IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-70009

WILLIE TERION WASHINGTON, 

 Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:07-CV-721

Before CLEMENT, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:*

Petitioner, Willie Washington, seeks a Certificate of Appealability 

(“COA”) on two ineffective assistance of trial counsel (“IATC”) claims, which 

the district court concluded were procedurally barred. Washington also argues 

the district court prevented him from having a “meaningful opportunity” to 

 

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

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

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 20, 2017

Lyle W. Cayce

Clerk

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demonstrate cause for his procedural default by denying his petition for 

discovery and a hearing. We are persuaded that his petitions are meritorious.

I.

Washington was convicted of capital murder and sentenced to death in 

1986 by a Texas jury. The conviction and sentence were affirmed in 1989 by 

the Texas Court of Criminal Appeals (“TCCA”) on direct appeal. 

Then Washington commenced collateral proceedings. During his now 

two-decades-long pursuit of habeas relief, Washington has raised numerous 

claims on habeas petitions before both state and federal courts. But the present 

motion concerns only two IATC claims. In the first, Washington challenges his 

trial counsel’s failure to raise a timely Batson claim despite evidence of the 

violation (“IATC-Batson”). In the second, Washington argues his trial counsel 

failed to conduct a competent investigation into his background, which would 

have unearthed important sentence mitigation evidence (“IATC-sentence”). 

Neither of the claims has been adjudicated on the merits. The IATCBatson claim was rejected by the TCCA as procedurally barred under Texas’s 

abuse of the writ statute. Although Washington’s state habeas counsel raised 

an initial IATC claim regarding trial counsel’s failure to investigate mitigating 

evidence, he significantly altered his IATC-sentence claim when he (with the 

assistance of new counsel) raised it in his federal habeas petition. Accordingly, 

the district court declined to review both. 

We initially agreed with the court’s decision. Washington v. Thaler, 464 

F. App’x 233 (5th Cir. 2012). But, after our ruling, the Supreme Court decided 

Trevino v. Thaler, which established a new basis for overriding a procedural 

default in Texas criminal proceedings: ineffective assistance of habeas counsel. 

133 S. Ct. 1911 (2013). The Supreme Court granted Washington’s certiorari 

petition and remanded for further consideration in light of Trevino. This court 

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then granted a COA and remanded to the district court to review his IATC 

claims anew.

In his supplemental briefing ordered by the district court, Washington 

only raised the IATC-Batson and IATC-sentence claims. He sought 90 days of

discovery and “an opportunity to plead allegations relating to cause for the 

procedural default” on those claims. Such discovery would allow him to 

“acquire information about and plead with more specificity” his state habeas 

counsel’s ineffectiveness. 

But he also noted evidence of deficiency already in the record. Regarding 

the adequacy of counsel’s representation, Washington argued that “[s]tate 

habeas counsel appears to have conducted no investigation into trial counsel’s” 

failure to raise a Batson objection. He noted this failure prevented him from 

raising an IATC claim that this court found to be potentially meritorious. See

Washington, 464 F. App’x at 239–40 (noting that there was sufficient evidence 

at trial to raise a prima facie Batson claim and that “[t]he failure to raise a 

Batson challenge at voir dire may have been ineffective assistance”). 

Regarding the IATC-sentence claim, Washington conceded that his state 

habeas counsel raised the claim initially. But he contended that this challenge

relied exclusively on an affidavit Washington had signed, suggesting his state 

habeas counsel’s challenge was based on insufficient efforts. 

Turning to prejudice, Washington noted that federal habeas counsel had 

been able to unearth information that supported the merits of both IATC 

claims. The IATC-Batson claim was supported by the discovery of the 

prosecutor’s jury questionnaires from the trial, which appeared to be racially 

coded.1 Federal habeas counsel also discovered that the same prosecutor had 

 

1 Specifically, the questionnaires of black jurors had the letter “b” written in the 

margins.

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been found guilty of a Batson violation in another proceeding, wherein he made 

similar markings. Whitsey v. State, 796 S.W.2d 707 (Tex. Crim. App. 1989). 

Regarding the IATC-sentence claim, Washington’s federal habeas counsel had 

unearthed a “plethora of mitigating information” based on a more thorough 

investigation, suggesting that the deficient investigation impacted the outcome 

of his IATC-sentence claim. These discoveries suggested that a more extensive 

investigation by habeas counsel would have led to a different result.

The district court interpreted his petition as seeking an evidentiary 

hearing and denied relief. The court neither considered the underlying merits 

of Washington’s IATC claims, nor investigated the underlying state record. 

Instead, it focused on Washington’s petition, noting he “offered little other than 

a generalized hope that additional investigation and an evidentiary hearing 

might lead to something relevant.” The court further noted that he “offer[ed] 

no explanation as to how [the newly-discovered] evidence relates to the 

defaulted claims, or how state habeas counsel was deficient for failing to raise 

the defaulted claims.” 

The court then reaffirmed its prior decision that the claims were 

procedurally barred. Specifically, the court found that Washington had made 

“no showing that [habeas] counsel was ineffective,” and thus had not 

demonstrated cause for the default. The court also denied Washington’s 

petition for a COA. This motion followed.

II.

Washington’s motion requests a COA to review the procedural default of

the IATC claims, but he primarily seeks to overturn the district court’s denial 

of a “meaningful opportunity” to demonstrate that his procedural default 

should be excused. Specifically, he argues that he should have been entitled to 

some amount of discovery and an evidentiary hearing to establish that his 

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state habeas counsel was ineffective, which, in turn, would establish cause for 

his procedural default of the IATC claims under Trevino. 

A COA may not be issued unless “the applicant has made a substantial 

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). But this 

requirement does not entail a full merits analysis. As the Supreme Court has 

recently warned, “[w]hen a court of appeals sidesteps [the COA] process by first 

deciding the merits of an appeal, and then justifying its denial of a COA based 

on its adjudication on the actual merits, it is . . . deciding an appeal without 

jurisdiction.” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (internal quotations and 

citation omitted). Instead, “[w]hen the district court denies a habeas petition 

on procedural grounds without reaching the prisoner’s underlying 

constitutional claim, a COA should issue when the prisoner shows . . . that 

jurists of reason would find it debatable whether the petition states a valid 

claim of the denial of a constitutional right and that jurists of reason would 

find it debatable whether the district court was correct in its procedural 

ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Since this is a deathpenalty case, “any doubt as to whether a COA should issue . . . must be resolved 

in favor of the petitioner.” Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005). 

But COAs (and the standard of review governing them) apply only to 

“final orders that dispose of the merits of a habeas corpus proceeding.” 

Harbison v. Bell, 556 U.S. 180, 183 (2009). By contrast, “a [habeas] petition 

challenging an evidentiary ruling may only be entertained as corollary to a 

constitutional violation.” Norman v. Stephens, 817 F.3d 226, 234 (5th Cir. 

2016) (internal quotations and citation omitted). We may only consider such 

petitions after we have granted the underlying COA. The decision to hold an 

evidentiary hearing is reviewed for abuse of discretion. Segundo v. Davis, 831 

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F.3d 345, 351 (5th Cir. 2016).2 The petitioner bears the burden. Young v. 

Herring, 938 F.2d 543, 559 (5th Cir. 1991).

A. COA regarding the procedurally defaulted IATC claims

Turning first to the merits of the COA, we are mindful of Buck’s warning 

against a probing review of the merits. Such hesitancy seems particularly 

prudent in the present circumstances, where neither Washington’s IATC nor 

his ineffective habeas counsel claims have been evaluated on the merits by 

either state habeas courts or the district court. We are also required to provide 

Washington the benefit of any doubt regarding his COA. In light of that 

deferential review, we are inclined to grant it. 

Federal habeas petitioners cannot overcome a state procedural default 

unless they show “cause for the default and actual prejudice” from the 

underlying violation. Coleman v. Thompson, 501 U.S. 722, 749–50 (1991). In 

Trevino, the Supreme Court ruled that, in Texas, ineffective assistance of the 

initial habeas counsel can qualify as “cause.” 133 S. Ct. at 1921. Such a claim 

of ineffective assistance entails a two-part showing: (1) that counsel “made 

errors so serious that [he or she] was not functioning as the ‘counsel’ 

guaranteed . . . by the Sixth Amendment,” and (2) “there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

 

2 The State argues that 28 U.S.C. § 2254(e) of the Antiterrorism and Effective Death 

Penalty Act governs our review of the district court’s denial of the evidentiary hearing. But 

this restrictive standard should not apply here. Since ineffective assistance of habeas counsel 

was not a relevant legal consideration for Washington’s petition prior to Trevino, his need for 

further information can hardly be considered a “fail[ure] to develop the factual basis of a 

claim in State court proceedings” under § 2254(e). See McDonald v. Johnson, 139 F.3d 1056, 

1059 (5th Cir. 1998) (“[A] petitioner cannot be said to have ‘failed to develop’ a factual basis 

for his claim unless the undeveloped record is a result of his own decision or omission.”). Even 

if the provision did apply here, an evidentiary hearing would be permissible under § 

2254(e)(2)(A)(i), as relying on “a new rule of constitutional law, made retroactive to cases on 

collateral review by the Supreme Court, that was previously unavailable.”

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proceeding would have been different.” Strickland v. Washington, 466 U.S. 

668, 687, 694 (1984).

Here, the defaulted claims are both IATC claims, and, as this court has 

explained, “in the COA context, we have held that to succeed in establishing 

cause, the petitioner must show (1) that his claim of [IATC] is substantial—

i.e., has some merit—and (2) that habeas counsel was ineffective in failing to 

present those claims in his first state habeas proceeding.” Segundo, 831 F.3d 

at 350 (internal quotations and citations omitted). In other words, the prisoner 

seeking to override his procedural default must demonstrate that his habeas 

counsel’s errors and his trial counsel’s errors were both “serious,” Strickland, 

466 U.S. at 694, and had a substantial likelihood of producing a different 

result, Harrington v. Richter, 562 U.S. 86, 112 (2011). 

Although the district court found that Washington had failed to 

demonstrate his habeas counsel was ineffective, it did not discuss the basis in 

the record for this conclusion. Moreover, the district court did not discuss the 

underlying merit of Washington’s IATC claims. But we see at least a debatable 

merit in these claims. 

Regarding the IATC-Batson claim, we have already admitted there 

might be a plausible IATC-Batson claim (or, at the very least, that Washington 

had a prima facie case for one) when we last considered the argument on 

appeal. Washington, 464 F. App’x at 240. Moreover, as noted supra, the 

presence of race-identifying marks on the prosecutor’s jury questionnaires is 

evidence of a Batson violation—as both the Supreme Court, Foster v. Chatman, 

136 S. Ct. 1737 (2016), and the TCCA, Whitsey, 796 S.W.2d 707, have found. 

There is admittedly little evidence that trial counsel’s failure to raise a timely 

Batson challenge was a dereliction of duty, aside from the fact that most of the 

prosecution’s peremptory strikes (six of ten) were used on minorities and the 

final jury was all white. But this only weakens the IATC-Batson claim on the 

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merits; it does not render it so futile as to be beyond reasonable debate. See 

Buck, 137 S. Ct. at 773.

Regarding the IATC-sentence claim, Washington notes, with cites to the 

state record, that trial counsel’s only investigation with respect to sentencing 

was a brief discussion with Washington’s parents. This fact is not controverted 

by the State. Because of this insufficient investigation, substantial mitigating 

evidence regarding his rough upbringing and schooling, his devotion as a 

father, etc., was never brought to light. Thus, it is at least debatable that trial 

counsel failed to “undertake a reasonable investigation” or “ignore[d] pertinent 

avenues of investigation.” Escamilla v. Stephens, 749 F.3d 380, 390 (5th Cir. 

2014). And, with the benefit of federal habeas counsel’s more probing 

investigation, Washington has provided details about his upbringing and 

character that might have had an impact on his sentence.

Turning to his state habeas counsel claim, there is again a basis in the 

record to find the representation was debatably ineffective. The mere fact that 

state habeas counsel failed to raise two potentially meritorious IATC claims 

evidences both his ineffectiveness and the prejudice that resulted. Moreover, 

as noted by Washington in his brief, although habeas counsel did challenge the 

IATC-sentencing claim, his own research into mitigating evidence involved 

perhaps less investigation than trial counsel’s: he merely interviewed 

Washington himself. This fact is also not controverted by the State.

The State argues—with persuasive force—that the foregoing claims are 

unlikely to succeed on the merits. But, in so doing, it proves that Washington’s 

claims are “debatable” and thus warrant a COA. 

B. Evidentiary Hearing and Discovery

Having decided that the underlying COA is meritorious, we now turn to 

the remaining evidentiary issues. The district court found that Washington’s 

request for an evidentiary hearing regarding his initial habeas representation

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was little more than a fishing expedition and denied the petition. This was an 

abuse of discretion.

As a guiding principle when reviewing evidentiary petitions, this court 

has held that “where specific allegations before the court show reason to 

believe that the petitioner may, if the facts are fully developed, be able to 

demonstrate he is . . . entitled to relief, it is the duty of the courts to provide 

the necessary facilities and procedures for an adequate inquiry.” Murphy v. 

Johnson, 205 F.3d 809, 813–14 (5th Cir. 2000) (internal quotations and citation

omitted). When a habeas petitioner seeks further discovery in particular, he

must establish “good cause” to do so. Id. at 814. Although we have never fully 

defined the boundaries of this term’s application, “good cause” may be satisfied 

upon a prima facie showing that the petitioner is entitled to relief. Id.

Additionally, we have required that the discovery requests be “specific, as 

opposed to merely speculative or conclusory.” Id.

When a petitioner seeks “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.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007); see 

Young, 938 F.2d at 560 n.12 (“[A] petitioner need not receive an evidentiary 

hearing if it would not develop material facts relevant to the constitutionality 

of his conviction.”). But “[a] petitioner is not entitled to an evidentiary hearing 

. . . if his claims are merely conclusory allegations unsupported by specifics.” 

Young, 938 F.2d at 560 (internal quotations and citation omitted). Finally, if a 

petitioner squanders prior opportunities to expand the record and conduct 

discovery, his subsequent petition asserting such need is not persuasive. Id.

Accordingly, the considerations guiding our review of Washington’s 

petitions for an evidentiary hearing and for limited discovery are the same. We 

conclude those considerations require us to overturn the district court’s denial

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of both petitions. The evidence sought by Washington—pertaining to his state 

habeas counsel’s efforts—is central to his attempt to overcome the procedural 

default in light of Trevino. And, notably, there has never been a state hearing 

on this issue, nor did Washington have a reasonable opportunity to discover 

this information prior to his petition. After all, prior to Trevino, the Supreme 

Court had held that the ineffectiveness of habeas counsel’s representation 

could not establish cause for a procedural default. Coleman, 501 U.S. at 757. 

Moreover, the equitable principles that advise against a hearing and 

further discovery are not applicable. Washington’s request was not openended, but was specifically limited to the efforts habeas counsel made when 

representing Washington’s initial collateral appeal. Nor was it, as the district 

court suggested, based on “conclusory allegations unsupported by specifics,”

lacking any clear relation to Washington’s ineffective habeas counsel or IATC 

claims. To the contrary, it was based on other evidence that, as noted supra, 

suggested both his habeas and trial counsel were inept. And, as just noted,

Washington has never had the opportunity to discover this information.

It is true that this court in Segundo “decline[d] to hold that Martinez

mandates an opportunity for additional fact-finding in support of cause and 

prejudice.” 831 F.3d at 351. But the mere fact that an evidentiary hearing is 

not mandated in all cases does not mean it is not required here. Notably, when 

this court explained its decision not to overturn the district court’s denial of an 

evidentiary hearing in Segundo, it noted that “the district court thoroughly 

reviewed the record of the state-court proceedings, and made specific findings 

of fact in denying relief.” Id. This court also observed that there had been 

extensive “factual development during trial and during the state habeas

proceedings,” so “the district court did not abuse its discretion in determining 

it had sufficient evidence.” Id. The court also noted that the petitioner’s IATC 

claims were patently meritless. Id. at 352. 

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Here, the district court engaged in no evaluation of the record. Nor did 

the district court find that there was sufficient evidence in the record to deny 

Washington’s ineffective assistance of habeas counsel claim. Instead, the 

district court rejected the request solely on the unpersuasive grounds that it 

was overbroad. Moreover, as noted above, Washington has at least raised 

debatable IATC and ineffective habeas counsel claims. Accordingly, the court’s 

denial of Washington’s evidentiary petition was in error.

III.

In light of the specific circumstances of this case, we GRANT 

Washington’s COA, VACATE the district court’s denial of an evidentiary 

hearing and dismissal of Washington’s habeas petition, and REMAND for 

further discovery and an evidentiary hearing on Washington’s ineffective 

habeas counsel claims. 

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