IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-70027

GUY LEN ALLEN, 

 Petitioner - Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent - Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:10-CV-651

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

The United States District Court for the Western District of Texas 

denied petitioner Guy Allen’s federal habeas petition and denied his request 

for a Certificate of Appealability (“COA”). Allen now moves in this court for a 

COA. The motion is DENIED.

 

* 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

July 21, 2015

Lyle W. Cayce

Clerk

 Case: 13-70027 Document: 00513124175 Page: 1 Date Filed: 07/21/2015
No. 13-70027

2

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of April 3, 2002, nineteen-year-old Janette Johnson 

placed a 911 call to police stating there was “domestic violence” occurring 

between her mother, Barbara Hill, and her “mom’s friend.” Police arrived 

seven minutes after the call and found Hill dead in the backyard and Johnson 

dead in the kitchen. Hill had been stabbed or cut forty-six times; Johnson had 

been stabbed or cut ten times. Allen ostensibly was Hill’s boyfriend at the time 

of the killings. Allen concedes that he “was connected to the commission of the 

offense by a plethora of evidence, including, among other things, numerous 

DNA matches.” Allen was tried in state court in Travis County, Texas. A jury 

found him guilty of capital murder. 

During the penalty phase of the trial, Allen’s younger brother, Steve 

Allen,1 testified about Allen’s family background. It was extremely 

impoverished and rife with abuse. Steve testified that he, Allen, and their six 

siblings, lived with their mother in a one-room house. The family often had no 

electricity or gas, food was scarce, and the children slept on the floor. Their 

father was rarely at home, but when he was, he was angry, violent, and drunk. 

Their father physically abused their mother, and both parents physically 

abused the children. Additionally, Allen was repeatedly raped by a cousin from 

age nine to eleven. 

Steve also testified about the family’s reluctance to speak of Allen to his 

counsel or the mitigation specialist:

Counsel: Was it difficult for you to come forward and speak to 

this jury today?

Steve: Harder than you think.

Counsel: The things that you’ve told this jury—

 

1 Steve Allen will be referred to as “Steve” in this opinion; Guy Allen will be referred 

to as “Allen.”

 Case: 13-70027 Document: 00513124175 Page: 2 Date Filed: 07/21/2015
No. 13-70027

3

Steve: Something I was never supposed to tell.

Counsel: Are these things you even discuss inside your family?

Steve: Never. They never get brought up. They never get 

mentioned. They never get talked about. They never get 

hinted about. Something that was supposed to stay hidden.

Counsel: Were you encouraged not to tell?

Steve: For—yeah, they told me not to say anything. If [mitigation 

specialist] [G]erry Byington would come by and send a 

message on, I was not to talk to him for any reason. Or any 

one of the lawyers that were representing my brother. I 

wasn’t suppose[d] to talk to them, period.

Counsel: Well, we’re talking about right now, not sometime in the 

past.

Steve: I’m talking about just here recently, even last night. I was 

encouraged not to talk to you—any of you about it.

Counsel: It’s not something even you and Guy have discussed, is it?

Steve: Never.

During its closing argument, the prosecution stated that “[i]f there is a 

scintilla of mitigation, it must come from Steve Allen” and “if there’s one of you 

who believes that Steve Allen is a credible and believable person, we failed in 

voir dire because we did allow an insane person to come on to this jury.” The 

prosecution noted that no one other than Steve had testified on Allen’s behalf; 

that the absence of any other witnesses was “telling”; and that their “silence 

sp[oke] volumes” because “[i]f they had something good to say, you better 

believe they would have been brought it in here to say it.” 

Defense expert Dr. Robert Cantu, a general and forensic psychiatrist, 

also testified during the penalty phase. His testimony was based on 

information gleaned from Steve’s testimony, a meeting between Steve and trial 

counsel, and facts in a hypothetical incorporating Allen’s life history. He did 

not personally evaluate Allen or review his records. Cantu testified that 

Allen’s upbringing explained, but did not excuse, much of his behavior. He 

stated that because Allen’s father physically abused women and treated them 

 Case: 13-70027 Document: 00513124175 Page: 3 Date Filed: 07/21/2015
No. 13-70027

4

as objects, Allen did so as well, and that Allen was angry with women because 

his own mother was not protective of him. Also, Allen’s sexual assault by his 

cousin made him overly aggressive in an attempt to stave off future attacks. 

Cantu concluded that Allen’s violence and rage could be managed, particularly 

in a prison setting, with the right type of therapy and medication. 

Also presented to the jury during the penalty phase was evidence of 

Allen’s violent history. In 1994, Allen was convicted of aggravated assault 

after an altercation with a man that resulted in the man’s death. That same 

year, a woman with whom Allen had a child was questioned by police about 

bruises on her face; she testified that Allen, her boyfriend at the time, had beat 

her. In 1998, Allen assaulted his then-wife Darlene Allen, told her he was 

going to kill her, broke her jaw, fractured her rib, and ruptured her spleen. 

When Darlene’s fourteen-year-old daughter tried to intervene, Allen pushed 

her out a second-story window, resulting in the placement of a rod and two 

screws in her leg. This resulted in a conviction for misdemeanor assault. While 

Allen was incarcerated pending trial for the murders of Hill and Johnson, he 

was involved in two fights with other inmates. Evidence of convictions for drug 

offenses and criminal trespass was also presented. 

Allen was sentenced to death in March 2004. His direct appeal was 

denied in June 2006, and the United States Supreme Court denied his petition 

for a writ of certiorari in January 2007. Allen filed for state habeas relief. In 

one of his ten claims for relief, Allen argued that trial counsels’ mitigation 

investigation and presentation was inadequate. At the evidentiary hearing,

trial counsel were asked about their decision not to allow Cantu to personally 

 Case: 13-70027 Document: 00513124175 Page: 4 Date Filed: 07/21/2015
No. 13-70027

5

evaluate Allen.2 Counsel testified that they did not want Cantu to evaluate 

Allen because, if he had, the State would have been allowed to evaluate Allen. 

Also, one of Allen’s trial counsel testified he felt they would “lose ground” if 

Cantu met with Allen because Allen was “one of the most explosively 

dangerous human beings” he had ever known,3 and the “problem with having 

an expert interact with your client is that the expert is bound to make truthful 

answers and you may then create an expert who helps you and damages you 

at the same time.” 

On the same claim, trial counsel testified that Steve was the only family 

member to present mitigation testimony because Allen and his family would 

not speak to counsel or the mitigation specialist, Gerry Byington. In fact, trial 

counsel were surprised when Steve “finally” came forward and agreed to 

testify. One of Allen’s counsel testified that 

Guy was an absolute stonewall. Every time that I raised 

mitigation with Guy, every time I reminded him that in my opinion 

he was a perfect candidate for death row unless we found the 

reasons to persuade a jury that he deserved some consideration 

that he should not have the death penalty inflicted, he just 

wouldn’t talk. What little we did learn, and it wasn’t much, never 

came as a result of any communication I had with Guy. It came 

because Gerry Byington somehow got it. 

He also stated that “[t]he single most frustrating part of representing Guy in 

this death penalty case is that [as to] what in my mind was the single most 

important issue, mitigation, [he] was an absolute stonewall.” 

Danalynn Recer, the director of a capital-case defense office, presented a 

 

2 Allen did not bring a claim in the state court challenging trial counsels’ utilization 

of Dr. Cantu. Counsel were questioned about Dr. Cantu within the context of Allen’s 

mitigation claim.

3 One of Allen’s trial counsel knew him well as he had represented him on his 

convictions for aggravated and misdemeanor assault. 

 Case: 13-70027 Document: 00513124175 Page: 5 Date Filed: 07/21/2015
No. 13-70027

6

report to the state court in which she concluded that counsel had performed

their mitigation investigation inadequately. She found that most of Allen’s 

family was easily located; all of them cared about Allen and were interested in 

cooperating with the defense; all of them invited state habeas investigators 

into their homes to visit; and most were willing to provide sworn affidavits 

regarding the testimony they would have provided at trial. Recer also reported 

that Byington developed a list of 19 potential witnesses but only interviewed

two, and that he did not interview any life history witnesses until six weeks 

before the penalty phase when he attempted to speak with Allen’s mother and 

aunt.

Allen submitted affidavits from several family members and friends in 

support of his state habeas application. The affidavits detailed the extreme 

poverty in which Allen grew up; a family history of mental illness; the physical 

abuse of Allen’s mother by his father; the death of Allen’s brother and aunt; 

and the physical and sexual abuse of Allen by family members. All affiants 

stated they would have testified for Allen if asked. One family friend, Charles 

Wattles, stated that he received a call from Allen’s mother asking him to speak 

to trial counsel; he called counsel two or three times and left messages, but no 

one ever contacted him. 

There was also evidence that one of Recer’s interns had stayed on Allen’s 

mother’s doorstep for 40 hours to get an interview. Also, Byington’s time 

summary showed he began his attempts to contact family members in March 

2003, and included at least ten entries documenting such efforts.

In December 2009, the state court denied habeas relief. The Texas Court 

of Criminal Appeals adopted the court’s findings and denied relief. Allen filed 

for federal habeas relief in August 2011. The magistrate judge recommended 

the petition be denied on procedural and substantive grounds. Following the 

 Case: 13-70027 Document: 00513124175 Page: 6 Date Filed: 07/21/2015
No. 13-70027

7

Supreme Court’s decision in Trevino v. Thaler, 133 S. Ct. 1911 (2013), the 

district court referred the case back to the magistrate judge for an amended 

report. The magistrate judge again recommended denial of relief. In August 

2013, the district court conducted a de novo review of Allen’s claims, “approved 

and accepted” the magistrate judge’s amended report, denied relief, and denied 

a COA. Allen filed a notice of appeal and a motion for COA with this court. 

After briefing was completed, Allen’s counsel asked to be removed due to health 

problems. New federal habeas counsel was appointed and the parties were 

directed to re-brief the case. 

DISCUSSION

To appeal the district court’s denial of his habeas petition, Allen must 

first obtain a COA. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A COA 

may issue “only if the applicant has made a substantial showing of the denial 

of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, “a district 

court has rejected the constitutional claims on the merits . . . [t]he petitioner 

must demonstrate that reasonable jurists would find the district court’s 

assessment of the constitutional claims debatable or wrong.” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). The issue is the “debatability of the 

underlying constitutional claim, not the resolution of that debate.” Miller-El, 

537 U.S. at 342. “Indeed, a claim can be debatable even though every jurist of 

reason might agree, after the COA has been granted and the case has received 

full consideration, that petitioner will not prevail.” Id. at 338. “This threshold 

inquiry does not require full consideration of the factual or legal bases adduced 

in support of the claims,” but rather “an overview of the claims in the habeas 

petition and a general assessment of their merits.’” Id. at 336. “[A]ny doubts 

as to whether the COA should issue are resolved in favor of the petitioner.” 

Moore v. Quarterman, 534 F.3d 454, 460 (5th Cir. 2008). 

 Case: 13-70027 Document: 00513124175 Page: 7 Date Filed: 07/21/2015
No. 13-70027

8

For claims that were adjudicated at the state court level, “the 

determination of whether a COA should issue must be made by viewing the 

petitioner’s arguments through the lens of the deferential scheme laid out in 

28 U.S.C. § 2254(d).” Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000). 

Under Section 2254(d), a federal court may not grant habeas relief unless the 

state court’s adjudication “(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.” 28 U.S.C. § 2254(d). 

“A state court’s decision is ‘contrary to’ clearly established federal law if 

‘the state court arrives at a conclusion opposite to that reached by [the 

Supreme Court] on a question of law or if the state court decides a case 

differently than [the Supreme Court] has on a set of materially 

indistinguishable facts.’” Higgins v. Cain, 720 F.3d 255, 260 (5th Cir. 2013) 

(quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). “A state court’s decision 

involves an ‘unreasonable application of clearly established federal law’ if the 

state court ‘identifies the correct governing legal principle from [the Supreme 

Court’s] decisions but unreasonably applies that principle to the facts of the 

prisoner’s case.’” Id. (quoting Williams, 529 U.S. at 413). “The state court’s 

factual findings are ‘presumed to be correct’ unless the habeas petitioner 

rebuts the presumption ‘by clear and convincing evidence.’” Id. (quoting 28 

U.S.C. § 2254(e)(1)). 

To prevail on an ineffective assistance of trial counsel claim, Allen must 

show that (1) counsel’s actions were deficient, and (2) the deficiency prejudiced 

the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). As to the 

first prong, there is a “strong presumption that counsel’s conduct falls within 

 Case: 13-70027 Document: 00513124175 Page: 8 Date Filed: 07/21/2015
No. 13-70027

9

the wide range of reasonable professional assistance[.]” Id. at 689. To satisfy 

the second prong, a “defendant must show that there is a reasonable 

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

proceeding would have been different.” Id. at 694. 

Allen seeks a COA on his third and fourth claims for habeas relief at the 

district court. We examine each in turn.

I. Whether the district court’s denial of relief on Claim 3 is debatable

At the district court, Allen claimed that trial counsel provided ineffective 

assistance by failing to prepare expert witness Dr. Robert Cantu adequately to 

testify on behalf of Allen during the punishment phase of trial. After 

considering the claim on the merits,4 the magistrate judge found that counsels’

decision not to have Cantu personally evaluate Allen or his records was not 

deficient, but, instead, strategic, because “Texas law at the time provided that 

a defendant who submits to an interview by his own psychiatric expert must 

submit to an interview with the prosecution’s expert.” The magistrate judge 

also discussed the testimony by one of Allen’s counsel that he did not want 

Cantu meeting Allen as he felt they would “lose ground” due to what he knew 

of Allen. 

In addition, the magistrate judge found that Allen “has not shown he was 

prejudiced as a result of counsel’s strategic decision” as “[he] has not pointed 

to any evidence or testimony Cantu would have presented had Cantu examined 

him. Rather, Allen simply suggests Cantu was subject to damning crossexamination by the prosecution as a result.” The magistrate judge noted that 

while it was true that during cross-examination Cantu admitted he did not 

 

4 This claim was not raised at the state court and is therefore unexhausted; the 

magistrate judge excused the default under Martinez v. Ryan, 132 S. Ct. 1309, 1318 (2012), 

and Trevino v. Thaler, 133 S. Ct. 1911 (2013). 

 Case: 13-70027 Document: 00513124175 Page: 9 Date Filed: 07/21/2015
No. 13-70027

10

review Allen’s records, “[u]nder Texas law, had Cantu reviewed those records, 

he would have been required to disclose the information in them.” The 

information in the records showed that Allen: (1) had an “other than honorable 

discharge” from the Army due to a dirty urinalysis; (2) admitted to marijuana, 

cocaine, and speed use; (3) had a history of assault; (4) had anger problems 

which led him to “episodic acting out”; (5) possessed “much in common” with 

individuals known to be violent; (6) took no responsibility for one child and had 

not seen two other children in three years; (7) rationalized his own behavior 

and transferred blame to others; (8) did not “exhibit empathy” toward his 

victims; and (9) had a history of drug use. The magistrate judge found that 

“Counsel’s strategy was aimed at avoiding the damage that admission of such 

evidence would have caused.” Therefore, “Allen has failed to show counsel’s 

decision to limit the information provided to Cantu and thus avoid the 

admission of damaging evidence, resulted in prejudice to him.” 

The district court adopted the magistrate judge’s findings in full, holding

that Allen had “failed to show that trial counsel’s decision to not have Dr. 

Cantu examine Allen in order to protect Allen from examination by the 

prosecution’s expert constitutes a deficient strategic decision or prejudiced his 

defense.” 

In his motion for COA, Allen contends that counsels’ argument that they

did not have Cantu evaluate Allen because they did not want the State’s expert 

to evaluate him is without merit. He notes that any information the State 

would have gleaned could not have been used unless trial counsel presented 

Cantu’s testimony at trial.5 In light of this, Allen argues, trial counsel should 

 

5 Allen adds to his request for a COA on Claim 3 on appeal. He argues, for the first 

time, that trial counsel were ineffective for not having Allen evaluated by “another forensic 

medical expert.” Because a request for a COA on this specific claim was not raised at the 

 Case: 13-70027 Document: 00513124175 Page: 10 Date Filed: 07/21/2015
No. 13-70027

11

have allowed the personal evaluation, kept all the gleaned information 

confidential, and had a non-examining expert testify instead of Cantu. As to 

prejudice, Allen concedes he cannot establish it because state and federal 

habeas counsel failed “to obtain and/or present evidence from a mental health 

evaluation.” He argues that under Martinez v. Ryan, 132 S. Ct. 1309 (2012), 

he is entitled to remand for the consideration of prejudice in light of a new 

mental health evaluation he now provides to this court.

As to the first prong of Strickland, we conclude that reasonable jurists 

would not debate the district court’s conclusion that trial counsel were not 

deficient. “[S]trategic choices made after thorough investigation of law and 

facts relevant to plausible options are virtually unchallengeable; and strategic 

choices made after less than complete investigation are reasonable precisely to 

the extent that reasonable professional judgments support the limitations on 

investigation.” Strickland, 466 U.S. at 690-91. 

Here, trial counsels’ strategic decision not to have Cantu personally 

evaluate Allen was reasonable. Counsel – one of whom knew Allen well – not 

only wanted to avoid an examination of Allen by the State, but also felt that 

“no good” could come out of Cantu examining Allen due to his “explosively 

dangerous” personality. Trial counsels’ strategic decision to restrict Cantu’s 

access to Allen’s records was also reasonable because, had Cantu reviewed 

them, the damaging information in the records could have been admissible at 

trial on cross-examination. See TEX. R. EVID. 705(a).

Nevertheless, even assuming that trial counsels’ performance was 

 

district court, we lack jurisdiction to consider it, and it is waived. See Brewer v. Quarterman, 

475 F.3d 253, 255 (5th Cir. 2006). “We have repeatedly held that a contention not raised by 

a habeas petition in the district court cannot be considered for the first time on appeal from 

that court’s denial of habeas relief.” Johnson v. Puckett, 176 F.3d 809, 814 (5th Cir. 1999).

 Case: 13-70027 Document: 00513124175 Page: 11 Date Filed: 07/21/2015
No. 13-70027

12

deficient, the district court’s conclusion that Allen did not establish prejudice 

is not debatable. The magistrate judge found that Allen failed to establish 

prejudice as he did not “point[] to any evidence or testimony Cantu would have 

presented had Cantu examined him.” In one precedent, the defendant argued 

that his counsel was ineffective because he failed to call an expert witness to 

testify about blood testing. See Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 

2002). We rejected the claim because the defendant “did not present any 

evidence or allegations concerning what the expert would have stated . . . .” Id. 

In another case, we held that to establish prejudice on an ineffective assistance 

claim based on failure to call a witness, the defendant must “set out the content 

of the witness’s proposed testimony, and show that the testimony would have 

been favorable to a particular defense.” Day v. Quarterman, 566 F.3d 527, 538 

(5th Cir. 2009). Allen argues that counsel should have had Cantu evaluate 

Allen and his records so that Cantu would have been better prepared to testify 

during the punishment phase. But Allen did not provide the district court with 

any evidence of what Cantu would have testified to had he examined him or 

his records, nor did he show that Cantu’s testimony would have been favorable 

to the defense. Reasonable jurists would not debate the conclusion that 

prejudice was not established.

Allen does not dispute the magistrate judge’s prejudice conclusion, but 

claims that, under Martinez, he is entitled to remand to establish prejudice 

via a newly provided mental health evaluation. This argument is without 

merit as Allen has received all the relief he is due under Martinez. Martinez 

“allows a federal court to consider the merits of a claim that otherwise would 

have been procedurally defaulted,” it “does not entitle the prisoner to habeas 

relief.” 132 S. Ct. at 1320. Here, the magistrate judge found that Claim 3 was 

procedurally defaulted. It excused the default under Martinez, considered the 

 Case: 13-70027 Document: 00513124175 Page: 12 Date Filed: 07/21/2015
No. 13-70027

13

claim on the merits, and recommended denial of relief. The district court 

conducted a de novo review of Allen’s claims, adopted the magistrate judge’s 

findings, and denied relief. Allen is entitled to no further relief under 

Martinez.6 

Because the district court’s denial of relief on Claim 3 is not debatable, 

Allen’s request for a COA is denied. 

II. Whether the district court’s denial of relief on Claim 4 is debatable

In his fourth claim for relief at the district court, Allen claimed that trial 

counsel provided ineffective assistance by failing to conduct a proper 

investigation into Allen’s life history and to present a mitigation defense 

during the punishment phase of trial. This claim was adjudicated on the 

merits at the state court. As is relevant here, the state court made the 

following factual findings and denied relief: 

vv) Based on the credible testimony of trial counsel, this Court 

finds that Applicant’s family, other than Steve, was uncooperative 

and did not provide counsel with beneficial information regarding 

Applicant’s past.

***

yy) Counsel faced an uphill battle on punishment since the family 

was uncooperative, but were nonetheless successful in procuring 

the beneficial testimony of Steve Allen.

On federal habeas review, the magistrate judge found that Allen did not 

“establish[] the state court was unreasonable in concluding counsel did not 

conduct an inadequate investigation into his background” as he did not “point[] 

 

6 Further, Allen argues that remand is required under Martinez and Trevino because 

state and federal habeas counsel were ineffective for not obtaining a mental evaluation of 

Allen. We disagree. Martinez and Trevino apply to claims of ineffective assistance of trial

counsel, and examines if habeas counsel in initial collateral proceedings was ineffective for 

failing to bring such claims. See Martinez, 131 S. Ct. at 1320; Trevino, 133 S. Ct. at 1921. 

 Case: 13-70027 Document: 00513124175 Page: 13 Date Filed: 07/21/2015
No. 13-70027

14

to clear and convincing evidence which contradicts the finding of the state court 

that the mitigation investigation was largely stymied by the ‘stonewall’ Allen 

presented to [counsels’] inquiry into his family history and the lack of 

cooperation by Allen’s family.” It noted the following evidence that was before 

the state court: (1) trial counsels’ testimony that Allen’s family was extremely 

uncooperative; (2) Steve’s testimony during the penalty phase that the family 

urged him not to talk to counsel or Byington; (3) the fact that Recer’s intern 

sat on Allen’s mom’s porch for 40 hours trying to get an interview; and (4) 

Byington’s time summary, which included at least ten entries documenting his 

efforts to contact Allen’s family and showed that Byington began his attempts 

at contact a year before trial. 

In addition to the stonewalling, the magistrate judge found that this was 

not a case where counsel or the mitigation specialist wholly failed to 

investigate. Rather, the evidence showed that Byington obtained medical, 

school, military, and employment records for Allen, and counsel were able to 

enlist Steve to testify regarding Allen’s abusive childhood. As to prejudice, the 

magistrate judge found it was not established as Allen failed to show that 

additional family and friends would have testified about evidence other than 

what was addressed by Steve. Therefore, Allen could not establish that but for 

the alleged errors of counsel, the outcome of the proceeding would have been 

different.

Allen argues before this court that trial counsels’ performance was 

deficient as their “d[e] minim[i]s mitigation investigation and very poor 

presentation of mitigation evidence through only two witnesses – the 

unprepared Dr. Cantu and the vulnerable Steve Allen – fell way below 

acceptable professional standards for the development and presentation of 

mitigation evidence.” He argues that Byington’s efforts to contact Allen’s 

 Case: 13-70027 Document: 00513124175 Page: 14 Date Filed: 07/21/2015
No. 13-70027

15

family and friends were deficient under controlling federal law.7 As to 

prejudice, Allen argues that the testimony of family and friends was not 

cumulative and was needed as additional support for Steve’s testimony as, due 

to his criminal past, Steve was impeachable.8 Allen argues that had the 

additional testimony been offered, “[t]here is a reasonable likelihood that one 

juror might have chosen ‘yes’ on the mitigation special issue, based upon the 

horrific childhood from which Mr. Allen emerged.” 

Allen also contends that remand to the district court for a 

“Martinez/Trevino hearing” is required because the state and federal decisions 

in this case are “tainted by false testimony.” He relies on a letter sent a year 

and a half before trial by Allen to his trial counsel, allegedly containing a “load 

of mitigation evidence and suggesting avenues of investigation.” Allen avers 

that the letter proves trial counsel lied about Allen’s stonewalling, and since 

the entirety of the decisions by state and federal court were “forged on the false 

impression” that Allen and his family were uncooperative, Allen has “not yet 

been afforded a fair hearing for his Strickland claims and he deserves one.” 

Because this claim was adjudicated on the merits by the state court, 

“[w]e must now decide whether the district court’s decision – that the state 

 

7 Allen also argues that the mitigation investigation was unreasonable in light of the 

ABA guidelines which state that investigation of a defendant’s life history must involve “inperson, face-to-face, one-on-one interviews with the client and the client’s family, and other 

witnesses who are familiar with the client’s life, history, or family history or who would 

support a sentence less than death.” The quoted language is from the ABA Supplementary 

Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, Guideline 

10.11(c). These guidelines were promulgated in 2008. See Supplementary Guidelines for the 

Mitigation Function of Defense Teams in Death Penalty Cases, 36 HOFSTRA L. REV. 677, 689 

(2008). As the State notes, the quoted guideline was promulgated well after trial and 

therefore cannot render the state court’s decision unreasonable. See Bobby v. Van Hook, 558 

U.S. 4, 7-8 (2009).

8 On cross-examination, Steve admitted that he had been incarcerated “five or six” 

times for a total of seven years in prison.

 Case: 13-70027 Document: 00513124175 Page: 15 Date Filed: 07/21/2015
No. 13-70027

16

court’s resolution of [Allen’s] IAC claim was not unreasonable under § 2254(d) 

– presents a question debatable among reasoned jurists sufficient to warrant 

a COA.” Ward v. Stephens, 777 F.3d 250, 263 (5th Cir. 2015), petition for cert. 

filed (May 28, 2015) (No. 14-10033).

As previously noted, under Section 2254(d), a federal court may not 

grant habeas relief unless the state court’s adjudication “(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.” 28 U.S.C. § 2254(d). “In the habeas context, ‘[e]stablishing that 

a state court’s application of Strickland was unreasonable under § 2254(d) is 

all the more difficult’” because “‘[t]he standards created by Strickland and § 

2254(d) are both ‘highly deferential,’ and when the two apply in tandem, 

review is ‘doubly’ so.’” Ward, 777 F.3d at 264 (quoting Harrington v. Richter, 

562 U.S. 86, 105 (2011)). Ineffective assistance “habeas claims are subject to 

two layers of deference, and state courts are granted substantial leeway.” Id.

(citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). “If this standard is 

difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102.

Applying this highly deferential standard of review, we find that the 

district court’s decision – that the state court’s denial of relief was not 

unreasonable under Section 2254(d) – is not debatable. 

On deficiency, Allen argues that neither trial counsel nor the mitigation 

specialist did enough to obtain mitigation evidence for presentation in the 

punishment phase of his trial. Counsels’ performance cannot be considered 

deficient, though, when potential mitigation witnesses refuse to cooperate. 

“Competence does not require an attorney to browbeat a reluctant witness into 

 Case: 13-70027 Document: 00513124175 Page: 16 Date Filed: 07/21/2015
No. 13-70027

17

testifying, especially when the facts suggest that no amount of persuasion 

would have succeeded.” Knowles, 556 U.S. at 125. The evidence shows that 

Allen’s family was not willing to cooperate with counsel or the mitigation 

specialist. Steve testified that he was told by family as recently as the night 

before trial that he should not speak on Allen’s behalf. In one instance, an

intern working for the defense stayed on Allen’s mother’s doorstep for 40 hours 

to get an interview. Such evidence suggests that “no amount of persuasion 

would have succeeded” in convincing the family to testify. See id. Accordingly, 

counsels’ “acceptance of [Allen’s family’s] conveyance of a refusal [to testify] 

does not rise to the high bar for deficient performance set by Strickland.” Id.

(citation, quotation marks, and alterations omitted).

Further, absent “clear and convincing” evidence to the contrary, we are 

precluded from “second-guessing” the state court’s factual finding that Allen’s 

family stymied the mitigation investigation. Ward, 777 F.3d at 268. Though 

the affidavits provided by Allen state that family and friends would have 

testified had they been asked, such evidence does not meet the “clear and 

convincing standard” when viewed in light of the evidence to the contrary. 

In addition, this is not a case where counsel wholly failed to investigate. 

The evidence shows that Byington obtained medical, school, military, and 

employment records for Allen. In fact, the state court made factual findings 

that Byington submitted a “Service and Expense Summary Report, reflecting 

111 hours of service,” and that he worked a “couple of hundred hours over the 

approved money[.]” Also, though faced with the refusal of Allen’s family to 

speak on his behalf, trial counsel were nonetheless able to procure Steve’s 

testimony. In light of the foregoing, the district court’s conclusion that trial 

counsel were not deficient is not debatable.

Because deficiency is not established, we need not consider prejudice. 

 Case: 13-70027 Document: 00513124175 Page: 17 Date Filed: 07/21/2015
No. 13-70027

18

Finally, Allen argues that remand is required on Claim 4 under Martinez

and Trevino “in the interests of justice” because a newly discovered letter 

proves that Allen did not “stonewall” counsel. This argument is without legal 

support because “once a claim is considered and denied on the merits by the 

state habeas court,” as is the case here, “Martinez is inapplicable . . . .” 

Escamilla v. Stephens, 749 F.3d 380, 395 (5th Cir. 2014). In any event, 

assuming arguendo the letter established that Allen did not “stonewall”

counsel, it does nothing to overcome the state court’s factual finding that 

Allen’s family stymied the mitigation investigation.9 

Because the district court’s decision – that the state court’s denial of 

relief on Allen’s mitigation investigation and presentation claim was not 

unreasonable – is not debatable, Allen’s request for a COA is denied.10

DENIED.

 

9 Allen also contends that he was denied a fair hearing because state habeas counsel 

failed to secure his attendance. He provides no legal support for the contention that personal 

attendance is required; therefore, the argument is waived. See FED. R. APP. P. 28(a)(8)(A).

10 Subsequent to the completion of briefing, Allen filed a 28(j) letter asserting that a 

recent unpublished opinion, Tabler v. Stephens, 591 F. App’x 281 (5th Cir. 2015), supports 

his motion for COA. Tabler is inapposite. In Tabler, we held that Martinez applies where the 

“ineffective assistance of habeas counsel . . . prevents an initial-review collateral proceeding 

from ever taking place.” Id. at 281. We also noted a potential conflict in Tabler because Tabler 

had the same counsel for both his state and federal habeas proceedings. Id. Neither 

circumstance is present here.

 Case: 13-70027 Document: 00513124175 Page: 18 Date Filed: 07/21/2015