1

(Penry I), 492 U.S. 302 (1989).

REVISED MARCH 19, 2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-70014

ROGER WAYNE MCGOWEN,

Petitioner–Appellee 

Cross-Appellant,

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent–Appellant

Cross-Appellee.

Appeals from the United States District Court 

for the Southern District of Texas

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Petitioner Roger McGowen was convicted of capital murder in a Texas

state court and sentenced to death. He seeks federal habeas corpus relief from

his conviction and death sentence on several grounds. The district court held

that, under Penry v. Lynaugh1 and its progeny, McGowen was entitled to habeas

relief with respect to his sentence because the punishment phase jury

United States Court of Appeals

Fifth Circuit

F I L E D

March 19, 2012

Lyle W. Cayce

Clerk
No. 10-70014

2

instructions failed to provide an avenue to give effect to mitigating evidence.

The district court denied habeas relief as well as certificates of appealability

with respect to all of his other claims. The parties cross-appealed. We affirm.

I

On March 11, 1986, a masked assailant fatally shot Marion Pantzer while

attempting to rob a bar Pantzer owned in Houston, the “Just Marion and Lynn’s

Club” (the Club). Before the murder, a black male entered the Club. The

bartender, Pedro Flores, noted the man’s presence because the Club catered to

a lesbian clientele. The man, who was later identified as McGowen’s cousin,

Kerwin Kindle, left sometime before the shooting. 

At approximately 12:45 A.M., a masked man holding a large gun entered

the Club and, while standing in a “shooting position,” motioned to Flores in a

manner Flores understood to mean the man wanted money from the cash

register. As Flores walked toward the register, he noticed Pantzer, who was

sitting on a stool at the end of the bar, reaching for her belt area where Flores

knew she usually carried a gun. Flores saw Pantzer’s gun, and as he prepared

to open the register, he looked backed at the man. It was then that Flores saw

fire come from the man’s gun and heard two shots. The man fled immediately

after firing. Flores did not know whether the man or Pantzer had fired the first

shot.

The police found a .25 caliber pistol near Pantzer’s body and a spent, small

caliber bullet at the other end of the bar. It was Kindle, who had reentered the

bar before the police arrived, who pointed out to the police the location of the

bullet. The medical examiner subsequently removed a hollow point bullet from

Pantzer’s body.

The incident was similar to several other crimes in the immediate area,

in which a group of men had been robbing homosexual bars and other

businesses. McGowen, who had an extensive history of armed robbery, was
No. 10-70014

3

arrested after being identified by a witness to another aggravated robbery.

McGowen signed two written statements while in custody. In the first, he

admitted his involvement in several robberies in the area, including an

attempted robbery atthe Copa club that occurred a few weeks after Pantzer was

shot. In the second, he admitted to shooting Pantzer but maintained he did so

only because she had fired at him first. According to the statement, McGowen

went to the Club with Kindle to rob it, and McGowen entered the Club wearing

a gray ski mask and carrying a .38 revolver. Pantzer fired at him, and McGowen

stated, “I guess it was just a frightened reaction by me but my gun went off.”

McGowen was charged with capital murder, and McGowen and Kindle

were indicted for aggravated robbery. McGowen’s trial counsel attempted to

suppress the confession, which was the only evidence linking him to the murder.

The trial court denied the motion to suppress, concluding that the two

statements “were voluntary, given after being properly warned by the officers,

and made after knowingly and intelligently waiving the rights afforded to a

defendant in custody.”

In light of the confession, defense counsel chose not to challenge

McGowen’s identity as the killer at trial and instead challenged the intent

requirement. After a one-day trial, the jury found McGowen guilty of capital

murder. The jury charge required the jury to find that McGowen knowingly and

voluntarily confessed to the offense as a prerequisite to relying on the confession

to convict McGowen. In a separate punishment phase of the trial, thenapplicable Texas law—Article 37.071(b) of the Texas Code of Criminal

Procedure—required the jury to answer three special issue questions that would

result in a death sentence if all were answered in the affirmative: “(1) whether

the conduct of the defendant that caused the death of the deceased was

committed deliberately and with the reasonable expectation that the death of the

deceased or another would result”(the deliberateness special issue); “(2) whether
No. 10-70014

4

there is a probability that the defendant would commit criminal acts of violence

that would constitute a continuing threat to society” (the future-dangerousness

special issue); and (3) “if raised by the evidence, whether the conduct of the

defendant in killing the deceased was unreasonable in response to the

provocation, if any, by the deceased.”

During the penalty phase, the prosecution called a number of witnesses

who testified about McGowen’s history of violence and criminal conduct. They

testified that after being imprisoned for aggravated assault in 1982, McGowen

was perpetually involved in theft and armed robbery in the years before

Pantzer’s murder, utilizing guns and knives and sometimes robbing the same

establishments multiple times in a single day. McGowen had also agreed to kill

a man in exchange for drugs, but instead robbed and shot him. The prosecution

argued that unless a death sentence was imposed, McGowen’s criminality would

continue to escalate.

The defense called two of McGowen’s sisters as its only witnesses at the

punishment phase. They testified that McGowen had a disadvantaged

background and vouched for his good character. Defense counsel argued in

closing that McGowen’s background contributed to the manner in which he dealt

with life’s problems. 

The jury answered the three special issues in the affirmative, and

McGowen was sentenced to death. On direct appeal, the Texas Court of

Criminal Appeals affirmed the conviction and sentence. In its opinion, issued

in 1992, the Texas court held that Penry did not require a separate special issue

instruction to allow the jury to give mitigating effect to the evidence presented

at the sentencing phase, noting that the court had “declined to extend Penry to
No. 10-70014

2 McGowen v. Texas, 510 U.S. 913 (1993).

3 Ex parte McGowen, Nos. WR-64992-01 & WR-64992-02, 2006 WL 2615541 (Tex.

Crim. App. Sept. 13, 2006) (unpublished).

5

include the type of evidence presented here.” The Supreme Court denied

certiorari on McGowen’s direct appeal on October 12, 1993.2

In April 1997, McGowen filed an application for writ of habeas corpus in

state court raising two issues: (1) whether the trial court should have instructed

the jury on the lesser-included offense of simple murder; and (2) whether trial

counsel provided ineffective assistance by failing to obtain a biopsychosocial

assessment to use as mitigating evidence in the punishment phase. In August

1998, McGowen filed an amended habeas application raising the same two

issues as well as several new issues, including that trial counsel inadequately

investigated his innocence and inadequately presented mitigating evidence at

the punishment phase of the trial.

The state habeas court recommended a denial of relief and issued findings

of fact and conclusions of law addressing the merits of the issues raised in the

initial and amended applications. The Texas Court of Criminal Appeals denied

relief in September 2006, adopting the findings and conclusions as to the issues

raised in the initial application and refusing to consider the claims in the

amended application.3 The Texas court held that the amended application

constituted a “subsequent application” under Article 11.071 of the Texas Code

of Criminal Procedure and dismissed the application on procedural grounds as

an abuse of the writ.

In October 2006, McGowen commenced the underlying federal action by

filing an application for writ of habeas corpus. The district court stayed the

proceedings to allow McGowen to file a successive application in state court to

exhaust newly brought claims, which the Texas Court of Criminal Appeals
No. 10-70014

4 Ex parte McGowen, No. WR-64992-03, 2008 WL 5050080 (Tex. Crim. App. Nov. 26,

2008) (unpublished).

5 See Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002) (en banc) (per curiam) (noting

that AEDPA applies to all federal habeas petitions filed on or after April 24, 1996).

6

dismissed as an abuse of the writ.4 McGowen’s second amended petition in

federal court raised sixteen claims relating to both the guilt/innocence phase and

the punishment phase of his trial. Respondent (the Director) sought summary

judgment on all of the claims.

The district court held McGowen was entitled to habeas relief on his claim

that the Texas special issue questions did not provide an adequate vehicle for

consideration of McGowen’s mitigating evidence as required by Penry and its

progeny, and that the State was required to “either hold a new punishment

hearing or commute McGowen’s sentence to life imprisonment.” The court

therefore did not address the remaining ten claims relating to the punishment

phase. Alternatively with respect to the sentencing claims, the district court

held that all but three claims were procedurally barred and that those three

claims lacked merit. As to the claims relating to the guilt/innocence phase of the

trial, the district court held they were procedurally barred, as McGowen had

failed to comply with Texas’s adequate and independent procedural

requirements for presenting the claims. The district court also denied McGowen

a certificate of appealability on the guilt/innocence claims. The parties crossappealed. 

II

The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to

this appeal.5 Under AEDPA, a petitioner who is in custody “pursuant to the

judgment of a State court” is not entitled to federal habeas relief unless the

adjudication on the merits of the petitioner’s claims
No. 10-70014

6 28 U.S.C. § 2254(d). 

7 Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001) (quoting Corwin v. Johnson, 150

F.3d 467, 471 (5th Cir. 1998)) (internal quotation marks omitted).

8 Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006) (en banc) (quoting Mitchell

v. Esparza, 540 U.S. 12, 15-16 (2003)).

9

Id. (citing Wiggins v. Smith, 539 U.S. 510, 520 (2003)).

10 See Ortiz v. Quarterman, 504 F.3d 492, 496 (5th Cir. 2007) (citing Thompson v. Cain,

161 F.3d 802, 805 (5th Cir. 1998)).

7

(1) resulted in a decision that was contrary to, or 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.6

“[P]ure questions of law and mixed questions of law and fact are reviewed under

§ 2254(d)(1), and questions of fact are reviewed under § 2254(d)(2).”7

Regarding § 2254(d)(1), 

[a] state court’s decision is “contrary to” clearly established federal

law if (1) the state court “applies a rule that contradicts the

governing law” announced in Supreme Court cases, or (2) the state

court decides a case differently than the Supreme Court did on a set

of materially indistinguishable facts.8

“A state court’s application of clearly established federal law is ‘unreasonable’

within the meaning of AEDPA when the state court identifies the correct

governing legal principle from Supreme Court precedent, but applies that

principle to the case in an objectively unreasonable manner.”9

On appeal of a district court’s grant or denial of the writ of habeas corpus,

this court reviews findings of fact for clear error and conclusions of law de novo,

“applying the same standard of review to the state court’s decision as the district

court.”10
No. 10-70014

11 (Penry I), 492 U.S. 302, 316 (1989).

12 Id. at 318.

13 Id. at 319 (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O’CONNOR, J.,

concurring)).

8

III

The district court held that the special issue questions presented to the

jury in the punishment phase of the trial did not provide an adequate vehicle for

consideration of McGowen’s mitigating evidence as required by Penry and

subsequent Supreme Court decisions. We agree. 

The Supreme Court has issued several opinions involving challenges to

Texas’s capital sentencing scheme in effect atthe time of McGowen’s sentencing.

In Penry v. Lynaugh, the Supreme Court considered an as-applied challenge to

the three questions posed to the jury at the penalty hearing, which “do[] not

explicitly mention mitigating circumstances, but rather direct[] the jury to

answer [the] three questions” quoted above regarding deliberateness, future

dangerousness, and provocation.11 Drawing on its prior jurisprudence, the

Supreme Court held that, at the time Penry’s conviction became final in 1986,

the State “could not, consistent with the Eighth and Fourteenth Amendments,

prevent the sentencer from considering and giving effect to evidence relevant to

the defendant’s background or character or to the circumstances of the offense

that mitigate against imposing the death penalty.”12 The Court continued, 

If the sentencer is to make an individualized assessment of the

appropriateness of the death penalty, “evidence about the

defendant’s background and character is relevant because of the

belief, long held by this society, that defendants who commit

criminal acts that are attributable to a disadvantaged background,

or to emotional and mental problems, may be less culpable than

defendants who have no such excuse.”13

The sentencer must “be able to consider and give effect to that evidence in

imposing sentence,” such that“the sentence imposed atthe penalty stage should
No. 10-70014

14 Id. (quoting California, 479 U.S. at 545 (O’CONNOR, J., concurring)) (internal

quotation marks omitted) (citing Hitchcock v. Dugger, 481 U.S. 393 (1987)).

15 Id. at 322.

16 Id. at 325.

17 Id. at 326, 328.

18 542 U.S. 274, 276 (2004).

19 Id. at 284 (quoting McKoy v. North Carolina, 494 U.S. 433, 440 (1990)) (internal

quotation marks omitted).

9

reflect a reasoned moral response to the defendant’s background, character, and

crime.”14 The Court concluded that evidence of Penry’s mental retardation and

history of abuse had mitigating relevance to Penry’s moral culpability beyond

the scope of the special issue questions.15In addition, the prosecution had

argued to the jurors at the sentencing phase that they “had taken an oath to

follow the law, and that they must follow the instructions they were given in

answering the special issues.”16 In light of that argument and the absence of an

appropriate instruction, “the jury was not provided with a vehicle for expressing

its ‘reasoned moral response’ to [the mitigating] evidence in rendering its

sentencing decision.”17

In Tennard v. Dretke, the Supreme Court considered the same capital

sentencing scheme, evaluating whether it was inadequate for jurors to give effect

to the petitioner’s evidence of low intelligence.18 Engaging in a two-step process,

the Court first held that, in determining whether mitigating evidence is

“relevant” in the context of a capital sentencing proceeding, 

the meaning of relevance is no different . . . than in any other

context, and thus the general evidentiary standard—“any tendency

to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it

would be without the evidence”—applies.19
No. 10-70014

20 Id. at 285 (alteration in original) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978))

(internal quotation marks omitted). 

21 Id. (quoting Boyde v. California, 494 U.S. 370, 377-78 (1990)) (internal quotation

marks omitted).

22 Id. at 288-89.

23 Id. at 289.

24 550 U.S. 233 (2007).

25 550 U.S. 286 (2007).

10

The Court noted that certain evidence that does “not relate specifically to

petitioner’s culpability for the crime he committed” may nevertheless “be

‘mitigating’ in the sense that [it] might serve ‘as a basis for a sentence less than

death.’”20

“Once this low threshold for relevance is met,” the Court continued, “the

Eighth Amendment requires that the jury be able to consider and give effect to

a capital defendant’s mitigating evidence.”21 In holding that the petitioner was

entitled to a certificate of appealability on the district court’s denial of his

petition for a writ of habeas corpus, the Court determined “[r]easonable jurists

could conclude”thatTennard’s low IQ evidence was relevant mitigating evidence

that had “mitigating dimension” beyond the scope of the special issue

questions.22 The Court also noted that the prosecution’s closing arguments at

the sentencing hearing “pressed exactly the most problematic interpretation of

the special issues, suggesting that Tennard’s low IQ was irrelevant in

mitigation, but relevant to the question whether he posed a future danger.”23

Most recently, the Supreme Court decided companion cases Abdul-Kabir

v. Quarterman24 and Brewer v. Quarterman.

25 The Court reaffirmed that the

central principle discussed inPenry—“that sentencing juries must be able to give

meaningful consideration and effect to all mitigating evidence that might

provide a basis for refusing to impose the death penalty on a particular
No. 10-70014

26 Abdul-Kabir, 550 U.S. at 246.

27 See id. at 259.

28 Brewer, 550 U.S. at 289-90.

29 Id. at 292-93 (quoting Penry I, 492 U.S. 302, 324 (1989)).

30 Id. at 294.

11

individual, notwithstanding the severity of his crime or his potential to commit

similar offenses in the future”—was “firmly established” in the Court’s

jurisprudence “well before” its decision in Penry.

26 In Abdul-Kabir, the Court

held that the Texas special issue questions did not allow meaningful

consideration by the jury of the petitioner’s mitigating evidence relating to his

troubled childhood and lack of impulse control, which “did not rebut either

deliberateness or future dangerousness but was intended to provide the jury

with an entirely different reason for notimposing a death sentence.”27 Similarly,

in Brewer, the Court concluded that the mitigating evidence the petitioner had

presented, including childhood abuse by his father and past problems with

depression and drug abuse,28“served as a ‘two-edged sword’ because it tended

to confirm the State’s evidence of future dangerousness as well as lessen his

culpability for the crime.”29 In holding the petitioner was entitled to habeas

relief, the Court dismissed the lack of expert psychiatric evidence as irrelevant

to the analysis, noting that 

[n]owhere in our Penry line of cases have we suggested that the

question whether mitigating evidence could have been adequately

considered by the jury is a matter purely of quantity, degree, or

immutability. Rather, we have focused on whether such evidence

has mitigating relevance to the special issues and the extent to

which it may diminish a defendant’s moral culpability for the

crime.30

Relevant to the Court’s holding in both cases were statements by the respective

prosecutors discouraging the jurors from taking into account the mitigating
No. 10-70014

31 Id. at 291, 293-94; Abdul-Kabir, 550 U.S. at 241-42, 261.

32 Abdul-Kabir, 550 U.S. at 246.

12

aspect of the defense’s evidence, while emphasizing the aggravating effect with

respect to the special issues.31

A

McGowen’s conviction became final in 1993. The Supreme Court held in

Abdul-Kabir v. Quarterman, that 

[a] careful review of our jurisprudence in this area makes clear that

well before our decision in Penry I [(decided in 1989)], our cases had

firmly established that sentencing juries must be able to give

meaningful consideration and effect to all mitigating evidence that

might provide a basis for refusing to impose the death penalty.32

Guided by the Supreme Court precedent discussed above, we consider

McGowen’s Penry claim. 

As noted, during the punishment phase of the trial, McGowen presented

the testimony of two of his sisters, Rhonda Edwards and Valerie McGowen. 

Edwards described McGowen’s background and character as follows: McGowen

had nine siblings, one of whom had died; he and Edwards had different fathers

and McGowen’s father was deceased atthe time of trial; McGowen and Edwards

had lived in the same house until McGowen was in fifth grade; he then went to

live with his father and then his grandmother until his grandmother died; he

had graduated from a vocational school; at the age of sixteen he had his own

apartment; Edwards moved in with him when she was twelve or thirteen and

pregnant; and he allowed several other people to stay in his apartment,

including his girlfriend, his girlfriend’s two children, an uncle, and Norman

Willis, who had testified atthe hearing about committing numerous crimes with

McGowen. Edwards also testified as to McGowen’s character, explaining that

McGowen had been like a father-figure to her, had taught her “the right things

to do,” and had helped the family and taken care of her when their mother was
No. 10-70014

13

on welfare. She also testified she would provide a home for him “[w]hen he gets

out.”

Valerie McGowen testified: when she lived with McGowen in 1984 and

1985, he worked “every day” at a restaurant to support his girlfriend and his

girlfriend’s children; he had graduated from a vocational school and was

articulate and intelligent; and she would support him if he received a life

sentence. 

In closing arguments, defense counsel argued in pertinent part that

McGowen’s background—“growing up in Houston black, poor, uneducated, and

from a broken home,” as well as being responsible for others at such a young

age—contributed to his inability to solve problems without resorting to crime

and violence. Defense counsel specifically stated:

[I]s there any among you who can deny that growing up in Houston

black, poor, uneducated, and from a broken home is a considerably

different experience than what most of us are used to? Life is

solving problems. Life is learning how to cope with problems and

overcoming problems that confront us every day. Is there any

among you who think that Roger Wayne McGowen had the same

chance, had the same ability, had the same intelligence to overcome

problems confronting him that some of us did?

He’s sixteen or seventeen years old, and he’s got an uncle.

He’s got a wife. He’s got a sister. He’s being followed by the likes

of no-account Norman Willis. He’s trying to hold a family together,

solve their problems, help getthem down the road of life, and he has

to take care of himself. You need to consider that. You may reject

it, but please consider it. God didn’t give all of us the same ability

to solve our problems.

Defense counsel continued:

His career started at a very early age. He did it the wrong way. At

sixteen years old after living with a series of relatives, a series of

relatives, at sixteen years of age, he has his own home, his own

apartment. He has no direction, but he’s got a fourteen-year-old

sister to support, who was either pregnant at that time or had the
No. 10-70014

33 Coble v. Quarterman, 496 F.3d 430, 444 (5th Cir. 2007) (quoting Tennard v. Dretke,

542 U.S. 274, 285 (2004)). 

14

baby living there with her. He had Norman Ray Willis. Norman

Ray Willis had nowhere else to go. . . .

Then you heard about some uncle who lived there off and on,

an older man, but who took care of everything? Roger McGowen.

His other sister testified that she lived with him, too. She said he

tried to help her. He graduated from Job Corps. He was taking care

of a wife or woman and also her two children. He is the only sole

support.

In rebuttal, the prosecution argued:

If you noticed, during the arguments, [defense counsel] didn’t

talk about the special issues. He only talked about life or death, life

or death. He talked about what a hard job you’ve got, what a

difficult job you have ahead of you, and how the State wanted to

confuse you with all of this evidence.

The prosecution later stated:

Well, folks, we’re talking about someone who has already taken a

human life. He’s only killed one person. After all, the whole idea of

this [future-dangerousness] question is to keep someone else from

dying down the road. That’s what you have to think about. You’ve

got the responsibility on your shoulders. You’re not here as social

workers. Since when has it been an excuse because you’re poor or

black or whatever you want to blame it on, since when does that or

society take the blame? “He never had a chance. That’s why he

went and robbed somebody and killed somebody.”

The prosecution went on to refer to that “excuse” as a “cop-out.”

B

In reviewing McGowen’s Penry claim, we must first determine if

McGowen’s mitigating evidence of a disadvantaged background and good

character “satisfied the ‘low threshold for relevance’ articulated by the Supreme

Court” in Tennard.

33 Based on the Supreme Court jurisprudence discussed

above, the law is clear that, generally, evidence of a troubled or disadvantaged
No. 10-70014

34 See Brewer v. Quarterman, 550 U.S. 286, 294 (2007) (issue of whether mitigating

evidence could have been adequately considered by a jury is not “a matter purely of quantity,

degree, or immutability”).

35 496 F.3d at 445-46.

15

background has “relevance,” as that term is broadly defined in Tennard, to a

defendant’s moral culpability. 

The Director argues McGowen presented no such evidence of a

disadvantaged background nor evidence linking his background to his character,

but as the district court concluded, this position requires too narrow a

construction of the evidence. There was testimony that, as a child, McGowen

went from living with his mother to his father to his grandmother, and when his

grandmother died, he was on his own at the age of sixteen, with a mother on

welfare. At that point, he was also responsible for at least two of his younger

sisters, one of whom was either pregnant or had a young child, as well as his

girlfriend and her two children. This evidence may not indicate that McGowen

was abused or neglected like the petitioners in Penry or Brewer, but evidence of

abuse or neglect is not the only indication of a “troubled” or “disadvantaged”

background that can be relevant to a defendant’s moral culpability,34 and the

Supreme Court has never limited the standard in that way. Nor has this court

so narrowly construed the Supreme Court’s decisions. For example, in Coble v.

Quarterman, the relevant mitigating evidence included evidence of a troubled

childhood—the defendant’s father died before he was born, his mother suffered

a nervous breakdown when he was eleven, and he was sent to live at a state

facility until he joined the Marines at seventeen—as well as evidence of mental

illness.35 In Pierce v. Thaler, we held that evidence of a troubled childhood,

involving testimony that the defendant fell in with the wrong crowd as a
No. 10-70014

36 604 F.3d 197, 206-08 (5th Cir. 2010) (quoting Coble, 496 F.3d at 444) (internal

quotation marks omitted).

37 515 F.3d 392, 414 (5th Cir. 2008) (quoting Abdul-Kabir v. Quarterman, 550 U.S. 233,

253 n.14) (2007)) (ellipsis and brackets omitted).

38 Id.

39 Id. (quoting Abdul-Kabir, 550 U.S. at 261).

16

teenager and spent time in juvenile detention, satisfied the “low threshold for

relevance articulated by the Supreme Court.”36

In Smith v. Quarterman, the only decision issued after Abdul-Kabir and

Brewer in which this court denied habeas relief on a Penry claim, we denied

relief on the ground that the purportedly mitigating evidence presented by the

defendant—that he grew up in a poor, crime-infested area—“‘has only a tenuous

connection to the petitioner’s moral culpability.’”37 The Director now relies

heavily on Smith to argue that there was no witness testimony regarding the

effect of McGowen’s disadvantaged background on his character. However, the

court emphasized in Smith that “our holding here is a narrow one, based on our

detailed review ofthe record which contains no evidence of a connection between

the poverty and crime of the Fifth Ward and Smith’s character.”38 The court

further held that the evidence did not amount to a “‘particularized childhood

experience of abuse and neglect’” requiring habeas relief.39 The evidence of

“particularized childhood experiences” that was considered in the Supreme

Court decisions had not been presented. 

In this case, however, there was at least some such evidence, including

McGowen’s moving from home to home as a child and having to take full

responsibility for himself and others at a very young age. In addition, the

defense specifically asked the jury to consider McGowen’s disadvantaged

background and its effect on his decisions and actions. Moreover, McGowen is

not required to establish a “nexus” between the mitigating evidence and the
No. 10-70014

40 Tennard v. Dretke, 542 U.S. 274, 287 (2004).

41 Id. (quoting Skipper v. South Carolina, 476 U.S. 1, 5 (1986)) (internal quotation

marks omitted).

42 See Abdul-Kabir, 550 U.S. at 253 n.14.

43 Id. (quoting Penry I, 492 U.S. 302, 322-23 (1989)).

44 Id. at 259.

45 487 U.S. 164 (1988). 

46 506 U.S. 461 (1993).

47 604 F.3d 197 (5th Cir. 2010).

17

crime.40 Instead, “the question is simply whether the evidence is of such a

character that it might serve as a basis for a sentence less than death.”41

C

Having determined that the mitigating evidence satisfied the relevancy

requirement, we must determine whether the jury was able to give the

mitigating evidence meaningful effect without special instruction.42 “[S]pecial

instruction is necessary when the defendant’s evidence may have meaningful

relevance to the defendant’s moral culpability ‘beyond the scope of the special

issues.’”43 As argued by defense counsel in closing, the evidence of McGowen’s

background “did not rebut either deliberateness or future dangerousness but was

intended to provide the jury with an entirely different reason for not imposing

a death sentence.”44 Without an additional instruction, the jury could not give

meaningful effect to evidence of McGowen’s disadvantaged background.

Citing the Supreme Court’s plurality opinion in Franklin v.Lynaugh45 and

majority opinion in Graham v. Collins,

46 the district court in this case held that

the special issues sufficiently allowed the jury to take into consideration

evidence of McGowen’s good character, just not of his disadvantaged background.

This court’s recent decision in Pierce v. Thaler,

47 however, holds otherwise. In
No. 10-70014

48 Id. at 210.

49 Id. (quoting Nelson v. Quarterman, 472 F.3d 287, 298 (5th Cir. 2006) (en banc)).

50 Id. at 212.

18

Pierce we determined that the Supreme Court’s jurisprudence on California’s

death penalty statute “establish[ed] that good character evidence has

meaningful relevance to moral culpability, which a majority of the Justices in

Franklin indicated is not encompassed by the special issues.”48 Moreover, we

emphasized thatthe statementin Graham—“thatthe special issues allowed the

jury to give atleast some effectto [good] character evidence”—was distinguished

as dicta by the Supreme Court in Abdul-Kabir and, as we held in Nelson, did not

“alter[] the requirement that the jury be able to give ‘full consideration and full

effect to the capital defendant’s mitigating evidence.’”49

In any event, the Supreme Court’s decision in Abdul-Kabir tells us that,

under the clearly established law when McGowen’s conviction became final, the

special issues did not provide “a basis for the jury to give meaningful

consideration and effect to [McGowen’s] mitigating evidence” of his

disadvantaged background.50

D

Although the district court did notfind the prosecution’s closing argument

particularly problematic, we conclude that it also contributed to the Penry

concerns. The prosecution accused defense counsel of ignoring the special issues

and focusing only on “life or death.” In discussing the future dangerousness

issue, the prosecution emphasized “keep[ing] someone else from dying down the

road,” while discounting the relevance of the mitigating background evidence,

calling it a “cop-out.” This is similar to the prosecution’s closing argument in
No. 10-70014

51 Tennard v. Dretke, 542 U.S. 274, 289 (2004) (internal quotation marks omitted).

52 Brewer v. Quarterman, 550 U.S. 286, 293-94 (2007) (footnote omitted).

53 472 F.3d at 314-15.

54 E.g., Caillouet v. First Bank & Trust (In re Entringer Bakeries, Inc.), 548 F.3d 344,

348-49 (5th Cir. 2008) (quoting United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir.

2002)) (internal quotation marks omitted).

19

Tennard, in which the prosecutor told the jury that “the reasons why [Tennard]

became a danger are not really relevant. The fact that he is a danger, that the

evidence shows he’s a danger, is the criteria to use in answering that [futuredangerousness] question.”51 As in Brewer, there is “a reasonable likelihood that

the jurors accepted the prosecutor’s argument . . . that all they needed to decide

[were the special issue questions], necessarily disregarding any independent

concern that, given [McGowen’s] troubled background, he may not be deserving

of a death sentence.”52

IV

The Director argues that even if there is Penry error, it is subject to

harmless-error review. In doing so, he urges this court to overrule its prior

decision, Nelson v. Quarterman.

53 Nelson may not be overruled “in the absence

of an intervening contrary or superseding decision by this court sitting en banc

or by the United States Supreme Court.”54 The Director points to no intervening

contrary or superseding decision by the Supreme Court or this court sitting en

banc. Accordingly, we are bound by Nelson.

V

Because of its resolution of the Penry claim, the district court did not

address the merits of McGowen’s remaining punishment-phase claims. Instead,

the district court noted in a footnote that all but three of those claims suffered

from procedural defects and found no merit in the three properly presented
No. 10-70014

20

claims—insufficient evidence of provocation, insufficient evidence of

deliberateness, and failure to define the term “deliberately.” 

The district court also denied McGowen’s habeas claims relating to the

guilt/innocence phase of his trial, holding that “adequate and independent state

law bars federal consideration of his remaining claims.”

The district court refused to grant a COA as to any of the foregoing denied

claims. McGowen now seeks a COA in this court as to some, but not all, of the

claims denied by the district court.

A

McGowen has not requested a COA in this court on six ofthe fifteen claims

denied by the district court. These abandoned claims include: (1) trial counsel

provided ineffective assistance by failing to address juror misconduct adequately;

(2) the trial court refused to define the term “deliberately” in the first special

issue; (3) the future dangerousness special issue is invalid; (4) Texas’s capital

sentencing statute unconstitutionally affords the jury too much discretion;

(5) Texas’s manner of execution amounts to cruel and unusual punishment; and

(6) the cumulative effect of the alleged errors denied McGowen’s constitutional

rights. Accordingly, we need not consider whether McGowen is entitled to a

COA on these claims.

B

McGowen has also abandoned several of the claims in his application for

a COA by inadequate briefing. McGowen attempted to brief three of his COA

claims by summarily incorporating the arguments he made in his habeas

petition in the district court as well as earlier arguments in his COA brief

relating to another claim. These three claims include: (1) the evidence was

insufficient to support the jury’s affirmative answer to the provocation special
No. 10-70014

55 373 U.S. 83 (1963).

56 Summers v. Dretke, 431 F.3d 861, 870 (5th Cir. 2005); see also Yohey v. Collins, 985

F.2d 222, 224-25 (5th Cir. 1993) (a party cannot preserve arguments by attempting to

incorporate arguments from earlier briefing).

57 See Woods v. Cockrell, 307 F.3d 353, 357 (5th Cir. 2002) (denying issues raised in

petition for COA as inadequately briefed).

21

issue; (2) the evidence was insufficient to support the jury’s affirmative answer

to the deliberateness special issue; and (3) the State improperly withheld

exculpatory evidence in violation of Brady v. Maryland.

55

We have held that a COA applicant waives claims by directing the

appellate court to briefing before the district court to support his request for a

COA.56 McGowen’s reference to his habeas petition therefore does not preserve

his claims. To the extent McGowen vaguely refers to arguments made earlier

in the COA brief in support of his actual innocence claim, he fails to explain how

those arguments are related to the two special-issue evidentiary claims or

demonstrate a Brady violation. Accordingly, McGowen has waived these claims

by failing to brief them adequately.57

McGowen has also waived claims that his constitutional rights were

violated because the jury was not given the option to sentence him to life without

parole. Although McGowen dedicates three pages of his COA brief to these

claims, the substance of the argument is no more than an extended reference to

his briefing in the district court. Specifically, McGowen: lists the various lifewithout-parole claims that he presented to the district court; summarily argues

that the district court erred in finding he had procedurally defaulted on these

claims “[f]or the reasons presented in his [habeas] brief”; requests that these

claims be remanded to the district court in the event his Penry claim is reversed;

summarily contends he presented these claims “at the first opportunity” after a

change in Texas law in 2005; and argues he has been an exemplary prisoner and
No. 10-70014

58 See Int’l Women’s Day March Planning Comm. v. City of San Antonio, 619 F.3d 346,

369 n.31 (5th Cir. 2010) (quoting FED. R. APP. P. 28(a)(9)(A)) (“‘The appellant’s brief must

contain . . . [an] argument, which must contain . . . appellant’s contentions and the reasons for

them, with citations to the authorities and parts of the record on which the appellant relies.’”

(alterations in original)). 

59 See Summers, 431 F.3d at 870; Woods, 307 F.3d at 357. 

60 Hinojosa v. Butler, 547 F.3d 285, 291 n.2 (5th Cir. 2008).

22

is not a future danger to society. He provides no citations to authority or the

record as required by Federal Rule of Appellate Procedure 28.58 Accordingly, he

has waived the life-without-parole claims by inadequately briefing them.59

Finally, McGowen waived his claim of jury misconduct. In his COA brief,

McGowen vaguely references, without record citation or elaboration, “affidavit

evidence from the jury which demonstrated that their verdict rested on

unconstitutional considerations, prejudicial extraneous information, and other

extraneous influences.” He then broadly asserts he was denied his constitutional

rights to due process, to an impartial jury, and to cross-examine and confront

witnesses, citing case law for generic propositions regarding a defendant’s right

to an impartial jury. At best, McGowen has presented “conclusory and passing

assertions” that his rights were violated by jury misconduct and has waived the

issue by failing “to meaningfully brief [it].”60

VI

The remaining three claims on which McGowen seeks a COA are his

contentions that: (1) he is actually innocent;(2)trial counsel provided ineffective

assistance by failing to investigate and present adequately both evidence of

McGowen’s innocence and mitigating evidence; and (3) his prolonged stay on

death row constitutes cruel and unusual punishment.

A
No. 10-70014

61 Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

62 Id. (quoting 28 U.S.C. § 2253(c)).

63 Slack v. McDaniel, 529 U.S. 473, 484 (2000).

64 Id.

65 Riley v. Cockrell, 339 F.3d 308, 313 (5th Cir. 2003) (quoting Miller-El, 537 U.S. at

338).

66 Miller-El, 537 U.S. at 337.

67 Hill v. Johnson, 210 F.3d 481, 484 (5th Cir. 2000) (citing Fuller v. Johnson, 114 F.3d

491, 495 (5th Cir. 1997)).

23

“A COA will issue only if the requirements of [28 U.S.C.] § 2253 have been

satisfied.”61 Section 2253(c) permits issuance of a COA when “a petitioner has

made a ‘substantial showing ofthe denial of a constitutional right.’”62 Under this

standard, when a district court denies habeas relief by rejecting constitutional

claims on their merits, “[t]he petitioner must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.”63 When the district court denies the petition on procedural

grounds without reaching the merits, the petitioner must show “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.”64

The petitioner must demonstrate “‘something more than the absence of

frivolity or the existence of mere “good faith” on his or her part.’”65 However, a

COA should not be denied “merely because [the court] believes the applicant will

not demonstrate an entitlement to relief.”66 In addition, any doubts as to

whether a COA should be granted are resolved in the petitioner’s favor, and the

severity of the death penalty may be a consideration in deciding whether a

petitioner has made a “substantial showing.”67 In considering a COA, this court

does not fully consider the legal and factual basis of the petitioner’s claims, but
No. 10-70014

68 Ortiz v. Quarterman, 504 F.3d 492, 500 (5th Cir. 2007) (citing Miller-El, 537 U.S. at

336).

69 Dretke v. Haley, 541 U.S. 386, 392 (2004).

70 Id. at 388.

24

rather “conduct[s] an overview ofthe issues presented and a general assessment

of their merits under the deferential standard of 28 U.S.C. § 2254(d).”68

B

The three remaining claims were raised for the first time either in

McGowen’s amended application, filed in state courtin 1998 over a year after his

initial application, or in his successive application, which was filed in state court

in 2008 while the federal habeas action was stayed. These claims were all

dismissed by the Texas Court of Criminal Appeals on procedural grounds as an

abuse of the writ under Article 11.071 of the Texas Code of Criminal Procedure.

Article 11.071 § 5(f) provides: “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.” It is

undisputed that neither the amended application filed in 1998 nor the successive

application filed in 2008 was filed within the specified time, and they were

treated as successive applications. The claims were denied as procedurally

barred.

The procedural default doctrine “has its roots in the general principle that

federal courts will not disturb state court judgments based on adequate and

independent state law procedural grounds.”69 “[A] federal court will not

entertain a procedurally defaulted constitutional claim in a petition for habeas

corpus absent a showing of cause and prejudice to excuse the default.”70 Under

an exception to this rule, courts will review such a claim without a showing of

cause and prejudice “when the habeas applicant can demonstrate that the

alleged constitutional error has resulted in the conviction of one who is actually
No. 10-70014

71 Id.

72 We have held that “Texas’s abuse of the writ doctrine is a valid state procedural bar

foreclosing federal habeas review.” Coleman v. Quarterman, 456 F.3d 537, 542 (5th Cir. 2006).

73 Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001).

74 Herrera v. Collins, 506 U.S. 390, 404 (1993).

75 Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (quoting Ward v. Cain, 53

F.3d 106, 108 (5th Cir. 1995)).

25

innocent of the underlying offense or, in the capital sentencing context, of the

aggravating circumstances rendering the inmate eligible for the death penalty.”71

In the district court, McGowen challenged the procedural bar to federal

habeas review on all three grounds set out above, contending: (1) there was no

adequate and independent state procedural ground preventing the Texas Court

of Criminal Appeals from reviewing the merits of his claims;72 (2) any procedural

default was excused by cause and prejudice; and (3) his actual innocence allows

federal review. In his brief in support of an application for a COA in this court,

McGowen appears to have abandoned the first two grounds and focuses only on

the exception reserved for a “fundamental miscarriage of justice,” or actual

innocence.

Fundamental miscarriage of justice “is limited to cases where the

petitioner can make a persuasive showing that he is actually innocent of the

charges against him.”73 This “claim of ‘actual innocence’ is not itself a

constitutional claim, but instead a gateway through which a habeas petitioner

must pass to have his otherwise barred constitutional claim considered on the

merits.”74 Proving such a claim is “daunting indeed,” requiring the petitioner to

show, “‘as a factual matter, that he did not commit the crime of conviction.’”75

The petitioner “must support his allegations with new, reliable evidence that

was not presented at trial and must show that it was ‘more likely than not that
No. 10-70014

76 Id. (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

77 Id. (citing Schlup, 513 U.S. at 324; Sawyer v. Whitley, 505 U.S. 333, 340 (1992)).

78 See FED. R. EVID. 801-804. 

79 See Schlup, 513 U.S. at 327-28 (court may consider the probative force of “relevant

evidence”).

80 Moore v. Quarterman, 534 F.3d 454, 464-65 (5th Cir. 2008).

26

no reasonable juror would have convicted him in the light ofthe new evidence.’”76

Such “new, reliable evidence” may include, by way of example, “exculpatory

scientific evidence, credible declarations of guilt by another, trustworthy

eyewitness accounts, and certain physical evidence.”77

C

In support of his innocence claim, McGowen submitted several affidavits,

which may be separated into two groups: (1) those purporting to provide

McGowen with an alibi defense; and (2) those indicating that either McGowen’s

cousin Kindle or his brother Charles murdered Pantzer. 

1

Affidavits purported to provide McGowen with an alibi. McGowen’s older

sister, Rose Ayers, stated that the day the murder occurred—March 11,

1986—was her birthday and that Roger was at her house to celebrate that day.

Investigator Lisa Milstein testified she was told by several of McGowen’s sisters

aboutthe birthday celebration. However, Milstein’s testimony about others’ outof-court statements is clearly hearsay not within any exception and thus is

inadmissible,78 and as the district court explained, Ayers’s testimony is

irrelevant to the question of where McGowen was at 12:45 A.M. on March 11,

when the murder took place.79 Moreover, the statements “address matters

which, by their very nature, were within the personal knowledge of the

petitioner,”80 and their reliability is therefore highly questionable. In addition,
No. 10-70014

27

McGowen’s trial counsel, George Godwin, testified by affidavit that, in

preparation for trial, he reviewed the State’s entire file, he spoke with McGowen

at length several times, McGowen never denied the allegation that he shot

Pantzer, and McGowen never furnished an alibi witness. McGowen’s other trial

counsel, Ronald Mock, testified similarly by affidavit, also noting that “in light

of the confession, my discussions with the applicant, and my investigation of the

case, I could not have presented an alibi defense without suborning perjury.” As

the district court held, “[n]o jury would find reasonable doubt as to [McGowen’s]

identity based on the purported alibi defense,” particularly considered in

conjunction with his admitted confession.

2

Affidavits indicate that either McGowen’s cousin Kindle or his brother

Charles murdered Pantzer. The district court engaged in an exhaustive review

of several affidavits McGowen submitted in order to rebut his identity as the

killer. Most consisted of hearsay statements from various people indicating that

Kindle had told them Roger McGowen’s brother, Charles, was the person who

shot Pantzer. The district court noted that Charles, who was killed in March

1987, had become “an easy target upon which to cast blame.” As noted above,

Kindle, who is McGowen’s cousin, was in the Club both before and after the

shooting, found the bullet fired from the 0.25 caliber pistol, and gave it to the

police. 

Kindle’s affidavit, which is a typed statement dated May 10, 2007,

containing numerous handwritten additions and alterations, is carefully crafted

in such a way as to disclaim any personal involvement with the robbery or

murder. The district court noted that, when he signed his statement in 2007,

Kindle was serving a federal prison sentence for trafficking cocaine and that he

“has gone from being a suspect in this case to being McGowen’s star witness.”

In the affidavit, Kindle admitted to being in the Club twice on the night of the
No. 10-70014

28

murder, but again denied involvement. He stated that McGowen’s now-deceased

brother, Charles, told him he entered the Club to rob it and that “the woman

shot at him so he shot back, and then ran out of the club.” He stated he saw

Charles later that night and that Charles was bleeding because “the woman . . .

hit him in the leg, his thigh area.” Charles asked Kindle about pain killers, and

Kindle talked to his wife, Shuntel Woolridge, about giving Charles Tylenol.

Kindle told his wife Charles “had robbed a place and shot someone” with a man

named Robert Richmond. Kindle stated that, when questioned by the police

weeks later, he told them “Roger [McGowen] had not committed the shooting.”

Shuntel Woolridge stated in her affidavit that Charles had called Kindle

the night of the murder asking for something for the pain, and she gave Kindle

some prescription Tylenol to take to Charles. She also stated Kindle had told

her “Charles had been shot trying to rob some gay bar” and that she told the

police “Charles did it.” She further stated, in conflict with Kindle’s admission

that he was at the Club before the shooting, that Kindle “had been with me all

afternoon before that call came.”

Another one of McGowen’s brothers, Michael McGowen, stated Kindle had

told him “Roger had nothing to do with the shooting” and that two uncles had

told him Charles committed the crime. McGowen’s sister, Rose Ayers, stated she

had heard from Kindle’s mother, Brenda, that Charles had committed the

robbery but that she was not sure if Brenda “was just trying to protect [Kindle].”

McGowen’s sister, Valorie Foote, stated she had “heard that Charles committed

this crime and not Roger, but I don’t know.” McGowen’s sister, Michelle Perkins,

stated she heard from “Uncle Jimmy” when he “got drunk” that “Charles

murdered someone and Roger was taking the blame.” She also stated she

remembered Charles was shot in the leg “in early 1986” and that he stated

someone had shot him. Joe Williams, an inmate, stated he saw Charles on the
No. 10-70014

81 506 U.S. 390 (1993).

82 Id. at 417.

83 Id.

84 Id. at 417-18.

29

night ofthe murder,that Charles “had been shotin the thigh,” and that“Charles

told me that night that he had tried to rob a place [and] got in a shoot out.”

Norman Ray Willis, who testified against McGowen in the punishment

phase of the trial, stated Kindle had told him Charles was the killer, but Willis

also stated that Kindle was “sly” and “shady” and could not be trusted and that

he thought Kindle was the killer. Martha Jackson, whose daughter once dated

McGowen, stated she had heard from a woman named Linda Faye Allen, who

did not submit an affidavit, that “Kirkwood” (presumably meaning Kindle) had

bragged to Allen about the murder.

The district court concluded, based on these affidavits,that McGowen had

not presented reliable evidence demonstrating it was more likely than not that

no reasonable juror would have convicted him in the light of the new evidence.

We agree. The Supreme Court’s decision in Herrera v. Collins81 is instructive.

In Herrera, the Court evaluated a petitioner’s evidence purportedly

demonstrating his actual innocence after “assum[ing], for the sake of argument,”

that “a truly persuasive demonstration of ‘actual innocence’ made after trial

would render the execution of a defendant unconstitutional, and warrantfederal

habeas relief.”82 The Court noted that the petitioner’s newly discovered evidence

in that case consisted solely of affidavits, which are disfavored in the new trial

context “because the affiants’ statements are obtained without the benefit of

cross-examination and an opportunity to make credibility determinations.”83

Further,the affidavits in that case were “particularly suspect” because, with one

exception, they consisted of hearsay and contained inconsistencies.84 Moreover,
No. 10-70014

85 Id.

86 Id. at 418-19.

30

the affidavits were given over eight years after the trial and after the alleged

perpetrator of the murders was dead, with no explanation for the delay.85 The

Court concluded that, although the statements in the affidavits contradicted the

evidence received attrial such that“the jury would have had to decide important

issues of credibility,”the petitioner’s “showing of innocence [ten years after trial]

falls far short of that which would have to be made.”86

There are several similarities between the new evidence presented in

Herrera and that presented in McGowen’s case. First, McGowen’s evidence

consists solely of affidavits, most of which are based on hearsay. Among other

inconsistencies, some implicate Kindle, while others implicate Charles. With

regard to the evidence indicating Charles may have been shot while robbing the

Club, the district court pointed out the existence of other evidence contradicting

this theory, stating: 

Kindle found the slug Ms. Pantzer fired from her gun. The autopsy

describes a wound in Charles McGowen’s thigh, but does not show

a corresponding exit wound. Unless the bullet struck Charles

McGowen and then fell to the floor, the assailant (if injured at all)

would have received a through-and-through wound. McGowen has

not pointed to anywhere in the record showing that the assailant

left blood on the floor. The record does not mention a trail of blood

left by a fleeing gunman. The question of whether the gunman was

even injured is important, as no witness testified that the masked

man staggered away in pain.

In addition to these issues,the timing ofthe affidavits is suspect. Williams’s and

Jackson’s affidavits were prepared in 1998, eleven years after the trial, and most

of the others, including Kindle’s, were prepared in 2007, twenty years after the

trial. All of the affidavits were prepared after one of the alleged perpetrators,

Charles McGowen, was dead. Moreover, and more importantly, these
No. 10-70014

87 Id. at 417.

88 Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (citing Schlup v. Delo, 513

U.S. 298, 324 (1995); Sawyer v. Whitley, 505 U.S. 333, 340 (1992)).

89 Id. (quoting Schlup, 513 U.S. at 327). 

90 Slack v. McDaniel, 529 U.S. 473, 484 (2000).

31

statements must be evaluated in conjunction with McGowen’s admitted

confession. Challenging McGowen’s identity as the killer at trial in light of the

confession, particularly without any physical evidence, would have been difficult.

As in Herrera, the statements in the affidavits contradict the evidence

presented at trial regarding the identity of the murderer and would have

required the jury to make credibility determinations. However, given the many

issues regarding the affidavits, outlined above, McGowen has not made the

“extraordinarily high” “threshold showing” required.87 Moreover, his affidavit

evidence stands in sharp contrast to the examples provided by the Supreme

Court of evidence that could potentially make such a showing, such as

“exculpatory scientific evidence, credible declarations of guilt by another,

trustworthy eyewitness accounts, and certain physical evidence.”88 He therefore

has not presented “new, reliable evidence that was not presented at trial

[showing] that it was ‘more likely than not that no reasonable juror would have

convicted him in the light ofthe new evidence.’”89 Accordingly, reasonable jurists

would not find it debatable whether the district court was correct in its ruling,90

and McGowen is not entitled to a COA on his denied claims. 

VII

We conclude that the jury could not meaningfully consider relevant

mitigating evidence presented by McGowen in determining whether a death

sentence was appropriate. Therefore, the district court did not err in granting

habeas relief on McGowen’s Penry claim. McGowen is not entitled to a
No. 10-70014

32

certificate of appealability on the claims denied by the district court because he

has abandoned all butthree ofthose claims, which were themselves procedurally

defaulted. McGowen has also not demonstrated that the fundamental

miscarriage of justice exception applies to allow federal habeas review of those

claims. 

* * *

For the foregoing reasons, we AFFIRM the district court’s judgment.