IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-70001

VAUGHN ROSS,

Petitioner - Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:08-CV-174

Before KING, JOLLY, and GRAVES, Circuit Judges.

PER CURIAM*

This request for a certificate of appealability (COA) in this death penalty

case presents arguments that the district court should have considered

affidavits, even though they were not presented in state court; the defaulted

affidavits, which support the petitioner’s ineffective-assistance-of-trial-counsel

claim, should have been considered under the authority of Martinez v. Ryan, 132

United States Court of Appeals

Fifth Circuit

F I L E D

February 5, 2013

Lyle W. Cayce

Clerk

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.

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S. Ct. 1309 (2012), because of the ineffectiveness of state habeas counsel in

failing to produce the affidavits in the state habeas proceedings.

Vaughn Ross was convicted and sentenced to death in Texas state court

for the 2001 murders of Viola Ross and Douglas Birdsall during the same

criminal episode. Ross was denied habeas relief by the Texas courts. Ross now

seeks federal relief. The district court held that the affidavits of trial counsel

that Ross presented for the first time in this federal proceeding could not be

considered under Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (holding that

“review under § 2254(d)(1) is limited to the record that was before the state court

that adjudicated the claim on the merits”). The court further held that the state

habeas court did not unreasonably apply clearly established federal law when

it denied Ross’s ineffective-assistance-of-trial-counsel claims on the merits, based

on the evidence presented in state court. Ross now seeks a COA from this Court,

but because Ross has failed to demonstrate a substantial showing of the denial

of a constitutional right or that his claims are adequate to deserve

encouragement to proceed further, we DENY his request for a COA.

I.

A.

We first review the facts as presented by the prosecution in state court at

the guilt-innocence phase of the trial: Viola’s sister, Liza McVade, dated Ross. 

On January 30, 2001, while McVade was at Ross’s apartment with her four-yearold son, Viola telephoned her sister McVade several times. McVade’s former

boyfriend, Clarence Garner, was with Viola at the time. During one of those

conversations, Viola allowed Garner to speak to McVade. Ross knew that

McVade was talking to Garner and he was jealous, angry, and upset about

McVade’s conversation with Garner. Next, McVade called Viola to come and get

her. While they were talking, Teresa Williams came to Viola’s house and told

her that Douglas Birdsall was there, looking for a young, black female prostitute. 

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To accommodate Birdsall, Viola delayed going for McVade, and offered to take

Birdsall to someone who would be interested. Viola left with Birdsall and

Williams. They dropped Williams off shortly thereafter.

Viola attempted to call McVade from Birdsall’s home. Ross answered the

telephone, cursed and threatened Viola, and told her not to call again. Ross

refused to take McVade and her son home and refused to allow her to use his

telephone to call for a ride. Ross then began putting on latex gloves and told

McVade to leave “because if I do something, I don’t want you around.” After

using a neighbor’s telephone in an unsuccessful attempt to get a ride, McVade

and her son walked to her father’s house. About fifteen to twenty minutes after

McVade had used his telephone,the neighbor heard gunshots, which he reported

to the police.

The next day, the bodies of Birdsall and Viola were found inside Birdsall’s

car, which was parked in a ravine. Both had been shot numerous times and both

had died from gunshot wounds to the head. 

After discovering the bodies, the police investigated the report of shots

fired the night before, to see if there was a connection with the murders. In an

alley behind Ross’s apartment, the police discovered glass shards and two pools

of blood. The larger pool of blood was consistent with Birdsall’s DNA profile. A

shell casing recovered from the scene matched the shell casings found inside

Birdsall’s car. A latex glove tip found inside Birdsall’s car was tested. Blood on

the exterior of the glove tip was consistent with Birdsall’s DNA profile. The

inside of the glove tip contained DNA consistent with Ross’s DNA.

When Ross was interviewed by the police on January 31, he admitted that

he was angry with Viola on the evening of January 30, and that he and Viola

had argued over the phone when Viola let Garner speak to McVade. The police

interviewed Ross again on February 2. In that interview, he admitted that he

had argued with Viola and had threatened her. Ross also admitted that he had

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worn latex gloves that night because he was going to mop his kitchen floor and

the bleach hurt his hands. When the police told Ross they were worried that a

child might find the murder weapon, Ross told them they did not have to worry

because the gun was secure and wouldn’t cause any harm. When confronted

with the physical evidence – the close proximity of the crime scene to his

apartment, the blood and glass found there, the latex glove tip – Ross did not

admit killing Viola and Birdsall, but said that if the police had what they said

they had, then they had the truth. 

With Ross’s consent, the police searched his apartment and found two

latex gloves and a sweatshirt. The sweatshirt had a very small bloodstain that

DNA testing revealed to be consistent with Birdsall’s, and Ross’s DNA was on

the inside of the shirt. Later, when he was in jail, Ross spoke with his mother,

who asked him whether he had committed the crime. Ross responded that he

“might have.”

B.

At trial, Ross was represented by Floyd Holder, Jr., and Patrick S. Metze. 

They presented some evidence in support of his defense that the police may have

planted the latex glove tip that was found in Birdsall’s car. They also presented

evidence, including expert testimony, that Ross alone would not have been

capable of moving Birdsall’s body from the front seat of his car to the back seat,

where it was found, and that at least two people had to have committed the

murders. They produced Derald Powell, Ross’s former roommate, who testified

that he had never seen Ross with a gun. They also presented evidence that the

murderer would have been covered with blood and glass fragments, but that no

blood was found in Ross’s apartment or in his car. 

The jury was not impressed and convicted Ross of capital murder. 

Immediately after the guilty verdict, Ross’s trial counsel filed a motion for

continuance and for a psychiatric examination to determine whether Ross was

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competent to continue to stand trial. In the motion, defense counsel stated that

Ross had instructed his family and friends not to assist defense counsel at the

punishment stage of his trial and that further time was needed to consult with

Ross, his family and friends to secure their cooperation. Defense counsel

explained to the court that they questioned Ross’s competence because of his

insistence that his counsel not call witnesses in his defense at the punishment

phase. The trial court denied the motions, stating that based on its

observations, Ross knew what he was doing and was competent to stand trial.

C.

At the punishment phase of the trial, the State called a jailer who testified

that while Ross was in jail awaiting trial, he removed a wristband that all

inmates were required to wear. During a roll call, when asked for the wristband,

Ross threw it on the floor. The jailer testified that he wrote a disciplinary report

about the incident because Ross “kind of went crazy” and began cursing him.

The State also presented evidence that Ross pleaded guilty to felony

assault and stealing a motor vehicle in 1997, and was placed on probation. Susie

Caddell, a probation officer, testified that Ross told her that the victim was his

girlfriend, that they had problems in the past, and that she was stalking him. 

Caddell said that Ross told her that the victim attempted to stab him, but he

took the knife from her and stabbed her. According to Caddell, Ross admitted

that anger and outrage contributed to the assault. He expressed no remorse but

did say that he would walk away if he had to do it over again. Ross had

successfully completed anger counseling and probation.

Kevin Knobbe, the Missouri police officer who responded to the call about

the stabbing, testified that the victim, Regina Carlisle, told him that her

boyfriend, Ross, had stabbed her and taken her vehicle. Carlisle had numerous

knife wounds, including a laceration on her neck that could have potentially

been life-threatening. Knobbe testified that he overheard Carlisle say that Ross

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told her to give him her neck and that she was going to die. On crossexamination, defense counsel elicited testimony that Carlisle was not admitted

to the hospital for her injuries, but was only treated and released.

Ross presented testimony from three witnesses at the punishment phase.

The first was Felix Moore, a doctoral student at Texas Tech. Moore testified that

he and Ross were fraternity brothers, that Ross studied architecture, and that

Ross had paid for his education by working while attending school. Moore said

that he had never seen Ross with a gun or knife and had never seen Ross upset,

acting violently, or engaging in gangster-type behavior. Moore described Ross

as a “peacemaker.” According to Moore, Ross was “always pretty calm.” He said

that Ross drank alcohol, but did not use drugs, and that Ross had girlfriends.

Tanya Robertson also testified for Ross at the punishment phase. 

Robertson, a Dallas accountant, explained that she knew Ross through her

sorority and eventually became roommates with Ross and Derald Powell, who

was in law school at the time. According to Robertson, Ross was a diligent

student, was not involved with drugs, did not engage in gangster behavior, and

rarely drank alcohol. Robertson said that Ross had one girlfriend during the

time Robertson was his roommate, and that they had a loving relationship. 

Robertson described Ross as meek, humble, very calm, very polite, and very nice.

The final punishment phase witness for the defense was Ross’s mother,

Johnnie Ross, who testified that Ross had three sisters – Valeria, Tiffany, and

Michelle. Ross last saw his father, Hershall Sumpton, when he was about eight

years old. There were no men living in their home when Ross lived there. Ross

was born with pneumonia and suffered from asthma. He attended public school,

where he ran track and played football. He was involved in the Cub Scouts and

Boy Scouts. He attended inner city schools until junior high, when the family

moved to a St. Louis suburb, where they lived in a single-family home in a

predominantly white community with racially mixed schools. There were no

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guns in their home. Ross was not familiar with weapons and he did not hunt. 

Ross went to church, where his step-grandfather was the preacher, three or four

times a week, until he went to college. Ross had a small, racially-mixed group

of friends in high school, who were “good kids.” Ross did not have trouble with

the law as a juvenile, other than a single curfew violation. He did not get into

trouble at school. His mother was not aware of any drug or alcohol use, and Ross

was not involved in any gang activity. As a teenager, Ross had a job at a country

club. His mother described him as a quiet, calm, laid-back person. After he

graduated from high school, Ross attended Central Missouri State College,

where he received an Associate of Science degree and a Bachelor of Science

degree. While in college, Ross did not use drugs and drank alcohol only socially. 

He was active in his fraternity and was president of his chapter during his

senior year. After college, Ross had jobs with several architectural firms.

According to his mother, Ross was never in trouble with the law until the

incident with his girlfriend in 1997. After that incident, Ross went to Texas

Tech to continue his education. While at Texas Tech, Ross paid for his education

and did not have any mental problems. Ross’s mother said that she did not

know anything about Ross being in a car wreck in the 1990s.

At the conclusion of her testimony, defense counsel asked Ross’s mother

if she wanted to say anything to the jury. She lashed out at the jury, angrily,

saying:

I get to tell these people that I think they have done a horrible

job and that they have been unjust to me and my family and my son. 

I get to tell these people that I do not think you even

considered or even tried to consider all the evidence that pointed

toward this situation. 

I think you made your minds up from the beginning and you

decided that because you saw, as they hollered and shouted at us,

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Vaughn Ross sitting there, Black, that that was it. And you made

a decision right then and there. 

You didn’t consider what you did to my family. 

I understand, and I am so sorry about the Birdsalls, about the

Rosses, the McVades. But you didn’t consider that my son was

innocent. You didn’t consider what it would do to my son’s life or to

my family’s life. 

And if I appear angry, it’s because I am. Because I don’t think

you gave him a chance. And I don’t think you gave him a chance

from the very beginning.

When defense counsel asked her if she wanted the jury to give her son a life

sentence, she responded: “No, I do not. That would be foolish for me to want

that.” When pressed, she said that neither choice was good, but that she “would

prefer life over death.”

The jury answered affirmatively the special punishment issues on future

dangerousness and whether Ross caused or anticipated the deaths of the victims. 

It answered negatively the special issue on mitigating circumstances. 

Accordingly, the trial court imposed the death sentence. 

II.

A.

Ross next directly appealed his conviction and sentence to the state

appellate court. In this connection, the trial court appointed Richard Wardroup

to represent Ross on direct appeal. On May 5, 2004, the Texas Court of Criminal

Appeals affirmed his conviction and sentence. Ross v. State, 133 S.W.3d 618

(Tex. Crim. App. 2004). Ross did not file a petition for a writ of certiorari.

The next step in the proceedings occurred while his direct appeal was

pending. The trial court appointed counsel to represent Ross in state habeas

proceedings, and Ross filed his state habeas application on March 26, 2004. In

his state habeas application, Ross asserted that his trial counsel rendered

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ineffective assistance by failing to investigate and present (1) evidence of the

criminal history of Regina Carlisle, the victim of Ross’s 1997 assault, to impeach

the State’s punishment phase evidence; and (2) mitigating evidence about Ross’s

background. Ross alleged that if counsel had investigated Carlisle’s criminal

history, they would have learned that she had an extensive criminal history

which included fraudulent use of a credit card, car theft, and assaulting a

boyfriend by hitting him with her car, and that she had been convicted of

manslaughter for shooting another boyfriend who later died from complications. 

Ross argued that this evidence, together with evidence that Carlisle had a gun

in the car the night Ross allegedly assaulted her, that she was mentally

unstable, and that she had been stalking Ross, would have placed the entire

incident in a different light which had tangible, but untapped, mitigating

potential. He further alleged in his state habeas petition that, as a result of

counsel’s failure to investigate, valuable evidence that undercut the future

dangerousness issue was not presented to the jury, and Carlisle’s hearsay

statements were left unimpeached by her previous assaultive behavior and

crimes of moral turpitude. Ross also alleged that trial counsel’s mitigation

investigation consisted of a single interview with Ross’s mother and two of his

sisters for no more than an hour. Finally, he alleged that counsel had failed to

uncover additional mitigating evidence, described in the affidavits of licensed

private investigator Lisa Milstein and his sister, Valeria Martin, which were

attached as exhibits to his state habeas application.

In her affidavit, Milstein summarized proposed testimony from seven

potential witnesses:

(1) Ronnie Martin: According to Milstein, Ronnie Martin told her that

Viola’s father, Chester, did not want Ross to get the death penalty. However,

Chester would not speak with Milstein.

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(2) Lydia Davis: Milstein stated that she interviewed Davis, Ross’s

maternal grandmother, and that Davis was willing to help but was never

interviewed by anyone associated with Ross’s defense. According to Milstein,

Davis attributes all of Ross’s problems to his lack of a father figure and to his

mother’s refusal to help him contact his father.

(3) Marsha Green: Milstein stated that she interviewed Green, who dated

Ross for three years after he graduated from college, and that Green was willing

to help but was not interviewed by Ross’s defense team. According to Milstein,

Green said that Ross was quiet, not jealous or possessive, was nice to her, never

raised his voice or a hand to her, and had high expectations from life.

(4) Michelle Ross: Milstein stated that she interviewed Michelle Ross,

Ross’s youngest sister. According to Milstein, Michelle was interviewed by

Ross’s trial counsel in the company of her mother and sister, Valeria. The

interview was brief and focused on the evidence against Ross, barely touching

on Ross’s early life. Michelle did not testify at trial.

(5) Regina Carlisle: Milstein stated that she interviewed Carlisle, Ross’s

ex-girlfriend and the victim of the 1997 assault to which Ross pleaded guilty. 

According to Milstein, Carlisle made her living by stealing cars, but Ross was not

involved in the thefts. Carlisle also described shooting a boyfriend who later

died from his wounds. On the night Ross assaulted her, she had a handgun in

her car. Milstein said that Carlisle was not interviewed by the defense team and

indicated that she would have spoken to them.

(6) Valeria Martin: Valeria was present at Ross’s trial but did not testify. 

Milstein stated that Valeria told her that her mother would not allow the

children to discuss their childhood, and so they were unable to speak freely when

interviewed by Ross’s defense counsel in the presence of their mother. Valeria

believed that Ross suffered from the fact that he had no father figure and

resented his mother because she would not help him find his father.

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(7) Tiffany Ross: Milstein stated that she interviewed Ross’s sister,

Tiffany, who said that she would have been willing to speak with defense counsel

and testify at trial. According to Milstein, Tiffany described Ross as stubborn

and stated that his feelings were easily hurt and he was picked on in school

because he was short.

In her affidavit, Valeria stated that she, her sisters, and her mother met

with Ross’s defense counsel on one occasion for approximately an hour. They

were not interviewed separately. Valeria believed the family would have been

more open if they had been interviewed individually, because they did not feel

free to talk in the presence of their overbearing mother, who had always told

them not to tell their business to anyone. She stated that Ross was a very quiet,

sensitive child. He wanted affection from their mother, but the mother is not the

affectionate type. Ross was unable to gain that attention elsewhere. All of

Ross’s siblings had different fathers, but Ross was the only one who did not have

a relationship with his father. He wanted a male figure in his life, and always

resented his mother for not talking to him about his father and trying to involve

his father in his life. She stated that there was a side of her brother that the

jury did not hear about: he was popular in high school and never got in trouble;

he did not use or abuse drugs or alcohol, was active in his fraternity and was

considered to be a good person by everyone who knew him, and was kind and

sensitive.

Ross alleged that as a result of counsel’s inadequate investigation, the jury

did not get an accurate picture of his life history that could have humanized him

and led to an understanding of his need for a close relationship, but inability to

have one.

B.

The state trial court was not impressed by Ross’s habeas petition and on

July 3, 2007, it adopted the State’s proposed findings of fact and conclusions of

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law and recommended that the Texas Court of Criminal Appeals deny relief. Ex

parte Ross, No. 2001-435,653-A. On appeal of the denial of habeas relief, Ross

next filed a motion to remand the case to the trial court because his counsel did

not receive both the trial court’s order to submit proposed findings of fact and

conclusions of law and the State’s proposed findings and conclusions. The Texas

Court of Criminal Appeals granted the motion and ordered the trial court to reexamine the findings it had entered in the light of Ross’s proposed findings and

conclusions. Ex Parte Ross, No. WR-60,294-01 (Tex. Crim. App. Oct. 10, 2007). 

On remand, the habeas trial court re-entered the same findings of fact and

conclusions of law and again recommended that the Court of Criminal Appeals

deny relief on the merits: With respect to the claim of ineffective assistance for

failing to investigate the criminal history of Regina Carlisle, the state habeas

court found that Ross did not present evidence that defense counsel failed to

investigate Carlisle’s criminal history; that Ross failed to demonstrate how

defense counsel could have introduced evidence of Carlisle’s criminal history or

how it would have been admissible because she did not testify; that Ross’s

version of the events was before the jury through the testimony of his probation

officer; and that Ross had pleaded guilty to assaulting Carlisle. It concluded

that Ross had not demonstrated either that trial counsel’s performance was

deficient or that Ross was prejudiced in this respect.

Next, with respect to Ross’s claim that counsel were ineffective by failing

to investigate and present mitigating evidence, the state habeas court found that

Ross failed to allege any facts establishing deficient attorney performance. 

Moreover, and in particular, Ross failed to allege facts to challenge: that Ross

had previously insisted that no punishment witnesses be called on his behalf;

that Ross dissuaded some punishment witnesses from testifying on his behalf;

that Ross advised his friends and family not to cooperate with defense counsel; 

that Ross’s mother had told defense counsel to leave her alone; and that the

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additional mitigating evidence was neither powerful nor compelling, but was

similar to the evidence that indeed was presented at trial. The court concluded

that Ross had failed to show that counsel’s punishment investigation was

deficient and that Ross had obstructed counsel’s attempts to investigate and

present a punishment case. The court further concluded that Ross was unable

to show that, if the newly proffered evidence had been presented and explained,

there is a reasonable probability that the result of the sentencing proceeding

would have been different.

On January 23, 2008, the Texas Court of Criminal Appeals adopted the

trial court’s findings and conclusions and denied relief. Ex Parte Vaughn Ross,

No. WR-60,294-01, 2008 WL 217987 (Tex. Crim. App. January 23, 2008).

III.

A.

We now turn to the federal habeas proceedings. On August 27, 2008, Don

Vernay and Richard L. Wardroup were appointed to represent Ross in federal

habeas proceedings. Ross filed a petition for federal habeas relief on January 11,

2009. In his federal habeas petition, Ross alleged, as he had in his state habeas

petition, that trial counsel were ineffective for failing to investigate Regina

Carlisle’s criminal history and for failing to conduct a mitigation investigation. 

In addition to the affidavits of Milstein and his sister Valeria Martin that were

attached to his state habeas petition, Ross attached to his federal habeas

petition the affidavits of his trial counsel, Floyd Holder and Patrick Metze. The

affidavits of trial counsel had not been presented in state court.

In his affidavit, Holder stated that he was retained by Ross’s family. He

did not ask the court to provide a mitigation investigator and did not retain one. 

He stated that he was instructed by Ross and his family that the focus of the

investigation was on acquittal. Therefore, he spent very little time attempting

to investigate the facts relative to the punishment phase. He did not send an

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investigator to Missouri to investigate Ross’s psycho-social history. He stated

that his professional opinion is that blaming someone remote in time and place

for the way an accused turns out does not work to mitigate punishment unless

the evidence shows that the accused is less culpable because of the condition. He

stated that he did notinvestigate Regina Carlisle’s background and did not know

that she had a history of shooting a prior boyfriend or that she had a handgun

in her vehicle on the night that the assault occurred. He also did not know that

Carlisle had engaged in theft of automobiles and other types of fraud. He said

that Metze was appointed about a month before individual voir dire began, that

Metze was primarily responsible for preparation for the punishment phase, and

that he did not authorize Metze to retain any experts or investigators to assist

in his preparation. He said that he and Metze met with Ross’s family shortly

before the trial began and that he recalled visiting with the family twice and

communicating with them throughout the trial.

In his affidavit, Metze stated that he spent most of the time between his

appointment and the beginning of trial becoming familiar with the facts of the

case and the investigation that Holder had done. Holder asked him to prepare

for the punishment phase, but he did not have a mitigation investigator to assist

him. He did not have time to travel to Missouri to meet with Ross’s family,

friends, teachers, and coaches prior to starting jury selection. He met with some

members of Ross’s family in Holder’s Lubbock office, but the family was not

particularly forthcoming about Ross’s psycho-social history. They were

particularly obstinate when questioned about the specifics of Ross’s youth. 

Metze stated that he did not investigate the character and criminal history of

Regina Carlisle. Although he discussed with Holder the possibility of doing a

more thorough mitigation investigation, he was not able to do so due to trial

preparation. He interviewed several witnesses who might testify for Ross: 

Ross’s mother and sister, and Felix Moore and Derald Powell, Ross’s fraternity

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brothers. He also spoke to Tanya Robertson, who testified for Ross at the

punishment phase. In a motion for continuance filed after the conclusion of the

guilt-innocence phase, he represented to the court that Ross had instructed

family and friends not to cooperate with the presentation of punishment

evidence. He stated that this instruction limited the witnesses who were willing

to testify at trial, but it did not affect the investigation and development of

witnesses who might have testified. He stated that he solicited the assistance

of Vince Gonzales, a mitigation investigator, who volunteered to assist with

punishment phase witnesses. However, Gonzales, although qualified by training

and experience, was not asked to do any investigation into the mitigation

presentation in Ross’s case.

In his brief in support of his federal habeas petition, Ross argued that a

thorough investigation of Carlisle’s criminal history would have allowed the

defense to impeach the State’s punishment phase evidence about the 1997

assault. He also argued that the failure to locate and present mitigating

witnesses was particularly prejudicial, because those witnesses would have been

able to provide some context to Ross’s life and his relationships, as well as

elaborate on his good character. He contended that the jury should have heard

that the father of one of the victims did not want him to get the death penalty,

and should have heard about the peaceful side of his character, from women

with whom he had maintained relationships in the past. Finally, he argued that

the jury should have been told of his dysfunctional family.

The State argued that the affidavits of trial counsel were not presented to

the state habeas court and were therefore unexhausted and procedurally barred

from the federal court’s consideration. In response, Ross argued that the

matters raised in trial counsels’ affidavits were exhausted in state court because

the affidavits merely supplemented the evidence of ineffective trial counsel

presented in the state habeas proceeding, but did not fundamentally alter the

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ineffective trial counsel claim presented. He did not argue that state habeas

counsel were ineffective for failing to obtain and present the affidavits of trial

counsel to the state habeas court. 

B.

The district court, in its ruling, agreed with the State and refused to

consider the affidavits because they were not submitted to the state habeas

court, citing Cullen v. Pinholster. The parties thereafter submitted proposed

findings of fact and conclusions of law, and the district court heard arguments

on May 1, 2009. On December 1, 2011, the district court denied federal habeas

relief and denied a COA. Ross v. Thaler, No. 5:08-CV-174 (N.D. Tex. Dec. 1,

2011). With respect to the claim of ineffective assistance in failing to investigate

the criminal history of Regina Carlisle, the district court held that Ross had not

demonstrated that the state court’s denial of his ineffective assistance of counsel

claim was contrary to, or an unreasonable application of, clearly established

Supreme Court law. With respect to the mitigating evidence ineffective

assistance claim, the district court stated that Ross had presented little or no

evidence to support his claim that defense counsel failed to investigate and

present mitigating evidence. The court noted that, although an investigator for

Ross had interviewed seven witnesses and summarized their evidence in a

statement for the state habeas court, only one of those witnesses, Valeria

Martin, signed a sworn affidavit stating that she would have testified at trial if

she had been asked to do so. The district court observed that the state habeas

court had compared the evidence actually presented at the punishment hearing

with Ross’s proposed additional mitigating evidence and had determined that

the additional evidence was neither powerful nor compelling, but was similar to

the evidence introduced by his attorneys. Thus the district court concluded that

Ross’s arguments that his case was comparable to Wiggins v. Smith, 539 U.S.

510 (2003), and Williams v. Taylor, 529 U.S. 362 (2000), were specious because

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Ross’s additional mitigation evidence – that he felt abandoned by his father and

wanted a male role model, that the father of one of the victims did not want him

to be sentenced to death, that his mother was unable to control her anger, that

Ross and his sisters practically raised themselves, that Ross’s former girlfriend

found him to be thoughtful and mild-mannered, and that his former girlfriend

and assault victim, Regina Carlisle, had a violent criminal past – did not rise to

the level of powerful, compelling evidence of abandonment, sexual molestation,

physical abuse, criminal neglect, diminished mental capacity, foster care,

alcoholism, and homelessness omitted from the punishment phases in Williams

and Wiggins. The district court therefore held that Ross had not demonstrated

that the state court’s adjudication of his claim was contrary to or an

unreasonable application of clearly established Supreme Court law.

IV.

Now before us, Ross requests a COA “on the issue of the failure of state

habeas counsel to provide evidence in support of their Wiggins [ineffective

assistance of trial counsel] claim.” It is important to note what Ross does not

request: He does not request a COA with respect to the district court’s denial of

his claim that the state habeas court unreasonably applied clearly established

law when it rejected his ineffective-assistance-of-trial counsel claim. In other

words, Ross does not argue that the district court erred by denying habeas relief

based on the evidence presented to the state habeas court, which did not include

trial counsels’ affidavits. Accordingly, the only question presented to us in this

COA application is whether Ross may appeal the district court’s refusal to

consider trial counsels’ affidavits – introduced for the first time in the federal

proceeding – when ruling on his ineffective-assistance-of-trial counsel claim.

A.

To obtain a COA, Ross must make “a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

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standard by demonstrating that jurists of reason could disagree with the district

court’s resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.” 

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529

U.S. 473, 484 (2000)). “[A] claim can be debatable even though every jurist of

reason might agree, after the COA has been granted and the case has received

full consideration, that petitioner will not prevail.” Id. at 338. In making the

decision whether to grant a COA, this Court’s examination is limited to a

“threshold inquiry,” which consists of “an overview of the claims in the habeas

petition and a general assessment of their merits.” Id. at 327, 336. We cannot

deny a COA because we believe the petitioner ultimately will not prevail on the

merits of his claims. Id. at 337. On the other hand, “issuance of a COA must not

be pro forma or a matter of course.” Id. “While the nature of a capital case is not

of itself sufficient to warrant the issuance of a COA, 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) (brackets, internal

quotation marks, and citations omitted).

B.

1.

In seeking our authority for this appeal, Ross’s sole focus is on the failure

of state habeas counsel. Ross argues that the negligent failure of state habeas

counsel to obtain affidavits from state trial counsel deprived him of a full and

fair hearing on his ineffective-assistance-of-trial-counsel claims in both state and

federal court. He cites the Supreme Court’s recent decision in Martinez v. Ryan,

132 S. Ct. 1309, 1315 (2012) (holding that ineffective “assistance of counsel at

initial-review collateral proceedings may establish cause for a prisoner’s

procedural default of a claim of ineffective assistance at trial”), and contends

that Texas is a jurisdiction in which a petitioner may raise a claim of ineffective

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assistance of trial counsel only in state habeas proceedings – not in a direct

appeal of his conviction. Ross asserts that the failure of state habeas counsel to

interview or obtain affidavits from trial counsel is the type of ineffective habeas

counsel contemplated in Martinez. He asserts that because of this failure of

habeas counsel, he did not have a full and fair hearing of his claims in the state

habeas court, and consequently, the district court’s reliance on Cullen v.

Pinholster as a basis for refusing to consider the affidavits of trial counsel

disregarded the holding in Martinez. According to Ross, Pinholster’s strict

limitation on new evidence in the federal habeas proceeding presupposes that

a fair and complete state court record is before the federal court, which is not the

case here. He therefore contends that the failure of state habeas counsel to

present trial counsel’s affidavits in state court is a procedural default that should

now be excused. 

2.

In response, the State points out that before the district court, Ross argued

only that all state remedies concerning the affidavits had been exhausted and

could be considered by the district court, because they merely supplemented the

evidence offered in the state habeas proceeding, but did not fundamentally alter

the claim presented. The State therefore contends that Ross has forfeited his

argument that state habeas counsel were ineffective for failing to obtain and

present the affidavits of trial counsel to the state habeas court, and that the

ineffective assistance of state habeas counsel should serve as cause to excuse this

default and allow consideration of the affidavits for the first time in federal

court. The State contends further that Martinez v. Ryan is inapplicable to

habeas proceedings arising in Texas because Texas does not restrict ineffective

trial counsel claims to habeas proceedings. Nor should it otherwise apply to the

circumstances of Ross’s case: Ross’s state habeas counsel did not procedurally

defaultthe ineffective-assistance-of-trial-counsel claims; further, neither did the

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state or federal courts apply a procedural bar to foreclose review of those claims. 

Instead, the district court only refused to consider the newly presented affidavits

based upon the Supreme Court’s specific holding that federal review is limited

to the record that was before the state habeas court. Pinholster, 131 S. Ct. at

1398. Furthermore, Martinez applies to claims, not to evidence supporting

claims. Finally, the State contends that even should Martinez apply, and state

habeas counsel’s deficient performance should serve as cause to excuse the

failure to present the affidavits in state court, Ross still cannot establish

prejudice because the underlying claims of ineffective assistance of trial counsel

are not “substantial.” See Martinez, 132 S. Ct. at 1318 (to overcome procedural

default of ineffective assistance of trial counsel claim, “a prisoner must also

demonstrate that the . . . claim is a substantial one, which is to say that the

prisoner must demonstrate that the claim has some merit”). The State contends

that even if we were to consider the affidavits of trial counsel, the affidavits

would at most support – but not prove – that trial counsel performed deficiently. 

According to the State, neither affidavit bears on whether trial counsel’s

ineffectiveness prejudiced Ross’s defense; nor does Ross even suggest how

reasonable jurists could debate the controlling deference owed to the state

court’s findings on prejudice.

C.

The State is correct that Ross did not argue to the district court that the

ineffectiveness of state habeas counsel excused the failure to produce the

affidavits to the state habeas court. As we have already noted, Ross only argued

in the district court that the affidavits should be considered procedurally

exhausted in state court because they did not fundamentally alter the claim

presented in state court. He did not argue that the failure to present the

affidavits in state court should be excused because of the ineffective performance

of state habeas counsel.

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The general rule, routinely applied except in rare circumstances not

present here, is that we will not consider arguments raised for the first time on

appeal. See Bower v. Quarterman, 497 F.3d 459, 475 (5th Cir. 2007). Because

Ross did not argue in the district court that the affidavits should have been

admitted on the basis of his state habeas counsel’s ineffective performance we

decline to consider that argument now.

We further find that reasonable jurists could not disagree with the district

court’s application of Pinholster. In Pinholster, the Supreme Court expressed

itself clearly when it stated:

We now hold that review under § 2254(d)(1) is limited to the record

that was before the state court that adjudicated the claim on the

merits. Section 2254(d)(1) refers, in the past tense, to a state-court

adjudication that “resulted in” a decision that was contrary to, or

“involved” an unreasonable application of, established law. This

backward-looking language requires an examination of the statecourt decision at the time it was made. It follows that the record

under review is limited to the record in existence at that same time

i.e., the record before the state court.

Pinholster, 131 S. Ct. at 1398.

The Court also rejected a suggested exception to the state-record-only rule

– that new evidence may be introduced in the federal proceeding as long it

“supports” an adjudicated claim:

The State . . . asserts that some of the evidence adduced in the

federal evidentiary hearing fundamentally changed Pinholster’s

claim so as to render it effectively unadjudicated. Pinholster

disagrees and argues that the evidence adduced in the evidentiary

hearing simply supports his alleged claim.

We need not resolve this dispute because, even accepting

Pinholster’s position, he is not entitled to federal habeas relief. 

Pinholster has failed to show that the California Supreme Court

unreasonably applied clearly established federal law on the record

before that court, which brings our analysis to an end. Even if the

evidence adduced in the District Court additionally supports his

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claim, as Pinholster contends, we are precluded from considering it.

Id. at 1402 n.11 (citations omitted).

We are further unpersuaded by Ross’s argument that Pinholster applies

only when a fair and complete state court record is before the federal court. As

we recently held in Lewis v. Thaler, 701 F.3d 783, 791 (5th Cir. 2012), when a

federal habeas petitioner’s claims have been adjudicated on the merits in state

court, as Ross’s ineffective assistance of trial counsel claims have been, “§ 2254

limits our review to the record that was before the state court.” Accordingly, the

district court correctly refused to consider trial counsels’ affidavits, which were

presented for the first time in the federal proceeding.

In rendering our decision we do not reach Ross’s argument that the

Supreme Court’s decision in Martinez created a routine Pinholster exception –

thus allowing a federal habeas court to consider evidence that was not presented

in state court – for cases in which a petitioner is denied a full and fair hearing

in the state habeas courts because of the ineffectiveness of his state habeas

counsel. Because Ross did not argue in the district court that his state habeas

counsel was deficient for failing to obtain affidavits from state trial counsel, we

need not address the applicability of Martinez.

Because the district court’s refusal to consider the affidavits is fully

supported by Pinholster, its decision is not debatable and the issue is not

adequate to deserve encouragement to proceed further. We therefore deny

Ross’s request for a COA.

V.

To sum up: Ross did not argue in the district court, and thus forfeited, his

argumentthat, notwithstandingPinholster, the district court could consider trial

counsels’ affidavits on the grounds that ineffective assistance of state habeas

counsel excused the failure to produce those affidavits to the state habeas court. 

Alternatively, if we assume that the argument is not forfeited, the district court’s

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refusal to consider the affidavits of trial counsel is not debatable or wrong,

because Pinholster dictates that result. We do not reach Ross’s argument that

Martinez applies to this case. The bottom line: Because Ross has failed to make

a substantial showing of the denial of a constitutional right, his application for

a COA is

DENIED.

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