### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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; th e 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Februa ry 5, 201 3 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the Court has d ete rm inedthat thi s op inion should not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-70001 Document: 00512135658 Page: 1 Date Filed: 02/05/2013No. 12-70001

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 s t at e c ourt for the 2001 murders of Viola Ross and Douglas Birdsall duri n g the same criminal episode. Ross was denied habeas relief by the Texas courts. Ross now seeks federal relief. The district court held that th e af f i d avits of trial counsel that Ross presented for the first time in this federal proceeding cou l d 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 Ro s s ’ s inef

f ective - a s si s t anc e - of

- tri al

- coun s el cl ai m s o n 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 righ t o r 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 f o r m e r boyfriend, Clarence Garner, was with Vi o l a at the time. During one of those conversations, Viola allowe d G arn e r to speak to McVade. Ross knew that McVade w as 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 Willia m s came to Viola’s house and told her that Douglas Birdsall was there, looking for a young, black female pro s titute.

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To accommodate Birdsall, Viola delayed going for McVade, and offered to take Birdsall to someone who would be intere s t e d

. 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 th e n b e g an putting on latex gloves and told McVade to leave “bec a use if I do something, I don’t want you around.” After using a neighbor’s telephone in an unsuc cessful 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 s h o t s 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 casing s found inside Birdsall’s car. A latex glove tip found inside Birdsall’s car was tested. Blood on the ext e ri o r o f th e 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 Jan u ary 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 wou l d n ’ t c ause any harm. When confronted with the physical evidence

– th e c l o se proximity of the crime scene to his apartment, the blood and glass f ound 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 , th e police searched his apartment and found two latex gloves and a sweatshirt. The sweatshirt had a very small bloodstain that D NA testing revealed to be consistent with Birdsall’s, and Ross’s DNA w a s o n the inside of the shirt. Later, when he was in jail, Ross spoke with his mother,

wh o a s k e d him whether he had committed the crime. Ross responded that h e “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 h av e been capable of moving Birdsall’s body from the front seat of his car to the back seat, where it was fou n d , a n d th at 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 im p r e s s e d and convicted Ross of capital murder. Immediately after the guilty verdict, Ross’ s tri al c ounsel 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 instructe d 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 c o m petence because of his insistence that his counsel not call witnesses in his defense at the punishment pha s e . Th e 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 tri al , h e 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 presente d 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, th at they had problems in the past, and that she was stalking him. Caddell said that Ross told her that th e vic ti m attempted to stab him, but he took the knife from her and stabbed h er. According to Caddell, Ross admitted that anger and outrage contributed to the assault. He expressed no remorse but di d s ay that he would walk away if he had to do it over again

. R o s s h a d successfully completed anger counseling and probation. Kevin Knobbe, the Missouri police officer who responded to the call about the stabbing, testified that the victim, Regi n a 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 th at 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 go i n g 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 phas e . Robertson, a Dallas accountant, explained that s h e k n e w Ross through her sorority and eventually became roommates with R o s s a nd 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 w a s 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 B o y S c o u t s . 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 sch o o l s . There were no
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guns in their home. Ross was not f a m ili ar 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 h i m a s a quiet, calm, laid-back person. After he graduated from high school, R o s s attended Central Missouri State College, where he received an Associate of S c i e nce degree and a Bachelor of Science degree. While in college, Ross did not use drugs and drank alcohol only socially. He w a s a c tiv e in his fraternity and was president of his chapter during his

s e nior year. After college, Ross had jobs with several architectural firms. According to his mother, Ross was never in tr o ub l e w ith the law until the incident with his girlfriend in 1997. After that incident , R o s s 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 a sked Ross’s mother if she wanted to say anything to the jury. S h e l a s h e d 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 g e t t o t ell these people that I do not think you even c o n s i d e r ed 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 s a w, 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. B u t yo u 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 h er if she wanted the jury to give her son a life sentence, she responded: “No, I do not. That would be foolish f o r m e t o 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 dangerou s ne s s an d wheth er Ross caused or anticipated the deaths of the victims. It answered negativ e ly the special issue on mitigating circumstances. Accordingly, the trial court imposed the death sentence. II. A. Ross next directly appealed his convic ti o n a n d 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 s e ntence. 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 occu rred while his direct appeal was pendi n g . Th e 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 applicatio n , R o ss asserted that his trial counsel rendered

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ineffective assistance by failing to investigat e a n d 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 c o u n s e l had investigated Carlisle’s criminal h i s t o ry, they would have learned that she had an extensive criminal history which included fraudulent use of a credit c ar d , car theft, and assaulting a boyfri e n d b y 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 assault e d h e r , that she was mentally unstable, and that she had been stal ki n g Ross, would have placed the entire incident in a different light which had tangible, b u t u nt apped, mitigating potential. He further alleged in his state habeas petition that, as a result of counsel’s failure to investigate, valuable e vidence that undercut the future dangerousness issue was not presented to the jury, and Carlisle’s hearsay statements were left unimpeached by her previous ass a ul tive behavior and crimes of moral turpitude. Ross al s o all eged 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 an d hi s sister, Valeria Martin, which were attached as exhibits to his state habeas application. In her affidavit, Mils t ein summarized proposed testimony from seven potential witnesses: (1) Ronnie Martin: Ac c ording to Milstein, Ronnie Martin told her that Vi o la’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 t o h e l p but was never interviewed by anyo n e a s sociated with Ross’s defense. According to Milstein, Davis attributes all of Ross’s problems to hi s 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 R o s s , Ross ’ s youngest sister. According to Milstein, Michelle was interviewed by Ross’s trial counsel in the company of her mothe r a n d s i s t er, Valeria. The interview was brief and focused on the evidence against Ross, barely t o u c h i n g 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 whi c h R oss 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 wh o 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 s t at e d 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 b elieved that Ross suffered from the fact that he had no father figu r e a n d 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 sis t e r , Tiffany, who said that she would have been willing to speak with defense counsel and testify at trial. According t o Milstein, Tiffany described Ross as stubborn and st at e d 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 approxi m at e ly 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 ha d alw ay s t old 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 u n ab l e 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 activ e i n h i s f r aternity 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 hav e b e e n 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 R o s s 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, th e st ate habeas court found that Ross failed to allege any facts establi shing deficient attorney performance. Moreover, and in particular, Ross failed to allege facts to challenge: that Ross had previously insisted that no punishment wit n e s s e s 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 h a d t o l d 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 inv e s ti g ation was defici e nt a n d 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 p r o ceeding would have been different. On January 23, 200 8 , th e 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 appo i nted 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 i n e f f e c tive 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 st ated 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 t o investigate the facts relative to the punishment phase. He did not send an
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investigator to Missouri to investigate Ross’s p s ycho-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 not investigate 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 fam ily shortly before the trial began and that he recalled visiting with th e f amily 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 fam ily in Holder’s Lubbock office, but the family was not particularly forthcoming about Ross’s psycho-social history. They were particularly obstinate when questi o ned about the specifics of Ross’s youth. Metz e stated that he did not investigate the character and criminal history of Regina Carlisle. Although he discussed with H o lder the possibility of doing a

mor e thorough mitigation investigation, he was not able to do so due to trial
p reparation. He interviewed several witnesses who might testify fo r R o s s : 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 ha d i n s tructed family and friends not to cooperate with the presentation of p u ni s h ment evidence. He stated that this instruction limited the witnesses who were willing to t e s tif y at trial, but it did not affect the investigation and development of witnesses who might h ave testified. He stated that he solicited the assistance of Vince Gonzales, a mitigation investigator, who volunteered to assist with
p uni sh m e nt p h a s e witne s s e s . H ow ever, Gonzales, although qualified b y tr ainin g

a n d e xperience, 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 th o r o u gh 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 failu r e to locate and present mitigating witnesses was particularly prejudicial, b ec au s e tho s e witnesses would have been able to provide some context to R o ss’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 sid e o f 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 prese nt e d in the state habeas proceeding, but did not fundamentally alter the

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i n effective trial counsel claim presented. He did not argue that state habeas counsel were ineffective for failing to obtai n a n d p r e sent the affidavits of trial counsel to the state habeas court. B. The district court, in its ruling, agreed w ith 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 p r o p osed 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

c l aim was contrary to, or an unreasonable application of, clearly establi s h e d Supreme Court law. With respect to the mitigating evidence ine f fective assistance claim, the district court stated that Ross had presented littl e or no evidence to support h i s c l aim 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 R o s s ’ 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 for mer 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, c ri m i nal 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 [i n e f f e c tive

a s s i s tance of trial counsel] claim.” It is important to note what Ross d o e s n o t 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

- a s s i s t ance-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 th e 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 c o n s tit utional 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 proce e d f u rther.” Miller-El v. Cockrell , 537 U.S. 322 , 3 27 (2003) (citing Slack v. McDaniel , 529 U.S. 473, 484 (2000)). “[A] claim can be debat ab l e e v e n though every jurist of

reason might agree, after the COA has been granted and the case has received full consideration, that petiti o n e r 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 wh e th e r a C O A 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 stat e trial counsel deprived him of a full and fair hearing on his ineffective-assistance-of-trial

- coun s el cl ai m s in b oth st ate and federal court. He cites the Supreme Court’s recent decision in Martinez v. Ryan , 132 S. Ct. 1309, 1315 (2012) (holding that ineffective “assi s t a n c e o f counsel at initial-review collateral procee di n g s may establish cause for a prisoner’s procedural default of a claim of ineffective as s i stance at trial”), and contends that Texas is a jurisdiction in which a petitioner may raise a claim of ineffective

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a s sistance 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 o f this failure of habeas counsel, he did not have a full and fair hearing of his claims in the state hab e a s 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 presuppo s e s th at

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 proce dur al default that should now be excused. 2. In response, the State points out that before the district court, Ross argued

o nly 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 Ro s s has forfeited his argum e nt th at state habeas counsel were ineffective for failing to obtain and
p resent the affidavits of trial counsel to the state habeas court, a n d th at th e inef f ective assistance of state habeas counsel should serve as cause to excuse this default and allow consideration of the affidavits for the fir s t ti m e in federal court. Th e S tate 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 default th e inef

f ective - a s si st ance-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 , 1 3 1 S. Ct. at 13 9 8

. Fu rthermore, 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 serv e a s c ause to excuse the failure to present the affidavits in state court, Ross still cannot e s t ab li sh 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 assis tance 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 af fidavit bears on whether trial counsel’s ineffectiveness prejudiced Ross’s defense; nor d o e s Ross even suggest how reasonable jurists could debate the controllin g d e f erence 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 produ c e 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 funda m e ntally alter the claim presented in state c o urt. 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 applie d 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. 200 7). Because Ross did not argue in the district court that the affidavits should have been

a d m itted on the basis of his state habeas counsel’s ineffective performan c e w e 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 c l ai m o n the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudi c ati o n that “resulted in” a decision that was contrary to, or “involved” an unreasonable application of, establis h e d l aw. This backward-looking language requires an examinati o n o f the statecourt decision at the time it was made. It follows that th e 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 b e i ntr o du c ed 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 chan ged Pinholster’s claim so as to render it e f f e c tively unadjudicated. Pinholster disagrees and argues that the evidence adduced in the evidentiary hearing simply supports his alleged claim.
We need not resolve thi s dispute because, even accepting Pinholster’s position, he is not entitled to f e deral 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 a d duced 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 Pinholsterexception

– 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 th e i n e f fectiveness 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 i s fully supported by Pinholster , its decision is not debatable and th e i s s ue is not adequate to deserve e n c o u r agement 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

ar gu m e nt th at , notwith s t an din g Pi nho lster , the district court could consider tri al 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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