### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-70019

KIMBERLY LAGAYLE MCCARTHY, Petitioner-Appellant
v. RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:07-CV-1631

Before JOLLY, GARZA, and STEWART, Circuit Judges. PER CURIAM: * A Texas jury convicted Petitioner Kimberly Lagayle McCarthy of capital murder, and she was sentenced to death. The Texas Court of Criminal Appeals affirmed and denied her subsequent application for habeas corpus. The district court denied her federal habeas petition and declined to grant her a certificate of appealability (“COA”). McCarthy asks this court to grant her a COA on two issues pursuant to 28 U.S.C. § 2253. Beca u s e M cCarthy cannot make a U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 11, 2 012 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-70019 Document: 00511916016 Page: 1 Date Filed: 07/11/2012No. 11-70019

substantial showing of the denial of a federal constitutional right, we DENY a COA. I The evidence pre s e nt e d at trial established that McCarthy “entered the home of her 71-year old neighbor Dorothy Booth under the pretense of borrowing

some sugar and then ‘stabbed M r s . B ooth five times, hit her in the face with a candelabrum, [and] cut off her left ring finger in orde r t o t a ke her diamond ring.’” McCarthy v. Thaler , No. 3:07–CV–1631–O, 2011 WL 1754199, at *1 (N.D. Tex. May 9, 2011) (quoting McCarthy v. State , No. 74590, 2004 WL 3093230, at *2 (Tex. Crim. App. Sept. 24, 2004)). McCarthy then left with Mrs. Booth’s purse and wedding ring. Eventually, she “drove Mrs. Booth ’ s M e r c e d es Benz to a ‘crack house’ where she attempted to purchase crack cocaine.” McCarthy , 2004 WL 3093230, at *2. She later “pawned Mrs. Booth’s wedding ring for $200, and used the victim’s credit cards at least four times on the day after the murder.” Id. McCarthy was originally convicted of the capital murder of Mrs. Booth in 1998. However, the Texas Court of Criminal Appe al s (“T C CA”) reversed her

co nvi c t ion on direct appeal. McCarthy v. State , 65 S.W.3d 47, 49 (Tex. Crim. App. 2001). The TCCA held that the trial court had violated McCarthy’s right to counsel under the Fifth and Fourteenth Amendments by admitting into evidence a written statement s he made to police after she had unambiguously invoked her right to counsel. Id. at 51. Although McCarthy did not admit to physically killing Mrs. Booth in the state m e n t , th e TCCA concluded that the statement “was, as the State’s attorney so effectively pointed out . . ., powerful enough to establish her guilt of capital murder either as a party o r as a

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conspirator.

. . . [and] was also used to paint [her] as an unrepentant liar and set out her cruel and greedy motive for killing her elderly neighbor.” Id. at 55. 1 McCarthy was subsequently re-tried. The jury found her guilty of capital murder, and she was sentenced to death. The TCCA upheld her second capital

mu r d e r c o nviction on direct appeal, McCarthy , 2004 WL 3093230, and the Supreme Court of the United States denied her petition for a writ of certiorari. McCarthy v. Texas , 545 U.S. 1117 (2005). McCarthy timely filed a state petition for a writ of habeas corpus. Without holding an evidentiary hearing, the state

Thew rit ten st atem ent read s as fol low s: 1 Early Tues day mo rning about 1:30a. m. , dr ugs we re del ivere d to me at my res ide nce b y “Kilo” and “J. C.” , tw o guys I me t in Sout h Da llas se lling dr ugs, about a mo nth o r s o a go . Both guys st ayed at my res i d e n c e & p a r t i ed wi th me . Aft er my mo ney & the drugs ran out, they ask ed if I coul d get so me mo re mo ney. I tol d them no. They ask ed me if I kn ew any of my neighbo rs I coul d borr ow mo ney fr om & I sai d no, not at that hour & that I had to go to wo rk

. At thatt im e t hey b egan to be verbal ly ab usive & t hrea teni ng t o h armm e i f I di dn’ t. I call ed my neighbo r “D oro thy Booth”. I’m n o t sur e of the tim e & got no ans we r. I wa ite d a wh ile & call ed back , she ans we red

. “Kilo” tol d me to hang up & I did

. He tol d me to call back & ask her to borr ow so me sugar or mi lk ins tead of mo ney over the phon e, beca use they we re going to rob her & tak e the car . I call ed back & ask ed to borr ow sugar , she sai d ok

. Ki lo & J.C. fol low ed me to her hous e, wh en she ope ned the doo r & saw me , to let me in they both pus hed the doo r ope n & kno ck ed herdow n. I wa s shoved back outsid e to her car . The driver side was unloc ke d & I wa s tol d to st ay ther e & lay dow n in the fr ont se at. Sever al mi nute s late r they both cam e out wi th her cark eys, p urs e, & CD playe r. Bot h guysw ent bac k int o my hous e & cam e out w ith a jam box, cor dle ss phon e & call er ID. They tol d me to drive to Mi Amo re mo tel on se co n d avenue to mak e a pic k up. I wa s tol d to par k on the next st ree t over & wa it for them

. Aft er about 3–5 mi nute s or so I dr ove off wi th all the belon gings they too k & we nt to Fitzhugh to the dop e hous e. No one ans we red the doo r so I we nt to Perry st ree t dop e hous e. I too k everyt hing out o f t he car & we nt ins ide to get dop e. They did n’t have any so “Sm iley” sai d he wo uld go a round the cor ner & get me so me . I gave him the ke ys & anot her girl rod e wi th him

. The y cam e back & the pol ice st opp ed them in fr ont of the dope house on Perry st ree t. I we nt to the backof the hous e & w aite d a f ewm inute s & lef

t out thebackdoorto get drugs else wh ere . A few ho u r s l a t e r I ret urned to Perry st ree t dop e hous e & “Sm iley” wa s ups et that the cop s st opp ed him

. He gave me the car ke ys back

. He ask ed me if the car wa s st olen & I sai d no. He
w a nted to rent it out for dop e so I did & lef t. Aft er the dop e ran out I se arc hed the pur s e & fou nd a diam ond ri ng & credit car ds . I tookthe ring to thepaw n shop & soldit. Late r I use d the cre dit car d at the groc ery st ore & gas st atio n to pur chas e cigar ett es by the car ton for res ale at the“bootleg” forcash. I we nt to a friend ’s houseto sm ok e dop e. H e sol d the call er ID and cor dle ss phon e for dop e mo ney. The jambo x wa s so ld to an individual at the Me xican dud e on Fitzhugh & East Gr and. I got a rid e wi th a mal e & fem ale. We we nt to several gas st atio ns & shew ent ins idet o u set he cre ditc ard s onceort wi ce. 3 Case: 11-70019 Document: 00511916016 Page: 3 Date Filed: 07/11/2012No. 11-70019

habeas trial court entered findings of fact and conclusions of law recommending that all requested relief be denied. The TCCA denied relief in an unpublished order and adopted all but two of the state trial court’s findings and conclusions. Ex Parte M

c C ar t hy , No. WR-50-360-02, 2007 WL 2660306, at *1 (Tex. Crim. App. Sept. 12, 2007). McCarthy filed a federal habeas petition based on nine grounds. The district court denied relief on all of her claims and declined to grant a COA. McCarthy , 2011 WL 1754199. Petitioner appeals, requesting a COA from this court on two of the issues asserted in the district court. II On appeal, McCarthy seeks a COA on two issues raised in the district court. First, she claims that she was denied her right to effective assistance of counsel when her lawyers failed to introduce the written statement she made to police after her arrest as mitigating evidence at the punishment stage of trial. Second, she asserts that she was denied her ri ght to effective assistance of

counse l w h e n h e r lawyers agreed to waive the imposition of Texas Rule of Evidence 614 (“the Rule”) with respect to Mrs. Booth’s daughter, Donna Aldred. To obtain a COA, a prisoner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)). “A petitioner satisfies this standard by demonstrating that ju ri s t s o f reason could disagree with the district cour t ’ s r esolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve e nc o ur a gement to proceed further.” Miller–El v. Cockrell , 537 U.S. 322, 327 (2003) (citing S la c k v. McDaniel , 529 U.S. 473, 484 (2000)). “[I]n determining this issue, we ‘view[ ] the petitioner’s arguments through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d).’” Druery v. Thaler , 647 F.3d 535, 538 (5th Cir. 2011) (quoting Barrientes v. Johnson , 221 F.3d 741, 772 (5th Cir. 2000)). Under § 2254(d), when reviewing a claim adjudicated on the merits by a sta t e c o u r t, we defer to the state court’s determina t ion regarding that claim, “unless the decision ‘[is]

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c o n t rary to, or involve[s] an unreasonable application of, clearly established Federal law, as determined by the Sup r e m e C o u rt of the United States; or . . . [is] based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Barrientes , 221 F.3d at 772 (quoting 28 U.S.C. § 2254(d)(1) & (2)). Because both of McCarthy’s claims allege ineffective assistance of counsel,

we review her c l a i m s under the familiar standard announced in Strickland v. Washington , 466 U.S. 668 (1984). To prevail on her ineffective assistance claims, McCarthy “must demonstrate that (1) counsel’s representation fell b e l o w an objective standard o f r e asonableness and that (2) there is a reasonable probability that prejudice r esulted.” Druery , 647 F.3d at 538 (citing Bower v. Quarterman , 497 F.3d 459, 466 (5th Cir. 2007)). In assessing the reasonableness of counsel’s representation, “ c o u n s el should be ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.’” Cullen v. Pinholster , 131 S. Ct. 1388, 1403 (2011) (quoting Strickla nd , 466 U.S. at 690). “To overcome that presumption, a defendant must show that counsel failed to act ‘reasonabl[y] considering all the circumstances.’” Id. (quoting Strickland , 466 U.S. at 688). Further, in order to establish prejudice, “[t]he defendant must show that there is a reasonable probab i lity that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is

a probability suffic i e n t to undermine confidence in the outcome.” Strickland , 466 U.S. at 694. “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly so.’” Harrington v. Richter , 131 S. Ct. 770, 778 (2011) (citations omitted); see Druery , 647 F.3d at 538–39 (“When our review is governed by AEDPA—as is the case h e r e

— o u r r e v i e w o f t h e s t a t e c o u r t ’ s r e s o l u t i o n o f t h e
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ineffective-assistance-of-counsel claim is ‘doubly deferential,’ since the question is ‘whet h e r t he state court’s application of the Strickland standard was unreasonable.’”) (citations omitted). Section 2254(d) applies to McCarthy’s ineffective assistance claims. T h us, when deciding whether to grant habeas

r e lief on those claims, “the question is not whether counsel’s actions were

r e asonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter , 131 S. Ct. at 788. Accordingly, to obtain a COA on her ineffec t iv e assistance claims, McCarthy must show “that it was ‘necessarily unreasonable for the [state court] to conclude: (1) that [s]he had not overcome the strong pres umption of competence; and (2) that [s]he had failed to undermine confidence in the jury’s sentence of death.’” Ayes t as v. Thaler , 462 F. App’x 474, 478 (5th Cir. 2012) (quot i n g Cullen , 131 S. Ct. at 1403); see id. (“For a COA, we are limited to deciding whether jurists of reason would find t h e a n s wers to these questions debatable or whether the issues deserv e e ncouragement to proceed.”) (citation omitted). A M c Carthy first claims that her counsel rendered ineffective assistance under S trickland by failing to introduce the written statement she made to police after her arrest as mitigating evidence at the punishment stage of trial. Although she concedes t h a t portions of the statement—even if introduced at punishment—were inculpatory, she argues that the statement also contained mitigating evidence. Specifically, she contends that the statement, inter alia , (1) would have provided evidence that she was not the actual killer, even though she

was involved in the murder, (2) would have confirmed that the killing was due to her drug addiction, and (3) would hav e d e m onstrated her willingness to cooperate in the investigation of Mrs. Booth’s murder.

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The state habeas court rejected McCarthy’s claim. First, it found that the statement would have been inadmissible a s a self-serving declaration under Texas law if defense counsel had attempted to introduce i t as mitigating evidence at punishment. See Allridge v. State , 762 S.W.2d 146, 152 (Tex. Crim. Ap p . 1 988) (“[S]elf-serving declarations of the accused are ordinarily inadmissible in his behalf, unless they come under some exception

. . . .”) (quoting Singletary v. State , 509 S.W.2d 572, 576 (Tex. Crim. App. 1974)). The state court thereby concluded that McCarthy’s counsel had not been deficient for failing to introduce the written statement at punishment because the statement would have been inadmissible if offered. Further, the state hab e a s court determined that even if the statement

were admissible under state law, the decision of McCa r t h y’ s c o unsel not to introduce it was sound trial strategy. For instanc e , t h e s tate court found that the statement conta ined the following aggravating elements if introduced at punish m e n t: (1) the statement was inconsistent with some of the physical evidence produced at trial, (2) portions of the statement were highly improbable, (3) on direct appeal from her first conviction, the TCCA held that the statement

w a s “u s e d to paint appellant as an unrepentant liar and set out her cruel a n d greedy motive for killing her elderly neighbor,” McCarthy , 65 S.W.3d at 56, and (4) the statement would have provided the only direct evidence of M c C a r t h y’ s participation in the offense. Lastly, the state court found that even if McCarthy could establish that her counsel was constitutionally deficient b y not intro ducing the statement, she had failed to show prejudice from that error, i.e. , a reasonable probability that but for her counsel’s error, the results of the proceeding would have been different. Strickland , 466 U.S. at 694. In denying McCarthy’s claim for federal habeas reli e f o n this issue, the district court essentially adopted all three of the state habeas court’s rationales for denying relief and declined to gr a nt a COA. McCarthy , 2011 WL 1754199,

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a t * 7

. We agree with the district court that “‘reasonable jurists could [not] debate’ whether the

. . . petition should have been resolved by the district court in a different manner or ‘that [this i s s ue was] adequate to deserve encouragement to proceed further.’” Druery , 647 F.3d at 539 (citation omitted). To establish that her counsel was ineffect iv e , McCarthy must first show that her counsel was deficient. B u t McCarthy cannot show that reasonable jurists could find debatable the district court’s conclusion that it was not “necessarily unreasonable for the [TCCA] to conclude [] that [McCarthy] had not overcome the strong presumption of competence.” Cullen , 131 S. Ct. 1403. As an initial matt e r , f o r McCarthy’s counsel to have been deficient for failing to introduce evidence at trial, the evidence must have bee n admissible under Texas law. See Turner v. Quarterman , 481 F.3d 292, 298 (5th Cir. 2007) (“For Turner’s counsel to be deficient in failing to object, the objection must have

m e rit under Texas law.”). Here, the state habeas trial court determined t h a t McCarthy’s statement wou l d h ave been inadmissible under Texas evidentiary law if her coun s e l h a d a ttempted to introduce it as mitigating evidence at punishment, and the TCCA adopted that finding. Accordingly, a federal habeas

c o u r t cannot overrule that conclusion because “[u]nder § 2254, federal habeas courts sit to review state court misapplications of federal law[;] [they] lack[] authority to rule that a state court incorrectly interpreted its own law.” Charles

v. Thaler , 629 F.3d 494, 500–01 (5th Cir. 2011); see id. at 500 (“Because the state d e termined that Carter’s testimony was permissible lay opinion under s t a t e evid e nt i a ry law

. . . , a federal habeas court may not conclude otherwise.”); see also Schaetzle v. Cockrell , 343 F.3d 440, 448–49 (5th Cir. 2003) (“[W]e defer to [the TCCA’s] determination of state law. ‘It is not o u r f u nction as a federal appellate court i n a habeas proceeding to review a state’s interpretation of its

own law

. . . .’”) (citation omitted). McCarthy’ s c o u n s e l cannot have rendered ineffective assistance by failing to introduce evidence that would not have been

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admitted. See Turner , 481 F.3d at 298 (“Turner’s counsel cannot have rendered ineffective assistance of counsel by failing to make an objection that would have been meritless.”). Thus, “it is not debatable that the state court’s resolution of this issue was not unreasonable,” and we deny McCarthy’s request for a COA on this issue. Druery , 647 F.3d at 540. Further, even if McCarthy’s written statement were admissible under Texas law, it was not unreasonable for the state habeas court to conclude that her counsel’s decision not to offer the statement was sound trial strategy. “[T]his Court has repeatedly denied claims of ineffective assistance of counsel for failure to present ‘double edged’ evidence where counsel has made an informed decision not to present it.” Hopkins v. Cockrell , 325 F.3d 579, 586 (5th Cir. 2003) (citations omitted); see Boy le v . Johnson , 93 F.3d 180, 187–88 (5th Cir. 1996) (noting the heavy deference owed trial counsel when they decide as a strategical matter not to introduce evidence of a “double-edged nature,” which could harm the defendant’s case). Here, McCarthy’s w ri t ten statement would have been “double-edged” if int r o d u c ed at punishment, as it contained several aggravating facts and had been effectively used by the State at her first trial as (a) substantive evidence of her guilt and (b) a basis upon which t o a t t a c k her credibility. For instance, in overturning McCarthy’s conviction at the first trial, the TCCA found that during closing arguments i n the guilt/innocence phase of the trial “[McCarthy’s] inadmissible statement b ecame the rhetorical strawman that the State effectively decimated.” McCarthy , 65 S.W.3d at 53. Further , although the TCCA found tha t “ [t h e ] statement did not place the murder weapon in [McCarthy’s]

own hands,” the court did conclude that the statemen t w as, as the State “so effectively poi n t e d o u t

. . . , powerful enough to establish her guilt of capital murder either a s a party or as a conspirator [and] was also used to paint appellant as an unrepe n t a n t l iar and set out her cruel and greedy motive for

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killing her elderly neighbor.” Id. at 56. McCarthy’s counsel at the second trial

was the same lawyer who represented her at her first trial and had successfully represented her on direct appeal. Thus, counsel was well-aware of the fact that introducing the statement at punishment could have harmed McCarthy’s case, and his decision not to do so was therefore necessarily informed. Accordi n gl y, counsel’s strategic choice not to introduce the statement at punishment was not objectively unreasonable. Cullen , 131 S. C t

. a t 1403 (“To overcome th[e]
p re s u m p tion [of adequate assistance], a defendant must show that counsel fail e d to act ‘reasonabl[y] considering all the circumstances.’”) (citation omitted). It is not debatable that the state court ’ s r e solution of this issue was not unreasonable, and we deny a COA on this issue. Druery , 647 F.3d at 540. B M cCarthy also claims that her counsel rendered ineffective assis t a n c e under Strickland when her lawyers agreed to waive the imposition of Texas Rule of Evidence 614 (“the Rule” ) w i th respect to Mrs. Booth’s daughter, Donna Aldred. In Texas, the Rule allows a trial court to exclu d e c e rtain witnesses from the courtroom upon a motion from either party or upon the court’s own motion

so that the witnesses “cannot hear the testimony of other w i t n e s s e s.” T E X

. R. E V I D

. 614. However, because Dr. Aldred was Mrs. Booth’s daughter, the court could have only or d e r e d her exclusion at McCarthy’s request if the court determined that her testimony “woul d be materially affected if the witness hears other testimony at trial.” T E X

. C O D E C R I M

. P R O C

. art. 36.03(a) (providing for the exclus i o n of certain witnesses “who for the purposes of the prosecution is a victim, close relative of a deceased victim, or guardian of a victim”). If 2 McCarthy’s counsel had moved to exclu d e D r . Al dred under the Rule and the

The tri al cour t als o had autho rit y to exclud e Dr

. Aldr ed on its ow n mo tio n in ord er “to 2 mai ntaind eco rumint he cour tro om .” T E X

. C ODE C RIM

. P R OC

. art

. 36.0 3(c). 10 Case: 11-70019 Document: 00511916016 Page: 10 Date Filed: 07/11/2012No. 11-70019

State opposed that motion, the court could have required McCarthy “to make an offer of proof to justify the exclusion.” Id. art. 36.03(b). Dr. Aldred was the first witness to testify at the guilt/innocence stage of trial; her testimony chiefly entailed identifying her mother’ s s tol e n p roperty. Dr. Aldred then took a seat in the gallery and the second witness testified. Next, the third witness, Lie u tenant Nolan Smith, began testifying regarding his investigation of the crime. As Lieutenant Smith identified and described several crime scene photographs to the jury, Dr. Aldred became upset, began crying, and left the courtroom. The t ri al court quickly called a recess and McCarthy’s counsel moved for a mistrial. Counsel contended that the jury’s observation of Dr. Aldred’s emotional reaction to the crime scene photographs was extremely prejudicial to McCarthy’s case. The t rial court denied a mistrial. Defense counsel then invoked the Rule with regard to Dr. Aldred for all purposes, and the trial court granted that request. McCarthy contends that her trial counsel’s decision to allow Dr. Aldred to remain in the courtroom was objectively unreasonable under Strickland

. First, McCarthy claims that defense counsel could have excluded Dr. Aldred under the Rule because her testimony could have been affected by hearing the testimony of other witnesses if she had been recalled to testify. McCarthy also claims that her counsel unreasonably failed to request that the trial court a d m o ni s h Dr. Aldred concerning outbursts during trial. She maintains that no sound trial strategy can justify her counsel’s decisions not to (a) object to excepting Dr. Aldred from the Rule or (b) request th at t h e t rial court admonish Dr. Aldred about outbursts. L a s t l y , McCarthy asserts that her counsel’s deficiency prejudiced her because it created an unacceptable risk that i m p e rmissible factors came into play in the jury’s deliberative process. The state habeas court r ej e cted McCarthy’s ineffective assistance claim. First, it concluded that her claim was procedurally barred under Texas law. The

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state court determined that McCarthy had express l y limited her claim to matters that were in the record on direct appeal; thus, it concluded that she could have raised those claims on direct appeal, thereby waiving her ability to raise those claims in her petition for habeas relief under T e x as law. See Ex Parte Gardner , 959 S.W.2d 189, 191 (Tex. Cri m . Ap p. 1996) (holding that petit i o n e r waived the ability to raise a claim in his habeas petition, in part, because he made no attempt to raise the claim while his direct appeal was pending, even though he could have raised his claim on direct appeal). Further, the state habeas court concluded that even if McCarthy’s claim

w a s not procedurally barred, she had failed to establish that her coun s e l ’ s decision to waive the Rule as to Dr. Aldred was defective under Strickland

. For instance, the state court indicated that excluding Dr. Aldred from the courtroom would not have served the main p urpose of the Rule— i.e. , preventing her testimony from being materially affected by the testimony of other witness e s. The state cou rt found that the State had only used Dr. Aldred’s testimony to identify her mot h e r ’ s s tolen property; thus, the court determined that the testimony of other w i t n e s ses could not have influenced her testimony because she was the only witness who identified her mother’s property

. F u r t h e r, the state court concluded that i t w a s reasonable for defense counsel not to have expected Dr. Aldred to lose her composure at trial. It noted that Dr. Aldred had been in the courtroom during the f i r s t trial where she saw the same evidence

a n d di d not lose control of her emotions. Thus, the court held that defens e counsel’s decision reflected s o un d tri al s tr at e gy an d th at c o un s el’ s re p re s e nt ation of McCarthy was not deficient. Lastly, the court concluded that McCarthy had failed to establish prejudice from Dr. Aldred’s presence at tri al given the brief nature of her crying, her quick removal from the courtroom, and the fact that the jury heard from ten witnesses after the incident before they deliberated.

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The district court denied McCarthy’s federal habeas petition on this claim,

even though the district court rejected the State’s argument that the claim was procedurally barred under Texas law. The district court determined that the state co u r t ’s order denying McCarthy’s habeas claim on this issue did not contain an adequate and independent state groun d f or de nyin g reli ef. McCarthy , 2011 WL 1754199, at *2-3. However, we need not address that issue because 3

we hold that McCarthy cannot show that reasonable jurists could find debatable the district court’s conclusion that it was not “necessarily unreasonable for the [TCCA] to conclude [] that [McCarthy] had not overcome the strong presumption of competence.” Cullen , 131 S. Ct. 1403. First, it is not clear t h a t D r . Aldred could have been excluded from the courtroom under the Rule if McCarthy’s counsel had moved to exclude her. The state habeas court appeared to find that Dr. Aldred could not have been excluded under the Rule, and it e xplicitly determined that Dr. Aldred’s testimony could not have been influenced by the testimony of other witnesses due to the limited nature of her testimony. See Russell v

. State , 155 S.W.3d 176, 179 (Tex. Crim. App. 2005) (“The purpose of placing witnesses under the ru le is to prevent the testimony of one witness from influencing the testimony of another, consciously

or not.”). The state cou r t a l s o found that McCarthy’s counsel had agreed to waive the Rule as to Dr. Aldred in exchange for the State’s agreement to allow

some of McCarthy’s family members to remain in the courtroom—some of whom would later testify at punishment. Accordingly, given the uncertainty regarding

The dis tri c t c o u r t bas ed its conc lus ion that Mc Cart hy’s clai m wa s not pr oce dur ally 3 barr ed, in par t, on its mi st ak en find ing that the TCCA had rejec ted the st a t e habeas tri al cour t’s conc lus ion that Mc Cart hy h a d wa ived her abilit y to bring this clai m in a habeas pet itio n. Mc Carthy , 2011 WL 1 7 54199, at *2. In fac t, the TCCA only dec lined to ado pt the tri al cour t’s find ing that Mc Cart hy had wa ived her abilit y to bring a hab e a s clai m bas ed on def ens e c ouns el’s d ecis ion not to intr oduc e her wr itt en st atem ent at puni shm ent; t he TCCA a d o p t e d t h e st ate tri al cour t’s conc lus ion that Mc Cart hy had waived her abilit y to bring a habeas c laimbas ed on Dr

. Aldr ed’ s pr es enceatt rial

. Mc Carthy , 2007 WL 2 660306, at*1

.
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whether Dr. Aldred could have been excluded under the Rule, it was not

u nr easonable for the state court to have determined that it was a reasonabl e strategical choice for defense counsel to forego attempting to exclude Dr. Aldred under th e R u l e in exchange for ensuring that McCarthy’s family could also remain in the courtroom. Pape v . T h a le r , 645 F.3d 281, 288 (5th Cir. 2011) (“When evaluating an ineffective assistance of counsel claim, we afford counsel the ‘strong presumption’ that counsel’s representation fell within a ‘wide range’ of ‘reason ab l e p r o fessional assistance.’”) (quoting Richter , 131 S. Ct. at 787). It was a l s o not necessarily unreasonable for defense counsel to assume that Dr. Aldred would not lose her c o m p osure during trial. Dr. Aldred sat through McCarthy’s first trial without incident, presumably including portions of the trial where graphic crime scene photographs we r e s h own to the jury. Further, after Dr. Aldred began crying and the trial court called a recess, defense co u n s e l responded appropriately, moving for a mistrial and then successfully invoking the Rule as to Dr. Aldred for the rest of trial. Considering all of the circumst a n c e s , d e fense counsel’s decisions not to initially invoke the Rule as to Dr. Aldred or to request an admonishment regarding outbursts were not necessarily unreasonable. Cullen , 131 S. Ct. at 1403 (“To overcome [the presumption that counsel made all significant decision in the exerci s e of reasonable professional judgment], a defendant must show that couns e l f ailed to act ‘reasonab l [y] c o n s i derin g all the circumstances.’”) (citation omitted). Thus,

“i t is not debatable that the state court’s resolution of this issue was n o t unreasonable,” and we deny a COA. Druery , 647 F.3d at 540; Turner , 481 F.3d at 298. III For the reasons stated above, Petitioner’s request for a COA is DENIED.

14 Case: 11-70019 Document: 00511916016 Page: 14 Date Filed: 07/11/2012