IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-70048

WILLIE EARL PONDEXTER, JR

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States District Court 

for the Eastern District of Texas 

Before BARKSDALE, BENAVIDES, and STEWART, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

In 1994, Willie Earl Pondexter was convicted in Texas state court of

capital murder and sentenced to death. Although he was denied habeas relief

in state court in 1999, the district court granted such relief in September 2002.

Our court vacated that relief in 2003, however, and remanded to district court.

On remand, habeas relief was denied in September 2006. Pondexter contests

that denial. 

At issue, pursuant to the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), is whether the state-court decision denying habeas relief was

unreasonable. In that regard, primarily at issue is the state-court denial of one

United States Court of Appeals

Fifth Circuit

F I L E D

July 29, 2008

Charles R. Fulbruge III

Clerk
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2

of Pondexter’s four ineffective-assistance-of-counsel claims: trial counsel’s

failure to consult with, and presentthe testimony of, a pathologist. AFFIRMED.

I.

The pertinent facts concerning the murder were summarized in our 2003

opinion vacating the district court’s granting relief:

On the night of October 28, 1993, Ricky Bell, James Bell, Deon

Williams, and Pondexter met at an apartment and discussed

robbing “an old lady”. Following this discussion, the group walked

to a corner store, and then to [the victim’s] house where they

checked to see what kind of car she owned. The group then walked

to a trailer park, and then to a friend’s house. Once there, they met

with James Henderson. Pondexter borrowed a car and all five drove

to Annona to buy beer and go to a club. During the drive to and

from Annona,the five talked about robbing “the old lady”, and about

“crips and bloods and stuff”. Specifically, they discussed which crip

“had the heart” to do what they were planning to do to “the old

lady”. On the way to the victim’s house, the group stopped at a store

where they talked about which crip had the heart to knock out a

man who happened to be getting gas. Although Williams and

Henderson did get out of the car, no harm was actually done to the

man. The group drove to the victim’s house, but parked the car a

few blocks away. On their first attempt to enter the house, they

were scared away by the sight of a patrolling police car. Four of the

five ran back to the car, but James Bell ran in another direction and

was not seen by the rest of the group again that night. Pondexter,

Henderson, Williams, and Ricky Bell went back to the victim’s

house where Pondexter kicked in the front door. All four proceeded

up the stairs and into the bedroom where the victim was sitting on

her bed. 

Once all four were in the bedroom, Williams took the seven

dollars that was in the victim’s coin purse. Immediately thereafter,

Henderson shot the victim in the head and handed the gun to

Pondexter. Pondexter also shot the victim in the head, stating “that’s

how you smoke a bitch”. The four drove to Dallas and were arrested

in the victim’s car.

Pondexter v. Dretke, 346F.3d 142, 144 (5th Cir. 2003) (emphasis added) (footnote

omitted). The victim was 84-years-old.
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Pondexter and Henderson were charged with capital murder. Pondexter

claims that, while in custody, he told Michael Kendricks (who was in custody on

unrelated charges) that he knew the victim was already dead when he shot her.

Kendricks provided this information to a State investigator.

Henderson was tried first. Relying on the testimony of co-conspirator

Williams, the State established Henderson shot the victim first, through the

brain. Henderson was convicted of capital murder and sentenced to death.

At Pondexter’s subsequent trial in 1994, the State did not rely on, nor was

the jury instructed on, Texas’ law of the parties, although such an instruction

was presumably available to the State. See id. at 145 n.3. Instead, the State

maintained Pondexter had fired the fatal shot through the brain. Pondexter

anchored his defense on two theories. His primary position was that, although

he participated in the robbery ofthe victim, he did not shoot her. His alternative

theory was that, because the gunshot,fired by Henderson, into the victim’s brain

would have killed her instantly, the subsequent shot Pondexter fired into the

victim’s face was not culpably lethal. Kendricks testified for the State that

Pondexter told him he shot the victim in the jaw. (As discussed infra, as two of

his ineffective-assistance-of-counsel claims, Pondexter asserts his trial counsel

neither consulted a pathologist nor interviewed Kendricks.)

The autopsy report, introduced at trial, identified two gunshot wounds as

the cause of death. The medical examiner, Dr. Guileyardo, testified: both

wounds were inflicted while the victim was still alive; and either could have

killed her. Along that line, Dr. Guileyardo testified: one bullet entered the left

side of the victim’s face (the autopsy report provided that the bullet entered “at

the left aspect of the face, 6 inches below the top of the head and 2-1/2 inches

anterior to the left ear canal”) and exited below her right ear, perforating her

oral cavity, boring a hole through her tongue, and shattering her right jawbone;
No. 06-70048

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and the other bullet entered the victim’s forehead, traveled through her brain,

and exited at the back of her head. 

A jury convicted Pondexter of capital murder; he was sentenced to death.

The conviction and sentence were affirmed on appeal. Pondexter v. State, 942

S.W.2d 577, 579-80 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 825 (1997). 

Pondexter filed a state-habeas petition challenging his conviction and

death sentence. He maintained, inter alia: (1) his right to effective assistance

of counsel was violated by trial counsel’s failure (a) to consult with, and call, a

pathologist, (b) to interview Kendricks (who allegedly could have provided

evidence negating an element of the offense), and (c) to object to the prosecutor’s

improper jury argument; (2) his rightto due process was violated when the State

failed to disclose to Pondexter a statement made by Kendricks to law

enforcement that Pondexter had told him he knew the victim was dead when he

shot her (later, the statement was in an affidavit for habeas purposes); and (3)

his right to due process and a fair trial was violated by the prosecution’s alleged

misstatements of evidence during jury argument in the guilt-innocence phase of

trial that advanced a theory of the case inconsistent with all known evidence.

For that state-habeas petition, Pondexter’s post-conviction counsel

consulted Dr. Bolesta, a pathologist, who examined, inter alia, testimony,

witness statements, autopsy photographs, and the autopsy report. Pondexter

contested the medical examiner’s (Dr. Guileyardo’s) testimony, and asserted his

alternative defense theory: he shot the victim through the jaw; and that shot did

not kill her (cause-of-death claim). Pondexter also challenged the medical

examiner’s cause-of-death testimony as unreliable, and contended his trial

counsel rendered ineffective assistance by failing to retain, and present

testimony from, a pathologist to rebut the medical examiner’s opinions. The

medical examiner’s autopsy report, which had been admitted at trial, was

included with Pondexter’s state-habeas application.
No. 06-70048

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In August 1998,the state-habeas court held a one-day evidentiary hearing

to allow Pondexter, inter alia, to expand on his actual-innocence claim. Among

other points addressed were the two issues concerning Pondexter’s asserted

statements to Kendricks.

At the hearing, Dr. Bolesta, on behalf of Pondexter, testified that the first

shot—to the victim’s forehead—was universally fatal, while the second—to the

left side of her face—was only potentially fatal. In response, Dr. Guileyardo, the

medical examiner who had performed the autopsy and had testified at trial,

again maintained: either of the two gunshot wounds could have caused the

death; and the victim most likely died from a combination of the two wounds.

Dr. Guileyardo also distinguished brain death from actual death and stated the

presence of blood in the victim’s mouth and throat indicated her heart was still

beating when she was shot in the face. 

In October 1998, in a 23-page opinion, addressing 16 claims and containing

168 findings-of-fact and conclusions-of-law, the state-habeas trial court

recommended denying habeas relief. For the issues before us, it did so for the

following reasons.

It concluded: Dr. Guileyardo’s testimony was more credible than Dr.

Bolesta’s; the trial evidence supported a conclusion that Pondexter shot the

victim in the brain; both gunshot wounds contributed to the victim’s death; and

she was alive when Pondexter shot her. 

In addition, the state-habeas trial court made the following

recommendations concerning trial counsel’s not having a pathologist testify.

Recommending trial counsel’s performance was not deficient under Strickland

v. Washington, 466 U.S. 668 (1984), the court stated: Dr. Bolesta’s testimony

admitted both wounds were capable of causing death; Dr. Bolesta’s testimony did

not differ substantially from Dr. Guileyardo’s; and, trial counsel may have
No. 06-70048

6

strategically planned on not calling a pathologist. (No affidavit was submitted

attesting to trial counsel’s not consulting with a pathologist.)

The state-habeas trial court recommended denying Pondexter’s ineffectiveassistance-of-counsel (IAC) claim for trial counsel’s not interviewing Kendricks.

It concluded that Pondexter failed to establish both deficient performance and

prejudice. 

It also recommended denying the IAC claim based on trial counsel’s not

objecting to the prosecutor’s closing argument. The court concluded: any

objection would have been meritless; and, therefore, Pondexter failed to establish

the deficiency-prong of Strickland. 

Because Pondexter failed to specifically argue each instance of asserted

IAC, the state-habeas court recommended denial of his cumulative-IAC claim.

Regarding Pondexter’s claim under Brady v. Maryland, 373 U.S. 83 (1963),

and because it found Kendricks’ affidavit (concerning his statement to law

enforcement) not exculpatory, the court recommended no Brady violation

occurred.

The state-habeas trial court recommended denying Pondexter’s

misstatement-of-the-evidence claim because Pondexter failed to object

contemporaneously to any of the alleged improper jury arguments and,

therefore, the claim was waived. 

In 1999, in a two-page order, without additional reasons, the Texas Court

of Criminal Appeals (TCCA) adopted the state-habeas trial court’s

recommendation and denied relief. Ex parte Pondexter, No. 39,706-01 (Tex.

Crim. App. 27 Jan. 1999). Pondexter did not seek review by the Supreme Court

of the United States.

Pondexter filed the instant federal habeas application in November 1999,

presenting 20 claims. The district court granted relief on the first claim,

concluding: the state-court decision that trial counsel’s failure to consult with,
No. 06-70048

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and present the testimony of, a pathologist did not constitute IAC was

unreasonable under AEDPA. In so doing, the district court ruled the evidence

was sufficient to demonstrate prejudice for purposes of the IAC pathologist

claim. Pondexter v. Cockrell, No. 6:99CV068 (E.D. Tex. 24 Sept. 2002). Having

granted relief on the IAC pathologist claim, the district court did not rule on the

other claims. Id.

In September 2003, our court vacated that relief and remanded, holding:

the state-habeas court’s implied decision that Pondexter was not prejudiced by

counsel’s failure to call a pathologist was not an unreasonable application of

federal law under AEDPA’s deferential standard. Pondexter, 346 F.3d at 153.

(The state-court prejudice-prong determination was “implied” because it had

found trial counsel’s performance was not deficient and, therefore, did not reach

prejudice.) The Supreme Court denied review in May 2004. Pondexter v. Dretke,

541 U.S. 1045 (2004).

On remand, in the light of an intervening Supreme Court decision

discussed infra,Pondexter filed a supplemental brief seeking to have the district

court, inter alia, revisit the IAC pathologist claim. In September 2006, the

district court: refused to reconsider the IAC claim previously denied by our

court; rejected the remainder of Pondexter’s claims; and granted judgment for

the State. Pondexter v. Quarterman, No. 6:99CV68, 2006 WL2822173 (E.D.Tex.

27 Sept. 2006). In March 2007, pursuant to 28 U.S.C. § 2253, the district court

granted a certificate of appealability (COA) for three ofthe four issuesPondexter

requested to be certified for appeal. Those certified issues are:

1. Whether Pondexter’s trial counsel rendered IAC by failing to (a) consult

with and present the testimony of a pathologist (IAC pathologist claim),

(b) interview witness Kendricks, and (c) object to the prosecution’s

improper closing argument; or whether there is (d) cumulative error;

2. Whether the State withheld a statement by Kendricks, in violation of

Brady; and
No. 06-70048

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3. Whether the prosecution’s use of inconsistent theories and argument

offered at the trials of Pondexter and Henderson violated Pondexter’s due

process rights. 

Concerning the COA for the IAC pathologist claim, and as discussed infra,

although the district court refused to reconsider that claim on remand, it

nevertheless felt that issue should be reconsidered on appeal.

II.

Accordingly, those three certified issues are presented here, with our

review being controlled by AEDPA. See, e.g., Penry v. Johnson, 532 U.S. 782,

792 (2001). Pursuant to AEDPA, where a state court has rejected a habeas

claim, a federal court may grant relief only if the state-court decision: (1) 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 reviewing the district court’s application of § 2254(d) to the statecourt decision, the district court’s findings of fact are reviewed for clear error; its

conclusions of law, de novo. E.g., Foster v. Johnson, 293 F.3d 766, 776 (5th Cir.

2002). Needless to say, for deciding whether the state-habeas court decision was

unreasonable, we must consider the elements for each claim, including what

was presented in support. See, e.g., Miller v. Dretke, 431 F.3d 241, 361 (5th Cir.

2005). 

A.

Pondexter first advances his IAC claim, maintaining trial counsel was

ineffective for failing: to consult with, and present the testimony of, a

pathologist; to interview witness Kendricks; and to object to the prosecution’s

closing argument. He also asserts cumulative error.
No. 06-70048

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For purposes of our AEDPA review of the state court’s rejection of the IAC

claim, and under Strickland, 466 U.S. at 687-89, IAC could be established in

state court by demonstrating (1) counsel’s deficient performance, and (2)

resulting prejudice. Of course, for habeas review under AEDPA, the state court’s

performance and/or prejudice rulings are generally reviewed to determine only

whether the state-court decision is unreasonable, not whether, in federal court,

petitioner has shown each IAC prong. E.g., Schaetzle v. Cockrell, 343 F.3d 440,

443-44 (5th Cir. 2003). Generally, that task must be accomplished in state court.

Id.

The reviewing court “must strongly presume that trial counsel rendered

adequate assistance and that the challenged conduct was the product of

reasoned trial strategy”. Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir.

1992) (citing Strickland, 466 U.S. at 690). An IAC claim may be rejected for

want of either deficient performance or prejudice. Therefore, the absence of

either prong of the claim is dispositive, and a reviewing court is not required to

inquire into a prong of the claim if the defendant has failed to carry his burden

on the other prong. Strickland, 466 U.S. at 697. 

In state court, to establish deficient performance, Pondexter was required

to show that, in the light of all the circumstances as they appeared at the time

of the conduct, counsel’s performance fell below an objective level of

reasonableness. Strickland, 466 U.S. at 687-688. “Judicial scrutiny of counsel’s

performance must be highly deferential” with every effort made to avoid “the

distorting effects of hindsight”. Id. at 689-90. Further, as stated, reviewing

courts are to “indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance”. Id. at 689. Indeed, “[a]

conscious and informed decision on trial tactics and strategy cannot be the basis

for constitutionally ineffective assistance of counsel unless itis so ill chosen that
No. 06-70048

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it permeates the entire trial with obvious unfairness”. Crane v. Johnson, 178

F.3d 309, 314 (5th Cir. 1999) (citation and internal quotation marks omitted). 

As discussed, even if counsel’s representation was deficient, such

performance must be prejudicial to the defense. Strickland, 466 U.S. at 692. In

state court, to establish prejudice, Pondexter was required to “show that there

is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is

a probability sufficient to undermine the confidence in the outcome”. Id. at 694.

1.

For his first IAC claim, Pondexter maintains trial counsel failed to consult

with, and presentthe testimony of, a pathologist(IAC pathologist claim). In this

regard, however, Pondexter did not present an affidavit, in the state or district

courts, concerning whether trial counsel consulted with a pathologist. The State

fails to note this important point. 

Ordinarily, parties are required to present evidence, often attached as an

exhibit,to support claims in a habeas petition. On the other hand, it appears the

State, during both state-and federal-habeas proceedings, conceded that

Pondexter’s trial counsel did not consult with a pathologist. (It is of record, of

course, that he did not have a pathologist testify.) Accordingly, Pondexter’s IAC

claim will be analyzed under the assumption that trial counsel did not consult

with a pathologist.

a.

In addressing this IAC pathologist claim, both parties focus almost

exclusively on Strickland’s prejudice prong. As noted, however, if a court rules

trial counsel’s performance was not deficient, prejudice need not be addressed.

See Strickland, 466 U.S. at 697. 

In recommending denying habeas relief for this IAC claim, the statehabeas trial court concluded that trial counsel’s performance was not deficient.
No. 06-70048

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As discussed infra, in addressing this claim, however, that court did not

expressly address the prejudice prong. Without providing additional reasons, the

TCCA adopted the trial court’s recommended findings of fact and conclusions of

law and denied relief.

On its first federal-habeas review, the district court concluded the statecourt determination that trial counsel’s performance was not deficient was

unreasonable under AEDPA. 

Pondexter maintains the district court’s deficient-performance ruling was

not disturbed by this court. To place this misleading “not-disturbed” contention

in as kind a light as possible, this is simply because this prong was not reached.

Indeed, our opinion stated: “Because we conclude that Pondexter failed to show

he was prejudiced by counsel’s failure to call a pathologist, we do not address the

deficiency prong”. Pondexter, 346 F.3d at 147 (emphasis added). 

In any event, Pondexter devotes only one paragraph in his brief to the

deficient-performance prong, stating it “is easily met in this case”. In a footnote,

he asserts that our court “assumed without deciding . . . [he] satisfied the first

prong of Strickland”. As noted above, that is quite incorrect.

As required, our court has consistently given great weight to trial counsel’s

judgment on strategy and approach. Consistent with that, “[t]actical decisions,

made on an informed and reasoned basis, do not fall below Strickland standards

simply because they do not succeed as planned”. Jones v. Butler, 837 F.2d 691,

693-94 (5th Cir. 1988); see also Granados v. Quarterman, 455 F.3d 529, 533-34

(5th Cir. 2006); Busby v. Dretke, 359 F.3d 708, 715 (5th Cir. 2004); Lowenfield

v. Phelps, 817 F.2d 285, 291 (5th Cir. 1987).

At trial, Pondexter’s primary theory was that he did not shoot the victim.

His alternative theory was that he fired the second shot. We assume Pondexter’s

trial counsel was aware of Dr. Guileyardo’s autopsy report, which was entered

in evidence at trial, and was aware he would testify for the State. 
No. 06-70048

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Pondexter had different attorneys for trial, direct appeal, and state-habeas

proceedings. As noted supra, the record contains no affidavit from Pondexter’s

trial attorney either concerning whether he consulted with a pathologist, or

explaining why he did not call one at trial. 

With regard to deficient performance vel non, the state-habeas court

concluded: “[Pondexter] has failed to demonstrate any specific deficiency on the

part of trial counsel by failing to consult and/or call a pathologist to testify”; and

“[t]rial counsel’s actions in not calling their own expert, and only crossexamining the state’s expert, may have been strategy”. For the above-stated

reasons, that conclusion was arguably not contrary to, or an unreasonable

application of, Strickland and its progeny, and did not otherwise result in an

unreasonable decision. See 28 U.S.C. § 2254(d). Nevertheless, because the

prejudice prong presents a more certain basis for deciding the IAC pathologist

claim, we need not make a decision, under AEDPA’s deferential standard of

review, on the deficient-performance prong.

b.

For ruling, under AEDPA, on the prejudice prong, we must first decide

whether the state-habeas court considered this prong. With regard to

recommending denying habeas relief for Pondexter’s cumulative error claim,the

state-habeas court concluded, inter alia: “[B]ecause of overwhelming evidence

of guilt and extensive punishment evidence, Pondexter has failed to show

prejudice to his case”. (Emphasis added.) The cumulative error claim, of course,

includedPondexter’s IAC pathologist claim. Arguably, therefore, the state court

made a finding of no prejudice with respect to that IAC pathologist claim. The

conclusions of law addressing “failure to consult”, however, address only

deficient performance.

In granting relief on its firstfederal-habeas review,the district court held:

the state-court decision that trial counsel was not ineffective was unreasonable.
No. 06-70048

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As discussed, our court reversed and remanded, holding the district court did not

apply proper AEDPA deference to that decision. Pondexter, 346 F.3d at 147. We

“conclude[d] . . . Pondexter failed to show he was prejudiced by counsel’s failure

to call a pathologist”, explaining “that a federal habeas court is authorized by

Section 2254(d) to review only a state court’s decision, and not the written

opinion explaining that decision”. Id. at 147-48 (citation and internal quotation

marks omitted). We noted the state court’s express findings that Pondexter’s

expert, Dr. Bolesta, was less credible than the State’s medical examiner, Dr.

Guileyardo. Id. at 149. Because we found the state-court ultimate conclusion

was reasonable under AEDPA, we held “the district court [failed to] afford[ the]

proper weight to it in making the prejudice determination”. Id. at 149-50.

After oral argument, but before our first panel rendered its decision, the

Supreme Court decided Wiggins v. Smith, 539 U.S. 510 (2003). Among the

issues in Wiggins was whether trial counsel rendered ineffective assistance for

failure to investigate. After reaching a decision contrary to the state court’s on

deficient performance, the Court turned to the prejudice prong. Because

“neither ofthe state courts below reached this prong of the Strickland analysis”,

the Court’s review was “not circumscribed by a state court conclusion with

respect to prejudice”. Id. at 534. Pondexter raised this point in his petitions for

rehearing en banc to this court and for a writ of certiorari to the Supreme Court,

asserting Wiggins required no AEDPA deference for the prejudice-prong of his

IAC pathologist claim. As discussed, each petition was denied. 

Accordingly, on remand to district court, Pondexter again maintained

Wiggins required no AEDPA deference for claims not adjudicated on the merits

in state court. See id. Specifically, Pondexter maintained that, for his IAC

pathologist claim, because the state court made no findings with respect to

prejudice, that prong of Strickland is reviewed de novo. In September 2006, the

district court rejected that assertion, citing this court’s prior opinion. Although
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it found “[Pondexter’s] arguments compelling”, it was persuaded that, “[i]n [the]

light of the timing of the Supreme Court decision [in Wiggins]” and when our

court rendered its first opinion, “it should not review [Pondexter’s] claim under

the de novo standard of review”. Pondexter, 2006 WL 2822173, at *21.

Any doubt aboutthe proper standard of review of an ineffective-assistance

prong not considered by a state court was resolved by Rompilla v. Beard, 545

U.S. 374, 390 (2005). Rompilla was issued after Pondexter filed his

supplemental briefing on remand, but prior to the district court’s opinion.

Neither discusses this case. 

At issue in Rompilla was whether trial counsel’s failure to examine the

defendant’s prior conviction file rendered his performance constitutionally

ineffective. Id. at 383. Addressing that claim under Strickland, the Court first

held unreasonable the state-court decision that trial counsel’s performance was

not deficient. Id. at 383-90. Turning to the prejudice-prong, the Court noted:

“Because the state courts found the representation adequate, they never reached

the issue of prejudice”. Id. at 390. Accordingly, the Court held it must “examine

[that] element of the Strickland claim de novo”. Id. (citing Wiggins, 539 U.S. at

534). 

The State claims in its brief that the law-of-the-case doctrine precludes

this IAC pathologist claim “because this Court already determined thatthe state

court’s findings and conclusions sufficiently addressed the prejudice prong of

Strickland enough to warrant deference under the AEDPA”. Pondexter

counters: the intervening-controlling-authority exception to the law-of-the-case

doctrine applies; and this court should afford de novo review to the prejudice

prong of this claim. See United States v. Agofsky, 516 F.3d 280, 283 (5th Cir.

2008) (recognizing exception), petition for cert. filed, No. 07-10762 (2 May 2008).

As stated supra, our court held on Pondexter’s first appeal that he failed

to establish prejudice sufficient to demonstrate, under AEDPA, that the state-
No. 06-70048

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court decision was unreasonable. On remand, the district court, apparently

recognizing that holding, did not again review this IAC pathologist claim, citing

only our prior opinion to deny it. In his application to the district court for a

COA, Pondexter again raised this claim, “[e]specially in [the] light of the

apparent conflict between the Fifth Circuit’s application of § 2254(d) and that

recently endorsed by the Supreme Court [in Wiggins and Rompilla]”. For

granting COA under AEDPA, the district court apparently found sufficient merit

in this assertion because it certified the IAC pathologist claim for appeal.

The law-of-the-case doctrine “generally precludes reexamination of issues

of law or fact decided on appeal, either by the district court on remand or by the

appellate court itself on a subsequent appeal”. Alpha/Omega Ins. Servs., Inc.

v. Prudential Ins. Co. of Am., 272 F.3d 276, 279 (5th Cir. 2001) (citation and

internal quotation marks omitted). The doctrine is “premised on the salutary

and sound public policy that litigation should come to an end”. Id. (citation and

internal quotation marks omitted). Under this doctrine, a prior decision will be

followed without re-examination unless, inter alia, “there has been an

intervening change of law by a controlling authority”. Agofsky, 516 F.3d at 283

(citation and internal quotation marks omitted). 

For the reasons provided supra, we will assume the state court did not rule

on the prejudice prong of Strickland. Therefore, we agree that, because of an

intervening change in the law, see Wiggins, 539 U.S. at 534; Rompilla, 545 U.S.

at 390, the law of the case doctrine would not preclude our review of the

prejudice prong for the IAC pathologist claim.

The State also seeks to benefit from Pondexter’s having briefed Wiggins

in his petitions for rehearing en banc and for a writ of certiorari to the Supreme

Court. As a result, the State again asserts the law-of-the-case doctrine precludes

his raising the issue here. Our court, however, has held that such denials do not
No. 06-70048

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constitute a decision on the merits. See, e.g., Alpha/Omega Ins. Servs., Inc., 272

F.3d at 281.

Pondexter relies heavily on Rompilla, maintaining it requires us to review

the prejudice prong of this IAC claim de novo, rather than, under AEDPA

deference, deciding whether the state-court decision was unreasonable. It is

unnecessary, however, to decide this question because, even under a de novo

standard of review, Pondexter fails to establish prejudice.

Under such plenary review, Pondexter fails to establish that, had trial

counsel consulted with, and/or presented, a pathologist, the jury’s verdict would

have been different. The jury was presented with the testimony of an eyewitness

that Pondexter shot the victim after Henderson fired the first shot. The State

also presented the medical testimony of Dr. Guileyardo. He testified that the

second bullet entered the left side of the victim’s face and exited below her right

ear, perforating her oral cavity, boring a hole through her tongue, and shattering

her right jawbone. It was Dr. Guileyardo’s opinion that both gunshot wounds

were inflicted while the victim was still alive, and that either shot could have

killed her. 

Pursuant to our de novo review, we conclude that the jury, cognizant of

overwhelming evidence of guilt, would have found Pondexter guilty even if trial

counsel had consulted with, and/or called, a pathologist. As a result, there is not

a “reasonable probability that, but for counsel’s unprofessional errors,the result

of the proceeding would have been different”. Strickland, 466 U.S. at 694

(emphasis added). 

2.

For his second IAC claim, Pondexter asserts trial counsel was ineffective

for failing to interview Kendricks, Pondexter’s cellmate. Pursuant to Kendricks’

affidavit, attached to Pondexter’s state-habeas petition, Pondexter allegedly

provided the following information to Kendricks: Pondexter “confessed to
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[Kendricks] that he fired the second shot into the victim”; he “knew that the

victim . . . was already dead before he shot her”; and he shot her to “show[] off

in front of the others” and to show them “the way to do it”. (The last comments

apparently are linked to Pondexter’s boasting, after shooting the victim, “that’s

how you smoke a bitch”, as quoted supra.) Kendricks also stated, in the

affidavit, that he provided this information to the State before Pondexter’s trial.

The state-habeas court concluded that, “[b]ecause the information in

[Kendricks’] affidavit was not exculpatory, [trial] counsel was not deficient for

failing to have this information brought to the attention of the jury”. In any

event, the state-habeas court also found no prejudice because “[t]he statements

would have added nothing to Pondexter’s defense”. 

On remand, the district court concluded it was not unreasonable for the

state court to rule that Pondexter’s trial counsel was not ineffective for failing

to interview Kendricks.

The state-habeas court decision that counsel’s performance with respect

to this issue was neither deficient nor prejudicial is not unreasonable under

AEDPA. As noted by both the state-habeas trial court and district court, if

Pondexter made statements to Kendricks, it was Pondexter who was in the best

position to notify his counsel of the need to obtain that information. See, e.g.,

Boyd v. Johnson, 167 F.3d 907, 910 (5th Cir. 1999). 

The record is devoid of an affidavit from trial counsel or Pondexter

attesting to whether Pondexter did not notify counsel of Pondexter’s alleged

statements to Kendricks. Only Pondexter’s state-habeas counsel provided an

affidavit, attached to Pondexter’s state-habeas petition, stating he spoke with

trial counsel, who “did not believe that they spoke with . . . Michael Kendricks”.

(Emphasis added.) The affidavit does not state, however, whether Pondexter

notified trial counsel of his alleged statements to Kendricks.
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Even assuming, arguendo, as unreasonable, under AEDPA, the state-court

decision that trial counsel’s failure to interview Kendricks was not deficient

performance, the state-court decision that the statement at issue was not

exculpatory and does not establish prejudice is not, under AEDPA, an

unreasonable application of Strickland. Pondexter presented an innocencedefense at trial, and the jury had overwhelming evidence by which to convict

him. 

3.

For his third IAC claim, Pondexter maintains: the prosecutor’s stating in

closing argument that it was Pondexter who shot the victim through the brain

was improper; and, accordingly, his counsel was ineffective for failing to object.

The state court concluded that the prosecutor’s arguments were proper, and as

a result, objections would have been meritless. Accordingly, it concluded

Pondexter failed to establish the deficiency-prong of Strickland. In addition,

that court concluded no prejudice was shown because of the overwhelming

evidence of guilt.

On remand, pursuant to AEDPA, the district court found unreasonable the

state-court decision that trial counsel was not deficient for failing to object, but

held that the state-court’s no-prejudice conclusion was reasonable, under

AEDPA, because, even if trial counsel had objected, and the jury had been

instructed to disregard the argument, the jury nevertheless could have

reasonably concluded Pondexter’s shot to the victim’s face was the cause of

death. 

Even assuming the state-court decision that trial counsel’s performance

was not deficient is unreasonable under AEDPA, the overwhelming evidence of

Pondexter’s guilt precluded his establishing prejudice in the state-habeas court.

As discussed, Dr. Guileyardo testified the victim was alive before the second

gunshot was fired, and that the cause of death was a result of both wounds.
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Accordingly, under AEDPA, the state-court decision that no prejudice resulted

was not unreasonable. 

4.

For his final IAC claim, Pondexter asserts the above three claims, when

considered cumulatively, render trial counsel’s performance ineffective. The

state-habeas trial court recommendation was that “Pondexter’s failure to

specifically argue each instance of alleged ineffective assistance of counsel

[rendered] his claims [to be] multifarious and waived”. Alternatively, it

recommended that Pondexter failed to establish both deficiency and prejudice.

As noted, the TCCA adopted those recommendations.

On remand, the district court noted that“[m]eritless claims or claims that

are not prejudicial cannot be cumulated, regardless of the total number raised”.

We agree. Therefore, the state-court decision, under AEDPA, was not

unreasonable.

B.

Pondexter maintains the State, in violation of Brady, suppressed evidence

that allegedly demonstrates Pondexter did not intend to cause the victim’s

death. 373 U.S. 83. In so doing, he asserts the State withheld information that

Kendricks (Pondexter’s cellmate, who testified for the State at trial about

Pondexter’s jailhouse statement to him) told an investigator before trial that

Pondexter said he knew the victim was dead when he shot her. 

The state-habeas trial court recommended denying the claim. It found:

Kendricks’ affidavit was not exculpatory; and, in any event, “Pondexter should

have been aware of the statements, because he supposedly made them”. That

court concluded the self-serving affidavit supplied by Kendricks was not a basis

for habeas relief. It found “no reasonable likelihood that this evidence, had it

come before the jury, would have altered the outcome of the trial”. Again, as

noted, the TCCA adopted those recommendations. 
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The district court stated: Pondexter “failed to produce evidence

demonstrating that the prosecution suppressed exculpatory evidence”. As had

the state-habeas court, the district court also noted Pondexter was in the best

position to inform his trial counsel of the alleged knew-the-victim-was-dead

statement he made to Kendricks.

Brady held: “[T]he suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution”. 373 U.S. at 87. In order to establish a Brady-claim in state-habeas

court,Pondexter had to demonstrate “that the prosecution suppressed favorable,

material evidence that was not discoverable through due diligence”. Kutzner v.

Cockrell, 303 F.3d 333, 336 (5th Cir. 2002) (citations omitted); see also Rector v.

Johnson, 120 F.3d 551, 558-59 (5th Cir. 1997) (citations omitted). 

As our court has made clear, “[e]vidence is not ‘suppressed’ if the

defendant ‘knows or should know of the essential facts that would enable him to

take advantage of it’”. United States v. Runyan, 290 F.3d 223, 246 (5th Cir.

2002) (citation omitted). In sum, the State was not required by Brady to supply

the defendant with “evidence that [was] fully available . . . through the exercise

of reasonable diligence”. Kutzner, 303 F.3d at 336. In such a situation, the

defendant bears the responsibility for his failure to investigate diligently. Id.

(citation omitted); see also United States v. Brown, 628 F.2d 471, 473 (5th Cir.

1980) (“[W]hen information is fully available to a defendant at the time of trial

and his only reason for not obtaining and presenting the evidence to the Court

is his lack of reasonable diligence, the defendant has no Brady claim”. (citations

omitted)). 

As noted, Pondexter asserts only thatthe State suppressed statements he

allegedly made to Kendricks while incarcerated with him. As discussed earlier,

if Pondexter made these statements to Kendricks, Pondexter, of course, was fully
No. 06-70048

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aware both of having done so and of Kendricks’ ability to verify they had been

made. Accordingly, because he would have possessed the information at the

time of trial, the state-court denial of his Brady claim was not unreasonable

under AEDPA. See Brown, 628 F.2d at 473.

C.

Pondexter’s final claim is that his due-process rights were violated by the

prosecution’s use of inconsistent theories at the separate trials of his codefendant Henderson and then of Pondexter. Pondexter contends: at

Henderson’s trial, the State asserted it was Henderson who fired the shot

through the victim’s brain; but, subsequently, at Pondexter’s trial, the State

maintained it was Pondexter who fired that shot. 

1.

Pondexter raised this inconsistent-theories claim for the first time in the

district court in supplemental briefing following remand by our court. He again

raised this claim in his application for a COA with that court. In other words,

Pondexter did not presentthis claim in either his state-court direct appeal or his

state- or federal-habeas petitions. On remand, the district court did not address

this specific claim although, as noted, Pondexter raised it in his post-remand

supplemental briefing. The State fails to raise this procedural bar. 

Ordinarily, “[c]laims not raised in state court . . . cannot be considered on

federal-habeas because they are not exhausted”. Miller, 431 F.3d at 244; see 28

U.S.C. § 2254(b)(1)(A). On the other hand, the court may “deny (but not grant)”

an unexhausted claim on the merits. Miller, 431 F.3d at 245 (emphasis in

original); 28 U.S.C. § 2254(b)(2); see also Neville v. Dretke, 423 F.3d 474, 482 (5th

Cir. 2005) (“[C]onsistent with its goal of providing for the speedy resolution of

federal petitions, AEDPA provides that applications may be denied on the

merits, ‘notwithstanding the failure of the applicant to exhaust the remedies

available in the courts of the State’”. (quoting 28 U.S.C. § 2254(b)(2))). 
No. 06-70048

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It is well-established that the use of inconsistent theories in the separate

trials of co-defendants is not a violation of the due-process clause. See United

States v. Frye, 489 F.3d 201, 214 (5th Cir. 2007) (rejecting similar claim where

government made inconsistent arguments at the separate trials of

codefendants). Accordingly, habeas relief is denied for this claim as well.

2.

Pondexter also seeks habeas relief for the prosecutor’s alleged

misstatements of evidence at the guilt-innocence phase of his trial. Pondexter

maintains the prosecutor’s assertion that Pondexter fired the shot through the

brain was contradicted by trial testimony. 

The district court granted a COA, however, only on whether “the

prosecution’s use of inconsistent theories and argument concerning this capital

murder offered at [Pondexter’s] trial and the trial of co-defendant Henderson

invalidates his conviction and sentence”. (Emphasis added.) Therefore, this

misstatement-of-evidence issue is not properly before this court. See 28 U.S.C.

§ 2253(c)(1); Dorsey v. Quarterman, 494F.3d 527, 532 (5th Cir. 2007) (explaining

lack of jurisdiction absent a COA). 

In the alternative, even assuming the issue is part of the inconsistenttheories claim, for which a COA was granted, it would not change the denial of

that claim,for the above-stated reasons. Along that line, the state-court decision

on this point, based on waiver for failing to object contemporaneously, was not

unreasonable under AEDPA. 

III.

For the foregoing reasons, the judgment is AFFIRMED.