IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-70024

BILL DOUGLAS GATES, 

 Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent - Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:09-CV-2702

Before JOLLY, CLEMENT, and HAYNES, Circuit Judges.

PER CURIAM:*

Bill Douglas Gates was convicted of capital murder and sentenced to 

death in Texas. Based on our “threshold inquiry,” consisting of “an overview 

of the claims in the habeas petition and a general assessment of their merits,” 

Miller-El v. Cockrell, 537 U.S. 322, 327, 336 (2003), this Court granted a 

certificate of appealability (COA) authorizing Gates to appeal the district 

court’s denial of federal habeas relief as to his claim regarding investigation 

 

* 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

August 24, 2016

Lyle W. Cayce

Clerk

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and presentation of mitigating evidence. We authorized Gates to file a 

supplemental brief addressing the merits of this claim, to the extent not 

already addressed in the COA briefing, but he declined. We now AFFIRM the 

district court’s denial of federal habeas relief for this claim, for the reasons that 

follow.

I.

The facts and procedural history are set out in our opinion of May 18, 

2016. Gates v. Davis, ___ F. App’x ___, 2016 WL 2909193, at *1–4 (5th Cir. 

May 18, 2016).

A.

Gates claims that trial counsel rendered ineffective assistance by failing 

to investigate and present mitigating evidence at the punishment phase of his 

trial. This claim was not raised by Gates’s state habeas counsel and is 

procedurally defaulted. Under Martinez v. Ryan, 132 S. Ct. 1309 (2012), 

federal habeas petitioners may attempt to show cause for default by 

demonstrating the ineffectiveness of state habeas counsel in failing to raise a 

substantial ineffective assistance of trial counsel claim. 132 S. Ct. 1309, 1316 

(2013). The Court in Trevino v. Thaler, 133 S. Ct. 1911 (2013), applied 

Martinez to Texas inmates. A finding that Martinez applies allows federal 

district court merits review of claims that are otherwise procedurally 

defaulted. See Newbury v. Stephens, 756 F.3d 850, 872 (5th Cir. 2014). While 

the district court found Gates’s claim procedurally defaulted, it also addressed 

Gates’s claim on the merits and concluded that he was not entitled to federal 

habeas relief. Because Gates has already received the relief available to him 

under Martinez and Trevino—that is, review of the merits by the district 

court—we turn directly to the merits of Gates’s IATC claim. 

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To establish ineffective assistance of trial counsel, a petitioner must 

show that counsel’s performance was deficient and that he was prejudiced by 

the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). 

“The likelihood of a different result must be substantial, not just conceivable.” 

Harrington v. Richter, 562 U.S. 86, 112 (2011). This showing is intentionally 

difficult to make: “In assessing prejudice under Strickland, the question is not 

whether a court can be certain counsel’s performance had no effect on the 

outcome. . . . Instead, Strickland asks whether it is ‘reasonably likely’ the result 

would have been different.” Id. at 111. 

B.

The defense did not present any evidence at the punishment phase of 

Gates’s trial. Prior to closing arguments, Gates’s counsel stated to the trial

court that they had made a diligent effort to contact a couple of cousins, but 

had been unable to locate them.

The prosecution relied on the lack of witnesses for Gates to urge the jury, 

in closing argument, to ignore the mitigation special issue “because there isn’t 

a shred of mitigating evidence.” The prosecutor stated further: “In terms of 

mitigation, is there any evidence before you that the defendant is retarded, 

that he was abused as a child, some evidence that he was a warrior or did 

anything extraordinary in his life? Absolutely no.” 

In their closing arguments, Gates’s counsel referred to testimony of a 

jailer that Gates was a good worker and had been put in the job of staff worker 

in the jail, one of two, out of 700. Defense counsel also pointed out that Gates 

would not be eligible for parole until old age, and would no longer pose a threat 

to society if released. Counsel asked the jury to be compassionate to Gates, 

noting that no one had ever shown Gates any mercy or support, as evidenced 

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by the fact that no one had come to speak for Gates, plead for his life, or even 

to say, “Good-bye, Bill.” 

Gates argues that no witnesses were called to testify for him because his 

defense lawyers never tried to locate any or to make any investigation of his 

early life experiences. In his brief in support of his federal habeas petition, 

Gates alleged that effective counsel would have talked to his older brother, who 

would have described the conditions in which Gates was raised and which 

determined the dysfunctional course of his life, and would have found school 

records from California which regularly note the turbulence of his home life, 

variously describe him as belligerent, emotionally and socially immature, slow 

to learn, and having a short attention span, and corroborate the information 

provided by his brother. He alleged that if counsel had retained a mental 

health professional, they would have learned that Gates suffers cognitive and 

emotional disabilities, probably caused by his mother’s alcohol abuse during 

her pregnancy with him, her dissipated lifestyle after he was born, and a level 

of neglect which left him at the mercy of a social order where he was regarded 

as a second-class citizen. 

To support these allegations, Gates presented the following exhibits in 

support of his federal habeas petition: (1) the affidavit of mitigation specialist 

Vince Gonzales, along with California court records and school records; (2) the 

affidavit of his half-brother, George Lemmons, Jr.; (3) the affidavit of his halfsister, Tommie Jean Riggs; (4) the affidavit of his aunt, Billie Swancy; and (5) 

the report of a neuropsychological evaluation conducted by Gilbert Martinez, 

Ph.D., who was retained by federal habeas counsel.

In his affidavit, Gonzales stated that he obtained school records 

describing Gates as emotionally and socially immature, a slow learner with a 

short attention span, and as having a home life in turmoil. Gonzales spoke 

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with an attorney and obtained paperwork suggesting at least two cases in 

which Gates’s mental health was an issue. Gonzales’s interviews with Tommie 

Jean Riggs (maternal half-sister), George Lemmons, Jr. (maternal halfbrother), Vada Swancy Houston (cousin) and Billie Swancy (aunt) corroborated 

statements in Gates’s school records describing a life of turmoil. All of them 

also described alcoholism being prevalent in the households in which Gates 

lived. Gonzales stated that Gates’s aunt, Billie Swancy, had reported that 

Gates’s mother, Nettie Scott, was a heavy drinker and that she was unaware 

of any period in Ms. Scott’s life when Ms. Scott did not consume alcohol, 

including the time when she was pregnant with Gates.

Gates’s half-brother, George Lemmons, stated in his affidavit that he is 

three years older than Gates. He stated that Gates’s birth certificate reflects 

that he was a small baby, weighing only 5 pounds, 10 ounces and measuring 

17 1/2 inches in length. Their mother, who died in 1958, when Gates was about 

9 years old, was an alcoholic, and each of the households they lived in suffered 

under the burden of alcohol abuse. He said that Gates had a troubled 

childhood, was subjected to harsh discipline by his caretakers, and received 

less encouragement and positive reinforcement. He also stated that Gates was 

a “bothersome” child who would pick on other children and was a “pest.” 

Further, from an early age, Gates had an explosive temper and would often get 

angry at the slightest event. He said that Gates had informed him, many years 

after leaving the California Youth Authority, that he had been sexually 

assaulted by a guard and later by older inmates. He described his 

correspondence with Gates that included references to prescription antidepressant medication, children Gates may have fathered, Gates’s attempts to 

obtain help for drug addiction and homelessness, and various documents 

showing completion of vocational and religious coursework while Gates was 

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incarcerated. Lemmons said that Gates also reported that he had been beaten 

by a police officer and sustained a head injury. He said that he had been told 

that their mother was taken to a “voodoo” doctor to cure hallucinations and 

mean-spirited behavior.

Gates’s half-sister, Tommie Jean Riggs, stated in her affidavit that when 

she was three years old, she and her brothers were removed from their 

mother’s care by Children’s Protective Services. She said it has always been 

her understanding that the removal was because of the mother’s alcohol 

problem. She was placed with her father and never lived with her brothers 

again. She could only remember seeing Gates six or seven times. 

Gates’s aunt, Billie Swancy, stated in her affidavit that Gates’s mother, 

Nettie Scott, was a “serious, heavy drinker” who drank all the time, including 

when she was pregnant. Gates’s mother was once taken to a “voodoo” doctor 

to cure her strange behavior and alcoholism. Scott’s drinking led to conflict 

and turmoil in her life and the lives of her children, who were moved from 

house to house and had no stability in their lives.

Dr. Gilbert Martinez, a psychologist, reported on his neuropsychological 

evaluation of Gates on August 11, 2009. In addition to interviewing Gates and 

administering tests, Dr. Martinez also reviewed the mitigation report and 

affidavit of Vince Gonzales and the school records that Gonzales obtained.

Gates reported to Dr. Martinez that he had suffered several head injuries 

that resulted in a loss of consciousness, but said that he did not receive medical 

attention for the injuries because he had a fear of hospitals and suffered from 

hysteria. Gates told Dr. Martinez that he suffered memory problems 

throughout his life, which Gates attributed to the head injuries. Gates also 

told Dr. Martinez that he suffered from depression. Dr. Martinez stated that 

Gates was somewhat evasive when discussing his childhood and family. 

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Although Gates said that, as a child, he was beaten regularly by adults, Gates 

did not believe it was physical abuse. Gates initially denied having other 

history of physical or sexual abuse but when asked specifically about a 

potential childhood sexual abuse history, Gates said that “growing up a few 

things happened, sometimes you have a sexual relationship.” Gates told Dr. 

Martinez that he began smoking marijuana at age 11, smoked daily for many 

years, and was “high all day.” He started smoking crack cocaine daily for many 

years and reported using hallucinogens several times. He also reported use of 

heroin, cocaine, and pills, including “Bennies” and Valium. He drank alcohol 

heavily in his thirties but otherwise tended to drink off and on.

Dr. Martinez said that Gates was also somewhat evasive when 

describing his social history. Gates was unsure why he was not raised by his 

mother and did not know his father. He believed that a police officer had killed 

his mother. He reported having a sister and brother but was unwilling to talk 

about their relationship with him. He reported being “common-law married 

two to three times” but was not willing to elaborate on his marital history or 

to discuss his children.

Gates told Dr. Martinez he had graduated from high school in California 

and described himself as a poor student after he was hit on the head at age 

seven. Gates suggested that he received poor care and education because there 

was a racial issue. He said that he was in special education classes throughout 

school, but provided no detail. He said that he had worked as a welder, short 

order cook, gas station manager, and boilermaker.

Dr. Martinez summarized his findings as follows:

With respect to emotional functioning, records reveal a pattern of 

affective and behavioral instability throughout Mr. Gates[’]

development. In addition to significant problems with behavioral 

dyscontrol, Mr. Gates appears to have developed a substance abuse 

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disorder beginning in early adolescence that was co-morbid with 

his emotional, behavioral, and cognitive deficiencies. He currently 

presents with thought and behavior suggesting he suffers from 

anxious preoccupation and significant problems with 

suspiciousness and mild paranoid-delusional ideation. This has 

likely been a lifelong problem for Mr. Gates and has been 

exacerbated by current severe psychosocial stressors. The extent 

to which his paranoid thought and behavior represent a psychotic 

disorder versus a characterological issue could not be fully 

determined [in] the current assessment, although his current 

clinical presentation and history are suggestive of a chronic mental 

disorder.

Potential etiologies to explain Mr. Gates’ apparent lifelong 

problems with behavioral control and acquisition should primarily 

include the strong probability that he suffers from a Fetal Alcohol 

Syndrome Spectrum Disorder. Interviews with family members 

described a pattern of alcohol abuse during gestation that 

correlates with his behavioral and executive dysfunction 

throughout his development. Chronic substance abuse can also 

contribute to cognitive dysfunction, although Mr. Gates[’] 

problems with learning and behavior appear to be preceded by his 

substance abuse. It is likely that poor impulse control, impaired 

judgment, and behavioral instability throughout his development 

contributed to his substance abuse disorder.

Mr. Gates also described a potential history of repetitive head 

trauma and subsequent speech deficits which may be contributing 

to his cognitive, emotional, and behavioral problems as well. 

Unfortunately, documentation appears to be limited in describing 

the extent and severity of these injuries, and his behavioral 

problems appeared to have started at a very [early] age.

ROA.150–51 (emphasis added).

Dr. Martinez concluded that Gates “appears to suffer from lifelong 

problems with behavioral dyscontrol, emotional dysfunction, and reduced 

learning and acquisition that can be correlated with information in his 

mitigation history suggesting that his mother abused alcohol during gestation 

and his infancy.” ROA.151 (emphasis added). He concluded further that Gates 

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“suffers from suspiciousness and paranoid ideation that may be related to a 

potential undiagnosed/untreated chronic mental disorder.” However, he found 

that, because of the nature of such condition, Gates was likely to be unwilling 

to accept medical treatment for it.

Gates contends that, based on the exhibits he offered in support of his 

federal habeas petition, an unobjectionable argument could have been made to 

the jury that he was conceived, born, and delivered into the world by an 

alcoholic mother, whose consumption of alcohol during her pregnancy probably 

resulted in some degree of fetal alcohol brain damage and ensuing spectrum 

disorders, largely corroborated by very low IQ scores and poor academic 

performance, that he was neglected and abused by family members and by a 

series of men with whom his mother had fleeting, unsuccessful relationships, 

and that he was raised in poverty, had trouble in school from an early age, was 

embittered by mistreatment from law enforcement officers, suffered sexual 

assaults in prison while still a teenager, and never succeeded at any vocation 

or career.

With respect to prejudice, Gates asserts that the evidence of the 

circumstances of his birth and upbringing, all beyond his control, would likely 

have made a difference at the punishment phase, because it explains and 

places in context the conduct that the prosecution relied on for a death 

sentence, and rebuts the inference that his violent and antisocial behavior was 

something entirely of his own making and for which he alone should be held 

responsible.

Gates also contends that the district court should not have denied this 

claim without allowing funds for further factual development and conducting 

an evidentiary hearing. He claims that trial counsel refused to provide 

affidavits explaining what strategic or tactical reasons they might have had 

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for their action or inaction and that, without an opportunity to compel their 

testimony through the use of compulsory process, he cannot now meet his 

burden to establish that the shortcomings alleged in his petition were caused 

by deficient performance and were not the product of deliberate strategic or 

tactical judgments.

The State points out that because Gates never presented this claim in 

state court, trial counsel never had the opportunity to respond to his 

allegations. Therefore, the court must presume that trial counsel made a 

strategic decision to base their defense at punishment on Gates’s lack of 

support from family and friends and the State’s failure to prove future 

dangerousness.

The State also attacks the evidence presented by Gates. It notes that 

although Lemmons, Gates’s half-brother, said that he was never contacted by 

trial counsel, Lemmons acknowledges that he was contacted by Gates. The 

State thus contends that one could reasonably infer that Gates did not tell trial 

counsel about Lemmons, or specifically told trial counsel not to contact 

Lemmons; or one could infer that counsel did contact Lemmons, and Lemmons 

declined to cooperate. The State observes that Gates’s psychologist, Dr. 

Martinez, noted that Gates was evasive about his history and was unwilling to 

discuss his children or his relationships with his siblings. Based on Gates’s 

counsel’s statement in closing argument that “not a soul came here to speak on 

behalf of Bill Gates,” the State asserts that it could be inferred that those 

family members contacted by counsel declined to appear. Finally, the State 

asserts that Gates’s allegations of fetal alcohol syndrome are unsubstantiated, 

and he offers only hearsay and unsubstantiated statements regarding a poor 

upbringing, childhood neglect, and sexual assault. Moreover, some of the 

evidence, such as long-term drug use, mental difficulties, and an explosive 

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temper, might have been viewed by the jury as aggravating. The State 

concludes that, considering the evidence of Gates’s life-long violent criminal 

activity, which culminated in the rape and strangulation of the victim, Gates

failed to demonstrate a reasonable probability that the jury would have 

reached a different decision on punishment.

The district court observed that there were evidentiary problems with 

some of Gates’s allegations. For example, Gates told his half-brother, 

Lemmons, that he had been sexually assaulted, but he did not verify that 

information with his own affidavit or any other reliable account. Nor did he 

substantiate the hearsay statements contained in his federal habeas 

investigator’s affidavit. The court noted that although it had authorized funds 

for an expert whose evaluation raised the possibility1 that Gates suffered from 

fetal alcohol syndrome, the expert, Dr. Martinez, did not diagnose him with 

that condition after evaluating him. The district court also noted that some of 

Gates’s new evidence would not be beneficial to the defense: (1) although 

evidence of fetal alcohol syndrome-related deficiencies might support an 

inference that Gates was not morally culpable for his behavior, it also might 

suggest that he, as a product of his environment, was likely to continue to be 

dangerous in the future; (2) evidence that Gates was belligerent, emotionally 

and socially immature, slow to learn, and had a short attention span, would 

not necessarily encourage a jury to forgo a death sentence; and (3) the evidence 

of Gates’s explosive temper and resistance to authority would have a sharp 

aggravating edge.

The district court acknowledged that elements of Gates’s troubled 

background might have given jurors a sympathetic understanding of his early 

 

1 Actually, Dr. Martinez reported that there was a “strong probability” that Gates 

suffers from a Fetal Alcohol Syndrome Spectrum Disorder. 

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involvement in crime, but pointed out that Gates was 37 years old when tried 

for capital murder.2 The court concluded that, with the subsequent years of 

unremitting violence, the evidence relating to Gates’s family—their substance 

abuse, mental illness and criminal problems—was by no means clearly 

mitigating, as the jury might have concluded that Gates was simply beyond 

rehabilitation. The court stated that, to the extent that Gates claimed that 

trial counsel should have argued that he received virtually no guidance as a 

youth and lacked sufficient resources to support his efforts to seek treatment 

for his conditions, that information bears similar mitigating thrust to trial 

counsel’s argument that no one had ever shown Gates any mercy or support.

After weighing the new evidence Gates presented in federal court 

against the evidence presented by the prosecution at trial—three serious adult 

felonies in California, aggravated assault on a peace officer, aggravated 

robbery, possession of a sharp instrument in prison, and the fact that Gates 

had already received two life sentences before his rape and strangulation of 

the victim—the district court held that Gates had failed to demonstrate a 

reasonable probability of a different result had the unpresented mitigating 

evidence been presented. 

The court concluded:

Gates provides information trial counsel probably did not 

have and certainly did not put before jurors, but makes only 

summary arguments that the unpresented information would 

have allowed the jurors to return answers to the special issues 

resulting in a life sentence. This Court’s own review of the new 

evidence, when placed into the landscape of that which jurors 

considered, does not show a reasonable probability of a different 

result. On that ground, Gates has not shown actual prejudice from 

state habeas counsel’s failure to raise the barred Strickland claim. 

 

2 Gates was born in 1949, so he was 51 years old when tried for capital murder and, 

at that time, had a 37-year career of crime, which began when he was 13 years old.

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Gates’s mitigation-evidence claim is procedurally barred. 

Alternatively, and for the same reasons, Gates has not met his 

burden of showing that he deserves federal habeas relief on the 

merits.

After de novo review of all of the evidence, we conclude that even if 

deficient performance is presumed, the district court did not reversibly err in 

its analysis of prejudice. As the district court noted, the new evidence of sexual 

assault that Gates submitted is unsubstantiated. He did not even submit his 

own affidavit about the alleged sexual assault.

Although the district court may have mischaracterized Dr. Martinez’s 

findings when it said that his evaluation raised the “possibility that Gates 

suffered from fetal alcohol syndrome,” it is true that Dr. Martinez did not 

definitively diagnose Gates with fetal alcohol syndrome. Nevertheless, Dr. 

Martinez did state that there was information in Gates’s mitigation history 

“suggesting” that his mother abused alcohol while pregnant with him and 

found that there was a “strong probability” that Gates “suffers from a Fetal 

Alcohol Syndrome Spectrum Disorder.”

As the district court observed, evidence of fetal alcohol syndrome-related 

deficiencies is mitigating in the sense that it might support an inference that 

Gates is not as morally culpable for his behavior, but it also is aggravating in 

the sense that it might support an inference that Gates is likely to continue to 

be dangerous in the future. See Sells v. Stephens, 536 F. App’x 483, 495 (5th 

Cir. 2013); Brown v. Thaler, 684 F.3d 482, 499 (5th Cir. 2012).

This Court’s recent opinion in Trevino v. Davis, ___ F.3d ___, 2016 WL 

3710083 (5th Cir. July 11, 2016), which discussed fetal alcohol spectrum 

disorder (FASD) at length, does not support a different conclusion. Although 

the issue before the Court in Trevino was whether a COA should be granted, 

the Court stated that reasonable jurists would not only agree that the district 

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court’s decision was debatable, but would also agree that the district court 

erred by dismissing Trevino’s FASD claim, thus indicating that Trevino should 

prevail on the merits. Id. at *22. Nevertheless, Trevino does not support a 

ruling on the merits for Gates, because there is not a reasonable probability 

that Gates’s jury would have reached a different decision, considering the 

mitigating evidence he offered, including the evidence of FASD, and the 

aggravating evidence.

The report of Trevino’s expert, Dr. Dyer, indicated that she had received 

information from one of Trevino’s federal habeas lawyers that, based on 

reviews of his school records and interviews with his mother and family 

members, there was evidence suggesting that Trevino had a history of fetal 

alcohol syndrome (FAS) and possible cognitive limitations as a result of 

prenatal exposure to alcohol. Id. at *19. Trevino’s expert reported that 

Trevino’s facial features included notable distinguishing eye characteristics, 

his stature is slightly below the norm for his age and ethnic group, and his 

prenatal exposure to alcohol was significant, as was his low birth weight. Id. 

at *20. Trevino’s expert was able to obtain information about Trevino’s 

prenatal alcohol exposure from a face-to-face interview of Trevino’s mother. Id.

at *19. Here, Gates’s expert, Dr. Martinez, was unable to interview Gates’s 

mother, because she died in 1958. Dr. Martinez apparently relied on 

Gonzales’s affidavit which stated that Gates’s aunt had reported that Gates’s 

mother was a heavy drinker and consumed alcohol while she was pregnant 

with Gates.

Trevino’s expert’s report described in detail the characteristics and 

effects of FAS and Fetal Alcohol Effects (FAE),3 and explained how FAE would 

 

3 According to Trevino’s expert’s report, FAS “is diagnosed when there is apparent 

facial dysmorphology, growth restriction, and central nervous system and 

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have affected Trevino’s decisions to participate in or refrain from the activities 

that resulted in his capital murder charges and his ability to understand and 

respond appropriately to the plea offer presented to him by his counsel. Id. at 

*19-20. The report of Gates’s expert does not contain similar information. We 

also observe that Trevino’s expert’s opinion that Trevino “presents with the 

characteristics of FAE” was more definitive than Gates’s expert’s opinion that 

there was a “strong probability” that Gates suffers from FASD, perhaps 

because Trevino’s expert had more information, including an interview with 

Trevino’s mother, upon which to base her opinion.

Trevino is distinguishable on other grounds as well. First, the district 

court’s prior opinion in Trevino had strongly suggested that the FASD evidence 

in that case, if properly developed and admitted, conceivably could have 

changed the result. Id. at *21. Second, the possible FASD evidence in Trevino

went to the heart of the most aggravating evidence against Trevino, his 

inability to express remorse.

In the light of the overwhelming evidence of Gates’s long history of 

violent criminal behavior presented at trial, we hold that the district court did 

not err by concluding that Gates has not demonstrated a reasonable 

probability that presentation of the new evidence developed by his federal 

habeas counsel would have produced a different result at sentencing. 

Accordingly, he cannot establish that he was prejudiced.

Gates also has not shown any abuse of discretion in the district court’s 

refusal to allow further factual development or an evidentiary hearing on this 

claim. The factual development that Gates claims that the district court 

 

neurodevelopmental abnormalities, with or without confirmed prenatal exposure to alcohol.” 

Id. at *19. FAE is a term used to describe individuals who were exposed to alcohol prenatally 

and have some, but not all of the characteristics of FAS. Id.

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should have allowed (compelling the testimony of trial counsel to prove that 

the shortcomings alleged in his petition were not the product of deliberate 

strategic or tactical judgments) is relevant to the deficient performance prong 

of Strickland. The district court stated that the record provided only “hints” 

about trial counsel’s efforts to prepare for the punishment phase and that, 

despite “significant funds” and time to investigate during the initial federal 

habeas proceedings, the record provided little insight into whether trial 

counsel performed deficiently in investigating mitigating evidence.4 The 

district court’s denial of relief, however, was based on the prejudice prong, and 

its conclusion that Gates had failed to address the impact his new evidence 

would have had at trial. Gates has not explained how further factual 

development or an evidentiary hearing would result in a stronger case for 

prejudice.

We hold that the district court did not err by denying relief because Gates 

has not demonstrated a reasonable probability that he would not have received 

a death sentence had counsel presented the evidence that federal habeas 

counsel developed and submitted in support of this claim. We also hold that 

the district court did not abuse its discretion by not allowing additional factual 

development or an evidentiary hearing.

II.

For the foregoing reasons, we AFFIRM the district court’s denial of 

federal habeas relief.

 

4 Our review of the record confirms the district court’s assessment that there are only 

“hints” about the efforts that trial counsel made to investigate mitigating evidence. The state 

court record reflects that on September 25, 2000, the state court granted trial counsel’s 

motion for funds to hire an investigator. During jury selection, defense counsel stated that 

he had received some addresses and phone numbers of potential witnesses.

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