REVISED October 15, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-70049

LINDA ANITA CARTY,

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 Southern District of Texas, Houston Division

Before KING, DENNIS, and OWEN, Circuit Judges.

KING, Circuit Judge:

A Texas jury convicted and sentenced to death petitioner–appellant Linda

Anita Carty for the intentional murder of Joana Rodriguez during the course of

a kidnaping of Rodriguez and her newborn son. The Texas Court of Criminal

Appeals affirmed the conviction and sentence and denied post-conviction relief.

Carty then filed this federal habeas petition under the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. The district court

denied substantive relief, denied Carty’s requestfor an evidentiary hearing, and

dismissed her case. It then granted a certificate of appealability (“COA”) for two

substantive claims. The first is whether trial counsel rendered ineffective

United States Court of Appeals

Fifth Circuit

F I L E D

September 17, 2009

Charles R. Fulbruge III

Clerk
No. 08-70049

1 The court denied a COA for the remainder of Carty’s claims. In a separate opinion,

we denied Carty’s request for an additional COA. See Carty v. Quarterman, No. 08-70049, slip

op. (5th Cir. Aug. 28, 2009).

2

assistance by failing to notify Carty’s ostensible common-law husband of his

marital privilege not to testify. The second is whether trial counsel rendered

ineffective assistance by failing to present additional mitigation evidence in the

punishment phase. The district court also granted a COA for the procedural

issue that prevented adjudication of those substantive claims—whether Carty

exhausted state court remedies.1 Carty’s appeal is now before us. We affirm the

district court’s judgment denying Carty relief.

I. FACTS AND PROCEDURE

The district court’s exhaustive opinion more than adequately documents

the factual background and procedural development of this case. See Carty v.

Quarterman (Carty Federal Habeas), No. 06-614, slip op. at 4–35 (S.D.Tex. Sept.

30, 2008). Here, we revisit only those facts relevant to our disposition of the

presently appealed issues and claims. 

Carty, a foreign national citizen of St. Kitts and thus the United Kingdom,

was indicted by a Texas grand jury for the kidnaping and intentional murder of

Rodriguez. Carty planned the kidnaping of Rodriguez and her baby, facilitated

its execution, and murdered Rodriguez on May 16, 2001. Although Carty

originally hired her own attorney, when her family could not pay his fees, the

Texas trial court appointed Jerry Guerinot and Windi Akins to represent her

(collectively, “trial counsel”). Trial counsel met Carty for the first time

approximately two weeks before jury voir dire. They hired investigator John

Castillo and psychologist Dr. Jerome Brown to aid Carty’s defense. Investigator

Castillo began his work about two weeks before trial. 
No. 08-70049

3

The trial proceeded in two phases: guilt/innocence and punishment. The

evidence presented in the guilt/innocence phase revealed the following events.

Approximately three years before Rodriguez’s murder, Carty started living with

Jose Corona, and the parties now dispute whether they entered into a commonlaw marriage. Corona testified that they lived together up until two weeks

before the murder, and, during that period, they represented to others that they

were husband and wife, as discussed in greater detail below. While they lived

together, Carty, who had a grown daughter, Jovelle Carty, told Corona three

times that she was expecting another child, but she did not allow him to attend

her prenatal doctor’s visits. In the first two instances, Carty eventually told him

that she had miscarried. Corona believed that Carty lied about the pregnancies.

At the beginning of May 2001, the month during which Rodriguez was

murdered, Corona decided to leave Carty, in part because of her lies about being

pregnant. When he told her that he was leaving, Carty again claimed that she

was pregnant. Corona, however, did not believe her and moved out. Throughout

May, Carty repeatedly called Corona to reconcile their relationship, claiming

that she was pregnant and that her due date was in the middle of May. On May

15, she called multiple times and told him she was going to have a baby boy the

next day, May 16. She called again on May 16—after she had murdered

Rodriguez—and confirmed that she was going to have the baby. When Corona

saw Carty later that day at the police station, after she had been arrested for

Rodriguez’s kidnaping and murder, he asked her if the baby had been born

already, and she told him “not yet.” Corona eventually found out that Carty had

never been pregnant.

Other witnesses’testimonies revealed Carty’s activities between Corona’s

departure and Rodriguez’s murder. In early May, Carty began moving her
No. 08-70049

2 At least two additional witnesses testified that they knew Carty and that she had told

them in the days immediately before Rodriguez’s murder that she was expecting a baby.

4

things to a storage unit because the apartment lease was due to terminate atthe

end of the month. Sherry Bancroft, an employee at Public Storage, testified that

Carty had an existing storage unit in their facility and rented a second one on

May 10. Two days later, she rented a third unit. That day, she told Bancroft

that she was already in labor and was expecting to give birth to a baby boy that

day. To Bancroft, however, Carty did not look like she was in labor. Carty

returned to the storage facility on May 15 in a Pontiac Sunfire. At that point,

she told Bancroft that she had birthed a son and that he was at home with his

father. She retrieved a baby blanket and two baby outfits from one of her

storage units.2

Numerous witnesses testified about the kidnaping and murder that

occurred the next day, May 16. Early in the morning on May 16, four

men—three of whom were later identified as Christopher Robinson, Carliss

“Twin” Williams, and Gerald “Baby G” Anderson—broke into the apartment

where Rodriguez lived with her husband (Raymond Cabrera), her infant son, and

her husband’s cousin (Rigoberto Cardenas). Cardenas testified that the men

demanded drugs and money. While the men were in the house, Cardenas heard

a cell phone ring. One of the men answered it and said: “We are here inside,”

and “Do you want it?” The man on the phone then yelled: “She’s outside, we got

to go.” The intruders tied up Cabrera and Cardenas and, now joined by Carty,

kidnaped Rodriquez and her baby.

The testimony of Robinson and other individuals with first-hand

knowledge of the kidnaping and murder evidenced that Carty planned and
No. 08-70049

5

orchestrated the crimes because she wanted Rodriguez’s baby. On Sunday, May

13, Carty began recruiting a group of people to help her abduct the baby. She

asked Robinson, Josie Anderson, and Marvin “Junebug” Caston to assist in a

“lick”—a burglary wherein they would break into an apartment and steal what

she claimed was approximately 200 pounds of marijuana. Carty brought them

to her apartment, which was in the same complex as and in close proximity to

Rodriguez’s apartment. From Carty’s apartment, they scoped out Rodriguez’s

apartment and familiarized themselves with the standard layout of apartments

in the complex. Carty told them that Rodriguez was pregnant with Corona’s

child; that “I’m going to get the baby. I’m going to . . . take the baby from

them. . . . I’m going to cut the baby out of the lady and take the baby”; and that

“she needed the baby, needed a baby, needed a baby, needed their baby, that she

needed the lady’s baby.” She repeated similar statements throughout the

planning ofthe crime. Because Josie Anderson, Robinson, and Caston were only

interested in stealing drugs and notin kidnaping Rodriguez’s baby,the plan was

for them to secure the drugs while Carty dealt with Rodriguez.

On the night of Sunday, May 13,the group wentto the apartment complex

to conduct the lick but soon aborted their attempt. Afterwards, Josie Anderson

and Caston decided that they would no longer participate. Carty nonetheless

persisted in her plan, and on Tuesday, May 15, she convinced Robinson, his

friend Williams, and Josie’s cousin Gerald Anderson to participate in the lick.

The new plan was for Carty to wait outside the apartment, and the men would

bring Rodriguez to her after they secured the drugs for themselves. After

midnight on May 16, 2001, Carty, Robinson, Williams, and Gerald Anderson left

6402 Van Zandt Street, a house that served as the group’s staging area. Carty

drove her car and served as a lookout. After parking in a lot near the
No. 08-70049

6

apartments, she called Gerald Anderson and told him to start the lick. The men

kicked in the door of the apartment and tied up and beat Cabrera and Cardenas.

Carty called Anderson again and told him that she was coming inside. When she

entered the apartment, Robinson lied and told her that they had killed the men

(to prevent her from doing it). Robinson then left the apartment. A few minutes

later, Robinson saw Carty leave the apartment with the baby. Williams and

Gerald Anderson followed with Rodriguez and put her in the trunk of Robinson’s

car. They left the apartment complex, met at a storage unit, and transferred

Rodriguez to the trunk of Carty’s car. Both cars then returned to Van Zandt

Street. 

At Van Zandt Street, Carty demanded that the men tape up Rodriguez.

Robinson and Gerald Anderson refused, but Williams complied. He then closed

Rodriguez in the trunk of Carty’s car. At this point, the men were angry because

they had obtained little drugs or money in the lick; they believed that Carty had

set them up for a kidnaping that they did not want to commit. Hearing the

argument, Zebediah Combs, who lived at 6402 Van Zandt Street and did not

participate in the lick, came outside and demanded that everybody be quiet.

Carty said to him, “I got my baby. I got my baby.” After seeing Rodriguez in the

trunk of her car, Combs told Carty to move the car away from the house. Carty

refused, and Combs went back inside. Meanwhile, Robinson, Williams, and

Gerald Anderson went to make change for the money they had stolen. 

When they returned around 3:30 a.m. to 4:00 a.m., Carty was standing

partially in the trunk of her car and partially on the ground. Rodriguez was face

down in the trunk, and Carty had placed a plastic bag over her head. Robinson

ran up and pushed Carty away, but he could see that Rodriguez had stopped

breathing. Robinson ripped the bag while attempting to remove it from
No. 08-70049

7

Rodriguez’s head. When Robinson confronted Carty about why she had killed

Rodriguez, Carty replied that it was her baby, her husband’s baby.

During the police investigation of the burglary and kidnaping, a tenant in

Carty’s apartment complex, Florence Meyers, told police about an encounter

with Carty the day before that was suspicious. On the evening of May 15,

Meyers saw Carty sitting in the Pontiac Sunfire in the parking lot of the

apartment complex. Carty told Meyers that she was pregnant and that the baby

was going to be born the next day. There was an infant’s car seat in the back

seat of Carty’s car. To Meyers, Carty did not appear to be pregnant. Meyers’s

statement caused the police to suspect Carty had committed the kidnaping.

After taking Meyers’s statement, the police called Carty at around 9 a.m.

on May 16 and pretended to respond to a complaint she had filed a few days

earlier. She agreed to meet them. At the time of the call, Carty was in a car

with Robinson and the baby. Robinson drove Carty to meet the police, and she

agreed to go with them to a police station. When Carty did not return from the

meeting, Robinson went back to Van Zandt Street with the baby.

Upon arriving at the police station, Carty told the police that she was a

confidential Drug Enforcement Agency (“DEA”) informant, and asked to speak

with her DEA agent, Charlie Mathis. A few days before the kidnaping and

murder, Carty had called Mathis and told him about being pregnant. The police

then asked Mathis to help them find out what Carty knew about Rodriguez and

the missing baby. Mathis told Carty she was in a lot of trouble and advised her

to help the police. 

After speaking with Mathis, Carty gave a statement to the police, telling

them that she had loaned her daughter’s car and rental car to some people she

believed might be involved in the kidnaping. She directed officers to the house
No. 08-70049

8

at 6402 Van Zandt Street. When the police arrived, a black Chevrolet Cavalier

belonging to Carty’s daughter Jovelle, and thePontiac Sunfire, which was rented

in Jovelle’s name, were both parked at the house. Police found the kidnaped

baby boy alive in the Cavalier. They found Rodriguez’s body in the trunk of the

Sunfire. Her arms and legs were bound with duct tape, her mouth and nose

were also taped, and she had a ripped plastic bag over her head which appeared

to be taped around the bottom. A forensic expert later determined the cause of

death to be homicidal suffocation. Carty’s fingerprints were in both cars. Inside

the cars, the officers found, inter alia, baby clothes, baby blankets, a diaper bag

containing infant formula, and other baby paraphernalia. The diaper bag also

contained a live round of .38 caliber ammunition. A .38 caliber gun was found

by police in a drawer inside the house at 6402 Van Zandt Street; it was similar

in appearance to a .38 caliber gun that Corona saw Carty possess before he left

in early May.

The police traced Carty’s cell phone records, which led them to Gerald

Anderson. He eventually gave a statement and was charged with capital

murder. Carty’s cell phone records showed eleven calls logged between Carty’s

phone and the cell phone number that led police to Gerald Anderson from 12:50

a.m. and 2:50 a.m. on May 16. Seven of those calls were placed between 1:09

a.m. and 1:14 a.m., the time of the kidnaping.

Based on this and other evidence, the jury returned a verdict of guilty

against Carty on the charge of capital murder.
No. 08-70049

3

In Texas, jurors must answer three “special issues” in favor of the death penalty for

the court to impose capital punishment: (1) whether the defendant would “commit criminal

acts of violence that would constitute a continuing threatto society”; (2) whether the defendant

actually caused or intended to cause the death of the victim; and (3) whether mitigating

evidence warranted “the imposition of life imprisonment rather than a death sentence.” 

4 The prosecution also presented victim impact testimony from Rodriguez’s family (her

husband Cabrera, her sister, and her father).

9

During the subsequent punishment phase, both the state and Carty

presented evidence relevant to Texas’s “special issues.”3 The state primarily

presented evidence about Carty’s criminal history to show her ongoing

dangerousness. For example, in 1992, Carty was arrested for auto theft when

she rented a car that she never paid for or returned. To rent the car, Carty

identified herself as an FBI agent, so the FBI also investigated her for

impersonating an officer. Carty pleaded guilty and was placed on a ten-year

term of probation (she was still on probation when arrested for murdering

Rodriguez). The state agreed to dismiss the auto theft charge if Carty would act

as an informant. Although she provided information leading to two arrests, her

supervising officer concluded that she was an uncontrollable informant. Her

service came to an end when she was arrested on drug charges. Police officers

had been observing a large drug transaction when Carty entered the house

under observation with a package. When she left, the police followed her. She

led them on a high-speed chase. During the chase, Carty attempted to run over

an officer. The police eventually recovered two pistols, $3,900 in cash, and fifty

pounds of marijuana from her car.4

Trial counsel countered with testimony showing that Carty would not be

a future danger and that mitigating circumstances existed. To dampen the

impact ofthe prosecutor’s evidence of Carty’s future dangerousness, trial counsel
No. 08-70049

10

enlisted the services of Dr. Jerome Brown, a clinical psychologist who evaluated

Carty, interviewed her mother and daughter, and reviewed police interrogation

tapes. He testified, inter alia, that Carty did not have problems with anger or

aggression, was not prone to violence, and was not predatory towards other

people. She had a stable family life and employment history. She did not have

disciplinary problems as a child and described her upbringing as spoiled. Dr.

Brown noted that Carty had a grown daughter and had given another child up

for adoption when she became pregnant after a sexual assault. Dr. Brown

opined that she would not be capable of committing the crime of which she was

convicted,that her clinical profile indicated that she was not antisocial, and that

she lacked characteristics normally associated with criminals. The prosecution,

however, cross-examined Dr. Brown extensively to show that Carty was a liar.

Dr. Brown also admitted that Carty met some characteristics of a child abductor,

although on redirect he reaffirmed that she did not have traits commonly

associated with violent people.

Trial counsel also presented testimony from Carty’s family to support the

mitigation special issue. Carty’s mother testified that Carty was a beloved

teacher in St. Kitts and that her former students still asked about her. Carty

did not have a history of criminality while on St. Kitts, was kind and generous

to others, and was never cruel to people or animals. Jovelle, Carty’s daughter,

testified that her mother was sweet and kind, was not mean, and had not

harmed anyone. She had worked hard her whole life to put Jovelle through

school. Isalyn DeSouza, Carty’s closest sister, testified that she had never

known her sister to be violent, destructive, or cruel.

Based on this evidence, the jury answered all three of Texas’s special

issues in favor of sentencing Carty to death. The trial court entered her
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11

conviction and death sentence on February 21, 2002. The Texas Court of

Criminal Appeals (“CCA”) affirmed Carty’s conviction and sentence. See Carty

v. State, No. 74295, 2004 WL 3093229, at *1 (Tex. Crim. App. Apr. 07, 2004). 

The trial court appointed counsel to represent Carty during the state

habeas process. Carty timely applied for state habeas relief on August 6, 2003.

One of Carty’s claims was that trial counsel rendered ineffective assistance by

failing to advise her of her right, as a citizen of St. Kitts and the United

Kingdom, to consular notification and assistance. See Vienna Convention on

Consular Relations (“VCCR”), Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261.

The British Government became aware of Carty’s citizenship and filed a motion

on February 2, 2004, seeking time to retain counsel who could amend Carty’s

application. Although recognizing that Carty was not authorized to raise new

issues at that late date, it nonetheless asked the state habeas court to grant a

period of 180 days in which “any amendment or supplement filed in that time

should be accepted without the application of [TEX. CODE CRIM.PROC. ANN. art.]

11.071 [§] 5(f).” The state habeas court denied this application for want of

jurisdiction.

Carty’s habeas counsel filed a reply to the state’s answer and later filed a

further response, again asking the court to allow the British Government to

intervene. The state habeas court did not issue an order on her request. The

British Government, however, hired attorneys from Baker Botts, L.L.P., who

entered an appearance unopposed on May 28 to serve as Carty’s co-counsel.

Carty’s new co-counsel met with the state habeas judge and the prosecutors to

discuss their role. They agreed to submit any additional pleadings to the court

by November 1, 2004, the same day that both sides were due to submit their
No. 08-70049

12

proposed findings of fact and conclusions of law. The parties dispute, however,

whether they agreed to permit Carty to raise entirely new claims at that time.

Carty asserts that Jane Scott, a Harris County assistant district attorney, and

Roe Wilson, Harris County’s chief of the postconviction writs division, agreed

that co-counsel would have approximately six months to familiarize themselves

with Carty’s case and make any additional filings, including proposed findings

of fact and conclusions of law, by November 1, 2004. The state denies that any

such agreement included permission to raise new claims. Absent a proper

extension, November 1, 2004 was well after the deadline for Carty to file new

claims. See TEX. CODE CRIM. PROC. ANN. art. 11.071 § 4(a) (Vernon 2007).

On November 1, Carty’s co-counsel filed an Additional Further Response

to the state’s answer. On the same day, both parties filed their proposed

findings of fact and conclusions of law. The Additional Further Response stated,

“[C]ounsel for Carty and the State agreed to additional time for Carty’s counsel

to examine Carty’s claims further. The Court approved this agreement.” In the

Additional Further Response, Carty raised entirely new claims, supported by

exhibits and appendices. The new claims included the two substantive claims

that Carty maintains in this appeal—whether trial counsel rendered ineffective

assistance (1) by failing to notify Corona of his marital privilege not to testify

and (2) by failing to present additional mitigation evidence in the punishment

phase.

On November 30, 2004, the state trial court heard argument regarding

Carty’s habeas application. During that hearing, co-counsel addressed the

Additional Further Response on behalf of Carty and argued about claims

contained only therein. In particular, co-counsel raised the claims now on

appeal. The state did not object and the state habeas court did not mention any
No. 08-70049

13

delinquency in the filings of those claims. Nonetheless, the court only reviewed

the claims Carty raised in her initial application and recommended that the

CCA adopt the state’s findings of fact and deny those claims, see Ex Parte Carty,

No. 877592-A, order (Tex. Dist. Ct. Dec. 2, 2004), a recommendation that the

CCA adopted, see Ex Parte Carty, No. WR-61,055-01, slip op. at 2 (Tex. Crim.

App. Mar. 2, 2005). Neither state court addressed the claims she raised for the

firsttime in her Additional Further Response. Carty did not bring this omission

to the attention of either court.

Having found no success in the Texas courts, on February 24, 2006, Carty

filed an application in federal district court for a writ of habeas corpus under

§ 2254. She presented approximately twenty issues to the district court. The

district court initially denied the state’s motion for summary judgment and

ordered briefing on certain issues, including whether Carty exhausted state

court remedies for the claims she raised for the first time in her Additional

Further Response. After briefing, the state renewed its motion. Carty

responded and requested an evidentiary hearing. Without a hearing, the district

court concluded that Carty failed to raise a triable issue of fact, granted the

state’s motion for summary judgment, and dismissed the case. See Carty

Federal Habeas, No. 06-614, slip op. at 142. The district court held that Carty

failed to exhaust the claims raised for the first time in her Additional Further

Response and that, in any case, her substantive claims were not meritorious.

Carty then moved for a COA. The district court granted Carty a COA on

whether she failed to exhaust the claims that she raised for the first time in her
No. 08-70049

5 As part of their briefing on the issue of exhaustion, both parties have addressed

whether the state waived the defense.

14

Additional Further Response5 and on whether trial counsel rendered ineffective

assistance by failing to notify Corona of his spousal privilege and by failing to

produce more mitigation evidence during the punishment phase of trial. It

denied a COA for all other claims. See Carty v. Quarterman (Carty COA),

No. 06-614, slip op. at 2–3 (S.D. Tex. Dec. 16, 2008). Carty now appeals the

claims for which the district court granted her a COA.

II. STANDARDS OF REVIEW

We review de novo whether Carty exhausted available state court

remedies and whether the state waived exhaustion. SeeTaylor v. Cain, 545F.3d

327, 332–33 (5th Cir. 2008); Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001).

We apply the same de novo review to Carty’s claims of ineffective assistance of

counsel. See Richards v. Quarterman, 566 F.3d 553, 561 (5th Cir. 2009); Smith

v. Quarterman, 515 F.3d 392, 403 (5th Cir. 2008). Both types of claims present

mixed questions of law and fact. See Ward v. Dretke, 420 F.3d 479, 486 (5th Cir.

2005) (ineffective assistance of counsel); Wilder, 274 F.3d at 259 (exhaustion).

When examining mixed questions of law and fact, our de novo standard requires

that we “independently apply[] the law to the facts found by the district court,

as long as the district court’s factual determinations are not clearly erroneous.”

Ramirez v. Dretke, 396 F.3d 646, 649 (5th Cir. 2005); see also Wilder, 274 F.3d

at 259.

Our de novo review is governed by AEDPA. Under AEDPA, a federal court

may not grant habeas relief after a state court adjudicates the merits of a claim

unless that adjudication (1) “resulted in a decision that was contrary to, or
No. 08-70049

15

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or (2) “resulted in a

decision that was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

“Therefore, neither the district court nor this Court may grant a writ of habeas

corpus based solely on a finding of error by a state court.” Evans v. Cockrell, 285

F.3d 370, 374 (5th Cir. 2002). Yet, the AEDPA-mandated deference to state

court decisions does not apply if the petitioner properly exhausted his claim by

raising itin the state court, butthe state court did not adjudicate that particular

claim on the merits. See Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir.

2003). We instead review such claims de novo without applying AEDPAmandated deference. Riley v. Cockrell, 339 F.3d 308, 318 (5th Cir. 2003); see also

Jones v. Jones, 163 F.3d 285, 299–300 (5th Cir. 1998) (applying de novo review

to an ineffective assistance of counsel claim that the petitioner raised in state

court, but the state court did not adjudicate on the merits). In this case, the

CCA did not address Carty’s claim of trial counsel’s ineffective assistance in

failing to inform Corona of his marital privilege. It adjudicated part, but not all,

of her claim of ineffective assistance in failing to investigate and present

additional mitigation evidence. We review under AEDPA’s heightened standard

the portion of Carty’s claim of trial counsel’s ineffective assistance in presenting

mitigation evidence that the CCA adjudicated on the merits; the rest of her

claims, including whether she exhausted them in state court, we review de novo.

III. DISCUSSION

A. Exhaustion
No. 08-70049

6 For the portion of Carty’s claim related to trial counsel’s deficient presentation of

mitigating evidence that she raised in her initial application for habeas relief in state court,

this discussion does not apply. We review that portion on the merits below.

16

Carty raised most of her present claims for the first time in her Additional

Further Response.6 The state habeas court did not address these claims, which

raises the issue of whether Carty exhausted them in state court. Under AEDPA,

“[a]n application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted unless it appears

that . . . the applicant has exhausted the remedies available in the courts of the

State.” 28 U.S.C. § 2254(b)(1)(A). “This longstanding exhaustion requirement

is not jurisdictional, but ‘reflects a policy of federal-state comity . . . designed to

give the State an initial opportunity to pass upon and correct alleged violations

of its prisoners’ federal rights.’” Anderson v. Johnson, 338 F.3d 382, 386 (5th

Cir. 2003) (quoting Wilder, 274 F.3d at 260). When undertaking review, “we ask

not only whether a prisoner has exhausted his state remedies, but also whether

he has properly exhausted those remedies, i.e., whether he has fairly presented

his claims to the state courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999);

see also Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“To provide the State with the

necessary opportunity, the prisoner must fairly present his claim in each

appropriate state court . . . .”(quotation marks and citations omitted)); Mercadel

v. Cain, 179 F.3d 271, 275 (5th Cir. 1999) (“The exhaustion requirement is

satisfied when the substance of the federal habeas claim has been fairly

presented to the highest state court.”). To fairly present the claims, “‘the

applicant must present his claims in a procedurally correct manner.’” Beazley

v. Johnson, 242 F.3d 248, 263 (5th Cir. 2001) (quoting Deters v. Collins, 985 F.2d

789, 795 (5th Cir. 1993)); see also Mercadel, 179 F.3d at 275 (“[A] claim is not
No. 08-70049

17

exhausted unless . . . the applicant present[s] his claims before the state courts

in a procedurally proper manner according to the rules of the state courts.”

(quotation marks and citations omitted)). Fair presentation does not entertain

presenting claims “for the first and only time in a procedural context in which

its merits will not be considered unless there are special and important reasons

therefor.” Castille v. Peoples, 489 U.S. 346, 351 (1989) (quotation marks

omitted). The purposes of the exhaustion requirement “would be no less

frustrated were we to allow federal review to a prisoner who had presented his

claim to the state court, but in such a manner that the state court could not,

consistent with its own procedural rules, have entertained it.” Edwards v.

Carpenter, 529 U.S. 446, 453 (2000).

Texas’s habeas statute requires an inmate seeking relief from a judgment

imposing a penalty of death to file an application for a writ of habeas corpus in

the trial court, “returnable to the [CCA],” by the later of two dates: “the 180th

day after [the appointment of counsel]” or “the 45th day after the date the state’s

original brief is filed on direct appeal.” TEX. CODE CRIM. PROC. ANN. art. 11.071

§ 4(a). This deadline is subject to a single, discretionary 90-day extension. Id.

§ 4(b). The state trial court is not authorized to consider any subsequent habeas

application unless the applicant shows the statutory equivalent of cause and

prejudice or actual innocence. Id. § 5(a). Texas courts usually treat an amended

pleading filed after the deadline as a new habeas action: “If an amended or

supplemental application is not filed within the time specified under Section 4(a)

or (b), the court shall treat the application as a subsequent application under

this section.” Id. § 5(f). The state statute establishes detailed procedures for

processing such subsequent applications. See id. § 5(b), (c). 
No. 08-70049

18

Limiting habeas claims to those timely filed in the initial application

encourages efficient, all-inclusive applications. Ex parte Kerr, 64 S.W.3d 414,

418 (Tex. Crim. App. 2002). As such, a dismissal for an abuse of the writ in the

form of a tardy application is an adequate and independent state-law bar to

federal review. Whitaker v. Quarterman, 200 F. App’x 351, 356–57 (5th Cir.

2006).

In this case, Carty timely filed her initial habeas application on August 6,

2003. After the filing period expired, the state trial court denied the British

Government the opportunity to amend Carty’s application without treating the

amended application as a subsequent application pursuant to article 11.071

§ 5(f). With the assistance of co-counsel, Carty nonetheless filed her Additional

Further Response on November 1, 2004, raising new claims for the first time.

The trial court and CCA did not address those claims; however, they also did not

follow the procedures for handling subsequent applications as established in

article 11.071 §§ 5(b), (c), and (f), and did not dismiss the Additional Further

Response for abuse of the writ. Furthermore, although the state did not move

to treat the Additional Further Response as a subsequent application, Carty did

not raise with the state courts their failure to consider the claims contained in

her Additional Further Response.

Carty does not and cannot argue that her Additional Further Response

was timely; instead, she urges that the parties entered into an agreement

(sanctioned by the state habeas court) to permit her to add new claims in that

filing that article 11.071 § 4(a) would otherwise bar. As the parties have framed

it, the exhaustion question has three components: (1) did the parties and state

habeas court agree to permit late-filed claims; (2) under Texas law, can the
No. 08-70049

7 The district court based its decision in part on an affidavit presented by the state’s

federal habeas counsel, Neelu Sachdeva, who attested that“[t]here was no agreement between

the State and habeas counsel concerning habeas counsel filing ‘Additional Further Response

to Respondent’s Original Answer’ and no agreement between the State and habeas counsel as

to the substance of such document.” Sachdeva, however, has not shown that she had firsthand

knowledge of the meeting between Carty’s habeas counsel and the state’s counsel.

19

parties extend the filing deadline by agreement; and (3) did the state waive its

exhaustion defense.

For the first issue, the district court found that Carty did not show an

agreementin factto permitlate-filed claims in the AdditionalFurther Response.

Carty Federal Habeas, No. 06-614, slip op. at 48 (“Nothing in the record . . .

suggests that the parties and state habeas court agreed to suspend TEX. CODE

CRIM.PROC.[ANN.] art. 11.071 § 5’s limitation on tardy amendments.”); id. at 53

(“Even if an agreement allowed her to file something, [Carty] has not shown that

the parties agreed to suspend the application of TEX. CODE CRIM. PROC. [ANN.

art.] 11.071 § 5(f), as was previously requested.”). We hold that the district

court’s factual conclusion was not clearly erroneous.7 Although Carty has

pointed to some record evidence showing some agreement regarding co-counsel’s

submission ofthe Additional Further Response, she has not pointed to sufficient

evidence to call into question the district court’s conclusion that there was no

agreementto permittardy claims in that document. While statements in Carty’s

Additional Further Response and by co-counsel during oral argument before the

state habeas court show that her habeas counsel proceeded as if the claims

would be permitted, those statements permit only the weakest of inferences of

any agreement. Co-counsel’s generic statements of timeliness are hardly

exceptional and are no basis on which to conclude an agreement existed. On the

other hand, the state’s failure to object to those statements or to the new claims
No. 08-70049

8 For this issue, Carty argues that state habeas courts may set aside the time line in

certain circumstances, especially where the parties rely on the court. She cites cases in which

courts have permitted or considered claims filed outside of the initial application. See, e.g.,

Coleman v. Dretke, 395 F.3d 216, 220 (5th Cir. 2004); Ex parte Ramos, 977 S.W.2d 616, 617

(Tex. Crim. App. 1998); Ex parte Jennings, Nos. AP-75,806, 75,807, 2007 WL 4377072, at *1

(Tex. Crim. App. Dec. 12, 2007); see also Bagwell v. Dretke, 372 F.3d 748, 755–56 (5th Cir.

2004); Riley, 339 F.3d at 318. These case are distinguishable. In Jennings, 2007 WL 4377072,

at *1,the CCA treated the supplementto the application as a successive petition and concluded

that it met an exception to the successive writ bar. Here, the CCA did not rule that Carty’s

Additional Further Response qualified under an exception. In Ramos, 977 S.W.2d at 617, the

state habeas court miscalculated the deadline for filing an initial application, so the prisoner’s

initial application was timely according to the court order but not under § 4(a). Here, no such

mistake occurred, and Carty timely filed her initial application. Finally, Coleman, 395 F.3d

at 220, was not a death penalty case;thus, Texas Code of Criminal Procedure art. 11.07 (which

does not contain deadlines), not article 11.071 (which contains deadlines), applied.

Furthermore, in Riley and Bagwell, we defined some of the ways in which a petitioner may

exhaust a claim, but did not consider whether the claims were properly before the state habeas

court. At best, the cases cited by Carty stand for the unremarkable proposition that in certain

circumstances that do not exist in fact in this case, state courts have carved exceptions to the

20

in general raises a stronger inference of an agreement, but that inference is

counterbalanced by Carty’s failure to follow-up with either state habeas court

when both the trial court and the CCA did not rule on her new claims.

Similarly, the state trial court’s failure to submit the Additional Further

Response to the CCA for review pursuant to article 11.071 § 5 also permits an

inference that the new claims therein were not considered tardy by the trial

court, but that inference is again counterbalanced by that court’s and the CCA’s

decision not to rule on those new claims. Carty presents no other record

evidence supporting her assertion that an agreement permitted her to file new

claims in the Additional Further Response. Thus, Carty has failed to dislodge

the district court’s findings of fact. Having affirmed the district court’s finding,

we need not weigh the more difficult second issue—whether Texas statutory law

permits the parties, with the tacit approval of the court, to agree to set aside the

statutory deadline contained in article 11.071 § 4(a).8
No. 08-70049

time lines of article 11.071 § 4(a).

9

In D’Ambrosio, the Sixth Circuit looked in depth at the concept of express waiver, and

held that “[t]he warden expressly waived the exhaustion requirement because her counsel’s

conduct during the district court proceedings manifested a clear and unambiguous intent to

waive the requirement.” 527 F.3d at 495–96. It clarified that “this is not a case in which the

State simply failed to raise the exhaustion requirement in the district court” and that the fact

that “the warden participated in discovery and moved to expand the record” did not “indicate,

by itself, that the warden expressly waived the exhaustion requirement, as [the applicant]

argues.” Id. at 497.

21

Carty also argues that the state waived its exhaustion defense. Under

AEDPA, the state may waive the exhaustion requirement through an express

statement by counsel: “A State shall not be deemed to have waived the

exhaustion requirement or be estopped from reliance upon the requirement

unless the State,through counsel, expressly waives the requirement.” 28 U.S.C.

§ 2254(b)(3). Although AEDPA requires an express waiver, it “does not require

‘magic words’ in order for a state to expressly waive exhaustion.” D’Ambrosio v.

Bagley, 527 F.3d 489, 497 (6th Cir. 2008).9“The touchstone for determining

whether a waiver is express is the clarity of the intent to waive.” Id. In Bledsue

v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999), we considered whether such a

waiver had occurred. There, the state admitted, in its original answer to the

federal habeas petition, that “‘Bledsue has sufficiently exhausted his state

remedies.’” Id. We held that “the state has waived any independent exhaustion

argument, as well as the exhaustion argument included within the doctrine of

procedural default.” Id. In McGee v. Estelle, 722 F.2d 1206, 1213 (5th Cir. 1984)

(en banc), we reached the opposite conclusion. In that case, we held that the

state did not make an express waiver because “its pleading asserted only that

it ‘believed’ that [the applicant] had exhausted state remedies.” Id. Although

we held that this was not an express waiver, we concluded that it was “at least
No. 08-70049

10 The state does not argue that its assertion of the defense of failure to exhaust after

prompting by the district court preserved that defense if it had already expressly waived it. 

The district court has the ability to sua sponte raise procedural defenses like failure to exhaust;

however, in the face of an express—as opposed to inadvertent—waiver, the district court

typically abuses its discretion by raising a waived defense. See Magouirk v. Phillips, 144 F.3d

348, 359 (5th Cir. 1998) (“A state’s purposeful waiver may also pose an obstacle to sua sponte

22

the equivalent of failure to assert the defense of non-exhaustion.” Id. We also

approved of the Eleventh Circuit’s treatment of a similar statement, which that

court determined to be “closely related to an express waiver.” Id. at n.22 (citing

Thompson v. Wainwright, 714 F.2d 1495, 1502 (11th Cir. 1983)).

In this case,the parties dispute whether the state’s statements and actions

before the district court expressly waive exhaustion. The state argued to the

district court in its motion for summary judgment that 

All but one of Carty’s claims appear to be exhausted.

Nevertheless, Carty fails to establish that she is entitled to habeas

relief. Carty’s claim of trial court error based on Crawford v.

Washington, 541 U.S. 36 (2004), was never raised in state court. As

a result, the claim is unexhausted and procedurally defaulted.

Carty cannot overcome this procedural hurdle where, as here, she

does not acknowledge exhaustion deficiencies or attempt to

establish cause and prejudice as might serve to excuse her default.

For those remaining claims which appear exhausted, Carty fails to

demonstrate that the state court’s adjudication was both incorrect

and objectively unreasonable, that her claims merit relief, or that

relief is not precluded under Teague v. Lane, 489 U.S. 288 (1989).

In the section entitled “Statement Regarding Exhaustion,” the state also

announced that “[t]he Director believes that Carty’s claim of trial court error

under Crawford v. Washington is unexhausted.” These express statements show

that the state treated only one claim, not presently at issue on appeal, as

unexhausted. The rest, including the claims on appeal, it expressly treated as

exhausted.10 Thus, the district court’s cursory conclusion that the state has not
No. 08-70049

reliance upon a procedural default, and the nature of the state’s alleged ‘waiver’ should be

given consideration by the district court. . . . Where omission is the result of a purposeful or

deliberate decision to forgo the defense, the district court should, in the typical case, presume

that waiver to be valid.”).

23

explicitly waived exhaustion was erroneous as a matter of law. See Carty

Federal Habeas, No. 06-614, slip op. at 52. The state clearly considered

exhaustion as a defense and chose not to exercise that defense for the close issue

of whether Carty exhausted the claims contained in her Additional Further

Response. The state has waived exhaustion, but in any case, Carty’s substantive

claims lack merit.

B. Ineffective Assistance of Counsel

Carty contends that her trial counsel’s assistance was ineffective. The

Sixth Amendment guarantees a criminal accused the right to assistance of

counsel, and “the right to counsel is the right to the effective assistance of

counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). “The

benchmark for judging any claim of ineffectiveness must be whether counsel’s

conduct so undermined the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.” Strickland v.

Washington, 466 U.S. 668, 686 (1984). Under the Strickland standard,the Sixth

Amendment right to effective assistance of counsel “is denied when a defense

attorney’s performance falls below an objective standard of reasonableness and

thereby prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003).

“Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at

700.
No. 08-70049

24

“The proper measure of attorney performance remains simply

reasonableness under prevailing professional norms,” by reference to “all the

circumstances.” Id. at 688; see also Sonnier v. Quarterman, 476 F.3d 349, 357

(5th Cir. 2007) (same). “Prevailing norms of practice as reflected in American

Bar Association standards and the like . . . are guides to determining what is

reasonable . . . .” Strickland, 466 U.S. at 688. In all cases, “[j]udicial scrutiny

of counsel’s performance must be highly deferential” and must avoid secondguessing. Id. at 689. We avoid the distorting effects of hindsight. Dowthitt v.

Johnson, 230 F.3d 733, 743 (5th Cir. 2000). “We 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.” Id. (quotation

marks and alterations omitted). 

Sufficient prejudice requires a “reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceedings would have been

different.” Strickland, 466 U.S. at 694. The deficient assistance must be “so

serious as to deprive [her] of a fair trial, a trial whose result is reliable.” Id. at

687.

“It bears repeating that,” where the state habeas court ruled on the

petitioner’s ineffective assistance of counsel claim, “the test for federal habeas

purposes is not whether [the petitioner] made [the required] showing.” Schaetzle

v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003). “Instead, the test is whether the

state court’s decision—that [the petitioner] did not make the

Strickland-showing—was contrary to, or an unreasonable application of, the

standards, provided by the clearly established federal law (Strickland), for
No. 08-70049

11 Rule 504(b)(1) provides: “In a criminal case, the spouse of the accused has a privilege

not to be called as a witness for the state.” “The privilege not to testify may be claimed by the

person or the person’s guardian or representative but not by that person’s spouse.” TEX. R.

EVID. 504(b)(3).

25

succeeding on [the petitioner’s ineffective assistance of counsel] claim.” Id. With

these standards in mind, we now turn to Carty’s claims of ineffective assistance

of counsel.

1. Failure to notify Corona of his marital privilege

Carty asserts that trial counsel rendered ineffective assistance by failing

to interview Corona and notify him of his rightto assert his marital privilege not

to testify against Carty. Under Texas law, the spouse of the accused has the

right to refuse to testify against the accused in a criminal case. TEX. R.

EVID. 504(b)(1).11 Nonetheless, the privilege is the spouse’s, not the accused’s;

the spouse may testify voluntarily for the state. Id.

Corona testified during the prosecution’s case in chief. As discussed in

greater detail above, he testified that Carty repeatedly claimed that she was

pregnant, that none of those purported pregnancies resulted in the birth of a

child, that he left her in May 2001, and that he did not believe Carty when she

told him that she was pregnant in May 2001—shortly before she kidnaped and

murdered Rodriguez. The prosecution emphasized his testimony to explain

Carty’s motive and provide the context for her otherwise inexplicable crime. 

If permitted to refuse to testify, Corona attested that he would have

exercised the option:

I did not want to get involved in the trial or to testify against Linda,

but when the prosecutor’s office called me to testify, I thought that

I had to testify and that I had no other choice. Neither Mr. Gerry

Guerinot nor Ms. Windi Akins talked to me before I testified at

Linda’s trial. It was never explained to me before I testified that in
No. 08-70049

26

Texas there is a marital privilege and that under that privilege I

had the right to refuse to testify at Linda’s trial. If Linda’s

attorneys had explained to me or informed me about this marital

privilege, I would have refused to testify at Linda’s trial unless

Linda’s attorneys had asked me to do so.

Trial counsel neither informed Corona of the potential availability of a

marital privilege nor interviewed him to establish the factual predicate.

Although Corona was on the state’s witness list, Guerinot admitted that, “[i]n

my representation of Linda, I did not contact her husband Jose Corona prior to

trial. I assumed that my investigator John Castillo would speak with him.”

Castillo, however,“never spoke to Corona.” Guerinot also conceded that “I never

attempted to inform Jose Corona that he had the right as her husband to not

testify.”

The district court held that “[z]ealous counsel should have interviewed

Corona before trial and provided him the information necessary to try exerting

[sic] the marital exemption.” Carty Federal Habeas, No. 06-614, slip op. at 97.

It held, however, that trial counsel’s deficiency did not sufficiently prejudice

Carty’s defense to warrant relief. We agree that although trial counsel

performed objectively unreasonably by failing to interview Corona to determine

if he could or would assert a marital privilege, that omission did not prejudice

Carty’s defense. 

The state does not disagree that trial counsel’s failure to inform Corona of

the potential availability of the marital privilege fell below the objective

standard of reasonableness; instead, it argues only that Carty suffered no

Strickland prejudice as a result of trial counsel’s deficient investigation. The

state provides two reasons why Carty was not sufficiently prejudiced, both of

which she disputes. First, Corona was not Carty’s common-law husband, so the
No. 08-70049

12 As currently codified, the Texas statute establishing informal marriage provides:

(a) In a judicial, administrative, or other proceeding, the marriage of a man and

woman may be proved by evidence that:

. . . 

(2) the man and woman agreed to be married and after the agreement

they lived together in this state as husband and wife and there

represented to others that they were married. 

(b) If a proceeding in which a marriage is to be proved as provided by Subsection

(a)(2) is not commenced before the second anniversary of the date on which the

parties separated and ceased living together, it is rebuttably presumed that the

parties did not enter into an agreement to be married.

TEX. FAM. CODE ANN. § 2.401. Regarding the presumption contained in subsection (b), the

state’s prosecution of Carty was commenced prior to the second anniversary of the date that

Carty andCorona separated; however,the statehabeas applicationand presentfederalhabeas

litigation were not commenced within that time frame. Because the state does not argue that

the adverse presumption contained in § 2.401(b) applies to this case, we do not rule on its

applicability to the present case.

27

state trial court would not have permitted him to assert the marital privilege.

Second, in any case, Corona’s testimony did not render the jury’s guilty verdict

unreliable.

Both Corona and Carty agree that they shared a common-law marriage.

“Common law marriages have been recognized in Texas since 1847.” Russell v.

Russell, 865 S.W.2d 929, 931 (Tex. 1993). The elements of a common-law or

informal marriage, as codified in § 2.401 of the Texas Family Code, are “(1) an

agreement to be married, (2) after the agreement, the couple lived together in

[Texas] as husband and wife, and (3) the couple represented to others that they

were married.” Id. at 932.12 “Proof of cohabitation and representations to others

that the couple are married may constitute circumstantial evidence of an

agreement to be married.” Id. at 933. 

The district court held that “the record does not show that, given the

information he had, that trial counsel could have made a plausible argument

that would allow Corona to exert [sic] his marital privilege.” Carty Federal
No. 08-70049

28

Habeas, No. 06-614, slip op. at 96; see also id. at 97 (“[T]he mixed record does

not suggestthatthe trial court would have allowed Corona to avoid testifying.”).

The district court based its conclusion in part on the record of mixed statements

by Carty and Corona, on Carty’s statements about the termination of their

relationship after Corona moved out, and on the absence of prior attempts to

authenticate officially their marriage or to seek a divorce. 

The district court in part misconceives Texas law as it applies to the

evidence in this case. Although Carty’s and Corona’s mutual conclusory

assertions thatthey have a common-law marriage “[are] not sufficient, standing

alone, to establish a common law marriage,” Tompkins v. State, 774 S.W.2d 195,

209 (Tex. Crim. App. 1987), it is undisputed that they lived together for

approximately three years, from 1999 to 2001. The record contains evidence of

multiple representations to others that they were married during the period of

their cohabitation. For example, Corona attested that, during the period of their

co-habitation, “I would introduce Linda as my wife, and she would introduce me

as her husband.” The difficult prong, as nearly always is the case, is the first:

whether there was an agreement to be married. There is an indistinct record as

to this prong. Carty has pointed the court to no direct evidence or statements

that she and Corona agreed to be married. Yet, such an agreement can be

inferred from the spouses’ public statements and their cohabiting. See Russell,

865 S.W.2d at 932. The fact that both Carty and Corona assert that they had a

common-law marriage, although not dispositive, lends credence to their

claim—typically, the spouses dispute their status. 

The evidence to the contrary, on which the district court relied, is not

pertinent to the analysis in this case. While some statements show that they
No. 08-70049

13 It is difficult for the state to now complain that Carty’s assertion is surprising.

29

may not have always referred to themselves as being married, Texas law does

not require that the purported spouses always refer to themselves as

married—undertaking each requirement of informal marriage consummates the

union and renders additional or contradictory statements superfluous. See id.

Even if Carty may have been planning a wedding ceremony, the intention to

have a formal proceeding does not automatically disprove the existence of a

common-law marriage. See Hinojos v. R.R. Ret. Bd., 323 F.2d 227, 231 (5th Cir.

1963) (“[T]here is nothing necessarily inconsistent with an agreement presently

to enter into a common-law marriage and an intention later to have performed

a ceremonial marriage.”); Tompkins, 774 S.W.2d at 209 (“The fact that they

might have intended to go through a ceremonial marriage at sometime in the

future does not necessarily negate the inference that they believed that they

were married common law.”). Nor, as the district court erroneously referenced,

does a later separation, a statement by one or both spouses that no marriage

exists, or the spouses’ failure to otherwise authenticate their marriage disprove

or dissolve an established common-law marriage. See State v. Mireles, 904

S.W.2d 885, 889 (Tex. App.—Corpus Christi1995, pet. ref’d) (“[O]nce a common

law marital status exists, it, like any other marriage, may be terminated only by

death or a court decree; once the marriage exists, the spouses’ subsequent

denials of the marriage do not undo the marriage.”).

On this record, considering Carty’s and Corona’s widely disseminated

representations that they were married and the fact that during trial, even the

prosecutors claimed that they were married,13 Carty may well have established

that she was married to Corona and that, but for her counsel’s ineffective
No. 08-70049

30

assistance, Corona would have exercised his marital privilege not to testify.

Ultimately, however, we need not decide the question whether Carty and Corona

were married because Carty fails on the prejudice prong of her ineffective

assistance claim.

Carty bears the burden of showing a reasonable probability of a different

result had Corona not testified. Although this is a close case, she has not made

the requisite showing that his testimony rendered her conviction “fundamentally

unfair or unreliable.” Ransom v. Johnson, 126 F.3d 716, 721 (5th Cir. 1997)

(quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)). Corona’s testimony was

undoubtedly damaging to Carty’s defense, but it did not render her conviction

fundamentally unreliable. His testimony provided motive and context for the

crime. He testified that Carty wanted to have a child and frequently lied about

being pregnant. He provided the best evidence of their break up a mere two

weeks before Rodriguez’s murder, of her statements at that time that she was

pregnant, and of his beliefthat she was lying about being pregnant. Corona also

testified that Carty called him numerous times on May 15—the day prior to the

kidnaping and murder—and on May 16—the day of the crimes—to inform him

that she was having his baby boy. It is an obvious and no small inference that

Carty kidnaped Rodriguez’s baby and killed Rodriguez to prove to Corona that

she had birthed his son and thereby reestablish their relationship.

The prosecutors emphasized Corona’s testimony in their closing remarks,

particularly “that every time [he] tried to end [their relationship], Carty

announced she was pregnant” and that “[w]hat [Carty] wanted, . . . needed, was

[the baby] because her life was falling apart and she needed the baby to bring it

back together again.” The state concedes that “Corona provided motive and

context for what would otherwise be a wholly inexplicable crime”—it was the
No. 08-70049

31

“evidence of what drove the defendant to commit such a brutal crime.” As

Guerinot summarized, Corona’s testimony “hurtLinda’s case.” The district court

thus appropriately concluded that Corona’s testimony “would be persuasive to

the jury” and “was obviously important to the prosecution.”

Yet, while Corona’s testimony may have been damaging to Carty’s defense,

the Strickland prejudice test carries a higher standard. Trial counsel’s failure

to notify Corona that he did not need to testify must have “a pervasive effect on

the inferences to be drawn from the evidence, altering the entire evidentiary

picture.” Strickland, 466 U.S. at 695–96. We affirm the district court’s

conclusion that Corona’s testimony provided nuance to the case but did not alter

the entire evidentiary picture. The evidence of Carty’s guilt was overwhelming,

even absent Corona’s testimony, and his testimony, in most regards, only

corroborated other sources. Corona’s testimony was not necessary to prove, let

alone relevant to, any of the elements of capital murder. More importantly, trial

testimony from witnesses other than Corona revealed, inter alia,thatin the days

leading up to the kidnaping and murder, Carty told Mathis, Meyers, and

Bancroftthat she was pregnant. Neither Meyers nor Bancroft, however, thought

she looked pregnant. Carty had also acquired baby items that she stored in her

car, despite the fact that she was not pregnant. In addition, Carty

masterminded the planned kidnaping—recruiting her accomplices, inviting them

into her home to see the layout (which mirrored the target home), calling the

kidnapers during the abduction, and then entering Rodriguez’s home to take the

baby, telling them repeatedly that she needed the baby, and directing them to

tie up Rodriguez and put her in the trunk of the car—and killed Rodriguez by

placing a bag over her head. While this other evidence may not have shown as
No. 08-70049

14 In fact, trial counsel’s unimpeached trial strategy was to challenge the evidence

showing Carty’s intent to kill, not her involvement in the kidnaping and murder. Corona’s

testimony was thus not relevant to the most prominently disputed element of Carty’s case.

32

directly why Carty wanted Rodriguez’s baby, it nonetheless shows that she

wanted the baby.14 Although Corona’s testimony was obviously damaging to

Carty’s defense, we conclude, based on the totality of the evidence, that Carty

has not shown that but for trial counsel’s deficientfailure to advise Corona of his

marital privilege there was a reasonable probability that she would not have

been convicted of capital murder.

2. Failure to investigate and present additional mitigation

evidence

Carty also argues that trial counsel was ineffective because counsel failed

to investigate or present significant mitigating evidence. In Strickland, the

Supreme Court addressed an ineffective assistance claim based on an attorney’s

failure to investigate and present mitigation evidence. The Court “noted that

counsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary.” Sonnier, 476 F.3d

at 358 (citing Strickland, 466 U.S. at 691); see also Miniel v. Cockrell, 339 F.3d

331, 344 (5th Cir. 2003) (“[G]enerally accepted standards of competence require

that counsel conduct an investigation regarding the accused’s background and

character.”). “Mitigating evidence that illustrates a defendant’s character or

personal history embodies a constitutionally important role in the process of

individualized sentencing, and in the ultimate determination of whether the

death penalty is an appropriate punishment.” Riley, 339 F.3d at 316. “[C]ounsel

should consider presenting . . . [the defendant’s] medical history, educational

history, employment and training history, family and social history, prior adult
No. 08-70049

33

and juvenile correctional experience, and religious and cultural influences.”

Wiggins v. Smith, 539 U.S. 510, 524 (2003). Sometimes, however,

“[i]nvestigations into mitigating circumstances may reasonably be limited where

the defendant fails to call witnesses to his lawyer’s attention.” Wiley v. Puckett,

969 F.2d 86, 99 (5th Cir. 1992). As the Supreme Court explained in Strickland,

The reasonableness of counsel’s actions may be determined or

substantially influenced by the defendant’s own statements or

actions. Counsel’s actions are usually based, quite properly, on

informed strategic choices made by the defendant and on

information supplied by the defendant. In particular, what

investigation decisions are reasonable depends critically on such

information. . . . In short, inquiry into counsel’s conversations with

the defendant may be critical to a proper assessment of counsel’s

investigation decisions . . . .

466 U.S. at 691. Thus, although a defendant’s obstreperousness will not justify

a complete failure by appointed counsel to investigate and present mitigating

evidence in all cases, see Sonnier, 476 F.3d at 358 (“[The defendant’s] refusal to

consent to their undertaking more extensive and in-depth discussions with his

family and acquaintances to determine the nature and extent of the mitigation

evidence available was not reasonable grounds for their failure to do so.”), “[t]he

scope of the attorney’s duty to investigate may be limited by a defendant’s lack

of cooperation,” Randle v. Scott, 43 F.3d 221, 225 (5th Cir. 1995). 

When considering Strickland prejudice, we review “the totality of the

available mitigation evidence—both that adduced at trial, and the evidence

adduced in the habeas proceeding—in reweighing it against the evidence in

aggravation.” Williams v. Taylor, 529 U.S. 362, 397–98 (2000); see also Wiggins,

539 U.S. at 534 (“[W]e reweigh the evidence in aggravation against the totality

of available mitigating evidence.”); Strickland, 466 U.S. at 695 (“[T]he question
No. 08-70049

34

is whether there is a reasonable probability that, absent the errors, the

sentencer—including an appellate court,to the extentitindependently reweighs

the evidence—would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death.”). In this re-weighing, the

brutality of the crime is relevant but does not automatically trump additional

mitigating evidence. See Gardner v. Johnson, 247 F.3d 551, 563 (5th Cir. 2001).

Carty asserts that trial counsel failed to investigate or present mitigating

testimony from Corona, Mathis, Dr. Brown, Carty’s family and friends, and

acquaintances on St. Kitts and failed to investigate and present that Carty

suffered from posttraumatic stress disorder after being the victim of a sexual

assault, becoming pregnant, and giving her baby up for adoption. 

The state habeas court ruled on some ofthese claims. In particular, in her

initial state habeas application, Carty raised trial counsel’s failure to investigate

and present additional mitigating testimony from her family members who

testified and any mitigating testimony from her other family members. The

CCA concluded that trial counsel was not ineffective: “Trial counsel cannot be

considered ineffective for an alleged failure to investigate and present mitigating

evidence . . . in light of counsels’ investigation and presentation of thorough

punishment evidence, including testimony concerning [Carty’s] family

background and support, positive personal characteristics, positive activities,

work ethic, and her parenting abilities . . . .” The court also concluded that Carty

had not shown prejudice: “[Carty] fails to show harm, if any, so that the outcome

ofthe proceedings would have been differentif the witnesses proffered on habeas

[[her] mother, daughter, two sisters, and brother] had been presented at trial,

based on the factthatthree of the proffered witnesses [mother, daughter, sister]

actually testified at trial and that the proffered testimony was essentially the
No. 08-70049

35

same as evidence presented at trial.” Bolstering its conclusion, the court

weighed Carty’s and her family’s lack of cooperation: “[Carty] fails to show

ineffective assistance of trial counsel based on the alleged failure to investigate

and present mitigating evidence, especially in light of [her] repeated failure to

cooperate with counsel, [her] refusal to give counsel the name of potential

witnesses, [her] instruction not to contact her family, and the failure of [her]

daughter to appear in court without the trial court issuing a writ of attachment

for her appearance.” As noted above, we review the state court’s conclusions and

the factualfindings contained therein under AEDPA’s deferential standard. See

§ 2254(d). For Carty’s remaining claims, we review de novo. See Henderson, 333

F.3d at 598. 

Carty asserts thattrial counselfailed to investigate and present mitigation

testimony from her family. Trial counsel presented some mitigating evidence,

including the testimony of Carty’s mother Enid, sister Isalyn, and daughter

Jovelle. Carty offers that, with better preparation, these witnesses would have

presented a more vivid picture of Carty as a generous and caring human being.

See Walbey v. Quarterman, 309 F. App’x 795, 804 (5th Cir. 2009) (“[T]he

mitigating evidence omitted by [trial counsel] during [the applicant’s] sentencing

overwhelms the ‘scant’ evidence, ‘bereft in scope and detail,’ that was

presented.”). Although trial counsel did not conduct extensive interviews with

these witnesses, they obtained a writ of attachment to secure Jovelle’s

testimony, and, moreover, Carty’s complaint abouttrial counsel’s preparation of

these witnesses boils down to a matter of degrees—she wanted these witnesses

to testify in greater detail about similar events and traits. We agree with the
No. 08-70049

36

district court that Carty has not shown any deficiency in trial counsel’s

preparation of Enid, Isalyn, and Jovelle. See Dowthitt, 230 F.3d at 743. 

Carty also asserts that trial counsel performed ineffectively by not

contacting Carty’s other family members, including Sonia Carty Jackson, Verna

Connor, Yvette Jacqueline Carty-Innes, Boyce Carty, and Clarence Eugene

Carty—all of whom now attest that they were willing to testify about Carty’s

dynamic life, intelligence, and generosity. Such testimony would have

overlapped considerably with the testimonies of Enid, Isalyn, and Jovelle.

Carty’s claim is again that trial counsel did not present enough mitigating

evidence. We agree with the district court that Carty has not shown any

deficiency related to her proffer of cumulative evidence. See id. In addition,

with the exception of Verna, Carty refused to notify trial counsel about her

relatives: Guerinot attested that “Ms. Carty did not provide me with names of

people who would testify on her behalf. Ms. Carty did not even want her family

to testify but I approached them anyway because I thought their testimony was

important.” Carty’s own actions and statements undermine her claim of

ineffective assistance related to mitigating testimony from other family

members. See Randle, 43 F.3d at 225; Wiley, 969 F.2d at 99. The CCA’s

conclusion—that trial counsel’s handling of the witnesses who testified and

failure to contact Carty’s other relatives, who would have testified similarly, did

not prejudice Carty’s mitigation defense—was not an unreasonable

determination of the facts in light of the evidence presented in the punishment

phase and was not an unreasonable application of or contrary to clearly

established, Supreme Court-determined federal law. See Neal v. Puckett, 286

F.3d 230, 247 (5th Cir. 2002) (deferring to state habeas court determination that
No. 08-70049

15 Mathis’s testimony would have been largely cumulative of his trial testimony. For

example, Mathis testified during the guilt/innocence phase of trial that “I’ve known Linda for

a long time and I did not believe that she could do something like this.”

37

“the additional evidence was not substantial enough to outweigh the

overwhelming aggravating circumstances” where “[a]lthough the additional

mitigating evidence was of a significantly better quality than that actually

presented, much of it was similar in nature to the original evidence”).

For the remainder of Carty’s claim of ineffective assistance of counsel

based on failure to investigate and present mitigating evidence, which we review

de novo, we conclude that Carty has failed to show Strickland prejudice. The

omission of Corona’s and Mathis’s proffered punishment-phase testimony was

not prejudicial. Neither trial counsel nor the state has offered sufficient

justification for trial counsel’s failure to interview Corona or Mathis or to place

them on the stand for purposes of mitigation. Corona undisputedly resided with

Carty for three years prior to the kidnaping and murder and was Carty’s

common-law husband, while Mathis was Carty’s DEA agent with direct

knowledge of her work for the government. Corona attests that he would have

testified to the jury that Carty “did not deserve the death penalty” and that he

did not “believe she is an aggressive person or a threat to society.” Mathis

attests that “[t]he Linda I know is not a violent person, let alone a cold-blooded

murderer.” Mathis would also have provided some favorable if mixed testimony

about her performance as an informant for the DEA. Based on the totality of the

evidence, and weighing the relatively unpersuasive nature of Corona’s and

Mathis’s testimony, some of which would have been cumulative,15 against the

circumstances of the crime and other evidence, Carty has failed to show that

their testimony would have resulted in a life sentence.
No. 08-70049

16 Each of the potential witnesses attested that, if asked, he or she would have traveled

to Texas to testify during Carty’s trial. The St. Kitts consulate stated that it would have

assisted with visas and travel. Thus, we assume that the witnesses would have testified if

called. See Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985) (“In order for the

appellant to demonstrate the requisite Strickland prejudice, the appellant must show not only

that this testimony would have been favorable, but also that the witness would have testified

at trial.”). 

38

Carty next asserts that trial counsel rendered ineffective assistance by

failing to investigate or procure testimony from her friends and acquaintances

on St. Kitts. The state does not dispute that these witnesses could show that

Carty was “well-liked and well-known,”“involved in church and politics,” a “good

teacher,” and not “violent or aggressive or even rowdy” while growing up and

working in St. Kitts.16 Indeed, these witnesses would have provided a much

more nuanced and detailed vision of Carty’s life and contributions to the St.

Kitts community. See Riley, 339 F.3d at 316. Yet, most, although not all, of

Carty’s supporters on St. Kitts had little contact with Carty in the two decades

since she left there—as the district court noted, the affidavits “have been

prepared by people removed both in time and geographic location from her life

at the commission of the capital murders.” Carty Federal Habeas, No. 06-614,

slip op. at 112. In fact, their proffered testimonies of her good character appear

“weak and stale” when compared to the person she had become—a person who

stole cars; organized drug deals, burglaries, and kidnapings; and committed

murder. Id. Furthermore, the testimonies of Enid, Isalyn, and Jovelle—based

on more recent observations and interactions with Carty in Texas—presented

at least some of the proffered information to the jury. And, again, Carty’s

obfuscation contributed to trial counsel’s alleged deficiency; she did not inform

trial counselthat she was a foreign national or provide counsel with her contacts
No. 08-70049

17 Even if Carty did not abandon this claim, she has not shown either deficient

performance or prejudice. Carty did not inform trial counsel that she gave birth to a child that

was conceived as a result of rape. And, the jury heard testimony and argument about her rape

and resulting child birth, even as it related to mitigation. For example, after Dr. Brown

testified that she informed him about the rape, trial counsel stated during closing arguments:

Linda Carty, according to the report by Dr. Brown—you may say, as far

as mitigating goes, you may ask yourself, “You know what, I wonder if the fact

that she reported that she gave birth to a child that was the result of a sexual

assault and gave that up for adoption, if that may have triggered something to

cause her to do what she did?” I mean, it could be anything from any source

whatsoever. And the law does not require that you leave your common sense

out there on the courthouse steps.

39

in St. Kitts. Although the proffered testimonies would have given more detail

and more focus to the mitigating evidence, in light of the totality of the evidence

presented at trial, they were not of sufficient quality and force to establish a

reasonable probability that, had the jury heard them, it would have elected to

impose a life sentence.

Carty adds that trial counsel was ineffective for failing to investigate and

present mitigating evidence showing that she was the victim of a rape and that

she became pregnant as a result of that rape, birthed a child, gave it up for

adoption, and now suffers from chronic post-traumatic stress disorder as a

result. Carty did not present this mitigation argument to the district court. See

Carty Federal Habeas, No. 06-614, slip op. at 88. At most, she argued that her

rape was a justification for why she was uncooperative with trial counsel. Thus,

Carty has abandoned this line of argument. See Johnson v. Puckett, 176 F.3d

809, 814 (5th Cir. 1999) (“We have repeatedly held that a contention not raised

by a habeas petitioner in the district court cannot be considered for the firsttime

on appeal from that court's denial of habeas relief.”).17

Finally, Carty argues that trial counsel ineffectively prepared Dr. Brown

for testimony and cross-examination about Carty’s future dangerousness during
No. 08-70049

40

the punishment phase. Because neither we nor the district court granted Carty

a COA on this issue, we lack jurisdiction to consider this claim. See 28 U.S.C.

§ 2253(c); Sonnier v. Johnson, 161 F.3d 941, 946 (5th Cir. 1998) (“Compliance

with the COA requirement of 28 U.S.C. § 2253(c) is jurisdictional . . . .”).

C. Denial of An Evidentiary Hearing

Lastly, Carty argues that the district court abused its discretion by

denying her request for an evidentiary hearing on the exhaustion issue. Having

considered Carty’s proffer in connection with that request, we perceive no abuse

of discretion in the district court’s ruling. See Schriro v. Landrigan, 550 U.S.

465, 474 (2007) (“In deciding whether to grant an evidentiary hearing, a federal

court must consider whether such a hearing could enable an applicant to prove

the petition’s factual allegations, which, if true, would entitle the applicant to

federal habeas relief.”). 

IV. CONCLUSION

For the above-stated reasons, we AFFIRM the district court’s judgment.