-1- United States Court of Appeals

Fifth Circuit



## FILED

December 9, 2003

Charles R. Fulbruge III

Clerk Revised December 23, 2003

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-41571

TROY KUNKLE,

Petitioner–Appellant

VERSUS

DOUG DRETKE, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent–Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, DAVIS, and JONES, Circuit Judges.

DAVIS, Circuit Judge:

Petitioner, Troy Kunkle ( Kunkle), was convicted of capital

murder in Texas and sentenced to death. He now seeks a Certificate

of Appealability (COA) from the district court’s denial of habeas

corpus relief. We grant Kunkle’s request for a COA on his claim of

ineffective assistance of counsel. After examining the merits of

this claim, we conclude that the district court did no t err in-2-

finding it was unexhausted. We also conclude that the Kunkle

failed to demonstrate that he suffered prejudice fro m counsel’s

performance. With respect to Kunkle’s remaining claims, we deny

his application for COA because he has failed to make a substantial

showing of a denial of a constitutional right.

I.

On the night of August 11, 1984, Ku nkle and his girlfriend

Lora Lee Zaiontz, Russell Stanley, Aaron Adkins, and Tom Sauls,

left San Antonio and drove to Corpus Christi. All five were under

the influence of alcohol and L.S.D. While en route, Stanley

removed a .22 caliber pistol from the glove compartment of the

vehicle, fire d it into the air, and asked Adkins if he wanted to

make some money. Sauls told Stanley that “guns and acid don’t

mix,” and Stanley returned the gun to the glove compartment.

During the course of the trip, Stanley took out the gun several

more times. Stanley and Adkins discussed committing a robbery and

slowed the vehicle several times to assess potential victims.

When the group arrived in Corpus Christi, they drove to the

beach. Kunkle and Zaiontz kept to themselves. Stanley, Adkins and

Sauls went for a walk, and Stanley and Adkins again discussed

robbing someone . The group left the beach and went to a

convenience store to buy beer. There, Stanley and Adkins robbed a

man in a phone booth at gunpoint, while Kunkle, Zaiontz, and Sauls

remained in the car. Stanley and Adkins obtained only seven

dollars from this vic tim, so they left the store to search for-3-

another victim. They spotted Stephen Horton walking along the

road. They pulled up next to Horton, and Zaiontz asked him if he

needed a ride. Though he resisted at first, Horton was eventually

persuaded to get into the car. Horton sat in the front seat, next

to Zaiontz.

Once inside th e car, Stanley put the gun to the back of

Horton’s head and told him to give them his wallet. Horton turned

to look at Stanley, but Zaiontz scratched his face and told him to

look forward. Kunkle told Stanley to kill him, but Stanley

refused. Kunkle then took the gun from Stanley, put it to Horton’s

head, and said, “We’re going to tak e you back here and blow your

brains out.” Adkins drove the car behind a skating rink, and

Kunkle shot Horton in the back of the head. They pushed his body

out of the car, and Zaiontz took his wallet. After the shooting,

Kunkle quoted the following line from a song: “another day, another

death, another sorrow, another breath,” and told the group that the

murder was “beautiful.”

On February 22, 1985, a jury convicted Kunkle for the capital

murder of Horton. He was sentenced to death on February 26, 1985.

Kunkle’s conviction and sente nce were affirmed on direct appeal.

Ku nkle v. State , 771 S.W.2d 435 (Tex. Crim. App. 1986). The

Supreme Court denied certiorari. K unkle v. Texas

, 492 U.S. 925,

109 S.Ct. 3259, 106 L.Ed.2d 604 (1989).

Kunkle filed a state habeas petition in July 1989. After-4-

hearing argument from counsel, the state habeas judge determined

that an evidentiary hearing was not necessary, and recommended the

denial of habeas relief. The Court of Criminal Appeals accepted

the recommendation and denied relief. E x parte Kunkle

, 852 S.W.2d

499 (Tex.Crim.App. 1993).

In August 1993, Kunkle filed his first federal habeas petition

pro se. He was later appointed counsel who then filed an amended

petition in March 1994. In January 1995, this petition was

dismissed without prejudice for failure to exhaust some of the

claims in sta te court, and the case was closed. Kunkle filed

anot her state habeas petition asserting the claims the district

court specified as unexhausted. This petition was denied.

In April 1995, Kunkle filed an amended petition in federal

court. However, he filed it under the old case number instead of

initiating a new suit. No action was taken on this petition for

several years. In July 2001, an order was issued under a new case

number indicating that the amended petition would be treated as a

new petition, filed in April 1995, and ordering the clerk of court

to file a c opy of the petition under the new case number. The

State filed its response and moved for summary judgment. In

September 2002, the federal district court denied habeas relief and

refused to issue a COA. Kunkle now seeks a COA from this court.

II.

Kunkle filed the instant Section 2254 petition in April 1995,-5-

before the effective date of the Antiterrorism and Effective Death

Penalty Act (AEDPA). As such, this court must apply pre-ADEPA law

in reviewing the district court’s ruling. Slack v. McDaniel , 529

U.S . 473, 480, 120 S.Ct. 1602, 146 L.Ed.2d 542 (2000). However,

where an appeal from a denial of a petition of habeas corpus is

commenced after the effective date of the AEDPA, post-AEDPA law

governs the right to appeal. I d

. Kunkle filed a notice of appeal

in the instant case on Novemb er 1, 2002. Therefore, the AEDPA

amended version of 28 U.S.C. § 2253 controls Kunkle’s right to

appea l. Before an appeal may be entertained, a prisoner who was

denied habeas relief in the district court must first obtain a COA

from a circuit judge. 28 U.S.C. § 2253(c)(1)(A); M ille r-El v.

Cockrell

, 53 7 U.S. 322,123 S.Ct. 1029, 1039, 154 L.Ed.2d 931

(2003). Until a COA has been issued, a federal appeals court lacks

jurisdiction to rule on the merits of a habeas appeal. M iller-El

,

123 S.Ct. at 1039. To obtain a COA, the petitioner must make a

“substantial showing of the denial of a constitutional right.” 28

U.S.C. 2253(c)(2). To make such a showing, the petitioner must

demonstrate “reasonable jurists could debate whether

. . . the

petition should have been resolved in a different manner or that

the issues presen ted were ‘adequate to deserve encouragement to

proceed further.’” Slack

, 529 U.S. at 484, 120 S.Ct. 1595 (quoting

Ba refoot v. Estelle , 463 U.S. 880, 893, n. 4, 103 S.Ct. 3383, 77

L.Ed.2d 1090 (1983)). The question of whether a COA should issue-6-

is a threshold inquiry that “requires an overview of the claims in

the habeas petition and a general assessment of their merits.”

Miller-El , 123 S.Ct. at 1039. A full consideration of the merits

is not required, nor permitted, by § 2253(c). Id . The fact that

a COA should issue does not mean that the petitioner will be

entitled to habeas relief because the “question is the debatability

of the underlying constitutional claim, not the resolution of that

debate.” Id . at 1042.

Under pre-AEDPA standards of r eview, this court will review

the legal conclusions of the district court de novo and the state

court’s findings of fact for clear error. S ee Soffar v. Cockrell

,

300 F.3d 588, 592 (5th Cir. 2002) (en banc). This court must

accord a presumption of correctness to all findings of fact if they

are supported by the record. Id .; see 28 U.S.C. § 2254(d) (1995)

(current version at 28 U.S.C. § 2254(e)(1) (2003). The pre-AEDPA

standards do not require a federal court to defer to the state

court’s legal conclusions. See Valdez v. Cockrell , 274 F.3d 941,

949 (5th Cir. 2001) (citing Thompson v. Keohane

, 516 U.S. 99, 111-

12, 116 S.Ct. 457, 113 L.E.D.2d 383 (1995)).

III.

Kunkle first argues that his due process rights were violated

because the trial court ordered only a partial transcript of the

voir dire. On direct appeal, the only error asserted by Kunkle was

that the trial court improperly denied his motion challenging the-7-

State’s death qualifying questions in jury selection. For the

purpose of appellate review, Kunkle’s trial counsel, who also

represented Kunkle on direct review, requested the entire voir dire

examination of the jury panel be transcribed. The trial court

denied this request, instead ordering that the transcription be

limited to the general statements and questions of the trial court

and the parties and the individual voir dire of six potential

jurors. The trial court did, however, state that other portions

of the voir dire would be transcribed “for good cause shown.”

Kunkle contends that the Constitution requires the State to

provide an indigent defendant with a complete transcript of voir

dire, free of charge. In G riffin v. Illinois

, 351 U.S. 12, 19-20,

76 S.Ct. 585, 100 L.Ed. 891 (1956), the Supreme Court held that the

Due Process and Equal Protection clauses of the Fou rteenth

Amendment require that states provide indigent defendants with a

trial transcript free of charge when it is necessary for meaningful

appellate review. However, the state is not “obligated to

automatically supply a complete verbatim transcript,” Moore v.

Wa inwright , 633 F.2d 406, 408 (5th Cir. 1980), and a State need

not waste its funds providing for free those parts of the

transcript that are not “germane to consideration of the appeal.”

Draper v. Washington , 372 U.S. 487, 495, 83 S.Ct. 774, 9 L.Ed.2d

899 (1963). “[N]or is the state required to furnish complete

transcripts so that the defendants

. . . may conduct ‘fishing-8-

expeditions’ to seek out possible errors at trial.” J ackson v.

Estelle , 672 F.2d 505, 506 (5th Cir. 1982).

At no time has Kunkle alleged any error that may ha ve been

uncovered through the production of those portions of voir dire not

included in the record. Rather, Kunkle argues generally that he

may have been able to uncover an error of constitutional magnitude

had he been provided a complete transcript. In J ackson, this Court

specifically rejected the idea that a state must provide a complete

transcri pt for purposes of a mere ‘fishing expedition.’ I d

.

Furthermore, Kunkle’s trial counsel also represented him on direct

appeal. As the district court noted, it is unlikely that counsel,

having participated in the jury selection, would uncover an error

of constitutional magnitude only after the prep aration of a

complete verbatim transcript. For the above reasons, Kunkle has

failed to make a substantial showing of a denial of a

constitutional right. Kunkle’s request for a COA on this issue is

denied.

IV.

Kunkle next argues that the introduction of unadjudicated

offenses at trial violated his right to due process. During the

sentencing phase of Kunkle’s trial, the State introduced evidence

demonstrating his involvement in unadjudicated offenses and

evidence of prior bad acts. Kunkle argues that A ppre ndi v. New

Jersey

, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and1 In its order the district court stated: “Kunkle argues that

the Supreme Court’s action in Apprendi v. New Jersey [] and its

progeny require Texas to prove any unadjudicated offenses used in

the punishment phase of trial beyond a reasonable doubt.

However, this Court need not reopen the case based on this

argument because the Fifth Circuit has recently held that

Apprendi created a new rule that is unavailable on habeas review.

See United States v. Brown , [305 F.3d 304, 310 (5th Cir. 2002)]

(finding that “ Apprendi creates a new rule of criminal procedure

which is not retroactively applicable . . .”). As Kunkle’s

direct review concluded well before the Supreme Court decided

Apprendi , any extension of that case to Texas’ capital murder

scheme is barred by the non-retroactivity principle of Teague v.

-9- Ring v. Arizona

, 536 U .S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556

(2002) require the State to prove beyond a reasonable doubt any

“unadjudicated offenses” used by it as support for the special

issues in a capital case. In Apprendi

, the Supreme Court held that

“[o]ther than the fact of prior conviction, any fact that increases

the penalty for a crime beyond the prescribed s tatutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.

530 U.S. at 490, 120 S.Ct. 2348. In R ing

, the Supreme Court

extended Apprendi to death penalty cases, holding that where a

state capit al murder statute requires, beyond a determination of

guilt or innocence, the finding of certain aggravating factors

before imposition of the death penalty, then these factors must be

found by a jury beyond a reasonable doubt. 536 U.S. at 609, 122

S.Ct 2428.

On this issue, we agree with the district court’s order

rejecting this claim which petitioner had presented on a Rule 59(e)

motion for reconsideration. 1 Kunkle’s request for a COA on thisLane , 489 U.S. 288, 109 S.Ct. 1060 (1989). As Kunkle’s reliance

on Apprendi is unavailing on habeas review, this Court need not

reopen this case.” Kunkle v. Cockrell , No. 01-302 (S.D. Tex.

Oct. 7, 2002) (order denying Motion to Alter or Amend Judgment).

-10- issue is denied.

V.

Kunkle next argues that he was denied effective assistance of

counsel becau se trial counsel failed to prepare and present

mitigating evidence in the punishment phase of the trial.

Specifically, Kunkle argues that trial counsel should have

presented the testimony of Kunkle’s mother which would have

revealed his mother’s mental illness, his father’s mental illness,

and the physica l abuse of their son. Kunkle also complains that

counsel failed to discover an expert report claiming that Kunkle

suffered from psychological problems, along with school records

showing that Kunkle suffered from a non-aggressive conduct

disorder. The district court dismissed this claim for failure to

exhaust state remedies. After a threshold inquiry into this claim,

we find that Kunkle has demonstrated “that t he issues presented

[are] ade quate to deserve encouragement to proceed further.”

Slack

, 529 U.S. at 484, 120 S.Ct. 1595 (internal quotations

omitted). Therefore, we grant Kunkle’s request for a COA on this

issue.

a.

Kunkle argues that the district court erred in dismissing his2 The affidavit asserts that had Kunkle’s trial occurred

after Penry v. Lynaugh , 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d

256 (1989), Kunkle’s trial counsel would have “introduced

evidence about Troy’s father’s and mother’s histories of mental

problems and the effects it had on Troy. I would have also

introduced evidence of early childhood abuse and behavioral

problems and various attempst to acquire help.” Ex Parte Kunkle

, 852 S.W.2d 499, 505 (Tex.Crim.App. 1993). Proof as to the

existence of this evidence is not provided in the affidavit.

-11- ineffective assista nce of counsel claim for failure to exhaust

available state remedies. Kunkle’s first habeas petition in state

court presented no support for t he ineffective assistance claim

except a conclusory affidavit from trial counsel contending that

there was abundant mitigating evidence of Kunkle’s background,

including a troubled home life and a family history of mental

illness. 2 Kunkle’s first federal habeas petition, however,

presented evidentiary support for this claim, including an3 Mrs. Kunkle’s affadavit states that Mr. Kunkle was in the

military and disciplined his sons in a military fashion. This

punishment usually consisted of a long lecture and a week of

grounding. Mrs. Kunkle states that Mr. Kunkle was hospitalized

for a psychotic break in 1977, which ultimately led to his

dismissal from the military. Mrs. Kunkle states that after this

psychotic episode Mr. Kunkle’s treatment of Kunkle grew violent;

however, Mrs. Kunkle details only a few concrete incidents in

her affidavit. The following specific incidences are related by

Mrs. Kunkle: (1) one time Mr. Kunkle threw Kunkle down so hard

it bruised his spleen; (2) one time Kunkle came home late and Mr.

Kunkle beat him; (3) one time Mrs. Kunkle came home and saw a

hole in the wall which she was told was caused by Mr. Kunkle’s

throwing Kunkle into the wall. Mrs. Kunkle also asserts that

shortly after Kunkle was born she was committed to a psychiatric

hospital. Mrs. Kunkle asserts that she did not know why she was

committed, but several years later Mr. Kunkle told her it was

because she had tried to choke Kunkle.

4 In 1994, Kunkle was interviewed by Dr. Murphy. He

concluded Kunkle had a thought disorder with features similar to

schizophrenia. Personality testing confirmed both schizophrenic

process and lack of coping skills, perceptual problems, and other

deficits normally associated with schizophrenia.

-12- affidavit from his mother 3 and a detailed psychological report. 4

The federal district court dismissed the first federal habeas

petition as a “mixed petition” for failing to exhaust some of the

claims in state court. In its order dismissing the petition, the

federal district court listed each of the claims Kunkle had failed

to exhaust. Kunkle’s ineffective assistance claim, however, was

not listed among the unexhausted claims. Kunkle then filed his

second habeas petition in state court, asserting those claims

listed as unexhausted by the federal district court. The state

court d enied these claims. Kunkle then re-filed his original

federal habeas petition. The federal district court noted that-13-

Kunkle did not include his ineffective assistance claim in his

second state habeas petition, and therefore the state court still

had not bee n presented with the additional facts asserted in

Kunkle’s mother’s affidavit and the psychological report that had

been attached to the first federal habeas petition. The district

court concluded that Kunkle had not exhausted this in effective

assistance claim because Kunkle possessed this additional

information at the time he filed his second state petition, yet

failed to present these significant additional facts to the Texas

Court of Criminal Appeals.

28 U.S.C. § 2254(b)(1) requires that federal habeas

petitioners fully exhaust remedies available in state court before

proceeding in federal court. To satisfy the exhaustion requirement

of Section 2254(b)(1), “a habeas petitioner must have fairly

presented the substance of his claim to the state courts.” N obles

v. Johnson

, 127 F.3d 409, 420 (5th Cir. 1997). A habeas petitioner

fails to exhaust state remedies “when he presen ts material

additional evidentiary support to the fed eral court that was not

presented to the state court.” G raham v. Johnson

, 94 F.3d 958, 968

(5th Cir. 1996).

In Brown v. Estelle

, 701 F.2d 494 (5th Cir. 1983), this court

considered a situation very similar to the instant case. The

petitioner in B rown based both his state and federal habeas

petitions on claims of ineffective assistance of counsel,-14-

contending that trial counsel should have been on notice of facts

sufficient to support an insanity defense. In state court, the

p etitioner detailed facts in his petition showing that he had

exhibited “extremely bizarre and violent behavior” while in jail

awaiting trial, that as a result he was committed to a mental

hospital where he had been diagnose d as schizophrenic, and that

upon returning to jail he received substantial doses of antipsychotic drugs. I d. In a subsequently filed Section 2254

petition, the petitioner asserted the same general theory for his

ineffe ctive assistance claim, but added three affidavits of

individuals who had observed petitioner’s behavior. Because the

claim of ineffectiv e assistance was “significantly different and

stronger” than that presented to the state court, this court held

that his claim was not exhausted and that his claim required

further proceedings in state court. Id. at 496.

The addition of the psychological report and Kunkle’s mother’s

affidavit detailing her mental illness and the mental illness of

Kunkle’s father, along with concrete instances of abuse of Kunkle,

presents “significant evidentiary support” not previously presented

to the state court supporting his ineff ective assistance claim.

See Graham

, 94 F.3d at 969. The claim would have been

substantially different in state court if Kunkle had provided this

evidentiary support rather than the conclusory affidavit of trial

counsel. We conclude that Kunkle did not exhaust his ineffective5 Kunkle did not argue in the district court or in this

court cause for or prejudice that would excuse his procedural

default.

-15- assistance of counsel claim in the state court.

b.

Kunkle argues further that the interests of justice require

that this co urt treat his ineffective assistance claims as

exhausted even if we determine that they have not been properly

exhausted. Kunkle argues that at the time he filed his second

state petition, Texas law did not prohibit the filing of successive

state habeas petitions. Under current Texas law, however, Kunkle

is foreclosed from filing another habeas petition, and as a result

the claim is procedurally defaulted. 5 Tex. C.C.P. art 11.071 § 5.

Kunkle relies on Ford v. Georgia , 498 U.S. 411, 423-24, 111 S.Ct.

850,112 L.Ed.2d 935 (1991), as support for his argument that a

federal court may not apply a state pr ocedural bar retroactively

when the bar did not exist at a time when the default could have

been avoided. In F ord

, the Supreme Court held th at a state

procedural bar “must have been ‘firmly est ablished and regularly

followed’ by the time as of which it is to be applied” in order for

it to be valid in a given case. Id . at 424-25, 111 S.Ct. 850.

The abuse of writ doctrine has been consistently applied as a

procedural bar in Texas since 1994, long before its codification in

Tex.CodeCrim.Proc.art. 11.071 § 5, and well before Kunkle filed his-16-

second state habeas petition in 1995. See Ex parte Barber

, 879

S.W.2d 889, 891 n. 1 (Tex.Crim.App.1994); Fearance v . Scott , 56

F.3d 633, 642 (5 th Cir. 1995). Therefore, we must reject this

argument.

c.

Kunkle also argues that the district court erred in not

finding that the State waived the requirement of exhaustion. This

issue is controlled by pre-AEDPA law. S lack

, 529 U.S. at 480, 120

S.Ct. 1602.

Kunkle ar gues that the State can waive exhaustion either by

explicitly waiving it, or by merely failing to assert the defense

in its answer to the habeas petition. E sslinger v. Davis, 44 F.3d

1515, 1525 (11th Cir. 1995)

. Kunkle argues that the State waived

its exhaustion defense to the ineffective assistance claim by

failing to raise it in response to his first federal habeas

petition. Furthermore, Kunkle argues that the State explicitly

acknowledged in its a nswer to the first federal habeas petition

that the claim of ineffective assistance of counsel was exhausted

and argued the claim on the merits. Kunkle contends that this

action by the State amounts to a waiver of the defense of

exhaustion.

The State concedes that under this circuit’s pre-AEDPA

jurisprudence it is possible for the State to waive its exhaustion

defense, but con tends that it has not done so here. The State-17-

argues that prior to the AEDPA it was the law of this circuit that

for the State to have waived its exhaustion defense it “must have

explicitly articulated the waiver or else have failed to raise [it]

at the proper t ime.” B rown

, 701 F.2d at 496. The State argues

that its failure to raise the defense in the first federal habeas

proceeding was not a “fail[ure] to raise the . . . defense at the

proper time.” I d

. The State argues that it is clear under the

pre-AEDPA law of this circuit that the exhaustion defense is timely

asserted if it is raised before the case reaches the court of

appeals. S ee, e.g., Hopkins v. Jarvis

, 648 F2d 981, 983 n. 2 (5th

Cir. 1981); Messelt v. Alabama

, 595 F.2d 247, 250-51 (5th Cir.

1979). The State contends that because it raised the defense in

the district court, albeit at the second proceeding, it did not

waive exhaustion for failing to raise the defense at the proper

time.

In McGee v. Estelle

, 722 F.2d 1206 (5th Cir. 1984) (en banc),

this court addressed explicit and implicit waiver of the defense of

exhaustion by the State. This court found that the State did not

make an express waiver of its exhaustion defense by stating in its

ans wer to the federal habeas petition that it “believed” the

petitioner had exhausted state remedies. I d

. at 1213. However,

this court concluded that this statement did amount to an implicit

waiver of the defense. Id . This court nevertheless stated: “[a]

finding of waiver does no t conclude our consideration, for a-18-

district court or a panel of this court may consider that it should

not accept a waiver, express or implied.” Id. at 1214. This view

was subsequently adopted by the Sup reme Court. S ee Granberry v.

Greer

, 481 U.S. 129, 107 S.Ct 1671, 95 L.Ed.2d 119 (1987). By

acknowledging in its answer to the first federal ha beas petition

that Kunkle’s ineffective assistance claim was exhausted and then

arguing that the claim should be rejected on th e merits, it is

likely that the State implicitly waived its exhaustion defense to

this claim. However, M cGee sp ecifically recognizes the right of

the district court, in its discretion, to decline to accept such a

waiver. Accordingly, we must examine the district court’s refusal

to accept this waiver for an abuse of discretion.

The district court found that the State did not waive its

exhaustion defense because “Kunkle’s responsibility to exhaust his

claims, especially when given the opportunity by the Court, does

not rest in [the State’s] immediate failure to recognize their

unexhausted nature. Kunkle bears the burden of giving the state

courts a chance to resolve his claims.” Kunkle v. Cockrell , No. C01-302, slip. op. at 35 (S.D.Te x. Sep. 3, 2002). Generally, the

fact that petitioner will be procedurally barred from filing a

successive writ and obtaining s tate court review of unexhausted

material weighs in favor of a finding of waiver by the State. S ee

McGee v. Estelle , 722 F.2d 1214. However, we believe the unique

facts in this case support the district court’s decision not to-19-

accept the State’s waiver. Kunkle’s counsel obviously knew that

the facts he had provided to the federal court in support of his

first federal habeas petition had not been offered in the state

court. In addition, as we stated previously, the Texas abuse of

writ doctrine was firmly established at the time Kunkle filed his

second state habeas petition.

As the district court observed, the petitioner has the primary

responsibility to exhaust his claims. The petitioner has not

explain ed why he did not present to the state court the same

materials he had prepared a nd submitted to the federal court.

Perhaps he thought the State would not raise exhaustion upon his

return to federal court because it did not do so in the initial

federal proceeding. But given the difficulty a petitioner has in

establishing implicit waiver by the State and Texas’ established

law on successive writs, this belief was unjustified. The district

court did not abuse its discretion in refusing to accept the

State’s implici t waiver of its exhaustion defense. Kunkle’s

request for a COA on this issue is denied.

d.

Although Kunkle’s ineffective assistance claim is unexhausted,

and therefore procedurally barred, we are satisfied that this claim

should also be denied on the merits. Ineffective assistance of

counsel claims are evalua ted under the standard announced by the

Suprem e Court in S trickland v. Washington

, 466 U.S. 668, 687-88,-20-

104 S.Ct. 2052, 80 L.Ed .2d 674 (1984). To succeed on an

ineffective assistance claim, a petitione r must demonstrate that

counsel’s performance was deficient and that the deficiency

prejudiced the defense. I d

. at 687, 104 S.Ct. 2052. Because an

ineffective assistance of counsel claim is a mixed question of law

and fact, we review the district court’s decision de novo. C arter

v. Johnson, 110 F.3d 1098, 1110 (5th Cir.1997).

1.

To esta blish deficient performance, Kunkle must show that

trial counsel “made errors s o serious that counsel was not

functioning as the 'co unsel' guaranteed ... by the Sixth

Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. However,

"judicial scrutiny of counsel's performance must be highly

deferential," and we must strive to eliminate the potential

"distorting effect of hindsight." Id. at 689, 104 S.Ct. 2052.

Accordingly, we must "indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional

assistance." Id., 104 S.Ct. 2052.

Kunkle conten d s that his trial counsel’s performance was

deficient because counsel failed to present significant mitigating

evidence of Kunkle’s mental problems and troubled home life. In

support of this claim, Kunkle prese nts the affidavit of trial

counsel, Richard Rogers. In his affidavit, Rogers states that he

was aware of this potentially mitigating evidence, but did not-21-

present it because the pre- Penry sentencing regime in Texas did not

provide the jury with a vehicle to consider mit igating evidence.

Penry v. Lynaugh

, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256

(1989). Rogers states that without a proper vehicle for the jury

to consider the mitigating nature of this evidence, he concluded

that the evidence would be more prejudicial than beneficial to

Kunkle. Rogers states that if he had known the court would give a

mitigating in struction to the jury, he would have introduced

evidence of Kunkle’s parents’ history of mental il lness and its

effect on Kunkle.

Because we agree with the district court that Kunkle failed to

establish the prejudice prong of the Strickland test, we pretermit

a decision on the merits of the deficient performance prong of

Strickland

, and assume without deciding that Kunkle has shown

deficient performance.

2.

To prove prejudice, Kunkle must demonstrate a “reasonable

probability that the result of the proceedings would have been

different but for counsel’s unprofessional errors.” C rane v.

Johnson

, 178 F.3d 309 (5th Cir. 1999). However, the mere

possibility of a different outcome is not sufficient to prevail on

the p rejudice prong. R ansom v. Johnson

, 126 F.3d 716, 721 (5th

Cir. 1997). Rather, Kunkle must show that counsel’s errors

“rendered the resul t of the proceeding fundamentally unfair or-22-

unreliable.” Rector v. Johnson

, 120 F.3d 551, 563 (5th Cir. 1997).

In determining whether a petitioner suffered prejudice, we compare

the evidence actually presented at sentencing with any additional

mitigating evidence presented in the habeas proceeding. Neal v.

Puckett

, 286 F.3d 230, 241 (5th Cir. 2002). After considering all

the evi dence, the court must decide whether the “additional

mitigating evidence was so compelling that there was a reasonable

probability that at least one juror could have determined that

because of the defendant’s reduced moral culpability, death was not

an appropriate sentence.” Id

.

At the time of Kunkle’s trial, i n order for a Texas jury to

impose a death sentence it was required to find that the murder was

committed “deliberately” and that the defendant would constitute a

“continuing threat to society.” The strongest evidence produced by

the State in support of the special findings was the cruelty

associated with the murder and the senselessness of the crime.

During the punishment phase of Kunkle’s trial, the State

called four witnesses: Walter Howard, Frances Evans, David Abbott,

and Edward Garza. Howard was the assistant principal of the high

school Ku nkle attended. Howard testified that Kunkle committed

numerous infractions while in school, including truancy, smoking

and classroom disturbances, and that Kunkle would become hostile

and belligerent when confronted with his violations. Howard

testif ied that Kunkle was transferred to Center School, a school-23-

for children with emotional problems, and that he believed Kunkle

was a threat to society.

Frances Evans was the principal of Center School. She

testified that Kunkle had difficulty following rules and that

Kunkle would likely have trouble adhering to the regulations placed

on people on a regular basis.

David Abbott was a psychologist who worked with Kunkle while

at the Center School. He testified that Kunkle had a lackadaisical

a ttitude and was surly. Abbott also testified that Kunkle had a

flagrant disregard for the rights and needs of others and did not

seem to have an internalized value system consistent with societal

norms. Abbott stated that Kunkle tended to blame others when

problems would arise. Abbott believed that Kunkle would be a risk

for future acts of violence.

Counsel for Kunkle called Kunkle’s father as a witness. He

testified that although he and Kunkle had problems, he would help

support Kunkle if he were sentenced to life imprisonment. Kunkle’s

father also told the jury that Kunkle had never been arrested

before this incident. Counsel then called Kunkle’s mother who

likewise testified that she loved her son and that she would help

him if he were sentenced to life.

In support of his first and second federal habeas petitions,

Kunkle submitted the affidavit of Kunkle’s mot her, Judith Kunkle

(Mrs. Kunkle), the Psychological evaluation of Dr. Philip Murphy,-24-

School Assessment Reports, and the Texas Department of Corrections

Psychiatric Notes for Kunkle. Mrs. Kunkle’s affidavit describes

Kunkle’s relationship with his father, Jerry Kunkle (Mr. Kunkle).

Mrs. Kunkle’s affadavit states that Mr. Kunkle was in the military

and disciplined his sons in a military fashion. This punishment

usually consisted of a long lecture and a week of grounding. Mrs.

Kunkle states that Mr. Kunkle was hospitalized for a psychotic

break in 1977, which ultimately led to his dismissal from the

military. Mrs. Kunkle states that after this psychotic episode Mr.

Kunkle’s treatment of his son (who was 11 years old at th e time)

grew violent; however, Mrs. Kunkle details only a few concrete

incidents in her affidavit. The following specific incidences are

related by Mrs. Kunkle: (1) one time Mr. Kunkle threw Kunkle down

so hard it bruised his spleen; (2) one time Kunkle came home late

and Mr. Kunkle beat him; (3) one time Mrs. Kunkle came home and saw

a hole in the wall which she was told was caused by M r. Kunkle’s

throwing Kunkle into the wall. Mrs. Kunkle also asserts that

shortly after Kunkle was born she was committed to a psychiatric

hospital. Mrs. Kunkle asserts that she did not know why she was

committed, but several years later Mr. Kunkle told her it was

because she had tried to choke Kunkle.

We doubt that the facts recited in Mrs. Kun kle’s affidavit

would have convinced a juror to vote against imposition of the

death penalty. Other than the few instances above, Mrs. Kunkle’s-25-

affidavit contains nothing but generalizations as to the condition

of Kunkle’s home life or the mental state of his parents.

Furthermore , because several of the incidents listed in Mrs.

Kunkle’s affidavit were not witnessed by her, but were related to

her by Mr. Kunkle, the jury would probably give limited weight to

these statements.

A psychological report of Kunkle was performed by Dr. Murphy,

a licenced clinical psychologist. The report offers extensive

detail regarding Kunkle’s psychological problems and also

challenges so me of the conclusions made by the State’s witnesses

during the sentencing phase of Kunkle’s trial. In addition to a

personal examination, Dr. Murphy examined the two evalua t ions

prepared by the psychological staff at Kunkle’s high school which

were relied upon by the State’s witnesses in forming their opinions

on whether Kunkle “deliberately” killed the victim and on Kunkle’s

future dangerousness. One evaluation, performed when Kunkle was 15

years, six months of age, was educational in nature and found that

Kunkle was learning disabled. The other, performed when Kunkle

was 16 years, 9 months of age, was psychological in nature. With

respect to the latter, the school found no indication that Kunkle

was unaware of his actions.

After interviewing Kunkle, Dr. Murphy concluded Kunkle had a

thought disorder with features similar to schizophrenia.

Personality testing confirmed both schizophrenic process and lack-26-

of coping skills, perceptual problems, and other deficits normally

associated with schizophrenia. Dr. Murphy concluded that Kunkle’s

schizophrenia would have prevented him from “deliberately” causing

the death of the victim.

We find it significant that Dr. Murphy’s psychological

evaluation was performed in 1994, ten years after the murder. We

believe that fact, alone, would likely cause a jury to question the

validity of the evaluation. Kunkle’s high school psychological

evaluation, on the other hand, was performed a little over a year

before the murder, when Kunkle was almost seven teen. That

evaluation found no indication of a schizophrenic disorder. In the

light of these facts, Dr. Murphy’s assertion that Kunkle was

schizophrenic at the time of the murder is highly speculative and

unpersuasive. Kunkle has not shown that the presentation of Dr.

Murphy’s testimony would have affec ted the jury’s finding that

Kunkle deliberately committed the murder.

With respect to the issue of future dangerousness, Dr. Murphy

pointed out that the scho ol’s psychological evaluation led to a

diagnosis of Socialized, N o naggressive Conduct Disorder. Dr.

Murphy states that this diagnoses predicts passive-aggressive

behavior, and would not in itself lead to a pred iction of future

dangerousness. However, Dr. Murphy admits that in individuals with

this condition, general passive-aggressive behavior often becomes

active-aggressive (which could lead to a prediction of future-27-

dangerousness) when the subject is around his peers. Indeed, this

was exactly the situation when Kunkle shot the victim.

Considering, from the perspective of the jury, that Kunkle has

already demonstrated a propensity for severely active-aggressive

behavior when surrounded by peers, we find Dr. Murphy’s assessment

is unlikely to have persuaded the jury to reach a different outcome

on future dangerousness. For these reasons, we conclude that

Kunkle has failed to show that he was prejudiced by any deficient

performance of his trial counsel.

VI.

For the reasons stated above, we grant Kunkle’s request for a

COA on the claim of ineffective assistance of counsel. After

considering the merits of Kunkle’s ineffective assistance claim, we

conclude tha t the district court did not err in finding it was

unexhausted and deny it as procedurally defaulted. We also

conclude that Kunkle has not shown prejudice as required by the

second prong of Strickland

, 466 U.S. at 687, 104 S.Ct. 2052.

Accordingly, we affirm the dist rict court’s denial of relief on

this claim. For the reasons stated above, we deny COA on Kunkle’s

remaining claims.

AFFIRMED; COA DENIED.-28-