barbee was going to be able to conform to the prison 

policies because he had not caused any trouble in the Tarrant County Jail. Ray 

said that if the jury had believed that, it would have been sufficient to negate 

the State’s ability to prove future danger beyond a reasonable doubt.

Tim Moore, Ray’s co-counsel, testified that he had been appointed by 

Judge Gill in two or three cases at the time of Barbee’s trial, and had made 

campaign contributions to Judge Gill, as well as to every other criminal judge 

in Tarrant County. He testified that Judge Gill did not limit or direct how they 

conducted Barbee’s defense and made no threats about withholding future 

appointments. 

Moore’s testimony generally corroborated Ray’s testimony with regard to 

their decision not to file a motion for a change of venue, their investigation of 

Barbee’s claim of innocence and his claim that Ron Dodd committed the 

murders, their reasons for wanting Barbee’s family to view his videotaped 

confession, the reasons for their decision not to call Tim Davis as a witness and 

not to present testimony about Barbee’s lack of future dangerousness, their 

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reasons for not presenting evidence of head injuries, headaches, and 

hydrocodone use, and Barbee’s refusal to testify.

Dr. Stephen Martin did not testify, but his written statement submitted 

with Barbee’s initial state habeas application was admitted into evidence. Dr. 

Martin conducted a neuropsychological evaluation of Barbee in 2007 and found 

frontal lobe damage that would have likely increased Barbee’s impulsive 

tendencies and reduced his ability to fully consider the consequences of his 

actions. In his opinion, trial counsel were ineffective by not presenting the 

testimony of an expert such as himself at the punishment phase of Barbee’s 

trial.

Dr. J. Randall Price, a psychologist, testified for the State. He reviewed 

all of the records and concluded that no expert had found evidence that Barbee 

had suffered a brain injury. He said that Dr. Martin’s test results were scored 

incorrectly and did not suggest brain impairment or frontal lobe impairment 

when scored correctly. He pointed out that three mental health professionals 

conducted face-to-face evaluations of Barbee close to the time of trial and none 

of them saw evidence of a brain injury. There was material that could have 

been harmful to the defense if Dr. Martin had been called to testify. Although 

the psychosocial history contained considerable evidence that was mitigating, 

it also contained descriptions of past behaviors that were signs of aggression 

and violence. There were descriptions and characterizations of personality 

traits that would suggest poor control of his behavior, impulsivity, 

irresponsibility, and failure to accept responsibility for his actions. There was 

also a lot of evidence of juvenile delinquency—animal cruelty, vandalism, and 

stealing, from the age of early adolescence until the age of 20. Barbee was 

described as being cocky and arrogant. Dr. Price said that those kinds of traits 

are typically offered as aggravation and would likely be viewed by a jury as 

aggravating.

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The state habeas court made the following findings with respect to 

Barbee’s conflict of interest claim. Judge Gill did not have any arrangement 

with Ray or Moore about how they would handle Barbee’s defense, did not 

threaten to withhold future appointments if Ray and Moore did not handle 

Barbee’s defense in a certain manner, and did not inhibit or interfere with their 

defense of Barbee. Trial counsels’ decision not to seek a change of venue, and 

their decisions about which witnesses and evidence to present, were not 

influenced by their relationship with Judge Gill, but were reasonable tactical 

decisions. Their decision to rely on a theory that Lisa Underwood’s death was 

accidental rather than a “Dodd-did-it” theory, was a matter of reasonable 

professional judgment because the Dodd-did-it theory was not consistent with 

other evidence of Barbee’s guilt and would have been difficult because Barbee 

refused to testify. Their efforts to defend Barbee were harmed by Barbee’s 

changing version of events and his refusal to testify. Their decision not to 

present evidence regarding mental health, head injuries, and Barbee’s use of 

hydrocodone was a reasonable tactical decision because the defense experts did 

not find any mental-health related evidence that would have aided the defense, 

Barbee lacked significant symptoms from head injuries, and Barbee did not 

have a history of long-term drug abuse. Tim Davis’s testimony about the “road 

rage” incident at the hearing was not credible. Ray and Moore did not elicit 

testimony from the defense’s punishment phase witnesses about Barbee’s low 

risk of committing future violent acts because they were worried that the 

prosecution might have known of the road rage incident and would use it to 

impeach their witnesses. This was a reasonable tactical decision in the light 

of their knowledge of Barbee’s past violence, and was not due to their 

relationship with Judge Gill. The court concluded that there was no evidence 

of a conflict of interest; that Ray and Moore did not advance their own interests 

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to the detriment of Barbee’s; and that their strategic and tactical decisions 

were not influenced by their relationship with Judge Gill.

To succeed on his conflict of interest claim, Barbee had to show that “an 

actual conflict of interest adversely affected” trial counsels’ performance. 

Cuyler v. Sullivan, 446 U.S. 335, 348–49 (1980); Beets v. Scott, 65 F.3d 1258, 

1271 (5th Cir. 1995). An “actual conflict” exists when counsel “is compelled to 

compromise his or her duty of loyalty or zealous advocacy to the accused by 

choosing between or blending the divergent or competing interests.” Perillo v. 

Johnson, 205 F.3d 775, 781 (5th Cir. 2000). An “adverse effect” requires proof 

that “‘some plausible alternative defense strategy or tactic’ could have been 

pursued but was not because of the actual conflict impairing counsel’s 

performance.” Id.

The district court stated that Barbee did not argue that the state court’s 

decision is unreasonable in the light of the evidence but rather, “he picks and 

chooses from the facts in the record to support his claim and simply disagrees

with the state-court ruling.” The district court, after reviewing all of the 

evidence, concluded that Barbee failed to demonstrate that the state court’s 

decision was based on an unreasonable determination of the facts. The district 

court held that Barbee failed to establish the existence of an actual conflict 

that forced counsel to choose between their self-interest and their duty to 

Barbee and that he did not present evidence that there was a plausible 

alternative defense strategy or tactic that could have been pursued but was not 

because of the alleged conflict. Accordingly, Barbee failed to show that the 

state court decision was based on an unreasonable application of clearly 

established federal law.

We conclude that reasonable jurists would not debate the district court’s 

decision that Barbee failed to demonstrate an actual conflict of interest that 

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adversely affected trial counsels’ performance. We therefore DENY his request 

for a COA for this claim. 

C. Claim 3, Ineffective Assistance of Counsel at Punishment Phase

Barbee requests a COA for his claims that trial counsel rendered 

ineffective assistance at the punishment phase of trial by (a) presenting the 

testimony of prison consultant Susan Evans; (b) failing to present mitigating 

evidence; and (c) failing to present evidence of head injuries and drug abuse. 

Barbee did not raise claim 3(a) in his first state habeas application. When he 

presented it in his second state application, the TCCA dismissed it as abusive. 

Barbee presented Claim 3(b) in his initial state habeas application, but 

enlarged it, factually and legally, in his subsequent state habeas application, 

and the TCCA dismissed it as abusive. Barbee presented Claim 3(c) in his 

initial state habeas application, and the TCCA denied relief on the merits.

The IATC claims that were dismissed as an abuse of the writ by the 

TCCA are procedurally defaulted, and federal review is barred unless Barbee

can show cause for the default and actual prejudice as a result of the alleged 

violation of federal law, or that the failure to consider the claims will result in 

a fundamental miscarriage of justice (which requires that he show he is 

actually innocent of the crimes for which he was convicted). See Coleman v. 

Thompson, 501 U.S. 722, 750 (1991); Sawyer v. Whitley, 505 U.S. 333, 339–40 

(1992).

For the ineffective assistance claims not presented in his initial state 

habeas application, which the state court found abusive, Barbee claims that he 

is entitled to the exception to procedural default established in Martinez v. 

Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013). 

In Martinez, the Supreme Court held that a petitioner may establish cause to 

excuse the procedural default of an IATC claim by showing that (1) his state 

habeas counsel was constitutionally deficient in failing to include the claim in 

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his first state habeas application; and (2) the underlying IATC claim is 

“substantial.” 132 S. Ct. at 1318. For a claim to be “substantial,” the petitioner 

“must demonstrate that the claim has some merit.” Id. An IATC claim is 

“insubstantial” if it “does not have any merit” or is “wholly without factual 

support.” Id. at 1319. 

To establish ineffective assistance of his initial state habeas counsel, 

Barbee must show both that habeas counsel’s performance—in failing to 

present the IATC claims in the first state habeas application—was deficient 

and that he was prejudiced by the deficient performance—that is, that there is 

a reasonable probability that he would have been granted state habeas relief 

had the claims been presented in the first state habeas application. See

Martinez, 132 S. Ct. at 1318; Strickland v. Washington, 466 U.S. 668, 687 

(1984). The Strickland standard also applies to Barbee’s underlying IATC 

claims.

Under Strickland, “the proper standard for attorney performance is that 

of reasonably effective assistance.” 466 U.S. at 687. “[T]he defendant must 

show that counsel’s representation fell below an objective standard of 

reasonableness.” Id. at 688. 

Judicial scrutiny of counsel’s performance must be highly 

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

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

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

proved unsuccessful, to conclude that a particular act or omission 

of counsel was unreasonable. A fair assessment of attorney 

performance requires that every effort be made to eliminate the 

distorting effects of hindsight, to reconstruct the circumstances of 

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

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

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

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

reasonable professional assistance; that is, the defendant must 

overcome the presumption that, under the circumstances, the 

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challenged action might be considered sound trial strategy. There 

are countless ways to provide effective assistance in any given 

case. Even the best criminal defense attorneys would not defend a 

particular client in the same way.

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

With respect to the duty to investigate,

strategic choices made after thorough investigation of law and 

facts relevant to plausible options are virtually unchallengeable; 

and strategic choices made after less than complete investigation 

are reasonable precisely to the extent that reasonable professional 

judgments support the limitations on investigation. In other 

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

make a reasonable decision that makes particular investigations 

unnecessary. In any ineffectiveness case, a particular decision not 

to investigate must be directly assessed for reasonableness in all 

the circumstances, applying a heavy measure of deference to 

counsel’s judgments.

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

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

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

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

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

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

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

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

770, 789–90 (2011). Barbee’s trial counsel, as well as his state habeas counsel, 

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

balance limited resources in accord with effective trial tactics and strategies.” 

Id. at 789.

To demonstrate prejudice, Barbee “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 

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sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 

694. “The likelihood of a different result must be substantial, not just 

conceivable.” Richter, 131 S. Ct. at 792 (citation omitted). This showing is 

intentionally difficult to satisfy: “In assessing prejudice under Strickland, the 

question is not whether a court can be certain counsel’s performance had no 

effect on the outcome. . . . Instead, Strickland asks whether it is ‘reasonably 

likely’ the result would have been different.” Id. at 791–92 (citations omitted).

Even if Barbee can establish that ineffective assistance of his initial state 

habeas counsel constitutes cause for the default of his IATC claims, “[a] finding 

of cause and prejudice does not entitle [him] to habeas relief. It merely allows 

a federal court to consider the merits of a claim that otherwise would have been 

procedurally defaulted.” Martinez, 132 S. Ct. at 1320. 

The district court held that Claim 3(a) is not substantial and therefore 

the exception to the procedural bar does not apply. Alternatively, the district 

court denied relief on the merits. With respect to Claim 3(b), the district court 

observed that much of the evidence adduced in the subsequent habeas 

proceeding on Barbee’s conflict of interest claim was also relevant to an 

evaluation of counsels’ representation with respect to the mitigating evidence 

claim. The district court concluded that the evidence and the claims developed 

in the initial and subsequent state proceedings overlapped, making it 

impractical, if not impossible, to parse the claims and the facts between them. 

Accordingly, in the interest of addressing counsels’ representation thoroughly 

and conclusively, the district court resolved Claim 3(b) by looking past any 

procedural default and reviewing the claim on the merits, de novo.

Because the district court addressed the merits of Barbee’s procedurally 

defaulted IATC claims, it is arguable that Barbee has received the relief 

available to him under Martinez and Trevino. See Preyor v. Stephens, 537 F. 

App’x 412, 422 (5th Cir. 2013). We now turn to consider whether reasonable 

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jurists would debate the district court’s decision that Barbee’s IATC claims are 

without merit.

1. Claim 3(a) – Presentation of Evans’s Testimony

At the punishment phase, the defense presented the testimony of Susan 

Evans, a former Texas prison warden, for the purpose of supporting counsels’ 

argument that Barbee could successfully serve a life sentence. At the state 

habeas evidentiary hearing, Ray testified that he was trying to show that the 

prison system has the ability to react to the violence of inmates, that people on 

death row are not the only people who have committed violent acts and are not 

the only people who commit violent acts in prison, and that the prison has a 

system in place to take care of those kind of problems, which are a very small 

percentage of infractions, considering the inmates housed there. 

As the district court noted, Evans’s testimony occupies over 90 pages of 

the trial transcript. The district court summarized her testimony as follows:

Evans explained the qualifications and training of prison 

employees, their defensive tactics and training, “use of force” 

policies, and ongoing testing. She stated that prison employees are 

professionals trained to handle any type of offender and any type 

of situation. (26 RR 3-32.) She described the prison classification 

system and explained that Barbee, if given a life sentence, would 

never be classified in the least-restrictive category (G1) and would 

have to serve 10 years before he could be eligible for G2. (26 RR 

33-43.) She described the restrictions and privileges related to 

various levels of security. She testified that the inmates serving 

life sentences are not always the worst inmates because they are 

in a controlled environment with less stressors, and she testified 

that people in prison mellow with age. (26 RR 72.) She also 

testified that prison rules change over time and often become more 

restrictive, not less, and that the prison does its best to recognize 

and address developing patterns among offenders. (26 RR 92-93.)

Barbee argues that trial counsel were ineffective in presenting Evans’s 

testimony because Evans emphasized prison violence and repeatedly pointed 

out the hazards and risks of placing Barbee in general population, which gave 

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the jury reasons to choose the more secure death row where such incidents can 

be minimized and controlled, rather than a life sentence in general population. 

Barbee claims that Evans’s testimony about riots, disturbances, hostage 

situations, assaults on prison officers, gangs in the prison system, 

inappropriate sexual relations between staff and inmates, sexual assaults, 

extortion, escapes (including the escape of the “Texas Seven” from the Connally 

Unit, which ended in the killing of a police officer), and the fact that bad things 

happen even though there are policies and procedures in place to prevent them, 

is frequently presented by the prosecution in Texas capital cases to show that 

death row is the most safe and secure placement. According to Barbee, a jurist 

who read Evans’s complete testimony, without having been informed which 

side presented it, would reasonably surmise that she was a prosecution 

witness.

The district court observed that Barbee’s argument “picks and chooses 

unidentified fragments of Evans’s testimony on direct and cross examination 

and presents them in a list, out of context.” The court noted that Barbee failed 

to acknowledge the overall strategy for Evans’s testimony, which was to show 

that Barbee could successfully serve a life sentence, and what that life sentence 

would be like. In its opinion denying Barbee’s motion to alter or amend, the 

district court reiterated that under trial counsel’s direct examination, Evans 

presented an overall picture of the prison disciplinary and classification 

system, the reality of prison violence, and the steps taken to deal with that 

violence, which focused on employee training. She also testified that 

murderers often make the best inmates because the triggering circumstances 

do not repeat themselves in prison. The court reasoned that if trial counsel 

had failed to acknowledge the violence in prison, as Barbee suggests, the 

prosecution surely would have done so on cross-examination, with a greater 

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impact on the jury. Further, it may have led the jury to think that counsel 

were uninformed or trying to hoodwink the jury.

We conclude that reasonable jurists would not debate the district court’s 

decision. A complete reading of Evans’s testimony, rather than the snippets 

Barbee has chosen to present, supports the district court’s decision that Barbee 

failed to present a substantial ineffective assistance claim based on his 

disagreement with counsel’s strategic decision to present Evans’s testimony.

2. Claim 3(b) – Failure to present mitigating evidence

Next, Barbee requests a COA for his claim that trial counsel were 

ineffective by failing to present mitigating evidence and evidence of his lack of 

propensity for future dangerousness. He contends that counsels’ admission 

that they did not ask the defense punishment witnesses about future 

dangerousness because of the “road rage” incident does not excuse their failure 

to investigate whether their potential witnesses knew of it. He contends that 

the jury could have drawn an adverse inference from the fact that none of the 

defense witnesses at the punishment phase were asked to address specifically 

the future dangerousness issue. He argues that given his lack of an arrest 

record, there is a likelihood of a different result had the evidence been 

investigated and presented. 

Although Barbee’s claim that trial counsel rendered ineffective 

assistance in failing to present mitigating evidence was fully litigated on the 

merits in Barbee’s initial state habeas proceeding, the state habeas court 

allowed Barbee to present similar evidence at the evidentiary hearing on the 

conflict of interest claim in the subsequent state habeas proceedings, to show 

the impact of the alleged conflict of interest on counsels’ representation. The 

district court correctly noted that much of the evidence adduced at the state 

habeas evidentiary hearing on Barbee’s conflict of interest claim, discussed in 

Part II.B., was also relevant in evaluating the mitigating evidence claim. 

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Thus, consideration of this claim requires an examination of all of the evidence 

presented at trial and in the initial and subsequent habeas proceedings. That 

evidence is described below.

a. Evidence Presented at the Punishment Phase of Trial

At the punishment phase, the State called Barbee’s ex-wife, Theresa. 

She testified that Barbee had assaulted her four times during their marriage. 

She also testified about a road-rage incident when Barbee followed another car 

to a dead end street and assaulted the driver. She described an argument on 

July 4, 2003, in which Barbee threatened, as he had in the past, to put her 

through a wood chipper. She hit him, and he left. She testified that the 

businesses were in debt and about how she had Barbee sign them over to her 

after he was arrested. She testified that after she and Barbee divorced, she 

began dating Dodd, who worked for Barbee. Dodd eventually moved into her 

house. She said that Dodd was arrested and faced twenty years of 

imprisonment for his involvement in this case.

Theresa testified that on the Sunday morning after Lisa’s disappearance, 

she saw Barbee at their office and told him that the police had been at her 

house asking about him, his Corvette, and a girl he used to date who was 

missing. She said that he cried, said that his life was over, and told her to get 

the businesses out of his name. She asked him to turn himself in and not make 

her call the police. She talked to Barbee again on the Monday night after he 

had confessed to the police, and he told her that he did not mean to kill Lisa 

and Jayden. She asked him about Dodd’s involvement, and he told her Dodd’s 

mistake was picking him up. A day or two later, she visited him in jail with 

his family, and he told her that she had it all wrong, that he did not do it. 

Theresa said that she visited Barbee in jail every week for about seven months. 

On her last visit, he held up a piece of paper saying they could get back together 

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and try to have a baby. He asked her to say that Dodd had “slipped” and was 

guilty of the murders.

On cross-examination, Barbee’s counsel elicited testimony that Barbee 

was close to his brother and sister, both of whom were dead, and that he had 

tried to commit suicide while he and Theresa were married. Theresa conceded 

that she had told the grand jury that she did not take seriously Barbee’s 

threats to put her through the wood chipper and that she had told the grand 

jury they had three, not four, fights during their marriage. She admitted that 

not all of the fights were Barbee’s fault, and that some of the blame was hers. 

She also testified about the stressors Barbee was facing the week of the 

murders: he was upset because he had just learned that his father had colon 

cancer; he had been having horrible headaches after being struck in the head 

by a pipe; he was fighting with her and fighting with Trish; and they were 

having problems with the businesses. She described their work as children’s 

church leaders, including presenting puppet shows and raising money for the 

church. She said Barbee was good with the children, that the program grew 

under their leadership, and that “it was a wonderful thing.”

The State’s second witness at the punishment phase was Marie 

Mendoza, Barbee’s former co-worker. She testified that Barbee called her 

frequently and claimed that he was not married. She believed him until, 

during one of their last conversations, she overheard a female voice in the 

background. She had asked him for an estimate to trim some trees at her 

home. Instead of giving her an estimate, he trimmed the trees. When he called 

a few days later, she told him she did not want a relationship with him and 

offered to pay for the work that he had done. He became verbally abusive, and 

she had no more contact with him. She thought he was a very mean, cruel 

person and that he had no respect for women.

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 The first witness for Barbee at the punishment phase was Pastor Nancy 

Cearley. She testified that she had known the Barbee family since 1989 and 

had officiated at Barbee and Theresa’s wedding. Barbee and Theresa became 

leaders of the children’s program at the church and served for about three 

years, growing the program from 10–15 children to 75–80 children. She never 

had any complaints from parents about Barbee. On cross-examination, she 

testified that she did not believe he had killed Lisa and Jayden Underwood.

Barbee’s mother, Jackie Barbee, was the next witness. She testified that 

he lost his only sister when he was 14 and his only brother when he was 16. 

Both of them were 20 years old when they died. Barbee “shut down” after his 

brother died and did not graduate from high school, but obtained his GED. She 

described an incident when he and his brother were planning to make money 

by mowing lawns, but came home with nothing, because they had mowed a 

yard for “a poor little old lady” without charging her. Barbee wanted to become 

a police officer, so he went to community college and took courses. He worked 

as a reserve police officer for the Blue Mound Police Department for two and 

one-half years. She testified that he was a hard worker and described how he 

started his tree-trimming business after cutting down a tree in her yard that 

had been struck by lightning. Later, he hired Theresa to help with the business 

because she needed money and he felt sorry for her. Theresa paid the bills and 

Barbee did all the work. Mrs. Barbee said that she and her husband, who was 

undergoing chemotherapy, visited Barbee in jail every week. She testified that 

they would continue to support him when he goes to the penitentiary. She told 

the Underwood family that Barbee and she and her husband were very sorry 

and that she knew their pain because she had been there when she lost her 

daughter, who was pregnant when she died. She said that she wanted them 

to be forgiving and not bitter.

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Barbee’s aunt, Mary Hackworth, testified that Barbee visited her in 

South Carolina and stayed with her for three or four months while he was 

looking for a job, before he got his GED. She said that she loves Barbee dearly 

and was there to support him, notwithstanding her doctor’s order not to travel.

Barbee’s niece, Jennifer Cherry (the daughter of his deceased older 

sister), testified that she and Barbee are very close, that he is more like a 

brother than an uncle, and that she loves him with all her heart. She said that 

whether he ends up on death row or with a life sentence, she would do anything 

she could to maintain contact with him.

Ashley Vandever testified that she met Barbee in church when she was 

13 and they were good friends for about four years, until she moved away. Her 

younger sister adored Barbee and he was the reason she looked forward to 

going to church. She testified that she visits him in jail every week because 

she loves him, and that he made her feel better every time she visited him.

Denise Morrison, a former girlfriend, testified that she became 

romantically involved with Barbee after his divorce. They talked about getting 

married, but Barbee wanted a child and she did not. They have remained close 

friends and she visited him at the jail almost every weekend. On crossexamination, she admitted that she became romantically involved with Barbee 

before he was divorced. She also testified that she did not believe he committed 

the murders.

Following Evans’s testimony, described previously in Part II.C.1., 

Christy McKemson, the former girlfriend of Barbee’s former roommate, 

testified that she visited her ex-boyfriend every weekend for about three 

months while he was living with Barbee. She was there to support Barbee.

Jerry Jones, a confinement officer for the Tarrant County Sheriff’s 

Department, testified that he dated Barbee’s sister in high school and played 

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baseball with his brother. He is a friend of Barbee’s parents, who are people 

of strong faith, but this case has tested their faith and affected their health.

David Derusha, the court bailiff, was the final witness for Barbee. He 

testified that he was primarily responsible for transporting Barbee between 

the jail and court each day. He said that Barbee had not been a problem and 

had not made any threats.

In rebuttal, the State called Bruce Cummings, Jayden Underwood’s 

soccer coach. He identified Jayden in a photograph of the team.

In closing argument, the State focused on the circumstances of the 

offense, Barbee’s violent and manipulative behavior with Theresa, and his 

cruelty to his former co-worker. The prosecutor argued that the circumstances 

of the murders are overwhelming evidence that there is a probability that 

Barbee will commit more criminal acts of violence. The prosecutor told the jury 

that a simple paternity test could have prevented the crime, but Barbee did

not wait, because violence is how he handles his problems.

Barbee’s counsel, Moore, presented the following argument. The State 

did not meet its burden of proving beyond a reasonable doubt that Barbee 

would be a continuing threat to commit criminal acts of violence in the 

penitentiary. Punishment based on revenge has no place in the law. It can be 

guaranteed that Barbee had no criminal history because if it existed, the State 

would have presented it. Barbee was 37 years old when it happened and for 

three hours, he was not a very nice human being. But there were 36 years 

before that when he was not violent. He was raised in a good family with 

hardworking parents. He lost his brother and sister and that set him back, 

but he overcame it, got his GED, was a police officer, started a successful 

business, and was a contributing member of society. Barbee has not caused 

any problems while in jail, and he will continue to behave well in the 

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penitentiary. Barbee will be almost 80 years old before the parole board can 

even consider the possibility of releasing him. 

Ray argued that Barbee’s leading the police to the bodies so that they 

could have a decent burial, after he had already confessed, was mitigating 

because it reduces his moral blameworthiness. He reminded them of Evans’s 

testimony that people who have killed are often the best prisoners because the 

triggering circumstances do not repeat themselves in prison, and argued that 

is the case with respect to Barbee.

b. Evidence Presented in the Initial State Habeas Proceeding

In his initial state habeas proceeding, Barbee presented the statements 

of Amanda Maxwell, Dr. Stephen Martin, Nancy Cearley, and Jackie Barbee; 

and Dr. Goodness’s report.

Maxwell’s statement covers essentially the same information that she 

testified about in the state habeas evidentiary hearing, described previously in 

Part II.B. Dr. Martin’s statement was also described previously in Part II.B.

In her statement, Nancy Cearley said that if she had been asked whether 

Barbee would be a future threat to society, her answer would have been a 

definite no. Jackie Barbee’s statement covers essentially the same information 

that she testified about at the state habeas evidentiary hearing, described in 

Part II.B. She said that if she had been asked whether her son would be a 

future threat to society, her answer would have been “of course not—never.”

In her report to Barbee’s trial counsel, Dr. Goodness described 

discussions with corrections officers who told her that Barbee had done nothing 

to be a problem during his incarceration and that they believed it unlikely that 

he would be any sort of a security problem within a structured penal 

institution. She noted that Barbee’s medical records indicated that he had 

been diagnosed with Lyme’s disease, which causes rages and mood swings that 

mimic bipolar disorder, but is treatable with antibiotics. She observed that 

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Barbee’s mother had assisted him in remaining immature and emotionally 

dependent upon her. Dr. Goodness stated that Barbee did not appear to have 

significant symptoms suggestive of a head injury, that she did not believe he 

has a bipolar mood disorder, and that his use of hydrocodone does not suggest 

long-term significant abuse. She identified as secondary themes of mitigation 

his lack of a criminal history, “good guy” information, and his parents’ ill 

health.

The state habeas court also had before it the joint affidavit of Ray and 

Moore. In their affidavit, counsel stated that they had tried to show that 

Barbee had acted in a fit of rage and that such anger was rare. They knew of 

other incidents of violence in Barbee’s past and tried to keep that evidence from 

the jury. Their affidavit contains essentially the same information that they 

later testified about at the state habeas evidentiary hearing, which has been 

described previously in Part II.B. Counsel attached to their affidavit Amanda 

Maxwell’s notes regarding her interview of Tim Davis about the road rage 

incident.

The state habeas court found that counsels’ actions were reasonable, that 

counsel offered reasonable mitigating evidence and tried to limit damaging 

evidence, and that counsel presented as thorough and positive a mitigation 

case as possible. It found, however, that counsels’ efforts were undercut by 

Barbee’s unwillingness to accept responsibility for his actions. The TCCA 

adopted the trial court’s findings and conclusions and denied the claim on the 

merits.

c. Evidence Presented in the Second State Habeas Proceeding

In his second state habeas application, Barbee presented additional 

declarations attesting to mitigation evidence that could have been presented. 

In his COA application, he described this evidence as follows:

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His mother, Jackie Barbee, if she had been properly prepared, could have 

offered detailed information about Barbee’s reading comprehension problems 

and academic struggles, his grief at the deaths of his sister and brother, his 

service as a reserve police officer, his hard work at his businesses, a serious 

head injury caused by Ron Dodd just a few months prior to his arrest, his 

suicidal ideation in jail, his history of severe migraine headaches, which were 

a factor in his “confession”, the motivation of Ron Dodd and Theresa to blame 

the murders on him, and his lack of a history of violence.

Bobby Boyd, former Assistant Superintendent of the Azle Independent 

School District, and his wife, Sallie, could have testified to Barbee’s good 

character and low probability of committing future dangerous acts.

Mandy Carpenter, who had known Barbee for 21 years, could have 

testified to his non-violent character, generosity, lack of anger, and low risk of 

future dangerousness.

In addition to the testimony that she gave at trial, Barbee’s niece, 

Jennifer Cherry, could have testified about Barbee’s non-violent nature and 

Theresa’s aggressiveness, Theresa’s embezzlement from Barbee’s company, 

Theresa’s romantic involvement with Ron Dodd and her wishing for Barbee’s 

death, and Barbee’s leadership of the church children’s program, including 

putting on puppet shows for the children. In her declaration, Cherry stated 

that she felt that trial counsel were not interested in what any of them had to 

say, and that they did not prepare her to testify. Had she been asked her 

opinion of the likelihood of Barbee committing future acts of violence, she 

would have testified that the risk was low.

Tina Church, an investigator, offered her services, without charge, to 

trial counsel, but Ray refused. Church stated in her declaration that she 

thought trial counsel were more interested in having Barbee plead guilty than 

in investigating his innocence or mitigating evidence. Church stated that she 

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discovered that Theresa had changed the company bonding policy to a life 

insurance policy for which she was the beneficiary.

Pastor Calvin Cearley did not testify at trial, but if he had been called, 

he would have told the jury that Barbee was very congenial, honest, caring, 

respectful of others, very friendly and outgoing, kind and loving, and that he 

liked to make people laugh. His wife, Nancy, the former co-pastor of the church 

that Barbee attended, testified at trial, but could have provided much more 

detail about Barbee’s activities with the church children’s group. She stated 

in her declaration that he was a very hard worker, dedicated to his job, and the 

children loved him. She felt that trial counsel were just going through the 

motions, because they did not question her in depth about her knowledge of 

Barbee’s character, family, efforts for the church, and non-violent nature. If 

asked, she would have testified that she never knew him to commit any acts of 

violence and she did not think he would be likely to do so.

Mike Cherry, Barbee’s brother-in-law, could have testified to Barbee’s 

non-violent nature and his love of animals and children, and could have 

testified that Barbee was not likely to commit violent acts in the future.

Sharon Colvin, another pastor, was not contacted by the defense. She 

could have testified to Barbee’s friendly, jovial and non-violent nature and 

would have testified that Barbee probably would not be a future danger.

Tim Davis, Barbee’s former business partner and his best friend, was not 

asked to testify. He could have discredited Theresa’s testimony about Barbee’s 

violence and told the jury about Barbee’s low propensity for future 

dangerousness. 

Jerry Dowling could have testified to Barbee’s family tragedies, good 

character and work ethic. He also could have testified that Barbee would not 

be a future threat to anyone.

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Mary Hackworth, Barbee’s aunt, testified at trial, but was not asked 

about the death of his brother and sister and his good and generous character. 

She could have testified that he was a hard worker, was fond of animals, was 

always a gentleman around women, that children loved him, and that he would 

not be likely to commit future violent acts.

Christy Mackemson testified at trial, but she was not asked about 

Barbee’s positive rapport with children. She could have testified that she never 

saw him angry and did not think he had a high risk of committing future acts 

of violence.

Melody Novak was not called to testify at trial, but would have been 

willing to testify about Barbee’s good character and devastation at the death 

of his brother and sister. She could have testified that Barbee loved children 

and they loved him, and that he would not be a future danger to society.

At the state habeas evidentiary hearing on the conflict of interest claim 

that Barbee presented in his subsequent habeas application, the state court 

received testimony from Amanda Maxwell, Tim Davis, Calvin Cearley, Nancy 

Cearley, Mike Cherry, Jennifer Cherry, Sharon Colvin, and Jackie Barbee, 

which was described previously in Part II.B. All of them testified that they 

were not asked about the likelihood that Barbee would commit future violent 

acts, but if they had been asked, they would have said he did not pose a danger.

As we previously noted in the discussion of the conflict of interest claim

in Part II.B., Ray testified at the state habeas evidentiary hearing that he did 

not call Tim Davis as a character witness because of the “road rage” incident, 

and did not present any other lay opinion testimony regarding Barbee’s lack of 

future dangerousness, because that would have opened the witnesses up to 

cross-examination about whether they had heard of Barbee’s prior bad acts. In 

addition to the “road rage” incident involving Tim Davis, Ray had information 

that Barbee had engaged in acts of vandalism and theft; had poured gasoline 

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on baby hamsters and set them on fire; had killed an animal when on a date;

and had offered to pay an inmate, Donald Painter, to testify that Dodd had 

confessed to the murders.

d. The District Court Decision

The district court held that Barbee could not show that trial counsel 

rendered ineffective assistance by failing to present the testimony of Bobby 

and Sallie Boyd because Mrs. Boyd stated in her declaration that she was 

asked to testify at trial but declined, and Mr. Boyd did not state in his 

declaration that he was available and would have testified at trial.

The district court rejected Barbee’s challenge to trial counsel’s 

justification for not calling Tim Davis as a witness, based on the statement in 

their joint affidavit that Davis said that Barbee had “attempted to kill” the 

driver of the other vehicle. The district court stated that counsel’s choice of 

words describing Barbee’s behavior as an “attempt to kill,” even if inaccurate, 

did not undermine their decision not to call Davis as a witness. Maxwell had 

reported to counsel that Davis told her that Barbee had no “off button” and 

that Davis had to pull Barbee off the old man to keep Barbee from hurting the 

man “really bad.” The court stated that counsel could reasonably decide not to 

risk exposing the jury to evidence that demonstrated Barbee’s confrontational 

and aggressive nature, especially in the light of Theresa’s testimony about a 

similar road rage incident on their first wedding anniversary, because the jury 

would be unlikely to view two such similar events as anomalies.

The district court held that Barbee’s contention that trial counsel should 

have asked the punishment witnesses their opinion about Barbee’s propensity 

for future dangerousness overlooked the fact that the witnesses could have 

been impeached with good-faith questions about their knowledge of Barbee’s 

extraneous bad acts, including the road-rage incident, Barbee’s setting baby 

hamsters on fire with gasoline, vandalism of a school building, stealing from a 

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bait-and-tackle store and a concession stand, fire-setting, theft of jewelry and 

other items from a locker room, killing an animal while on a date with Michelle 

Cook, and bribing another inmate, Donald Painter, to testify that Dodd had 

confessed. The court pointed out that as a result of counsels’ strategy, the jury 

did not learn about his acts of vandalism, theft, and animal cruelty, and 

counsel were able to argue to the jury that Barbee had no criminal history and 

was not a juvenile delinquent.

The district court stated that Barbee’s criticism of trial counsel for not 

investigating whether the defense witnesses knew about the road rage incident 

involving Davis demonstrated a failure to understand Texas law. Whether the 

defense witnesses knew about the incident was beside the point; if the 

prosecution knew about it, the State would have been entitled to ask them 

about it and the jury would have heard the damaging questions. Any witness 

who maintained the opinion that Barbee was not a future danger could have 

been impeached as either (1) uninformed, because he did not know Barbee’s 

true behavior, or (2) biased, because he knew about the behavior but it did not 

affect his opinion. Third, and arguably worse, the witness might have changed 

his opinion after learning of the prior bad acts on cross-examination.

With respect to Dr. Goodness, the district court noted that the record did 

not show that Dr. Goodness believed Barbee presented a low risk of future 

dangerousness. Even assuming she had that opinion and so testified, however, 

she would have been subject to potentially damaging cross-examination about 

Barbee’s bad acts. Also, it would have allowed the State to have its own expert 

evaluate Barbee, which counsel did not want to allow, because it would have 

provided an opportunity for the State to obtain a damaging diagnosis or learn 

harmful things about Barbee’s past. The district court held that Barbee had 

failed to show that counsels’ decision to avoid an evaluation by the State’s 

expert was outside the wide range of reasonable professional assistance.

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The district court observed that some of the information that Barbee 

claimed trial counsel should have presented regarding his good character, his 

stable family, the loss of his siblings, head injuries, suicidal ideation, the crimeweek stressors that Barbee faced, and the negative character evidence about 

his ex-wife, Theresa, was more of the same information the jury heard at trial. 

It cited Fifth Circuit precedent holding that courts must be “particularly wary 

of arguments that essentially come down to a matter of degrees. Did counsel 

investigate enough? Did counsel present enough mitigating evidence? Those 

questions are even less susceptible to judicial second-guessing.” Skinner v. 

Quarterman, 576 F.3d 214, 220 (5th Cir. 2009) (internal quotation marks and 

citation omitted). 

The district court characterized some of the mitigating evidence that 

Barbee criticized counsel for not presenting, such as the opinions of his family 

and friends that he is of good character and from a stable family, his academic 

struggles, the loss of his siblings through illness and a car accident, head 

injuries that no trial expert believed caused any brain damage, voluntary 

short-term hydrocodone abuse, and evidence discrediting Theresa, as only 

“mildly mitigating.” The court held that experienced counsel reasonably could 

have decided that the jury would not be impressed with an attempt to 

humanize Barbee with such evidence.

In addition, the district court noted that some of the declarations 

presented by Barbee contain harmful information that could have been 

brought out on cross-examination, such as evidence that reinforced the picture 

of Barbee as a man who did not commit himself in his relationships with 

women and supported the State’s theory of motive. For example, Barbee’s 

mother stated in her declaration that Barbee previously had a child with a coworker at the Blue Mound Police Department but gave up his parental rights.

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The district court rejected Barbee’s contention that trial counsel 

contradicted themselves in their joint affidavit by claiming that their efforts to 

prepare and present a defense were hampered by Barbee’s ever-changing 

version of the murders and his involvement in them, while stating in the same 

affidavit that Barbee consistently maintained his innocence from the 

beginning of their representation. The district court pointed out that counsel 

had to contend with Barbee’s prior inconsistent statements that were known 

to the prosecution regardless of whether they had been appointed to represent 

him when the inconsistent statements were made.

The district court concluded that Barbee had failed to show that counsel 

performed deficiently in presenting Barbee’s mitigation case at punishment. 

The court pointed out that counsel held the State to its burden of proof and let 

the lack of evidence speak for itself. Counsel capitalized on Barbee’s strongest 

argument for a life sentence, his lack of criminal history. Counsel guaranteed 

that Barbee had no prior convictions or juvenile history because the State did 

not offer any evidence of such. They argued that “three hours” did not define 

Barbee as a person, emphasizing the good people who had supported Barbee 

throughout the trial because they knew him as a different person, and 

summarizing the previous 36 years of his good family life, the tragedies he 

endured and overcame, his strong work ethic, and his involvement in the 

church. Counsel presented evidence and argument that Barbee behaved well 

in the jail and that he would be almost 80 years old before he was even eligible 

for parole.

The district court held that, even if it presumed deficient performance, 

Barbee failed to demonstrate a reasonable probability that the additional 

evidence Barbee presented post-conviction would have undermined confidence 

in the verdict. The court stated that it is “beyond reasonable” to conclude that 

the aggravating facts of the offense, in which Barbee took the life of a pregnant 

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woman, the seven-year-old son who came to her defense, and an unborn child 

who Barbee knew might be his own, greatly outweigh any mitigating effect of 

the additional evidence counsel allegedly overlooked. 

Barbee argues that even if the State had found out about the unreported 

road rage incident, it was not so threatening as to excuse trial counsels’ failure 

to present evidence regarding the lack of future dangerousness of a 38-yearold successful businessman with no criminal record. He maintains that 

because the prosecution did not present the “road rage” incident at trial or list 

it in any pretrial notice of aggravating evidence, the State either did not know 

about it or did not consider it to be aggravating. He contends that the district 

court’s rejection of this claim on the ground that presentation of mitigating 

evidence would be inconsistent with his claims of innocence is unreasonable, 

because his attorneys did not argue innocence but, instead, conceded his guilt 

and argued that the killing was accidental. Finally, Barbee argues that the 

district court’s inconsistency in praising counsel for relying on Barbee’s lack of 

criminal history, while citing Barbee’s violent past behavior to denigrate his 

argument that the witnesses should have been asked about future 

dangerousness, strongly suggests that the district court is biased.

Reasonable jurists would not debate the district court’s decision, and we 

therefore deny Barbee’s request for a COA for this claim. Barbee’s suggestion 

that the district court was biased overlooks the fact that his counsel probably 

would not have been able to rely on his lack of criminal history and juvenile 

delinquency if they had done what Barbee argues they should have done. If 

they had presented lay opinion testimony about Barbee’s low risk of 

committing future violent acts, the witnesses would have been subject to crossexamination about Barbee’s acts of theft, vandalism, and animal cruelty, which 

would have been very harmful to his case. 

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3. Claim 3(c) – Failure to present evidence of head injuries and drug 

abuse

Finally, Barbee requests a COA for his claim that trial counsel rendered 

ineffective assistance by failing to present evidence of head injuries and 

hydrocodone use at the punishment phase. He contends that such evidence 

would have been supportive of the defense argument that the killing of Lisa 

Underwood was accidental. He argues that trial counsels’ decision not to 

present this evidence because it was inconsistent with his claim of innocence 

is flawed, because innocent people suffer from head injuries, and an acceptance 

of responsibility has nothing to do with counsels’ duty to thoroughly and 

completely investigate and present mitigating evidence.

As support for this claim in his initial state habeas proceedings, Barbee 

submitted mitigation specialist Amanda Maxwell’s report in which she stated

that Barbee’s medical records showed a history of head injuries. The most 

recent was in January 2005, when Ron Dodd dropped a 400-pound metal pipe 

on Barbee’s head at a work site. The impact split his hard hat and resulted in 

a loss of consciousness. The frequency and intensity of his migraine headaches 

increased after that injury, and he began taking hydrocodone that had been 

prescribed for his wife. Barbee also supported the claim with a report from 

psychologist Dr. Kelly Goodness, who noted that Barbee had been diagnosed 

with Lyme’s Disease, and a letter from Dr. James Shupe, a psychiatrist, who 

suggested a probable diagnosis of “polysubstance dependence” and a “history 

of closed head injuries.”

In their affidavit, trial counsel said that they had discussed the 

information developed by Maxwell, Dr. Goodness, and Dr. Shupe, but 

concluded that the head-injury and drug-use evidence would have been 

mitigating only for a guilty man. They decided that the evidence would not be 

helpful because Barbee refused to accept any responsibility for the murders.

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Ray testified at the state evidentiary hearing that he did not believe that 

“excuse” evidence helped a client at the punishment phase, when the jury had 

just rejected the innocence defense and found the client guilty. Furthermore, 

Ray knew that the witnesses who were going to testify for Barbee at the 

punishment phase believed that the jury had wrongly convicted Barbee, and 

he thought it would be inconsistent with their testimony to offer evidence that 

suggested a reason why Barbee committed the murders.

The state habeas court held that trial counsels’ decision not to present 

evidence of Barbee’s head injuries and drug use was a reasonable tactical 

decision and was not adverse to Barbee’s interests, given Barbee’s lack of 

significant symptoms and his unwillingness to accept responsibility for the 

murders. It also concluded that he could not show prejudice.

The district court held that the state court reasonably could have decided 

that counsels’ decision not to present evidence of head injuries and 

hydrocodone use was within the bounds of reasonable professional 

representation. The district court rejected Barbee’s argument that evidence of 

his head injuries would have supported the accidental killing theory because 

trial counsel, who had the assistance of three mental health experts, had no 

evidence that Barbee was brain-impaired as a result of his head injuries. Dr. 

Shupe, a forensic psychiatrist, stated in a letter to counsel that Barbee had a 

history of closed head injuries, but that his failure to accept some responsibility 

for the offense impaired the use of that evidence for mitigation purposes. Dr. 

Shupe also stated that Barbee appeared to be “fixated” on how his mother 

would view him if she thought he was guilty, and had said he would rather be 

executed than have his mother see him plead guilty. Dr. Goodness reported to 

counsel that Barbee did not appear to have significant symptoms suggestive of 

a head injury and that his report of hydrocodone use did not suggest long-term 

significant abuse.

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The district court further noted that counsels’ theory that Lisa’s death 

was accidental was based on her physical state rather than Barbee’s mental 

state. Barbee’s trial counsel elicited testimony from the assistant medical 

examiner that Lisa’s airway would have likely been more obstructed because 

her uterus was “bigger than a basketball” and that she would have had less 

cardiovascular reserve in her third trimester than at other times. The medical 

examiner agreed that the more pregnant the victim, the less time it would take 

for her to die. Trial counsel then argued to the jury that Barbee simply held 

her down too long based on her physical condition, which was consistent with 

Barbee’s confession to Trish. Because the argument was based on Lisa’s 

advanced pregnancy and not Barbee’s mental state when he held her down, 

the district court reasoned that the evidence of Barbee’s head injuries would 

not have supported the argument.

The district court pointed out that Barbee’s own post-conviction expert, 

Dr. Martin, corroborated trial counsels’ view that evidence of Barbee’s head 

injuries would not be helpful because he had refused to accept responsibility. 

Dr. Martin stated that the behavioral effects caused by frontal lobe impairment 

provided “a broader and more accurate explanation for why Mr. Barbee could 

have engaged in a violent crime” and that “Barbee’s violent actions at the time 

of the offense would have been mediated by emotional factors as opposed to 

reason, due to the aforementioned damage to his frontal lobes.” The district 

court stated that Barbee’s assertion that “innocent people get head injuries” 

does not change the fact that a jury in a criminal case would view such evidence 

as an explanation for the commission of the crime. Without some acceptance 

of responsibility, the jury might see such evidence as aggravating or a ploy for 

undeserved sympathy. It held that trial counsel reasonably concluded that the 

presentation of such evidence might do harm in this case.

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In its opinion denying Barbee’s motion to alter or amend, the district 

court stated that Barbee exaggerated the scope of trial counsels’ reliance on his 

refusal to accept responsibility. Trial counsel believed that the head injuries 

and some of Barbee’s mental health diagnosis could have been helpful at 

punishment only if Barbee had accepted some responsibility for his actions. 

They also believed, however, that the usefulness of the head injury evidence 

and mental health diagnosis was outweighed by the diagnosis of anti-social 

personality disorder and the fact that the State would have been entitled to an 

expert evaluation, which probably would have yielded the same harmful 

conclusions as Dr. Shupe. Counsel also did not want to be inconsistent with 

the punishment witnesses who all believed that Barbee was innocent. The 

district court held that Barbee failed to show that these decisions were 

unreasonable.

Barbee argues that the mitigating evidence would have been offered at 

the punishment phase, after his guilt had already been determined. Therefore, 

it was not dependent on, and did not diminish, the claim of innocence that was 

never presented to the jury and was not dependent on him accepting 

responsibility for the murders.

Reasonable jurists would not debate the district court’s decision. Barbee 

ignores Ray’s explanation for why they did not present evidence of Barbee’s 

head injuries, migraine headaches, and hydrocodone use. Trial counsels’ 

reasons for not presenting this evidence are reasonable, especially their 

wanting to avoid having Barbee examined by the State’s expert. Barbee is 

essentially just second-guessing their strategy. We therefore deny his request 

for a COA for this claim.

D. Claim 4 – Denial of Motion to Alter or Amend

In his motion to alter or amend, Barbee cited reports from investigator 

Tina Church, who was described by Barbee as a “disinterested” witness. In its 

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opinion denying Barbee’s motion to alter or amend, the district court attached 

as an exhibit a web page of Church’s organization, “The Other Victim’s 

Advocacy,” to show that she was not “disinterested” because of her anti-death 

penalty views. Barbee argues that the district court’s reliance on this extrarecord information to rule against him violated due process and deprived him 

of a fair hearing on his claim of actual innocence.

Tina Church’s declaration did not play a large role in the district court’s 

denial of Barbee’s motion to alter or amend. Furthermore, Barbee arguably 

invited the court’s investigation and comment when he described Church in his 

motion as “disinterested.” In any event, even if we assume that the district 

court was wrong to cite the extra-record evidence, any error is harmless and 

does not show that the district court abused its discretion in denying the 

motion to alter or amend.

III. CONCLUSION

To sum up, we GRANT Barbee’s request for a COA for Claim 2 

(ineffective assistance of counsel for confessing guilt during closing argument). 

With respect to Claims 1, 3(a), 3(b), and 3(c), Barbee has not made “a 

substantial showing of the denial of a constitutional right,” 28 U.S.C. 

§ 2253(c)(2), because the district court’s denial of relief is not debatable and 

Barbee’s claims are not adequate to deserve encouragement to proceed further. 

We therefore DENY a COA for those claims. We further hold that the district 

court did not abuse its discretion when it cited extra-record evidence in its 

order denying Barbee’s motion to alter or amend.

COA GRANTED in part and DENIED in part.

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