United States Court of Appeals

for the Fifth Circuit

No. 16-70027

Melissa Elizabeth Lucio, 

Petitioner—Appellant,

versus

Bobby Lumpkin, 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. 1:13-CV-125

Before Owen, Chief Judge, and Higginbotham, Jones, Smith, 

Stewart, Dennis, Elrod, Southwick, Haynes, Graves, 

Higginson, Costa, Willett, Ho, Duncan, Engelhardt, and

Oldham, Circuit Judges.*

Andrew S. Oldham, Circuit Judge, announced the judgment of the 

court and delivered an opinion joined by Owen, Chief Judge, and Jones, 

Smith, Ho, Duncan, and Engelhardt, Circuit Judges:

* This case was submitted before Judge Wilson was confirmed to our court. Judge 

Wilson did not take part in the consideration or decision of this case.

United States Court of Appeals

Fifth Circuit

FILED

February 9, 2021

Lyle W. Cayce

Clerk

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A Texas jury convicted Melissa Lucio of capital murder for beating to 

death her two-year-old daughter. The state courts affirmed her conviction 

and sentence on direct appeal and denied her petition for postconviction 

relief. Now she seeks federal habeas relief. Lucio argues that the state trial 

court denied her constitutional right to present a complete defense by 

excluding two expert witnesses from testifying at the guilt phase of her trial. 

The federal district court held that she cannot surmount the Antiterrorism 

and Effective Death Penalty Act of 1996 (“AEDPA”). Ten members of the 

en banc court agree with that judgment. We affirm.

I.

We begin with the tragic facts of this case. Then we turn to Lucio’s 

proceedings in state and federal court. This case turns on the ever-evolving 

arguments that Lucio offered at trial, on direct appeal, in state habeas, and in 

federal habeas. So we recount the procedural history in detail.

A.

On the night of February 17, 2007, paramedics responded to a call at 

the home shared by Lucio and her husband Robert Alvarez. ROA.14936–37, 

14981–82. The call concerned the couple’s young daughter, Mariah. 

ROA.14936. When the EMTs arrived, they found Mariah on the living-room 

floor. ROA.14922–23, 14936. No one was near her. ROA.14922. Her body 

was covered with bruises in various stages of healing, her arm had been 

broken for several weeks, she had a bite mark on her back, and some of her 

hair had been pulled out. ROA.14813–16, 14937, 15051–54, 15066. She was 

not breathing. ROA.14923. She had no pulse. ROA.14923.

The EMTs tried to resuscitate Mariah and rushed her to the hospital. 

ROA.14924–28. In the emergency room, a doctor also tried to revive Mariah. 

ROA.14813. Those efforts were unsuccessful. ROA.14813. Mariah was 

pronounced dead. ROA.14813. She was two years old. ROA.14922. 

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On the night of Mariah’s death, Lucio told the EMTs and the police 

that Mariah fell down the stairs. ROA.8104–05, 14924. Later that night, 

during a videotaped interview with investigators, Lucio explained that she 

had caused the bruises on Mariah’s body by spanking Mariah “real hard”

and by pinching her vagina. ROA.8224–25. Lucio said “nobody else would 

hit her.” ROA.8189. As for the bitemark on Mariah, Lucio explained that two 

weeks before Mariah’s death, while Lucio combed Mariah’s hair, Lucio grew 

frustrated with her other “kids jumping around.” ROA.8223. Although 

Mariah had done nothing wrong, Lucio “placed [her] mouth over [Mariah’s] 

back and bit her.” ROA.8222. During the interrogation, Lucio denied ever 

punching Mariah, ROA.8227, causing the scratches on Mariah’s face, 

ROA.8228, hitting Mariah on the head, or killing Mariah. ROA.8200. But 

she also told investigators, “I’m responsible for it.” ROA.5395.

Following the interrogation, Lucio made a phone call. A police officer 

who had been present with Lucio during the phone call testified that Lucio 

had told her sister, “Don’t blame Robert. This was me. I did it. So don’t 

blame Robert.” ROA.14990–91. 

The State of Texas charged Lucio with capital murder. At the trial, 

Lucio’s sister took the stand and testified about the phone call. She denied 

that Lucio said, “This was me. I did it.” ROA.15203. Rather, Lucio’s sister 

said that they only discussed spanking, and that Lucio said, “I would spank 

the kids.” ROA.15203. Lucio’s sister also denied that Lucio spanked Mariah. 

In the sister’s account, Lucio “never disciplined her children.” ROA.15200.

The jury also heard testimony concerning Mariah’s injuries. The 

forensic pathologist who performed Mariah’s autopsy testified that her 

injuries were not the result of a fall: “[T]his is a child that’s been beaten. This 

is a battered child.” ROA.15070–71. In the pathologist’s expert opinion, 

Mariah died from blunt-force trauma to the head. ROA.15096. At trial, the 

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emergency-room doctor who tried to revive Mariah testified that this was the 

“absolute worst” case of child abuse he’d seen in his thirty-year career. 

ROA.14821. To rebut this evidence, Lucio’s medical expert opined that 

Mariahwas physically abused. But he also stated that her death could’ve been 

caused by either a fall or being “[h]it by a strong force.” ROA.15194.

The defense sought to call two additional expert witnesses, Dr. John 

Pinkerman and Ms. Norma Villanueva. The defense offered Pinkerman, a 

psychologist, to testify about Lucio’s personal background and 

“psychological functioning.” ROA.15301. The trial court excluded it on the 

ground that such evidence is relevant only at the sentencing phase of a capital 

trial. See Tex. Code Crim. Proc. art. 37.071(e)(1) (tasking the jury, only 

after finding the defendant guilty, with considering “the defendant’s 

character and background,” “the personal moral culpability of the 

defendant,” and “mitigating” evidence). So to preserve the issue for 

appellate review, defense counsel took Pinkerman’s testimony for an offer of 

proof.1 Here is the entirety of what Pinkerman offered to prove in the state 

trial court:

On the basis of my review of information, consultation with 

additional experts, and the evaluation that I have done with the 

defendant Mrs. Lucio, I was going to testify about the 

characteristics and makeup of her psychological functioning. I 

was also going to address how her demeanor, both immediately 

after the incident and during the interrogation, may be 

understood by understanding and appreciating the 

psychological elements and previous history and background 

1 “The primary purpose of an offer of proof is to enable an appellate court to 

determine whether the exclusion was erroneous and harmful.” Mays v. State, 285 S.W.3d 

884, 890 (Tex. Crim. App. 2009) (quotation omitted). A secondary purpose is to allow the 

trial court “to reconsider [a] ruling in light of the actual evidence.” Ibid. (quotation 

omitted).

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that she has lived through. I was also going to address the 

notion of how difficult it might have been for her to step into 

some of the treatment, even though it was minimally offered. 

And those are the highlights.

ROA.15301. Pinkerman did not proffer any opinions on the credibility of 

Lucio’s statements during her interrogation. As Pinkerman acknowledged in 

a post-trial affidavit prepared for Lucio’s state habeas proceeding, that issue 

was “never raised at the pretrial [sic] or trial.”2 ROA.8975.

The defense also offered the testimony of Ms. Villanueva, a licensed 

clinical social worker, on “why [Lucio] . . . would have given police officer[s]

information in [her] statement that was not correct.” ROA.4691. The trial

court conducted a Daubert hearing.3 See Tex. R. Evid. 702. During it, 

2 Though defense counsel initially suggested Pinkerman might testify that “as a 

battered woman, [Lucio] takes blame for everything that goes on in the family,” 

ROA.15293, Pinkerman’s testimony in the offer of proof included no such opinion. 

Moreover, Pinkerman’s expert report—authored two days before he made his offer of 

proof—says nothing about battered woman syndrome, nor does it say that Lucio takes the 

blame for anything. See infra Part III.B.3. The Texas Court of Criminal Appeals thus held 

that no such proffer was preserved in the trial court. See Lucio v. State, 351 S.W.3d 878, 902 

(Tex. Crim. App. 2011) (“Therefore, appellant’s claim on appeal as to what Pinkerman’s 

testimony would have been does not comport with Pinkerman’s proffered testimony at 

trial. Nor does it comport with what the trial attorney claimed that he was offering it for.” 

(citation omitted)); cf. Mays, 285 S.W.3d at 891 (holding that an offer of proof must contain 

“substance” that “rises to the level contemplated in our Rules of Evidence and this court’s 

precedent” in order to preserve an issue for appellate review); ibid. (“[T]his sort of 

summary, in the most general and cursory terms, without any of the meat of the actual 

evidence, will not suffice to preserve error.”).

3 The term “Daubert hearing” is a shorthand for the inquiry that federal district 

courts conduct before admitting expert testimony under the federal rules of evidence. See 

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). While the Supreme Court’s 

decision in Daubert applies only to federal proceedings, the Texas Court of Criminal 

Appeals has described the inquiry under the Texas Rules of Evidence as “virtually 

identical” to the standard set out in Daubert. Hartman v. State, 946 S.W.2d 60, 62 (Tex. 

Crim. App. 1997) (en banc); accord Hernandez v. State, 116 S.W.3d 26, 29 (Tex. Crim. App. 

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Villanueva said her expertise derived from “clinical training and clinical 

experience, . . . a combination of knowing life span development theories, 

clinical theories[,] and human behavior social environment interaction 

theories,” ROA.4695, as well as training in deciphering body language from 

“clinical sources in [her] master’s degree, [and] continuing education 

courses,” ROA.4697. On the basis of that experience, Villanueva offered to 

testify as follows:

I was going to testify about three separate issues. The first issue 

was about patterns of behavior with Mrs. Lucio which strongly 

influenced her behavior during that videotaped statement 

process with the investigators that night. . . . I was also going to 

testify that the patterns of behavior as seen in the Child 

Protective Services records, the patterns in her family, how 

that influenced her decision making and how she felt with the 

different investigators, male and female, and also how she 

makes her life decisions. It influenced her behavior in that—

how she felt with the different investigators male and female 

and how she made her decisions in answering the questions 

during that process. And lastly, looking at her CPS history, 

how—and also her social history, how she deals with different 

people in levels of authority, and also how that influenced her 

body language, and how body language is interpreted in 

different ways if you do not have her history of behaviours [sic]

or patterns of behavior or her social history.

ROA.4706–07. Villanueva emphasized that she intended to offer an opinion 

about what Lucio was thinking during the interrogation and whether Lucio 

was telling the truth based on Lucio’s body language. ROA.4695–96.

2003) (en banc) (per curiam); Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 

598–600 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). 

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The state trial court found that a social worker was unqualified to 

testify about body language, unlike, say, “a psychologist . . . that has done 

studies on that and has [an] academic background on that.” ROA.4691. The 

court therefore concluded that Villanueva was not “an expert on whether or 

not [Lucio’s interrogation] statement was true or not true.” ROA.4700. The 

trial court found Villanueva was “imminently qualified on the issue of 

mitigation.” ROA.4700. But it found she could not hold herself “as an expert 

as to why that statement is or is not true.” ROA.4700.

Ultimately, the defense argued to the jury that, because Lucio 

admitted that she abused her child, the jury should credit as true her 

insistence to the police that she did not hit Mariah in the head. ROA.15340–

43. The prosecution asked the jury to infer that Lucio dealt the head blow 

that killed Mariah, just as Lucio had abused the child in other ways. 

ROA.15354–61.

The jury found Lucio guilty of capital murder. ROA.8093. And it 

found insufficient mitigating evidence to warrant a life sentence. ROA.8098.

The trial court sentenced her to death. ROA.10284.

B.

Lucio appealed. See Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App. 

2011). She raised fourteen “points of error” on direct appeal to the Texas

Court of Criminal Appeals. Id. at 880. Lucio’s ninth and tenth points of error 

are at issue in our decision today.

Points of error nine and ten concerned the exclusion of Villanueva’s 

and Pinkerman’s opinions, respectively. Id. at 897–902; ROA.10785–86.

Lucio argued that the exclusion of those opinions at the guilt phase of her trial 

violated the Fourteenth Amendment’s Due Process Clause as interpreted in 

Crane v. Kentucky, 476 U.S. 683 (1986). With respect to each expert, Lucio

argued: 

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The defendant has a constitutional right to present evidence 

before the jury as to the circumstances under which his 

confession is taken. Crane v. Kentucky, 746 U.S. 683, 106 S. Ct. 

2142, 90 L. Ed. 2d 636 (1986)[.] Crane deals with 

circumstances like how many policemen were there, how big 

the room was, how long the questioning lasted, etc. But the 

principle has wider application. The reason the jury [was] 

entitled to know about the circumstances under which the 

statement was given [was] so that they could assess the 

voluntariness of the statement and so that they could use 

evidence of circumstances and their conclusion on 

voluntariness to follow the judge’s instructions to disregard the 

statement unless they were convinced beyond a reasonable 

doubt that the statement was voluntary. 

ROA.10841; ROA.10844–45 (same). Lucio insisted that both Villanueva and 

Pinkerman would have offered “critical evidence” that was “so important” 

that its erroneous exclusion meant Lucio deserved a new trial. ROA.10841; 

ROA.10844 (same).

The Court of Criminal Appeals found Lucio’s arguments on both 

points unavailing. See Lucio, 351 S.W.3d at 897–902 (overruling points of 

error nine and ten). As to point nine (concerning Villanueva), the court noted 

that Villanueva testified at the admissibility hearing that she would give 

opinions about the truthfulness of Lucio’s videotaped statements based on 

her knowledge of body language. Id. at 899–900. But on appeal, counsel 

claimed she would have given an opinion on whether Lucio suffered from 

battered woman syndrome. Ibid. Noting the inconsistency, the court held 

that she “failed to preserve the claim that she raises on appeal.” Id. at 900.

But even if Lucio had preserved point of error nine, the Court of 

Criminal Appeals held, it would not matter. The court first observed that 

Villanueva’s “testimony that was actually proffered had little, if any, 

relevance” to the question of voluntariness. Ibid.(emphasis added). That was 

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so even under Texas law, which offered broader protections than the federal 

constitution. See ibid. (citing Oursbourn v. State, 259 S.W.3d 159, 172–73 

(Tex. Crim. App. 2008)); see also Oursbourn, 259 S.W.3d at 173 (explaining 

that Texas’s statutory protections against “involuntary” confessions are 

“broader in scope than those covered by the Due Process Clause or 

Miranda”). Furthermore, under the Texas Rules of Evidence, Villanueva 

could not “testify that [Lucio] may have been telling the truth when she 

initially denied abusing Mariah.” Lucio, 351 S.W.3d at 901 n.25 (quoting 

Yount v. State, 872 S.W.2d 706, 708–09 (Tex. Crim. App. 1993) (en banc), 

for the proposition that an expert’s “direct testimony as to a witnesses’ [sic]

credibility is inadmissible under [Tex. R. Evid.] 702 because it does not 

concern a subject upon which the testimony of an expert would assist the trier 

of fact” (emphasis in original)). The court also held that any error was 

harmless. See id. at 901 & n.25.4

As to point of error ten (concerning Pinkerman), the Court of 

Criminal Appeals found similar problems. Appellate counsel argued 

Pinkerman would’ve testified “that since [Lucio] was an abused woman she 

would agree with anything a policeman would say.” Id. at 901 (quotation 

omitted). But the court observed that was not what Pinkerman had offered at 

trial. Instead, at trial, Pinkerman made a “broad and general” offer of proof 

4 The Court of Criminal Appeals noted that testimony about body language might 

have countered some statements by Officer Escalon, who interrogated Lucio and 

commented on her demeanor. But Lucio’s “subsequent admission during her recorded 

statement that she abused Mariah, followed by her demonstrating such abuse with the doll” 

rendered any error on that point harmless. Lucio, 351 S.W.3d at 901 n.25. Additionally, that 

wasn’t Lucio’s only admission. As the Court of Criminal Appeals noted elsewhere, the jury 

could have “reasonably infer[red] that [Lucio] was referring to Mariah’s fatal injuries when 

she told her sister during their cell-phone conversation that she ‘did it.’” Id. at 895. And 

that statement did not occur during a custodial interrogation, could not have been 

motivated by a battered woman’s willingness to tell male police officers what they wanted 

to hear, and had nothing to do with body language.

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that referred to Lucio’s “psychological functioning” and “demeanor.” Id. at 

902 n.26 (quotation omitted). The court concluded that because of this 

variance between the offer of proof at trial and Lucio’s argument on appeal, 

Lucio did not preserve her appellate argument concerning Pinkerman. Id. at 

902.

But even if Lucio had preserved the point, the Court of Criminal 

Appeals held, it would not matter. That was because, in the court’s view, 

“Pinkerman’s proffered guilt-phase testimony had little, if any, relevance”

to the voluntariness of Lucio’s interrogation statements. Ibid. (citing 

Oursbourn, 259 S.W.3d at 172–73). The court also held the exclusion of 

Pinkerman’s opinion was harmless in any event. Ibid.

The Court of Criminal Appeals overruled the rest of Lucio’s points of 

error and affirmed the judgment of the trial court. Id. at 910. Lucio petitioned 

the U.S. Supreme Court for a writ of certiorari; the Court denied it. Lucio v. 

Texas, 566 U.S. 1036 (2012) (mem.).

C.

Next, Lucio applied for state postconviction relief. For present 

purposes, the most important part of her state habeas application is issue 

four.

She framed that part of her state habeas application in this way: 

“ISSUE FOUR: The trial court deprived Melissa of the constitutional right 

to present a complete defense when it excluded the testimony of defense 

experts during the guilt/innocence phase of trial.” ROA.8029. In issue four, 

Lucio again argued that the trial court erred by excluding the opinions of 

Villanueva and Pinkerman during the guilt phase of her trial. ROA.8029–34.

Lucio took pains to distinguish this claim from her prior claims made during 

her direct appeal. In a footnote at the start of her discussion of issue four, 

Lucio said: 

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Counsel distinguishes the claim raised in the instant 

proceeding from the claim raised on direct appeal that the trial 

court abused its discretion by preventing Melissa from 

presenting evidence regarding the circumstances under which 

her confession was taken. See Direct Appeal Brief (citing Crane 

v. Kentucky, 476 U.S. 683, 106 S.[]Ct. 2142, 90 L.[]Ed.[]2d 636 

(1986)). The instant issue goes to the core of the case—

whether Melissa was likely to have engaged in ongoing abuse of 

Mariah. 

ROA.8029 n.36.

After disclaiming reliance on Crane, Lucio noted that “a criminal 

defendant’s constitutional right to present a complete defense is violated by 

the exclusion of evidence pursuant to a state evidentiary rule that 

categorically and arbitrarily prohibits the defendant from offering otherwise 

relevant, reliable evidence that is vital to his defense.” ROA.8029. Lucio’s 

application went on to note that Texas’s relevance rule itself is constitutional 

because it “serves a legitimate interest and does not unconstitutionally 

abridge the right to present a defense.” ROA.8032. But, Lucio argued, “the 

evidence at issue here was not irrelevant to the issue of Melissa’s guilt or 

innocence.” ROA.8032. Because the proffered testimony of Villanueva and 

Pinkerman “was relevant to attack the credibility of the State’s case,” Lucio 

argued, “the jury was unable to make an informed decision regarding the 

weight to be given the State’s evidence of ongoing abuse” without their 

opinions. ROA.8033–34. On that account, “the trial court violated Melissa’s 

right to present a complete defense when it disallowed her expert’s [sic] 

testimony during guilt/innocence as irrelevant.” ROA.8034.

In other grounds of her state habeas application, Lucio also argued her 

trial counsel provided ineffective assistance of counsel (“IAC”). For 

example, she argued that trial counsel provided IAC by failing “to file a pretrial motion to suppress [her] custodial statements.” ROA.7970 (“Issue 

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Two”). She also argued that trial counsel “failed to make a timely request 

for or adequately utilize the assistance of a mitigation specialist and 

psychologist.” ROA.7988 (“Issue Three”). To support these IAC claims, 

Lucio offered a post-trial affidavit from Pinkerman. ROA.8975. In that 

affidavit, Pinkerman testified that Lucio’s “psychological characteristics 

increase the likelihood that she would acquiesce while providing her 

confession” during her custodial interrogation. ROA.8975. Pinkerman stated 

that Lucio’s statements to police “could have been accounted for by her 

dependent and acquiescent personality,” along with her history of 

“emotional[ly] and physically abusive relationships with males.” 

ROA.8975–76. Pinkerman faulted trial counsel for failing to ask the court if 

he could offer opinions on these matters: “During meetings with defense 

counsel I raised questions about these issues. To my knowledge these issues 

were never raised at the pretrial [sic] or trial.” ROA.8975. Pinkerman’s IAC 

affidavit did not purport to offer any opinion on why Lucio might accept

blame when talking on the phone to her sister about what happened to 

Mariah.

The state habeas court rejected all of Lucio’s claims, including her 

complete-defense claim in issue four. ROA.10083–96. The state habeas court 

explained its analysis of issue four in two paragraphs:

39. [Lucio’s] complaint about this Court’s exclusion of her 

mitigation experts [Villanueva and Pinkerman] from the guiltinnocence portion of the trial is nearly identical to issues nine 

and ten raised on direct appeal. Matters raised on direct appeal 

should not be re-litigated on habeas unless the judgment is 

subsequently rendered void or a subsequent change in the law 

is made retroactive. While additional evidence may warrant 

relief even when the issue was raised on direct appeal, 

Applicant has not demonstrated that she is entitled to relief 

herein because of any additional evidence herein. 

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40. Moreover, this Court did not abuse its discretion in 

excluding the testimony of Norma Villanueva and Dr. John 

Pinkerman from the guilt-innocence portion of the trial. Ms. 

Villanueva proffered nothing to indicate that she had any sort 

of specialized experience, knowledge or training in the area of 

interpreting body language and patterns of behavior during 

police interviews. Dr. Pinkerman’s proffered testimony as to 

[Lucio’s] psychological functioning, including how there was 

little support in the “historical record” for the idea that 

[Lucio] physically abused her children, that she suffered from 

battered woman syndrome, and the meaning of her demeanor 

after the incident and during questioning had no relevance to 

the question of [Lucio’s] guilt or innocence.

ROA.10091.

Lucio filed objections to the state habeas court’s findings of fact and 

conclusions of law. ROA.5866–93. In those objections, Lucio recognized that 

her complete-defense claim in state habeas was “nearly identical” to the one 

she made on direct appeal—but “‘[n]early identical’ is not ‘identical.’” 

ROA.5884. She emphasized that her state habeas application—unlike her 

direct appeal—did not challenge the circumstances of her custodial 

interrogation or the exclusion of her experts under Crane. ROA.5884. And 

Lucio’s objections did not say that Pinkerman’s post-trial affidavit—

submitted to buttress her IAC claims—had any relevance whatsoever to her 

complete-defense claim. ROA.5883–84. The Court of Criminal Appeals 

adopted the lower court’s decision and denied relief. ROA.7768–69.

D.

Lucio then petitioned for habeas relief in federal court. See 28 U.S.C. 

§ 2254. She raised 25 claims for relief, including a complete-defense claim. 

See Lucio v. Davis, No. 13-cv-125, 2016 U.S. Dist. LEXIS 195659, at *31 (S.D. 

Tex. Sept. 28, 2016). The district court wrote a thorough 65-page opinion 

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that analyzed all 25 claims. As to the complete-defense claim, the district 

court held that Lucio “attempt[ed] to dress up [a] state evidence law claim 

as a constitutional claim” and that her attempt was “without merit.” Id. at 

*65–66. The district court denied the petition and denied a Certificate of 

Appealability (“COA”). Id. at *92–94.

Lucio asked for a COA from our court. Lucio v. Davis, 783 F. App’x 

313 (5th Cir. 2019). We granted one on “the question of whether the 

exclusion of Lucio’s proffered experts on the credibility of her alleged 

confession violated her constitutional right to present a complete defense.” 

Id. at 319 (quotation omitted). Thereafter, a panel of our court determined 

that Lucio had raised the issue of her right to a complete defense in state 

court, but that no state court had adjudicated that claim. Id. at 314–15. 

Applying de novo review, the panel concluded that the exclusion of 

Pinkerman’s opinion violated Lucio’s right to present a complete defense. 

Id. at 325. The panel found Crane highly relevant, notwithstanding Lucio’s 

emphatic disclaimer of that authority in her state habeas application. And the 

panel found Pinkerman’s affidavit highly relevant, notwithstanding 

Pinkerman’s concession that none of the material in it had been properly 

presented to the state trial court on account of alleged deficiencies by trial 

counsel. The panel reversed the district court’s judgment and remanded for 

the district court to grant habeas relief to Lucio. Ibid. Our en banc court 

vacated the panel decision on rehearing. Lucio v. Davis, 947 F.3d 331 (5th Cir. 

2020) (mem.).

II.

Our now-vacated panel decision concluded that Lucio fairly presented 

a complete-defense claim to the state courts; the state courts simply 

overlooked it; and Lucio therefore got the benefit of de novo review of her 

complete-defense claim in federal court. That was error. To explain why, we 

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begin with the exhaustion requirement. Then we hold that the state courts 

adjudicated Lucio’s claims as she presented them.

A.

The exhaustion requirement is a cornerstone of federal habeas for 

state prisoners. The Supreme Court first announced it in Ex parte Royall, 117 

U.S. 241 (1886), shortly after Congress extended the writ of habeas corpus 

ad subjiciendum to prisoners in state custody. Then, in 1948, Congress 

codified the exhaustion requirement in 28 U.S.C. § 2254. Today the statute 

provides that Lucio’s federal habeas application “shall not be granted” 

unless she has exhausted available remedies in the state courts. Id.

§ 2254(b)(1). 

“[T]he exhaustion doctrine is designed to give the state courts a full 

and fair opportunity to resolve federal constitutional claims before those 

claims are presented to the federal courts.” O’Sullivan v. Boerckel, 526 U.S. 

838, 845 (1999) (emphasis added). It’s premised on comity and federalism: 

Because state courts are obligated to enforce federal law, they must be given 

the first chance—after the state prisoner fully explains the federal claim—to 

correct any error. See id. at 844. “This rule of comity reduces friction 

between the state and federal court systems by avoiding the unseemliness of 

a federal district court’s overturning a state court conviction without the 

state courts having had an opportunity to correct the constitutional violation 

in the first instance.” Id. at 845 (quotation omitted).

Obviously, it would undermine or eliminate the exhaustion 

requirement if a state prisoner could change the claim along the way from 

state court to federal court. As the Supreme Court has explained:

We emphasize that the federal claim must be fairly presented 

to the state courts. If the exhaustion doctrine is to prevent 

unnecessary conflict between courts equally bound to guard 

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and protect rights secured by the Constitution, it is not 

sufficient merely that the federal habeas applicant has been 

through the state courts. The rule would serve no purpose if it 

could be satisfied by raising one claim in the state courts and 

another in the federal courts. Only if the state courts have had 

the first opportunity to hear the claim sought to be vindicated 

in a federal habeas proceeding does it make sense to speak of 

the exhaustion of state remedies. Accordingly, we have 

required a state prisoner to present the state courts with the 

same claim he urges upon the federal courts. 

Picard v. Connor, 404 U.S. 270, 275–76 (1971) (emphasis added) (quotation 

omitted).

Consider, for example, Duncan v. Henry, 513 U.S. 364 (1995) (per

curiam). In that case, a California jury convicted Henry of sexually molesting 

a five-year-old. At trial, Henry objected to the introduction of testimony by 

the parent of another child he allegedly molested 20 years earlier. In the state 

courts, Henry framed his objection in terms of California evidentiary law. But 

in the federal courts, Henry argued the erroneous introduction of the 

testimony violated the Due Process Clause. The Ninth Circuit held that 

Henry exhausted his state remedies because he gave the state courts “the 

operative facts” and “the substance of his federal claim.” Henry v. Estelle, 33 

F.3d 1037, 1040–41 (9th Cir. 1993) (quotation omitted).

The Supreme Court summarily reversed. It held the California courts 

“understandably” decided Henry’s claim in the terms he presented it. 

Henry, 513 U.S. at 366. And in presenting his claim to the state courts, Henry 

did not claim the introduction of the challenged testimony violated the Due 

Process Clause—even if he presented the “facts” and “substance” of the 

claim in other terms. Ibid. “The failure [was] especially pronounced in that 

[Henry] did specifically raise a due process objection before the state court 

based on a different claim . . . .” Ibid. Therefore, the exhaustion requirement 

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provides that a state prisoner who does not fairly present a claim to a state 

habeas court—specifying both the legal and factual basis for the claim—may 

not raise that claim in a subsequent federal proceeding. 

B.

For each claim that Lucio fully and fairly presented to the state courts, 

there’s a rebuttable presumption that the state courts adjudicated it on the 

merits. See Johnson v. Williams, 568 U.S. 289, 298 (2013). It’s possible that 

Lucio did her part by presenting her claims fully and fairly, and that the state 

courts nonetheless erred and overlooked them. But Williams holds such a 

scenario is unlikely. See id. at 300–01 (“[I]t is by no means uncommon for a 

state court to fail to address separately a federal claim that the court has not 

simply overlooked”). Therefore, “a federal habeas court must presume that 

the federal claim was adjudicated on the merits.” Id. at 301.

For each claim that the state court adjudicated on the merits, 

AEDPA’s relitigation bar applies. See 28 U.S.C. § 2254(d) (generally barring 

relitigation of claims that are “adjudicated on the merits” in state court); see 

also ibid.(specifying that the relitigation bar applies on a “claim”-by-“claim” 

basis). And Lucio can overcome the relitigation bar only by proving that 

(1) the state court’s “decision” on her claim “was contrary to, 

or involved an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court of the 

United States,” id. § 2254(d)(1); or 

(2) the state court’s adjudication of the claim “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,” id. § 2254(d)(2).

For each claim governed by AEDPA’s relitigation bar, we must 

identify the relevant state-court “decision.” Id. § 2254(d)(1)–(2). To that 

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end, the Supreme Court says that we must “train [our] attention” on the 

“last related state-court decision” that provides a “relevant rationale” to a 

particular claim. Wilson v. Sellers, 138 S. Ct. 1188, 1191–92 (2018) (quotation 

omitted). Only then can we consider whether the state court’s “decision” 

was contrary to or an unreasonable application of clearly established Supreme

Court precedent. Id. at 1192; see also, e.g., Ylst v. Nunnemaker, 501 U.S. 797, 

805 (1991) (“To decide the present case, therefore, we begin by asking which 

is the last explained state-court judgment on the [federal] claim.” (emphasis 

omitted)); Premo v. Moore, 562 U.S. 115, 123–33 (2011); Sears v. Upton, 561 

U.S. 945, 951–56 (2010) (per curiam).

C.

In Lucio’s case, as in Henry, the state courts adjudicated the claims in 

the same terms as the prisoner presented them. And, as in Henry, Lucio’s 

claims shifted over time. That means, over the course of this litigation, 

different state courts adjudicated different claims. We walk through each 

relevant decision in turn.

At trial, Lucio urged that expert-opinion testimony from Villanueva 

and Pinkerman should be admitted under the Texas Rules of Evidence. The 

trial court excluded Villanueva because she was not qualified to offer an 

expert opinion about Lucio’s psychology, body language, or credibility. See

Tex. R. Evid. 702 (providing the state-law standard for Daubert

challenges); Yount, 872 S.W.2d at 708–09. And the trial court excluded 

Pinkerman’s opinion about Lucio’s “psychological functioning” as 

irrelevant to her guilt and as relevant only to mitigation. See Tex. R. Evid.

402. At no point did trial counsel suggest that the exclusion of either witness 

would violate Lucio’s rights under the federal Due Process Clause. See 

Henry, 513 U.S. at 366 (“If a habeas petitioner wishes to claim that an 

evidentiary ruling at a state court trial denied him the due process of law 

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guaranteed by the Fourteenth Amendment, he must say so, not only in 

federal court, but in state court.”). And at no point did either expert offer to 

testify about the circumstances of Lucio’s custodial interrogation and 

whether she felt psychological pressure to admit to abusing Mariah. As 

Pinkerman himself later said, “To my knowledge these issues were never 

raised at the pretrial [sic] or trial.” ROA.8975.

On direct appeal, Lucio changed her claim and argued that, under the 

Due Process Clause and Crane v. Kentucky, Lucio had the right to present 

Villanueva and Pinkerman to challenge the “voluntariness” of her custodial 

statements. Even though Lucio defaulted this claim by failing to present it to 

the trial court, the Court of Criminal Appeals adjudicated it anyway. And the 

court held Lucio’s voluntariness challenges failed because the testimony that 

Lucio’s experts had actually proffered at trial had “little, if any, relevance”

to the issue of voluntariness. Lucio, 351 S.W.3d at 901 (Villanueva), 902 

(Pinkerman). And again, that was so even though Texas law requires the 

admission of more evidence than the minimum required by the Federal 

Constitution. See id. at 900 (quoting Oursbourn, 259 S.W.3d at 172–73, for 

various examples of “fact scenarios that can raise a state-law claim of 

involuntariness (even though they do not raise a federal constitutional claim)” 

(emphasis added)). Thus, the Court of Criminal Appeals adjudicated and 

denied Lucio’s Crane claim on direct appeal. See Williams, 568 U.S. at 301

(“[I]f the state-law rule subsumes the federal standard—that is, if it is at least 

as protective as the federal standard—then the federal claim may be regarded 

as having been adjudicated on the merits.”); see also Early v. Packer, 537 U.S. 

3, 8 (2002) (per curiam).

On state habeas, Lucio changed the claim again. This time, she 

expressly disclaimed any reliance on Crane and insisted that she did not want 

to challenge the exclusion of “evidence regarding the circumstances under 

which her confession was taken.” ROA.8029 n.36. Rather, she argued that 

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the exclusion of Villanueva and Pinkerman deprived her of the constitutional 

right to present a complete defense by proving that she was “[un]likely to 

have engaged in ongoing abuse of Mariah.” ROA.8029 & n.36. The state 

habeas court held that Lucio’s claim was procedurally barred insofar as she 

attempted to re-raise her Crane claim regarding the circumstances of her 

custodial interrogation. ROA.10091. And beyond that, the claim was 

meritless because Villanueva’s proffered body-language testimony failed the 

Texas Daubert standard, and Pinkerman’s generalized proffer about Lucio’s

psychological functioning was relevant to mitigation but “had no relevance 

to the question of [Lucio’s] guilt or innocence.” ROA.10091.

Based on the state-court proceedings, two things are clear: (1) Lucio 

exhausted state remedies regarding two relevant claims in two different state 

proceedings, and (2) the state courts adjudicated both claims on the merits.5

On direct appeal, the Court of Criminal Appeals heard and rejected Lucio’s 

claim that Crane v. Kentucky gives her the federal due process right to present 

testimony regarding the circumstances of her custodial interrogation. On 

state habeas, the state court heard and rejected Lucio’s distinct claim that the 

exclusion of Villanueva and Pinkerman from the guilt phase of her trial 

prevented her from proving that she was “[un]likely to have engaged in 

ongoing abuse of Mariah.” This is the way Lucio chose to present her claims 

and hence the way the state courts were required to adjudicate them. The 

state courts adjudicated both claims on the merits. So AEDPA’s relitigation 

bar applies. See 28 U.S.C. § 2254(d).

5 True, the state courts also identified procedural bars to both claims based on 

Lucio’s ever-changing arguments. But it long has been true that a state court’s adjudication 

of a claim on the merits means that the claim is exhausted. See, e.g., Castille v. Peoples, 489 

U.S. 346, 350 (1989); Brown v. Allen, 344 U.S. 443, 447 (1953).

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III.

We next evaluate the relevant state-court decisions under AEDPA’s 

relitigation bar, 28 U.S.C. § 2254(d). In enacting that provision, Congress 

imposed strict limitations on federal courts considering habeas applications 

from state prisoners. See, e.g., Harrington v. Richter, 562 U.S. 86, 102 (2011); 

Langley v. Prince, 926 F.3d 145, 155 (5th Cir. 2019) (en banc), cert. denied, 140 

S. Ct. 2676 (2020) (mem.); see also Shinn v. Kayer, 141 S. Ct. 517, 526 (2020)

(per curiam) (“Under AEDPA, state courts play the leading role in assessing 

challenges to state sentences based on federal law.”). “To overcome 

AEDPA’s relitigation bar, a state prisoner must shoehorn [her] claim into 

one of its narrow exceptions.” Langley, 926 F.3d at 155; see 28 U.S.C. 

§ 2254(d)(1)–(2). The prisoner can do so only if the state court’s decision 

was “so obviously wrong as to be beyond any possibility for fairminded 

disagreement.” Kayer, 141 S. Ct. at 526 (quotation omitted).

Lucio says she satisfied AEDPA’s relitigation exceptions in three 

ways. She first argues (A) the state court’s decision was “contrary to” or 

“involved an unreasonable application of” Crane. 28 U.S.C. § 2254(d)(1).

She next argues (B) the state court’s decision was “contrary to” or “involved 

an unreasonable application of” Chambers v. Mississippi, 410 U.S. 284 (1973). 

28 U.S.C. § 2254(d)(1). She finally argues (C) the state court’s decision 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)(2). We 

consider and reject each argument in turn.

A.

We start with Lucio’s claim under Crane v. Kentucky. We first explain 

the law clearly established in Crane. Then we train our attention on the last 

state-court decision to adjudicate that claim—the state court’s decision in 

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Lucio’s direct appeal—and evaluate that decision under the relitigation bar. 

See Wilson, 138 S. Ct. at 1192.

1.

The Supreme Court has held that the “Constitution guarantees 

criminal defendants ‘a meaningful opportunity to present a complete 

defense.’” Nevada v. Jackson, 569 U.S. 505, 509 (2013) (per curiam)

(quoting Crane, 476 U.S. at 690). But it has also recognized that “state and 

federal rulemakers have broad latitude under the Constitution to establish 

rules excluding evidence from criminal trials.” Ibid. (quoting Holmes v. South

Carolina, 547 U.S. 319, 324 (2006)). “Only rarely” has the Supreme Court 

“held that the right to present a complete defense was violated by the 

exclusion of defense evidence under a state rule of evidence.” Ibid.

In Crane, the Supreme Court considered the constitutionality of a 

novel evidentiary practice that was first recognized by the Kentucky Supreme 

Court in Crane itself. Prior to his murder trial, Crane moved to suppress his 

confession pursuant to Kentucky Rule of Criminal Procedure 9.78. Crane v. 

Kentucky, 690 S.W.2d 753, 753 (Ky. 1985). That rule, adopted on January 1, 

1978, stated:

Rule 9.78. Confessions and searches—Suppression of 

evidence.—If at any time before trial a defendant moves to 

suppress, or during trial makes timely objection to the 

admission of evidence consisting of (a) a confession or other 

incriminating statements alleged to have been made by him to 

police authorities or (b) the fruits of a search, the trial court 

shall conduct an evidentiary hearing outside the presence of the 

jury and at the conclusion thereof shall enter into the record 

findings resolving the essential issues of fact raised by the 

motion or objection and necessary to support the ruling. If 

supported by substantial evidence the factual findings of the 

trial court shall be conclusive.

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Ibid. The Kentucky trial court conducted a “lengthy hearing and denied the 

motion to suppress, finding the confession to be voluntary.” Ibid. Then, at 

trial, the court refused to allow the introduction of any evidence regarding 

the “circumstances surrounding the taking of the confession.” Id. at 754. 

The Kentucky Supreme Court affirmed, holding:

[O]nce a hearing is conducted pursuant to [Rule 9.78] and a 

finding is made by the judge based upon substantial evidence 

that the confession was voluntary, that finding is conclusive 

and the trial court may exclude evidence relating to 

voluntariness from consideration by the jury when that 

evidence has little or no relationship to any other issue.

Id. at 755.

The Supreme Court reversed because the Kentucky Supreme Court’s 

decision relied on the “assumption that evidence bearing on the 

voluntariness of a confession and evidence bearing on its credibility fall in 

conceptually distinct and mutually exclusive categories.” Crane, 476 U.S. at 

687. That assumption was “directly at odds with language in several 

[Supreme Court] opinions,” and it “conflict[ed] with the decisions of every 

other state court to have confronted the issue,” ibid., as well as 18 U.S.C. 

§ 3501(a) and Federal Rule of Evidence 104(e), id. at 689. The Court held 

“on the facts of this case that the blanket exclusion of the proffered 

testimony,” in “the absence of any valid state justification,” was 

unconstitutional. Id. at 690. In making its decision, the Court took pains to 

note that it was not “question[ing] the power of States to exclude evidence 

through the application of evidentiary rules that themselves serve the 

interests of fairness and reliability—even if the defendant would prefer to see 

that evidence admitted.” Id. at 689.

The Supreme Court subsequently reminded us that Crane does “not

set[] forth an absolute entitlement to introduce crucial, relevant evidence” 

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at a criminal trial. Montana v. Egelhoff, 518 U.S. 37, 53 (1996) (plurality 

opinion). It explained:

Our holding that the exclusion of certain evidence in that case 

violated the defendant’s constitutional rights rested not on a 

theory that all competent, reliable evidence must be admitted, 

but rather on the ground that the Supreme Court of 

Kentucky’s sole rationale for the exclusion (that the evidence 

did not relate to the credibility of the confession) was wrong. 

Crane does nothing to undermine the principle that the 

introduction of relevant evidence can be limited by the State 

for a valid reason.

Ibid. (quotations omitted).

2.

Lucio argues that the state court’s exclusion of Villanueva and 

Pinkerman was “contrary to” the law clearly established in Crane. See 28 

U.S.C. § 2254(d)(1). “A state-court decision is contrary to clearly 

established federal law only if it arrives at a conclusion opposite to that 

reached by the Supreme Court on a question of law or if it resolves a case 

differently than the Supreme Court has on a set of materially 

indistinguishable facts.” Langley, 926 F.3d at 155 (quotations omitted). For 

example:

If a state court were to reject a prisoner’s claim of ineffective 

assistance of counsel on the grounds that the prisoner had not 

established by a preponderance of the evidence that the result 

of his criminal proceeding would have been different, that 

decision would be diametrically different, opposite in character 

or nature, and mutually opposed to [the Supreme Court’s] 

clearly established precedent because [it] held in Strickland

that the prisoner need only demonstrate a reasonable 

probability that the result of the proceeding would have been 

different.

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Terry Williams v. Taylor, 529 U.S. 362, 405–06 (2000) (quotation omitted).

Lucio cannot meet that high bar here. In answering our en banc 

questions,6 Lucio conceded that, at best, her claim is “strongly supported” 

by Crane and that no case is on “all fours” with her claim. Lucio Opening En 

Banc Q&A 25–26. That is insufficient to show that the state court’s decision 

is “diametrically different” from Crane. See Terry Williams, 529 U.S. at 405. 

Therefore, “here, as in most AEDPA cases,” the “contrary to” exception 

does not apply. Langley, 926 F.3d at 156.

Next, Lucio argues that the decision by the Court of Criminal Appeals 

“involved an unreasonable application of” Crane. See 28 U.S.C. 

§ 2254(d)(1). To meet that exception to the relitigation bar, Lucio must do 

much more than establish that the state court erred. See, e.g., Renico v. Lett, 

559 U.S. 766, 773 (2010) (“[A] federal habeas court may not issue the writ 

simply because that court concludes in its independent judgment that the 

relevant state-court decision applied clearly established federal law 

erroneously or incorrectly.” (quotation omitted)). “Rather, the relitigation 

bar forecloses relief unless the prisoner can show the state court was so wrong 

that the error was well understood and comprehended in existing law beyond 

any possibility for fairminded disagreement.” Langley, 926 F.3d at 156 

(quotation omitted); see also Kayer, 141 S. Ct. at 520 (summarily reversing the 

Ninth Circuit for “ordering issuance of a writ of habeas corpus despite ample 

room for reasonable disagreement about the prisoner’s . . . claim”).

6 Because of COVID-19, our court did not conduct our usual en banc argument. 

Instead, we used a multi-round form of written questions and answers. In the first round, 

we presented written questions—some for both parties, some solely for Lucio or the State. 

After the parties provided their answers to the court’s questions, they both submitted 

rebuttals to each other’s answers. Both parties provided thorough and helpful answers. 

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We hold the Court of Criminal Appeals did not unreasonably apply 

Crane in Lucio’s direct appeal. As an initial matter, we note that the Court of 

Criminal Appeals held that the two witnesses’ opinions were inadmissible 

under state law, which affords broader protections than the Crane-Due 

Process standard in federal law. See Lucio, 351 S.W.3d at 900, 902 (citing 

Tex. Code Crim. Proc. arts. 38.21, 38.22, and Oursbourn, 259 S.W.3d 

at 172–73). Because Texas law is “broader in scope” than the U.S. 

Constitution on this issue, a determination that a claim fails on state-law 

grounds necessarily adjudicated any federal claim as well. See Williams, 568 

U.S. at 298–99 (holding a state-law adjudication necessarily adjudicates the 

federal question where the former “fully incorporat[es]” the latter). Lucio 

has never argued that Texas’s statutory and decisional standards are in fact 

narrower than the Crane standard. She therefore has forfeited any argument 

to that effect.

Moreover, we have observed that cases involving Crane “typically 

focus” on evidentiary rules that lead to “categorical prohibitions of certain 

evidence and not discretionary decisions to exclude evidence under general 

and otherwise uncontroversial rules.” Caldwell v. Davis, 757 F. App’x 336, 

339 (5th Cir. 2018) (per curiam). As Lucio conceded in her en banc answers, 

she is not challenging the constitutionality of Texas’s evidentiary rules 

regarding the relevance and the admission of expert-opinion testimony. 

Lucio Opening En Banc Q&A 24–25. Nor does Lucio allege that the Texas 

courts categorically prohibited her from undermining her own inculpatory 

statements. For example, the trial court permitted Lucio’s sister to testify 

about Lucio’s background, her tendency to take the blame for things she did 

not do, and the phone call in which Lucio allegedly said: “This was me. I did 

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it.”7 Her only complaint is that the trial court made discretionary errors in 

excluding the particular expert opinions proffered by Villanueva and 

Pinkerman. Therefore, Lucio fails to show that Texas courts categorically 

prohibited evidence undermining her inculpatory statements.

Lucio cannot argue that the Court of Criminal Appeals unreasonably 

applied Crane by failing to extend it to discretionary evidentiary decisions. 

“Section 2254(d)(1) provides a remedy for instances in which a state court 

unreasonably applies [the Supreme] Court’s precedent; it does not require 

state courts to extend that precedent or license federal courts to treat the 

failure to do so as error.” White v. Woodall, 572 U.S. 415, 426 (2014)

(emphasis in original). We, like the Ninth Circuit, are aware of no clearly 

established law regarding “a court’s exercise of discretion to exclude expert 

testimony” as it relates to a “criminal defendant’s constitutional right to 

present relevant evidence.” Moses v. Payne, 555 F.3d 742, 758–59 (9th Cir. 

2009); see also Brown v. Horell, 644 F.3d 969, 983 (9th Cir. 2011) (“[T]he 

Supreme Court has not decided any case either squarely address[ing] the 

discretionary exclusion of evidence and the right to present a complete 

7 Our now-vacated panel opinion made much of the fact that a police officer 

overheard this statement while listening to only Lucio’s side of the conversation with her 

sister, and that the officer “did not create a log of Lucio’s alleged statements until nearly 

sixteen months after he interacted with Lucio—the month before trial.” Lucio, 783 F. 

App’x at 324 n.6. But far from supporting a Crane claim, these propositions disprove it. 

Crane guarantees Lucio the procedural opportunity to present her defense. The trial court 

gave Lucio the procedural opportunity—and her trial counsel vigorously exercised it—to 

cross-examine the officer about what he overheard Lucio say and the length of time 

between that conversation and the officer’s report. ROA.14992–93. And as noted above, 

the trial court afforded Lucio the opportunity—which she again vigorously exercised—to 

present her sister’s side of the phone call. All of this proves that the State did not 

categorically bar Lucio, as in Crane, from presenting any evidence to undermine her 

inculpatory statement.

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defense or establish[ing] a controlling legal standard for evaluating such 

exclusions.” (quotation omitted) (alterations in original)).

And it’s not just the Ninth Circuit. Many of our sister circuits, 

reviewing state prisoners’ applications under § 2254(d)(1), have upheld state 

courts’ wide latitude to make discretionary evidentiary decisions. See, e.g., 

Grant v. Royal, 886 F.3d 874, 959–60 (10th Cir. 2018) (rejecting state 

prisoner’s habeas application under the relitigation bar because Crane did not 

implicate the “discretionary application of evidentiary rules”); Troy v. Sec’y, 

Fla. Dep’t of Corr., 763 F.3d 1305, 1307, 1315 (11th Cir. 2014) (rejecting state 

prisoner’s habeas application under the relitigation bar because Crane does 

not deprive state courts of the “gatekeeping role” to make discretionary 

evidentiary decisions); Gagne v. Booker, 680 F.3d 493, 516 (6th Cir. 2012) (en 

banc) (rejecting state prisoner’s habeas application under the relitigation bar 

because, consistent with Crane, “a trial court may even exclude competent 

reliable evidence . . . central to the defendant’s claim of innocence, so long as 

there exists a valid state justification” (quotation omitted)); Rucker v. Norris, 

563 F.3d 766, 770 (8th Cir. 2009) (rejecting state prisoner’s habeas 

application under the relitigation bar because “Crane proscribed only the 

‘wholesale exclusion’ of evidence pertaining to the credibility of a 

confession”).

Take for example the Sixth Circuit’s decision in Loza v. Mitchell, 766 

F.3d 466 (6th Cir. 2014). It assessed an Ohio court’s exclusion of a clinical 

psychologist that the defendant sought to use “to help explain his 

confession.” Id. at 481. The Sixth Circuit held the prisoner could not 

surmount the relitigation bar because the state court did not apply a 

“mechanistic, per se” rule but instead made an “individual determination” 

about the appropriateness of the testimony based on the specific facts of the 

case. Id. at 485 (quotations omitted). Importantly, the defendant was given 

the opportunity to present “other evidence bearing on the credibility of his 

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confession.” Ibid. And the jury had the opportunity to watch the video of the 

defendant’s confession to see for itself the “tone and manner of the 

interrogation, the number of officers present, the physical characteristics of 

the room, and the length of the interrogation.” Ibid. (quotation omitted).

Although more evidence like the clinical psychologist’s opinion would have 

been helpful, the Sixth Circuit found it reasonable to “conclude[] that Crane

did not require this evidence to be admitted.” Id. at 486 (emphasis in 

original). 

We refuse to create a circuit split. As previously discussed, the Court 

of Criminal Appeals did not affirm any “blanket exclusion” of evidence 

regarding Lucio’s confession. Instead, it considered her two proffered 

experts on an individualized basis and found their opinions to be inadmissible 

as a matter of state law. The jury hearing Lucio’s case had ample opportunity 

to assess the credibility of her various statements—it could watch the video 

of the interrogation, it could listen to her sister’s testimony, and it could 

compare that testimony with the police officer’s. Thus, even if we assume 

arguendo that a discretionary evidentiary ruling could violate Crane, Lucio 

has not proven beyond any fair-minded disagreement that the state court’s 

decision on her direct-appeal record rises to that level. Accordingly, the 

Court of Criminal Appeals’ decision was not an unreasonable application of 

the clearly established federal law in Crane.

Nor does the state court’s decision become unreasonable, as Lucio 

argues, because of Pinkerman’s post-trial, collateral-review affidavit. The 

Supreme Court has strictly instructed that our review is “limited to the 

record that was before the state court that adjudicated the claim on the merits.” 

Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (emphasis added). To that end, 

“the record under review is limited to the record in existence at that same 

time.” Id. at 182. Since the Pinkerman affidavit did not exist at the time the 

Court of Criminal Appeals evaluated Lucio’s Crane claim on direct appeal,

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the record before that court didn’t include the affidavit. Therefore, we may 

not consider the affidavit in reviewing that court’s direct appeal decision.

B.

We next consider the complete-defense claim that Lucio exhausted in 

her state habeas application. We first identify the claim. Then we describe

the clearly established law as articulated by the Supreme Court. Then we 

evaluate the relevant state-court decision under AEDPA’s relitigation bar.

1.

Lucio adamantly insisted that her state habeas claim did not involve 

Crane. ROA.8029 n.36. She presumably did so to avoid the state procedural 

bar on re-raising claims in state habeas after raising them on direct appeal. 

See, e.g., Ex parte Brown, 205 S.W.3d 538, 546 (Tex. Crim. App. 2006) 

(“[H]abeas relief is not available to one who has already litigated his claim at 

trial, in post-trial motions, or on direct appeal.”). So we take Lucio at her 

word that the state habeas claim does not implicate Crane. 

We also assume that Lucio does not intend to challenge the state 

courts’ application of state-law evidentiary rules. It’s well-settled that such 

state-law challenges form “no part of a federal court’s habeas review of a 

state conviction. We have stated many times that federal habeas corpus relief 

does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) 

(quotation omitted). And that obviates much of Lucio’s state habeas claim. 

The three principal cases cited in that application all involve direct appeals 

of mine-run evidentiary challenges. See ROA.8032–33 (citing United States v. 

Hall, 93 F.3d 1337 (7th Cir. 1996), United States v. Cohen, 510 F.3d 1114 (9th 

Cir. 2007), and an unpublished, intermediate state-court decision in Kaps v. 

State, No. 05-97-00328-CR, 1998 WL 209060 (Tex. App.—Dallas Apr. 30, 

1998, no pet.)). These precedents illustrate that state-law evidentiary claims 

are cognizable on direct appeal. But they are not cognizable in federal habeas. 

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See McGuire, 502 U.S. at 67. So we do not construe Lucio’s claim to implicate 

the state courts’ application of state evidence law. See Lucio, 2016 U.S. Dist. 

LEXIS 195659, at *65 (“Lucio’s attempt to dress up this state evidence law 

claim as a constitutional claim is unconvincing.”).

What remains unclear is what Lucio’s state habeas claim does 

implicate. Our now-vacated panel decision in this case said that “Lucio’s 

argument to the state habeas court flagged her ‘complete defense’ argument 

as a ‘constitutional’ issue and cited a Texas case that relied exclusively on 

the Federal Constitution.” Lucio, 783 F. App’x at 319 (citing Wiley v. State, 

74 S.W.3d 399, 405–07 (Tex. Crim. App. 2002), and Wiley v. State, No. 03-

99-00047-CR, 2000 WL 1124975, at *1 (Tex. App.—Austin Aug. 10, 2000), 

aff’d, 74 S.W.3d 399 (Tex. 2002)). We disagree that “flagging” a state-court 

case that in turn cites the U.S. Constitution is sufficient to exhaust a federal 

claim under 28 U.S.C. § 2254(b)(1). See, e.g., Williams, 568 U.S. at 299 

(holding “a fleeting reference to a provision of the Federal Constitution or 

federal precedent” is insufficient to exhaust a federal claim because “a state 

court may not regard [it] as sufficient to raise a separate federal claim”). And 

Wiley itself did not purport to apply Crane, Chambers, or any U.S. Supreme 

Court precedent whatsoever.

The most charitable interpretation of Lucio’s state habeas claim is 

that the exclusion of expert-opinion testimony from Villanueva and 

Pinkerman infringed her constitutional right to present a complete defense 

because it precluded Lucio from presenting evidence “regarding the weight 

to be given the State’s evidence of ongoing abuse,” ROA.8034, depriving her 

of the opportunity to prove that she was “[un]likely to have engaged in 

ongoing abuse of Mariah,” ROA.8029 n.36. This claim does not attack the 

circumstances of Lucio’s custodial interrogation as in Crane. Rather, Lucio’s 

objection is that the exclusion of the experts’ opinions made her trial unfair 

because it precluded her from proving that she did not beat her child to death 

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or commit ongoing abuse of Mariah, even though she admitted to committing 

abuse. And the state habeas court’s contrary conclusion, she says, is contrary 

to or an unreasonable application of Chambers v. Mississippi.

2.

Again, we explain the Supreme Court’s decision in Chambers before 

considering whether the state court acted contrary to or unreasonably applied 

that precedent. 

The State prosecuted Leon Chambers for murdering a police officer 

“in the small town of Woodville in southern Mississippi” in 1969. Chambers, 

410 U.S. at 285. Another man, named McDonald, confessed in a sworn 

written statement to murdering the police officer. Id. at 287. Still, Mississippi 

brought charges against Chambers, not McDonald. At trial, Chambers called 

McDonald to the stand and entered McDonald’s written confession into 

evidence. Id. at 291. On cross-examination, the State elicited testimony from 

McDonald repudiating the confession. Ibid. After the State’s crossexamination, Chambers moved to examine McDonald as a hostile witness. 

Ibid. But the state court denied his request based on an idiosyncratic statelaw rule called the “voucher rule”—which prevented Chambers from 

impeaching his own witness on the theory that “a party who calls a witness 

‘vouches for his credibility.’” Id. at 295 (quoting Clark v. Lansford, 191 So.2d 

123, 125 (Miss. 1966)). 

The Supreme Court noted that the voucher rule has been 

“condemned as archaic, irrational, and potentially destructive of the truth‐

gathering process.” Id. at 296 n.8. And it emphasized that Mississippi did not 

even attempt “to defend the [voucher] rule or explain its underlying 

rationale.” Id. at 297. The Supreme Court therefore held that the “voucher 

rule” violated Chambers’s rights to confront and cross‐examine witnesses 

like McDonald. 

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The state habeas court’s adjudication of Lucio’s complete-defense 

claim is not “contrary to” Chambers. 28 U.S.C. § 2254(d)(1). During our en 

banc Q&A, Lucio recognized that the trial court excluded Villanueva and 

Pinkerman pursuant to ordinary rules of evidence concerning the 

admissibility of expert opinions—not pursuant to some idiosyncratic, 

arbitrary, archaic, and indefensible rule that prohibited her from impeaching 

her own witness. This significant distinction is far more than sufficient to bar 

a “contrary to” claim.

Nor is the state habeas court’s decision an “unreasonable 

application” of Chambers. Ibid. The Supreme Court has instructed us that 

Chambers—like its other complete-defense cases—involved an idiosyncratic 

state rule of evidence that was “arbitrary,” “did not rationally serve any 

discernible purpose,” and “could not be rationally defended.” Jackson, 569 

U.S. at 509 (discussing Holmes, 547 U.S. at 331; Rock v. Arkansas, 483 U.S. 

44, 61 (1987); Chambers, 410 U.S. at 302–303; and Washington v. Texas, 388 

U.S. 14, 22 (1967)). The Supreme Court has never applied its completedefense cases to discretionary evidentiary decisions under rules that are 

themselves constitutional, like the rules of evidence involving the 

admissibility of expert opinions here. Thus, to hold that the state habeas 

court unreasonably applied these cases, we’d have to (1) extend them or 

(2) frame them “at such a high level of generality” that we’d “transform 

even the most imaginative extension of existing case law into ‘clearly 

established Federal law, as determined by the Supreme Court.’” Id. at 512 

(quoting 28 U.S.C. § 2254(d)(1)). The relitigation bar precludes that.

3.

Our panel decision in this case reached the contrary result by taking 

the facts from Lucio’s state habeas application, mixing them with the law

from her direct appeal, and using the resulting combination to condemn the 

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evidentiary decision made at trial. Specifically, the panel combined the facts 

in the Pinkerman affidavit (from state habeas) with the Crane claim (from 

direct appeal) to hold the exclusion of Pinkerman’s proffer (at trial) was 

arbitrary and “complete[ly] irrational[].” Lucio, 783 F. App’x at 323. The 

panel held that Crane gave Lucio the constitutional right to “take[] away” or 

“undermine[]” her custodial-interrogation statements; that without those 

statements, “the State’s case [would have been] much more tenuous”; and 

that “Pinkerman’s opinion was that Lucio was susceptible to taking blame 

for something that was not her fault and that this behavior was manifested in 

the interrogation video,” thereby “cast[ing] doubt on the State’s key 

evidence.” Ibid.

AEDPA prohibits whipsawing the state courts in this way. See 28 

U.S.C. § 2254(d); cf. Wainwright v. Sykes, 433 U.S. 72, 89 (1977) (rejecting 

habeas-by-“sandbagging”). This is the entirety of what Pinkerman proffered 

at trial:

On the basis of my review of information, consultation with 

additional experts, and the evaluation that I have done with the 

defendant Mrs. Lucio, I was going to testify about the 

characteristics and makeup of her psychological functioning. I 

was also going to address how her demeanor, both immediately 

after the incident and during the interrogation, may be 

understood by understanding and appreciating the 

psychological elements and previous history and background 

that she has lived through. I was also going to address the

notion of how difficult it might have been for her to step into 

some of the treatment, even though it was minimally offered. 

And those are the highlights.

ROA.15301. As the state courts concluded, this proffer provides zero 

information about what facts or opinions Pinkerman was prepared to offer. It 

certainly did not say—as our panel decision concluded—“that Lucio was 

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susceptible to taking blame for something that was not her fault and that this 

behavior was manifested in the interrogation video.” Lucio, 783 F. App’x at 

323. To the contrary, Pinkerman provided no basis upon which the state 

courts could have concluded that his testimony would have assisted the jury 

in understanding why Lucio made the statements that she did, why her 

demeanor was what it was, or whether she murdered her child. If AEDPA’s 

anti-sandbagging rules mean anything, they mean that Lucio and Pinkerman 

cannot hold back the substance of the proffered testimony with the hope of 

using it as a trump card later.

The whipsawing embraced by our panel decision is particularly 

striking because we do not need to guess what Pinkerman would’ve said if 

he’d been allowed to testify in the guilt phase of the trial. That’s because two 

days before he was first called to testify and make his proffer, he authored an 

expert report that detailed his testimony. ROA.15301 (Pinkerman’s guiltphase proffer, dated July 7, 2008); ROA.5387 (Pinkerman’s expert report, 

dated July 5, 2008). The expert report contained extensive psychological 

evaluations of Lucio. It also described Pinkerman’s findings from watching 

the interrogation video—including that Lucio had a “constrained” 

demeanor, a “flat” affect, and that “she tunes out to the male investigator.” 

ROA.5394. The report recounted Lucio’s custodial statement: “Several 

hours after Mariah’s death, [Lucio] said: ‘I’m responsible for it.’” ROA.5395 

(emphasis added). And it recounted Lucio’s various other inculpatory 

admissions of abuse against her daughter. E.g., ROA.5395 (recounting 

Lucio’s admissions that she got “frustrated” with Mariah, “spanked” her, 

and “When I saw the bruises, I hated myself for what I did.”). At no point 

did Pinkerman’s report come close even to hinting that any of these 

statements were false. At no point did Pinkerman’s report come close even 

to hinting “that Lucio was susceptible to taking blame for something that was 

not her fault and that this behavior was manifested in the interrogation 

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video.” Lucio, 783 F. App’x at 323. And at no point did Pinkerman’s report 

say anything at all about battered woman syndrome.

We also don’t have to guess about what Pinkerman would have said at 

trial because he was allowed to testify during the punishment phase. Defense 

counsel asked Pinkerman multiple questions about Lucio’s interrogation 

video to elicit testimony about the circumstances of the offense and Lucio’s 

moral culpability. E.g., ROA.5131–34; see Tex. Code Crim. Proc. art. 

37.071, § 2(e)(1) (requiring the punishment-phase jury to consider, inter alia, 

“the circumstances of the offense” and “the personal moral culpability of 

the defendant”). And again, Pinkerman did not come close even to 

suggesting “that Lucio was susceptible to taking blame for something that 

was not her fault and that this behavior was manifested in the interrogation 

video.” Lucio, 783 F. App’x at 323. In fact, Pinkerman repeatedly 

equivocated regarding battered woman syndrome:

Q. Well, do you feel that this defendant has battered 

woman’s syndrome?

A. I can’t answer, yes or no.

Q. Why not?

A. Because my answer would be in the middle.

ROA.5169. When pressed to explain the equivocation, Pinkerman stated that 

“[b]attered woman syndrome isn’t a DSM-4 diagnosis.” ROA.5170.

Pinkerman radically shifted his story in the state habeas proceeding. 

That’s the first and only time he offered any opinion about the circumstances 

of Lucio’s custodial interrogation or battered woman syndrome. And he did 

it in a state habeas application that said Lucio was not challenging the 

circumstances of her custodial interrogation or the voluntariness of anything 

she said during that interrogation. The state courts are entitled to adjudicate 

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the claim that Lucio brought at the time she brought it and in the way she 

brought it. See Henry, 513 U.S. at 366. And we cannot agree with the panel

that the state trial court’s decision to exclude the proffered testimony was 

“complete[ly] irrational[],” Lucio, 783 F. App’x at 323; cf. Jackson, 569 U.S. 

at 509, based on an affidavit that wasn’t even written until many years after 

the trial and was first presented in a state habeas application that disclaimed 

the panel’s legal theory, see Pinholster, 563 U.S. at 181 (“[T]he scope of the 

record for a § 2254(d)(1) inquiry . . . . is limited to the record that was before 

the state court that adjudicated the claim on the merits.”).

Villanueva fares no better. As Lucio conceded in her opening en banc 

brief, all of Villanueva’s testimony was premised on her comparison of 

Lucio’s body language in pictures that predated the murder to her body 

language after it. And the state courts had ample reasons under the Texas 

Daubert standard to exclude such guilt-phase testimony based on 

Villanueva’s concession that she had no specialized training, no certification, 

and no generally accepted science to support interpreting Lucio’s body 

language. ROA.4694–95. In fact, when Villanueva testified at the punishment 

phase, she conceded that she “was retained to do mitigation. . . . I was not 

instructed at all to make judgments about the innocence or guilt, sir.” 

ROA.5057 (emphasis added). Moreover, even if Villanueva were a qualified 

body-language expert and were retained to render opinions about Lucio’s 

guilt, the Texas Rules of Evidence would bar her from offering an opinion on 

Lucio’s credibility. See Yount, 872 S.W.2d at 708–09. It was therefore 

reasonable for the state courts to exclude Villanueva from the guilt phase of 

the trial. Even our now-vacated panel decision did not find error in that 

result. See Lucio, 783 F. App’x at 321.8

8 Our panel decision noted “the exclusion of Villanueva’s testimony raises 

concerns about the fairness of the trial” because Officer Escalon testified about Lucio’s 

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C.

Finally, Lucio argues that the state habeas court’s decision 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)(2). Because 

Lucio is challenging a state conviction, “a determination of a factual issue 

made by a State court shall be presumed to be correct.” Id. § 2254(e)(1). 

Furthermore, the “applicant shall have the burden of rebutting the 

presumption of correctness by clear and convincing evidence.” Ibid. Thus, 

while the “general standard” for evaluating a state court’s findings of fact is 

reasonableness, § 2254(e)(1) requires a state prisoner to show that the state 

court’s specific factual determination in her case is unreasonable by clear and 

convincing evidence. Valdez v. Cockrell, 274 F.3d 941, 951 n.17 (5th Cir. 

2001); see also Blue v. Thaler, 665 F.3d 647, 654 (5th Cir. 2011). We cannot 

reject a factual finding merely because we would have made a different one. 

See Kately v. Cain, 704 F.3d 356, 361 (5th Cir. 2013). 

body language during the interrogation. Lucio, 783 F. App’x at 321 n.1. That’s apples and 

oranges. Officer Escalon did not purport to offer an expert opinion; he was describing his 

personal experiences and impressions while interrogating Lucio. See Osbourn v. State, 92 

S.W.3d 531, 538–39 (Tex. Crim. App. 2002) (explaining that a police officer’s “lay opinion 

about something she personally perceived,” even when informed by an officer’s training 

and experience, is distinct from expert testimony). And to the extent Escalon purported to 

offer inadmissible expert opinion, Lucio’s trial lawyers had every right to object. They did 

not. See ROA.4410-11; Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003) 

(explaining that “to preserve error, an objection must be timely, specific, pursued to an 

adverse ruling, and, with two [inapplicable] exceptions, contemporaneous—that is, made 

each time inadmissible evidence is offered”). They also had every right to cross-examine 

Escalon on the point. Again, they did not. And even if Lucio’s counsel allowed inadmissible

evidence to come in by failing to object, that would do nothing to qualify Villanueva as an 

expert on body language under Texas’s Daubert standard. See ROA.4700.

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Lucio argues that the state habeas court made an unreasonable factual 

determination concerning the admissibility of Pinkerman’s opinion. The 

state habeas court held that Pinkerman’s proffered opinion “had no 

relevance to the question of [Lucio’s] guilt or innocence.” ROA.10091. Lucio 

argues that this was error—either under Texas Rule of Evidence 402 or 

“Texas relevance law” generally. But it is well established that a “federal 

court lacks 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 McGuire, 

502 U.S. at 67. It is “not our function as a federal appellate court in a habeas 

proceeding to review a state’s interpretation of its own law.” Schaetzle v. 

Cockrell, 343 F.3d 440, 449 (5th Cir. 2003) (quoting Weeks v. Scott, 55 F.3d 

1059, 1063 (5th Cir. 1995)). Because Lucio fails to identify any factual

problems with the state habeas court’s decision concerning Pinkerman’s 

opinion, she has failed to make a claim that’s cognizable in federal habeas, 

much less one that can push aside the relitigation bar in § 2254(d)(2). To the 

extent Lucio’s argument can be construed as raising a legal claim under 

federal law, we have already rejected it for the reasons discussed in Parts III.A 

and III.B.

Our panel decision in this case relied heavily on the affidavit that 

Pinkerman submitted to the state habeas court. But the whole point of that 

affidavit was to aver facts that Pinkerman discussed with Lucio’s trial counsel 

and that trial counsel failed to proffer at trial. Recall that at trial, Pinkerman 

did not offer to prove that Lucio made false statements. See supra at 5 & n.2.

Instead, he made a vague offer to prove “how her demeanor . . . may be 

understood by understanding and appreciating the psychological elements 

and previous history and background that she has lived through.”

ROA.15301. It’s precisely because trial counsel did not solicit a better proffer 

that Pinkerman accused him of ineffective assistance. Thus, according to the 

Pinkerman affidavit, the trial court did not violate her constitutional rights—

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her trial counsel did. Lucio cannot now fault the state courts for failing to 

adjudicate a complete-defense claim based on facts that the defense team 

failed to present.

As for Villanueva, Lucio argues that the state habeas court 

unreasonably determined that she “proffered nothing to indicate that she had 

any sort of specialized experience, knowledge[,] or training in the areas of 

interpreting body language and patterns of behavior during police 

interviews.” ROA.10091. In her expert-admissibility hearing, Villanueva 

testified on direct examination that she had a master’s degree in social work 

and was licensed to diagnose and treat mental disorders. ROA.4692. On 

cross-examination, she was asked to identify “one treatise or one book” on 

the “specialty” of “detect[ing] human thought process through physical 

conduct.” ROA.4694–95. Villanueva conceded, “I’m not a specialist in that 

area.” ROA.4695. Villanueva’s testimony provided a reasonable basis for the 

state habeas court to find that she lacked special expertise in “interpreting 

body language and patterns of behavior” in the specific context of “police 

interviews.” Cf. Yount, 872 S.W.2d at 710 (“Psychologists and psychiatrists 

are not, and do not claim to be, experts at discerning truth.” (quoting State

v. Moran, 728 P.2d 248, 255 (Ariz. 1986))). Furthermore, to the extent 

Lucio’s argument challenges either (1) the state habeas court’s application of 

Texas Rule of Evidence 702 or (2) the relevancy of this evidence under the 

Federal Constitution, it suffers from the same defects as Lucio’s arguments 

concerning Pinkerman’s opinion.

Finally, Lucio challenges the state habeas court’s determination that 

her “complaint about [the] exclusion of her mitigation experts from the guiltinnocence portion of the trial is nearly identical to issues nine and ten raised 

on direct appeal.” ROA.10091. “The maxim is well established in this circuit 

that a party who fails to make an argument before either the district court or 

the original panel waives it for purposes of en banc consideration.” Miller v. 

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Tex. Tech Univ. Health Scis. Ctr., 421 F.3d 342, 349 (5th Cir. 2005) (en banc). 

Because Lucio failed to raise this argument before the original panel, we hold 

that it is forfeited.9

IV.

The various dissenting opinions contradict AEDPA, Supreme Court 

precedent, and the record in this case. Indeed, the dissents even contradict 

one another. If the dissenters cannot agree amongst themselves, they cannot 

expect our court to reach the level of certitude necessary to grant habeas 

relief. Cf. Richter, 562 U.S. at 103 (“As a condition for obtaining habeas 

corpus from a federal court, a state prisoner must show that the state court’s 

ruling on the claim being presented in federal court was so lacking in 

justification that there was an error well understood and comprehended in 

existing law beyond any possibility for fairminded disagreement.” (emphasis 

added)). Four of the dissenters’ arguments merit additional responses.

A.

First, the dissenters spill much ink relitigating the facts. For example, 

Judge Haynes emphasizes that “Lucio had trouble taking care of her many 

children.” Post, at 79 (Haynes, J., dissenting). Judges Higginson and 

Higginbotham suggest Texas’s foster-care system is the real culprit. Id. at 110 

n.1 (Higginson, J., dissenting); id. at 63–69 (Higginbotham, J., dissenting). Or 

perhaps two-year-old Mariah killed herself. Id. at 80, 101 (Haynes, J., 

dissenting). Judges Haynes and Higginson suggest that Officer Escalon 

9 Lucio also argues that the “state court’s process for determining the facts” was 

“itself unreasonable.” As Lucio acknowledges, that argument is foreclosed by circuit 

precedent. See Valdez, 274 F.3d at 951 (holding “that a full and fair hearing is not a 

precondition to according § 2254(e)(1)’s presumption of correctness to state habeas court 

findings of fact nor to applying § 2254(d)’s standards of review”). We decline Lucio’s 

invitation to overturn Valdez.

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badgered Lucio during the interrogation. Id. at 80–82 (Haynes, J., 

dissenting); id. at 113 n.4 (Higginson, J., dissenting). And all the dissenters

have much to say about how they’d weigh Pinkerman’s testimony—

notwithstanding the stark differences between what Pinkerman says today

and what he proffered at trial, and notwithstanding the equally stark 

differences between the roles of federal judges and state jurors. See id. at 83, 

88–90 (Haynes, J., dissenting); id. at 75–76 (Elrod, J., dissenting); id. at 111

(Higginson, J., dissenting); id. at 68 (Higginbotham, J., dissenting). Judge 

Elrod captures the dissenters’ gestalt by saying Lucio confessed to beating to 

death her child and then framing the question presented as: “But did she?” 

Id. at 70.

AEDPA and Supreme Court precedent squarely foreclose this entire 

enterprise. Take for example Cavazos v. Smith, 565 U.S. 1 (2011) (per 

curiam). A California jury convicted Shirley Ree Smith of shaking to death 

her 7-week-old grandson. Id. at 2–5. At trial, the State called three experts 

who testified about the horrific injuries Smith inflicted on the baby. Id. at 3–

5. The defense called two experts who testified that the baby “died from old 

trauma,” or perhaps the real culprit was sudden infant death syndrome. Id.

at 5. The Ninth Circuit reweighed this evidence, found the State’s evidence 

insufficient, and granted relief under AEDPA. Id. at 6–7.

The Supreme Court summarily reversed. As to the evidence the jury 

heard, it was the jury’s province—not the federal court’s—to weigh it. See 

id. at 2 (“Because rational people can sometimes disagree, . . . judges will 

sometimes encounter convictions that they believe to be mistaken, but that 

they must nonetheless uphold. The Court of Appeals in this case substituted 

its judgment for that of a California jury . . . .”). And as to evidence the jury 

did not hear—because Smith developed it after trial—that too failed to justify 

relief under AEDPA: 

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The dissent’s review of the evidence presented to the jury over 

seven days is precisely the sort of reweighing of facts that is 

precluded by Jackson v. Virginia, 443 U.S. 307, 324 (1979), and 

precisely the sort of second-guessing of a state court decision 

applying Jackson that is precluded by AEDPA, 28 U.S.C. 

§ 2254(d). The dissent’s views on how ‘adamantly’ experts 

would testify today as opposed to at the time of trial are of 

course pure speculation, as would be any views on how a jury 

would react to less adamant testimony.

Id. at 8 n.* (quoting dissenting opinion by Justice Ginsburg). Exactly the same 

could be said about the dissents’ reweighing of the evidence submitted to the 

jury (the conditions of Lucio’s home, Officer Escalon’s interrogation tactics, 

&c.) and their speculation about evidence not submitted to the jury (from 

Pinkerman’s post-trial affidavit).

And even if AEDPA allowed the dissenters to redo the jury’s job, the 

dissenters could not cherry-pick the facts. For example, one dissenter tells us 

that Lucio had “issues with . . . income and housing” and that she “could 

not pay her rent and was about to lose her apartment.” Post, at 65

(Higginbotham, J., dissenting). The dissent omits, however, that Lucio’s 

own expert attributed those financial troubles to Lucio’s cocaine addiction.

Villanueva testified that Lucio received approximately $5,000 every month 

in food stamps. ROA.15637–38. Yet her refrigerator was completely empty. 

ROA.15637–38. That’s because—again, according to Lucio’s own expert—

Lucio and Mr. Alvarez sold the food stamps and spent the money on cocaine. 

ROA.15636. Then they made the children survive on one free meal a day at 

Loaves and Fishes. ROA.15638.

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It’s unclear what the dissenters hope to achieve from their 

counterfactual narratives. But whatever the purpose, the effort is foreclosed 

by AEDPA, Supreme Court precedent, and the record.10

B.

Next, the dissenters repeatedly accuse us of “sua sponte” raising 

procedural arguments that the State waived. See post, at 78, 90–95 (Haynes, 

J., dissenting); id. at 71 n.1 (Elrod, J., dissenting); id. at 111 & n.2 (Higginson, 

J., dissenting). For example, some dissenters criticize us for holding that 

Lucio “procedural[ly] default[ed]” her claims. Id. at 90–93, 94 n.9 (Haynes, 

J., dissenting). Other dissenters accuse us of holding Lucio failed to 

“exhaust[]” her claims. Id. at 71 n.1 (Elrod, J., dissenting). These accusations 

are quite odd. We mention “default” only once above, and only as a 

description of the Court of Criminal Appeals’ direct-appeal decision. See 

supra at 19. And we hold that Lucio did exhaust her claims. See supra at 20 & 

10 Amongst the most troubling of the dissents’ factual inaccuracies is their 

collective assertion that Lucio offered Pinkerman and Villanueva to “‘answer the one 

question every rational juror needs answered: If [Lucio] is innocent, why did [s]he 

previously admit h[er] guilt?’” Post, at 104 (Haynes, J., dissenting) (quoting Crane, 476 

U.S. at 689); see also id. at 73, 75–77 (Elrod, J., dissenting); id. at 110–11 (Higginson, J., 

dissenting); id. at 64 n.1 (Higginbotham, J., dissenting). The dissenters cannot cite a single 

page of the record that suggests Lucio ever tried to justify admitting Pinkerman and 

Villanueva for that purpose. To the contrary, Lucio’s trial lawyers made the strategic 

decision that it was better to deny that Lucio ever admitted her guilt rather than try to 

explain it away. As one of Lucio’s lawyers told the jury at closing: “She confessed to what? 

She confessed to bruising that child from head to foot. She confessed to neglect. She didn’t 

confess to murder.” ROA.4789. Lucio’s lawyers could’ve changed that strategy or even 

made inconsistent alternative arguments when proffering Pinkerman and Villanueva 

outside the presence of the jury. But the defense decided to maintain its no-confession 

theory to the very end. AEDPA prevents us from second-guessing that trial strategy. See 

Pinholster, 563 U.S. at 190 (holding that federal courts apply “doubly deferential” review 

to the strategic choices of counsel (quotation omitted)); accord Knowles v. Mirzayance, 556 

U.S. 111, 123 (2009).

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n.5; post, at 95–96 (Haynes, J., dissenting) (agreeing with our exhaustion 

holding). Our sua sponte procedural holdings are nil.

All we’ve held is that Lucio has changed her complete-defense claim 

over time. That is an undisputed proposition. Lucio herself recognized it in 

her state habeas application. ROA.8029 n.36. Lucio conceded it in the district 

court. ROA.159. Both sides recognized it before our court. E.g., Director’s 

Opening En Banc Q&A 1–8; Lucio’s Opening En Banc Q&A 1–11. And 

because Lucio changed her argument over time, we must analyze each claim 

as it existed at the time Lucio presented it to the state courts. See Henry, 513 

U.S. at 366. That is hornbook law. 

The dissenters appear to believe that a state prisoner can raise 

different claims at different times with different facts in the state court, then 

smush them all together into a single claim in federal court. This belief has 

no basis in law. Consider for example the Supreme Court’s canonical 

decision in Rose v. Lundy, 455 U.S. 509 (1982). In that case, the state prisoner 

exhausted a prosecutorial-misconduct claim in state court. He based that 

claim on five comments the prosecutor made at trial. Id. at 511 & n.3. When 

Lundy got to federal court, however, he attempted to broaden his claim to 

include additional prosecutorial statements suggesting “that the State’s 

evidence was uncontradicted.” Id. at 511. The federal district court allowed 

Lundy to lump together his separate claims into a single prosecutorialmisconduct claim and then considered them in the context of the trial “taken 

as a whole.” Ibid. The Supreme Court reversed and held that state prisoners 

must “seek full relief first from the state courts, thus giving those courts the 

first opportunity to review all claims of constitutional error.” Id. at 518–19 

(emphases added). The Court noted that this rule “reduces piecemeal 

litigation” by forcing prisoners to present the state courts with an entire claim 

and allowing the state courts to adjudicate it. Id. at 520 (emphasis in original); 

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see also Boerckel, 526 U.S. at 845 (holding prisoners must give state courts “a 

full and fair opportunity to resolve federal constitutional claims”).

This eliminates the dissenters’ various procedural objections. As in 

Lundy, Lucio certainly exhausted something. As in Lundy, the State concedes 

that here. As in Lundy, we can only consider the claim as Lucio exhausted it. 

And just as Lundy precludes a prisoner from smushing together separate 

prosecutorial-misconduct claims to create a new one that the state never 

considered, it also precludes Lucio from smushing together separate 

complete-defense claims to create a new one that amalgamates her factual 

and legal contentions at trial, on direct appeal, and in state habeas. See also

Pinholster, 563 U.S. at 181–82 (holding the relitigation bar’s “backwardlooking language requires an examination of the state-court decision at the 

time it was made”).11

It’s no answer to say that the Texas courts were adjudicating the same 

complete-defense claim all along. Post, at 83, 88–90 (Haynes, J., dissenting); 

id. at 111 (Higginson, J., dissenting). That’s for two reasons. 

First, Lucio’s claims are quite different—as she herself concedes. At 

trial, Lucio did not give the trial court the slightest hint that admission of the 

11 Two of the dissenters suggest that Pinholster requires us to mix together the 

Pinkerman affidavit (from state habeas) and the Crane claim (from Lucio’s direct appeal).

See post, at 92–93 (Haynes, J., dissenting); id. at 76 n.5 (Elrod, J., dissenting). Not so. 

Pinholster held “that review under § 2254(d)(1) is limited to the record that was before the 

state court that adjudicated the claim on the merits.” 563 U.S. at 181. At the time the state 

courts adjudicated Lucio’s Crane claim on direct appeal, the Pinkerman affidavit did not 

even exist. Nothing in Pinholster required the direct-appeal court to predict what Lucio and 

Pinkerman would file in the future. And when Lucio and Pinkerman eventually did file the 

affidavit during her state habeas proceedings, nothing in Pinholsterrequired the state habeas 

court to go back in time and re-adjudicate the Crane claim that Lucio already raised, 

especially given Lucio’s express disclaimer of a Crane claim in her state habeas application. 

See Pinholster, 563 U.S. at 181–82; ROA 8029 n.36.

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Pinkerman-Villanueva testimony was compelled by the Due Process Clause, 

Crane, or anything in federal law. The trial court repeatedly asked Lucio’s 

trial lawyer to explain the basis for admitting the testimony. Counsel never 

explained why the testimony mattered; never said anything about Lucio’s

constitutional right to present a complete defense; never said anything about 

the jury’s role in evaluating the credibility of Lucio’s custodial statements; 

and never said anything that could come close to putting the trial court on 

notice that the question involved anything other than state evidentiary law.12

It was not until her direct appeal that Lucio first invoked federal law, and even 

then she had to reimagine her trial proffer to do it. See Lucio, 351 S.W.3d at 

900 (holding “[Lucio’s] claim on appeal as to what Villanueva’s testimony 

would have been does not comport with Villanueva’s proffered testimony at 

trial”); id. at 902 (holding “[Lucio’s] claim on appeal as to what Pinkerman’s 

testimony would have been does not comport with Pinkerman’s proffered 

testimony at trial”). And her claims at trial and on direct appeal differed again

from her claim in state habeas, which added Pinkerman’s affidavit but 

disclaimed any reliance on Crane. Cases like Henry and Lundy squarely 

foreclose Lucio from arguing one thing in state court and another broader 

thing in federal court. That’s not a “sua sponte” procedural holding; that’s 

application of AEDPA to the different claims that the state courts 

adjudicated on the merits at the various times they adjudicated them.

12 The dissenters make much of the trial court’s apparent absence from the 

courtroom during trial counsel’s bill of particulars. See post, at 83, 89 (Haynes, J., 

dissenting). But they cite nothing to suggest the trial court’s apparent absence violates any 

provision of state or federal law or any precedent from any state or federal court. And if the 

trial court was absent, that makes defense counsel’s bill of particulars all the more 

indefensible. By hypothesis, Lucio’s trial lawyer and Pinkerman could have put anything

they wanted in the record—unpoliced by an apparently absent trial judge. And still they 

failed to say anything at all about Crane, the Due Process Clause, the complete-defense 

right, or anything in federal law.

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Second, if the dissenters were right that Lucio did offer the exact same 

argument at all phases of her state-court proceedings, that would trigger a 

variety of procedural obstacles. As noted above, Texas has well-established 

procedural rules that prohibit prisoners from raising the same claim twice. 

See supra at 30 (citing Ex parte Brown, 205 S.W.3d at 546). And if Lucio 

violated that procedural rule by doing what the dissenters think she did, she 

would run headlong into the procedural-default doctrine. See, e.g., Coleman 

v. Thompson, 501 U.S. 722, 750–51 (1991). We have refrained from applying 

that procedural bar only to be accused of applying it anyway.

C.

Next, the dissenters offer competing theories of Crane and AEDPA. 

Some dissenters think AEDPA does not apply to Lucio’s Crane claim, so our 

review is de novo. See post, at 78 n.3, 95–96 & n.10 (Haynes, J., dissenting). 

Others think AEDPA’s relitigation bar applies but that Lucio can overcome 

it because the state court’s decision runs “contrary to” Crane. See id. at 71

(Elrod, J., dissenting); 28 U.S.C. § 2254(d)(1). Still others think Lucio can 

overcome the bar because the state court “unreasonably applied” Crane. See 

post, at 78 (Haynes, J., dissenting); 28 U.S.C. § 2254(d)(1). The dissenters 

agree, however, that Lucio raised a “Crane claim” in her state habeas 

application—notwithstanding the fact that she expressly disclaimed any 

reliance on Crane in that very application. See ROA.8029 n.36. The 

dissenters do not offer a single citation to justify that novel habeas theory.

1.

Let’s start with the dissenters’ argument for de novo review. Those 

who defend the panel’s application of that standard contend that “the state 

habeas court failed to adjudicate Lucio’s complete defense claim on the 

merits because it erroneously determined that Lucio raised a state evidentiary 

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challenge and rejected that claim based on state evidentiary standards.” Post, 

at 96 n.10 (Haynes, J., dissenting). 

Not so. Lucio argued in her state habeas application that the trial court 

violated her right to a complete defense because “the evidence at issue here 

was not irrelevant to the issue of [her] guilt or innocence.” ROA.8032. Lucio 

herself characterized the claim as one of state evidentiary law. The state 

habeas court addressed that argument head-on, finding no error in the 

exclusion of Pinkerman’s proffered testimony because it “had no relevance 

to the question of [Lucio’s] guilt or innocence.” ROA.10091. We struggle to 

see how resolving an issue in the exact same terms presented can constitute 

a failure to adjudicate it.

The principles of comity and federalism that undergird the entirety of 

federal habeas for state prisoners dating back to Reconstruction require 

closer attention to the state-court litigation. So does the party-presentation 

principle that features so prominently in the principal dissent. See post, at 94

(Haynes, J., dissenting) (describing “the Supreme Court’s admonition in

Sineneng-Smith” as warning courts not to “step in on [their] own initiative” 

and “redo” the litigation).

2.

Next, consider the dissenters’ “contrary to” argument. Judge Elrod

reads Crane to clearly establish the “bedrock rule” that juries “must be 

allowed to hear competent, reliable evidence bearing on the credibility of a 

confession when such evidence is central to the defendant’s claim of 

innocence.” Post, at 74 (quotation omitted). She then says the state court’s 

decision was “contrary” to this “bedrock rule.” See id. at 76. She concludes 

that this case and Crane should come out the same way because they involve 

materially indistinguishable facts. See id. at 74–75 & n.3. 

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That analysis falters at every step. Crane does not establish—much 

less clearly establish—a universal, freestanding right to introduce competent 

and reliable evidence challenging a confession’s credibility. The Supreme 

Court has repeatedly so held. See Jackson, 569 U.S. at 509–10; Egelhoff, 518 

U.S. at 53; accord supra at 23–24. Rather, Crane holds that the wholesale 

“exclusion of this kind of exculpatory evidence” is constitutionally 

problematic “[i]n the absence of any valid state justification.” Crane, 476 

U.S. at 690. That’s why the entire dispute in Crane hinged on the adequacy 

of Kentucky’s justification for its blanket exclusion. See supra at 23–24. What 

was the justification? “[E]stablished Kentucky procedure” made “a trial 

court’s pretrial voluntariness determination . . . conclusive.” Crane, 476 U.S. 

at 686. Crane held these two things—a blanket evidentiary exclusion justified 

only by a “conclusive” pretrial determination of voluntariness—violate the 

Due Process Clause.

None of the state-court decisions in this case were “contrary to” 

Crane’s holding. Texas did not impose a categorical prohibition on evidence; 

it did not establish a procedure for excluding evidence through “conclusive” 

pretrial rulings; and it justified the trial court’s decision as a mine-run, 

discretionary evidentiary decision in the face of a vacuous proffer by defense 

counsel. That’s far afield from Crane.

It’s no answer to say the state court “failed to even identify the correct 

legal principle.” Post, at 72 (Elrod, J., dissenting) (emphasis in original). The 

Supreme Court has repeatedly explained that a state court need not cite any 

legal principle at all. See Richter, 562 U.S. at 98 (“By its terms § 2254(d) bars 

relitigation of any claim ‘adjudicated on the merits’ in state court, subject 

only to the exceptions in §§ 2254(d)(1) and (2). There is no text in the statute 

requiring a statement of reasons.”); ibid. (“As every Court of Appeals to 

consider the issue has recognized, determining whether a state court’s 

decision resulted from an unreasonable legal or factual conclusion does not 

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require that there be an opinion from the state court explaining the state 

court’s reasoning.”). And where the state court offers an explanation, it 

“need not cite or even be aware of our cases under § 2254(d).” Ibid. (citing 

Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)).

It’s also no answer to declare that this case and Crane involve 

“materially indistinguishable facts.” Post, at 74 (Elrod, J., dissenting). It is 

true that “here, as in Crane, the trial court pointed to a rule of evidence to 

find the testimony inadmissible.” Id. at 75. But at that level of generality, 

every state-law evidentiary ruling in a criminal case implicates Crane. Contra

McGuire, 502 U.S. at 67. That’s why the Supreme Court has warned us not 

to “fram[e] [its] precedents at such a high level of generality.” Jackson, 569 

U.S. at 512; accord post, at 61 (Southwick, J., concurring). In fact, the Court 

summarily reversed our sister circuit for doing exactly what the dissenters 

propose here: “characterizing the cases as recognizing a broad right to 

present evidence bearing on . . . credibility.” Jackson, 569 U.S. at 512 

(quotation omitted).13

13 Jackson notwithstanding, Judge Elrod objects to our “materially 

indistinguishable” analysis. She criticizes our “suggest[ion]” that “if the facts are not 

exactly the same, the ‘contrary to’ exception automatically fails.” Post, at 75 n.3. Of course, 

that’s not what we say. We agree with Judge Elrod that AEDPA’s “contrary to” prong can 

be satisfied through “imposition of a contradictory standard” or “a ‘diametrically 

different’ conclusion on ‘materially indistinguishable’ facts.” Ibid. (quoting Terry 

Williams, 529 U.S. at 405); see supra at 24–25. But we disagree that Terry Williams or any 

other Supreme Court precedent supports a “contrary to” argument in this case. As the 

Terry Williams Court itself explained, “[i]t is difficult . . . to describe . . . a run-of-the-mill 

state-court decision as diametrically different from, opposite in character or nature from, 

or mutually opposed to . . . our clearly established precedent.” 529 U.S. at 406 (quotations 

omitted). And a run-of-the-mill state-court evidentiary decision is exactly what we have 

here. See supra at 26–29, 49. “Although the state-court decision may be contrary to the 

[dissenters’] conception of how [Crane] ought to be applied in th[is] particular case, the 

decision is not ‘mutually opposed’ to [Crane] itself.” Terry Williams, 529 U.S. at 406. 

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3.

The dissenters’ final Crane theory is that the state courts 

unreasonably applied that decision. 

Judge Haynes contends that this case is like Crane because in both 

cases a state court “excluded testimony . . . [a]s irrelevant.” Post, at 103. It’s 

true that Crane held that a state court cannot use a pretrial voluntariness 

ruling to justify the blanket exclusion of exculpatory evidence as 

“irrelevant.” 476 U.S. at 687. But this case involves neither a pretrial 

voluntariness ruling nor a blanket exclusion of anything. Instead, the trial 

court admitted the type of evidence that would have been excluded in Crane

when proffered by Lucio’s sister. See supra at 26–27. That proves the State 

in this case did not have a blanket evidentiary prohibition, unlike in Crane. 

And it proves that the trial court excluded Pinkerman and Villanueva by 

applying a discretionary, non-categorical evidentiary rule, unlike in Crane. 

Next, Judge Haynes argues that Crane applies to discretionary 

evidentiary decisions because the Supreme Court has not expressly held to 

the contrary. See post, at 104 (“[N]either Chambers nor Crane holds that a 

defendant’s right to present a complete defense applies only when a state 

court excludes evidence based on categorical evidentiary rules.”). But that 

gets the AEDPA relitigation inquiry backwards. Our task is not to determine 

whether Supreme Court precedent possibly permits Lucio to argue what she 

argued, but whether that precedent positively precludes the state court from 

holding what it held. See 28 U.S.C. § 2254(d); Woods v. Etherton, 136 S. Ct.

1149, 1152 (2016) (per curiam). The absence of precedent commands the 

denial of relief to a state prisoner, not the grant of it.

Next, Judge Haynes insists that Crane applies to discretionary 

evidentiary decisions because the Supreme Court has so held. Judge Haynes 

acknowledges, as she must, that Crane limited its holding to “the blanket

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exclusion of the proffered testimony about the circumstances of petitioner’s 

confession”—but she suggests we should ignore that limitation because it’s 

only “one line” in the Court’s opinion. Post, at 105 (emphasis added by Judge 

Haynes) (quoting Crane, 476 U.S. at 690). Of course, it is not true that 

Crane’s limitations come from “one line” in the opinion.14And even if it was, 

Crane’s holding remains binding on us in all events.

It’s even more troubling to interpret Montana v. Egelhoff as extending 

Crane from blanket exclusions to discretionary ones. See id. at 105–06. In 

Egelhoff, the Montana Supreme Court interpreted the Due Process Clause 

and Crane to establish “the right to present and have considered by the jury 

all relevant evidence to rebut the State’s evidence on all elements of the 

offense charged.” 518 U.S. at 41–42 (emphasis omitted) (quotation omitted).

The Supreme Court emphatically reversed. See id. at 56. We are aware of no 

authority for turning the Supreme Court’s rejection of one prisoner’s claim 

into clearly established law that supports a second prisoner’s claim. Cf. Nerio 

v. Evans, 974 F.3d 571, 575 (5th Cir. 2020) (holding a case rejecting one 

Fourth Amendment claim does not clearly establish the law for another 

Fourth Amendment claim).

Next, Judge Haynes asserts that Crane applies because the state 

court’s discretionary ruling was not actually discretionary. See post, at 106. 

The theory seems to be that because Texas’s relevance rule prohibits 

14 Crane is replete with references to the distinction between discretionary and 

categorical evidentiary rulings. See 476 U.S. at 689 (“We acknowledge . . . our traditional 

reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial 

courts.”); id. at 690 (“[W]e have never questioned the power of States to exclude evidence 

through the application of evidentiary rules that themselves serve the interests of fairness 

and reliability . . . .”); id. at 691 (“[S]ince . . . Kentucky . . . has [not] advanced any rational 

justification for the wholesale exclusion of this body of potentially exculpatory evidence, 

the decision below must be reversed.”).

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irrelevant evidence in absolute terms, state courts necessarily act 

“mechanistically” and with “no discretion” when they apply it. Ibid. Not so. 

Court decisions are “discretionary” when they “involv[e] an exercise of 

judgment and choice.” Discretionary, Black’s Law Dictionary (11th 

ed. 2019). Both judgment and choice obviously abound when it comes to 

relevance determinations. Crane itself recognizes that trial judges are “called 

upon to make dozens, sometimes hundreds, of decisions concerning the 

[relevance] of evidence” in a given case. 476 U.S. at 689. Crane further 

recognizes that federal law gives judges “wide latitude” in making those 

decisions. Ibid. (quotation omitted). And state law does too. See Brown v. 

State, 96 S.W.3d 508, 511 (Tex. App.—Austin 2002, no pet.) (“Questions of 

relevance should be left largely to the trial court, relying on its own 

observations and experience, and will not be reversed absent an abuse of 

discretion.” (quotation omitted)); see also post, at 85, 103, 106 (Haynes, J., 

dissenting) (noting that the state habeas court reviewed the trial court’s 

evidentiary ruling for abuse of discretion). We refuse to interpret the Due 

Process Clause to mean otherwise.

In her last effort to liken this case to Crane, Judge Haynes admits that 

the cases are distinguishable. See post, at 88. Judge Haynes seizes on the 

statement in Crane that “evidence surrounding the making of a confession 

bears on its credibility as well as its voluntariness.” 476 U.S. at 688 (emphases 

added) (quotation omitted); see post, at 88, 97. From this statement, Judge 

Haynes concludes that Lucio can disclaim Crane’s voluntariness holding—as 

she did in her state habeas petition—while nonetheless relying on its 

credibility holding to support her complete-defense claim. See post, at 88, 97. 

AEDPA prohibits this argument too. On direct appeal, Lucio 

characterized Crane as a case about the voluntariness of confessions. See 

ROA.10841; post, at 88 (Haynes, J., dissenting). She recognized that Crane

applied the voluntariness requirement to police-created circumstances like 

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“how long the questioning lasted” and “how many policemen were there.” 

ROA.10841. So she invited the Court of Criminal Appeals to extend Crane’s 

reasoning to a new form of involuntary interrogation statements—namely, 

those affected by battered woman syndrome. She did not, however, base her 

direct-appeal Crane claim on the theory that battered woman syndrome made 

her statements less credible, or that it made her less likely to have committed 

capital murder. That’s why the Court of Criminal Appeals resolved Lucio’s 

Crane claim in terms of voluntariness alone: she hadn’t argued anything else. 

See supra at 10. 

In state habeas, Lucio’s understanding of Crane remained unchanged. 

She cited Crane only once—and only to disclaim any reliance on it. After all, 

Lucio continued to conceptualize Crane as a voluntariness case that 

restricted a trial court’s ability to exclude “evidence regarding the 

circumstances under which [a] confession [i]s taken.” ROA. 8029 n.36. And 

because Lucio had changed her defense strategy from challenging 

voluntariness to challenging “whether [she] was likely to have engaged in 

ongoing abuse of Mariah” in the first place, she no longer needed Crane. 

ROA.8029 n.36. So, if we take Lucio at her word, she was not trying to 

introduce expert testimony to “answer the one question every rational juror 

needs answered: If [Lucio] is innocent, why did [s]he previously admit h[er] 

guilt?” Contra post, at 79, 104 (Haynes, J., dissenting); post, at 70, 73–74

(Elrod, J., dissenting). Rather than contesting the credibility of her 

statements, Lucio contended the Constitution compelled the admission of 

Pinkerman’s testimony because it “was relevant to . . . demonstrating that 

[she] did not have the propensity to commit violence against Mariah.” 

ROA.8033–34. Some might wish that Lucio litigated the case differently. But 

we are not free to condemn the state court for addressing Lucio’s claims as 

she presented them. See also supra at 44 n.10.

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D.

Finally, the dissenters point to Scrimo v. Lee, 935 F.3d 103 (2d Cir. 

2019), and Fieldman v. Brannon, 969 F.3d 792 (7th Cir. 2020). See post, at 

107–08 (Haynes, J., dissenting). Neither helps the dissenters. 

Scrimo held that a state court violates AEDPA when it “fails to extend 

a principle of clearly established law to situations which that principle should 

have, in reason, governed.” 935 F.3d at 112 (quotation omitted); see also id.

at 114 (reiterating the failure-to-extend principle). Then Scrimo held the state 

court unreasonably failed to extend Crane by excluding certain witness 

testimony about drug deals. See id. at 108–10, 120. This is unhelpful to the 

dissenters for three reasons. First, no member of our court agrees with the 

Second Circuit’s unreasonable-failure-to-extend reading of AEDPA. And 

that’s for good reason—because the Supreme Court has squarely and 

expressly repudiated it. See White, 572 U.S. at 426 (rejecting “the 

unreasonable-refusal-to-extend rule on which respondent relies”). 

Second, far from supporting the dissenters, Scrimo holds “‘[a] court 

does not unreasonably apply federal law in failing to guess a theory of 

relevance that was not argued at trial.’” 935 F.3d at 113 (quoting Fuller v. 

Gorczyk, 273 F.3d 212, 222 (2d Cir. 2001)); see also Corby v. Artus, 699 F.3d 

159, 168 (2d Cir. 2012) (“The state trial judge was not required to read 

between the lines of counsel’s motion to divine a previously unasserted legal 

theory . . . .” (cited and quoted in Scrimo, 935 F.3d at 113)). The fact that 

Scrimo’s lawyer apparently articulated a Crane-based challenge to the 

exclusion of testimony in his trial does nothing to help Lucio, whose lawyer 

did not.

Third, when it came time to tackle specifics, the Second Circuit 

produced a rule that looks nothing like the rules the dissenters (or we) set 

forth here. Compare Scrimo, 935 F.3d at 115 (“If the evidentiary ruling was 

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correct pursuant to a state evidentiary rule, . . . [w]e consider whether the 

evidentiary rule is arbitrary or disproportionate to the purposes it is designed 

to serve. On the other hand, if the potentially exculpatory evidence was 

erroneously excluded, we must look to whether the omitted evidence 

evaluated in the context of the entire record creates a reasonable doubt that 

did not otherwise exist.” (quotations omitted)), with post, at 99 (Haynes, J., 

dissenting) (“[A] state court violates a defendant’s right to present a 

complete defense if (1) the excluded evidence was critical to the defense, and

(2) the state court failed to provide a rational justification for its exclusion.” 

(citations omitted)). The dissenters cannot claim to embrace Scrimo because 

they reject all three of these holdings.

They fare no better under Fieldman. There, the Seventh Circuit held 

that “the state trial court’s exclusion of Fieldman’s testimony was a decision 

contrary to” Crane. 969 F.3d at 800. Or perhaps it didn’t. See post, at 107

n.20 (Haynes, J., dissenting) (“[A]lthough the court in Fieldman wrote that 

the state trial court’s adjudication was ‘contrary to’ clearly established law, 

the holding was in fact based under the ‘unreasonable application’ prong.”). 

We take no position as to whether the dissenters misunderstand Fieldman or 

whether Fieldman misunderstands itself. Either way, Fieldman turned on the 

state court’s exclusion of the defendant’s own testimony when he took the 

stand at trial. See 969 F.3d at 801. It’s well-settled—outside of Crane—that 

trial courts cannot impose such limits on a defendant’s own testimony. See, 

e.g., Rock, 483 U.S. at 49. It’s also irrelevant to this case.

* * *

The judgment of the district court is AFFIRMED.

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Leslie H. Southwick, Circuit Judge, joined by Costa and Willett, 

Circuit Judges, concurring:

I agree we should deny relief despite the difficult issue of the exclusion 

of testimony that might have cast doubt on the credibility of Lucio’s 

confession. That exclusion was the key evidentiary ruling at trial. Able 

colleagues in dissent have shown the factual imperative that jurors hear this 

testimony. Nonetheless, I cannot accept the legal reasoning of the dissenting 

opinions. Instead, I conclude that current, clearly established Supreme 

Court authority falls short of permitting us to reject the state habeas court’s 

consideration of that issue.

This separate opinion is offered despite the analysis contained in the 

erudite principal opinion for the court. In a much more thorough manner 

than here, it explains the denial of relief. I am unable to join all that is there 

and wish to explain my more limited reasons to affirm. 

The dissenters express well their view that there was expert testimony 

that, if jurors had only heard it, could have impacted the verdict. We are all, 

though, working within the constraints of AEDPA. Its premise is that 

someone who has received a criminal conviction in state court has an initial 

means within the state-court system to challenge the validity of the 

conviction, then has a much more constrained means of challenging the statecourt decision in federal court. 

Fundamentally for me, what is at issue in the present appeal is whether 

a Supreme Court decision with language helpful to Lucio’s claims, relied on 

by the dissenters but explained in other terms by this court’s principal 

opinion, permits us to conclude that the state court erred in rejecting this 

claim and then to correct the error.

The precedent, of course, is Crane v. Kentucky, 476 U.S. 683 (1986). 

Its relevance is to the exclusion of the expert testimony of Dr. John 

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Pinkerman and, less importantly, of Ms. Norma Villanueva. It is now argued 

that they would have explained for jurors why someone like this defendant, 

after hours of interrogation, would have falsely admitted to killing someone. 

Because Lucio’s confession admitted to the essentials of the indictment, it 

was imperative that some doubt about the confession be created. The Crane 

decision certainly is helpful on that claim, most explicitly when it stated that 

a state court cannot be “permitted to exclude competent, reliable evidence 

bearing on the credibility of a confession when such evidence is central to the 

defendant’s claim of innocence.” Id. at 690. Interpreting Crane as applied to 

our facts, both to what happened at trial and the proceedings since, is the 

difficult part of this appeal. 

Exhaustion of the claim is one issue. A state prisoner must have 

“exhausted the remedies available in the courts of the State” on a claim 

before we may consider it. 28 U.S.C. § 2254(b)(1)(A). It seems the 

dissenters are correct that the State conceded that the issue is preserved. 

Regardless, in my view, exhaustion is not outcome-determinative.

The claim is that the state court unconstitutionally prevented the 

admission of reliable evidence bearing on the credibility of a confession, and 

that this evidence was central to the defendant’s claim of innocence. A 

constitutional right to its introduction is said to arise under Crane, a decision 

predating the rulings in this case. Thus, the state court allegedly reached “a 

decision that was contrary to, or involved an unreasonable application of, 

clearly established Federal law, as determined by the Supreme Court of the 

United States.” § 2254(d)(1). To preview the conclusion of the analysis that 

follows, Istate here that the interpretation of Crane that is necessary for relief 

in this case is not clearly established.

The principal opinion for the court already well explains that Crane

reviewed a decision by a state’s supreme court that analyzed for the first time 

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what a new rule of state procedure meant as to juror consideration of 

confessions. See KY. R. CRIM. P. 9.78 (repealed 2014). The state trialcourt judge determined prior to trial that the confession was voluntary; at 

trial, the court excluded evidence relating to voluntariness as not being 

relevant to the jury’s function. Crane v. Commonwealth, 690 S.W.2d 753, 

753–54 (Ky. 1985), rev’d, 476 U.S. 683 (1986). The Kentucky Supreme 

Court agreed with excluding evidence as to voluntariness because the new

procedural rule left it solely to the trial judge to decide that issue, while jurors 

could consider other challenges. Id. at 754.

The Court held there were three flaws in Kentucky’s evidentiary rule: 

(1) it found no support in Supreme Court cases, (2) it was based on a 

misconception of the role of confessions at trial, and (3) “under the 

circumstances of this case, . . . [it] deprived petitioner of his fundamental 

constitutional right to a fair opportunity to present a defense.” Crane, 476 

U.S. at 687. The Court quoted a precedent that “evidence surrounding the 

making of a confession bears on its credibility,” not just on “its 

voluntariness.” Id. at 688 (quoting Jackson v. Denno, 378 U.S. 368, 386 n.13 

(1964)).

The Court then identified a near consensus in the states as well as 

under federal rules to allow all evidence about a confession to be submitted 

to jurors regardless of a pretrial failure to suppress. Still, “even a consensus 

as broad as this one is not inevitably congruent with the dictates of the 

Constitution.” Id. at 689. Important to my analysis of the opinion, the Court 

recognized that state trial judges need to make countless evidentiary 

decisions in a trial, and evidentiary rules may be applied that “serve the 

interests of fairness and reliability.” Id. The facts in Crane easily permitted 

the Court to decide that this “blanket exclusion . . . deprived [Crane] of a fair 

trial.” Id. 

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The Supreme Court did not choose among different possible 

constitutional sources for its holding. It held that what Kentucky was doing 

violated this defendant’s right for “a meaningful opportunity to present a 

complete defense.” Id. at 690 (quoting California v. Trombetta, 467 U.S. 479, 

485 (1984)). There was “no new ground” being broken in saying that the 

“opportunity to be heard” is fundamental to due process, and a component 

of that is to permit the introduction of “competent, reliable evidence bearing 

on the credibility of a confession when such evidence is central to the 

defendant’s claim of innocence.” Id. 

One possible explanation of what was “clearly established” by Crane, 

even if not with clarity, is that the decision invalidated the application of any 

evidentiary rule that creates a “blanket” bar to a category of evidence and in 

the specific case prevented a defendant from presenting a meaningful 

defense. I agree with that sense of the Court’s opinion. Another possibility 

is that a federal court may grant relief based on an everyday evidentiary 

ruling, such as the one about relevance in this case, when that ruling 

prevented a defendant from introducing evidence that can be characterized 

as central to the defense. Based on Crane itself and on other caselaw, my view 

is that the opinion does not apply to a simple, discretionary, even if errant,

evidentiary decision by a state-court judge. To make every evidentiary ruling 

a potential issue of constitutional dimension is beyond my understanding of 

Crane. 

Of particular importance to my conclusion about Crane, the Supreme 

Court has emphasized — in this precise area of limits on examination of 

witnesses — that lower courts must be careful in defining “clearly 

established law.” To conclude that its precedent supports a “broad right to 

present ‘evidence bearing on [a witness’] credibility,’” the Court held, was 

framing “clearly established Federal law” at too “high [a] level of 

generality.” Nevada v. Jackson, 569 U.S. 505, 512 (2013) (first alteration in 

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original). I find no Supreme Court opinion holding that an error in the 

discretionary application of a general evidentiary standard is a constitutional 

violation.

Related precedents often have addressed a rule governing some 

evidentiary category, starting with Chambers v. Mississippi, 410 U.S. 284, 

302–03 (1973), which concerned a bar to any evidence that ran afoul of the 

common-law voucher rule; then Rock v. Arkansas, 483 U.S. 44, 62 (1987), in 

which hypnotically refreshed testimony was inadmissible; later, United States 

v. Scheffer, 523 U.S. 303, 305 (1998), which concerned a military evidentiary 

rule barring polygraph results; and Holmes v. South Carolina, 547 U.S. 319, 

331 (2006), which involved a prohibition of any evidence of third-party guilt. 

In summary, I conclude that Crane overrides any blanket evidentiary 

rule that prevented introduction in the particular case of reliable, competent 

evidence central to the defense. For Lucio to succeed, Crane must do more. 

Perhaps the Supreme Court will interpret Crane more broadly, but I cannot,

in light of what I have expressed here, conclude that Crane clearly established 

law helpful to Lucio. 

My joining the refusal to allow relief in this case comes from the 

interplay of my interpretation of the limitations that AEDPA places on 

federal courts and my analysis of the limitations of Crane. This case, though, 

is a clear example that justice to a defendant may necessitate a more 

comprehensive review of state-court evidentiary rulings than is presently 

permissible under law that is established with sufficient clarity.

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Patrick E. Higginbotham, Circuit Judge, joining Judge Haynes’s 

dissent:

Dancing with words cannot mask the reality that we execute few with 

means and by metrics flowing from the pens of judges faithfully drawing upon 

fealty to an abstraction of our “federalism,” one that screens the 

performance of poorly funded state judicial systems—themselves victims of 

political subscription to the death penalty while refusing to fund it. As the 

Court majority upholds the ending of one life at the hand of the state—

Melissa Lucio’s, now on death row for twelve years—it perversely eases the 

slide to the end of the death penalty. It does so with a hawking, adversarial 

draw upon the jurisprudence of capital punishment with springs at every 

turn. This with a prosecution deeply flawed from its inception and leaving

our hand as a failure at every level of government, shadowed by a threadbare 

narrative leaving backstage Melissa’s story, including the role in her life of 

Texas’s Department of Family and Protective Services, for good or naught. 

To these eyes, it need not and should not have happened, as the thoughtful 

dissenting opinions explain. I here add a few lines to bring to the fore 

Melissa’s life and her history with DFPS, specifically Child Protective 

Services, a history that frames this case.

I.

Melissa’s father abandoned his wife and six children, leaving 

Melissa’s mother as the family’s sole provider. Melissa’s mother was drawn

to dalliances with men who did not contribute to the family’s wellbeing, so 

care for Melissa and her siblings often devolved to these men while their

mother struggled for their living. At age six, Melissa suffered sexual abuse at 

the hands of one of her mother’s live-in lovers. This continued, with her 

mother’s acquiescence, until Melissa was eight years old. Abuse would 

remain a feature of Melissa’s relationships with the men closest to her. At 

age sixteen, she dropped out of high school to marry Guadalupe Lucio and 

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bore him five children by the time she turned 24. Guadalupe was a physically 

and emotionally abusive alcoholic, who abandoned Melissa and his children 

in 1994. So too was his successor Robert Alvarez, who, among other reported 

incidents, publicly punched Melissa. Yet on the night Mariah died, after 

hours of interrogation, it was Robert, not a lawyer, who Melissa asked Ranger 

Escalante to see.1

CPS’s involvement with Melissa began in 1995, when the agency 

charged her with “neglectful supervision” but took no action. By 1998 at the 

latest, CPS was aware that Robert in service of himself had introduced 

Melissa to cocaine. Between 1999 and 2000, CPS learned that with the birth 

of Gabriel, both mother and child tested positive for the drug. CPS records 

reflect that in 2000, Melissa’s children told investigators that she, Robert, 

and another adult male in the household were “using drugs.” CPS conducted 

no investigation or drug testing in connection with the 2000 report and left 

the children in Melissa’s care.

CPS recorded two drug-related incidents with Melissa in November 

and December of 2001, as well as two apparently separate incidents of 

“physical neglect.” Again,CPS performed no drug tests and made no inquiry 

concerning the nature or quantity of drugs involved. In 2002, CPS recorded 

a charge of neglectful supervision against Melissa, prompted by reports that 

her young son had been seen in the street “chasing cars” and that several of 

1 It is telling that at 3 a.m., after being denied the opportunity to see Robert, Melissa 

said to Escalante “I don’t know what you want me to say. I’m responsible for it,” before 

making a series of admissions that the State relied on as a confession of responsibility for 

Mariah’s death. At Escalante’s prompting, Melissa conceded that she spanked and pinched 

Mariah at times, without ever admitting to striking the cranial blows that proved fatal. But 

overlooking the equivocal nature of her confession, Melissa was denied the opportunity to 

explain why she would have taken responsibility for Mariah’s death if she did not inflict the 

fatal injuries. 

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her daughters were engaged in inappropriate sexual activity. In 2003, CPS 

was informed that another of Melissa’s children, Sara, tested positive for 

cocaine at birth. CPS recorded additional charges of neglectful supervision 

and physical neglect in 2004, just prior to Mariah’s birth; CPS closed those 

cases without taking any action. Mariah tested positive for cocaine shortly 

after her birth at Melissa’s home in September 2004.

CPS records indicate that Melissa was directed to undergo substance 

abuse counseling and parenting courses, but the records reflect that she 

seldom remained with these programs. Case notes consistently reflect issues 

with Melissa’s income and housing; CPS documented that the family was 

homeless at least once. Case notes also reflect CPS’s awareness of a 

consistent set of behavioral problems for the Lucio children, including 

physical aggression to the point of violence and sexual misbehavior. On more 

than one occasion, there was evidence that the older children had beaten their 

younger siblings, but CPS made little, if any, inquiry into these incidents.

CPS removed Melissa’s children from her care for a period spanning 

September 2004 to November 2006. In December 2006, with many of 

Melissa’s children just returned to her from foster care, CPS’s intervention 

was required again because Melissa could not pay her rent and was about to 

lose her apartment. CPS conducted a drug test—Melissa was negative—and 

provided her with rent support. CPS had no recorded visits with Melissa in 

January or February 2007 prior to Mariah’s death.

These facts compel the observation that the tragedy of Mariah’s death 

unfolded against the depressingly familiar background of the State’s struggle 

with CPS’s systemic failures, now documented in this Court’s recent 

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opinions.2 We there observed that DFPS, and by extension CPS, have

persisted in a state of “organizational and administrative chaos” for decades 

resulting in an “epidemic of physical and sexual abuse” among the thousands 

of children in its care;3 that “[w]here children have reported abuse or neglect 

to the agency, investigations are inadequate;” that DFPS sports a 75% error 

rate in its investigations of abuse;4 that “DFPS’s inability to prevent abuse is 

exacerbated by its incompetence in responding to incidents once they have 

occurred.”5

As of 2019, there were roughly 51,000 children in DFPS’s legal care, 

with several thousand more throughout Texas receiving family preservation 

services.6 Its “caseworkers handle, on average, 28 children’s cases at a time, 

with caseworkers at the upper end of the distribution handling 40, sometimes 

60.”7 By the State’s own reckoning, these caseloads greatly exceed what is 

practicable for any individual caseworker.8 As we previously recognized, 

2 See M.D. by Stukenberg v. Abbott (Stukenberg I), 907 F.3d 237, 260–68 (5th Cir. 

2018); M. D. by next friend Stukenberg v. Abbott (Stukenberg II), 929 F.3d 272, 281–93 (5th 

Cir. 2019) (Higginbotham, J. concurring in part and dissenting in part).

3 Stukenberg II, 929 F.3d at 284 (Higginbotham, J. concurring in part and dissenting 

in part).

4 Stukenberg I, 907 F.3d at 292.

5 Id. at 291.

6 See CPS Conservatorship: Children in DFPS Legal Responsibility, Texas Dep’t 

of Fam. & Protective Servs., 

https://www.dfps.state.tx.us/About_DFPS/Data_Book/Child_Protective_Services/Co

nservatorship/Children_in_Conservatorship.asp.

7 Stukenberg I, 907 F.3d at 290.

8 “DFPS produced a Work Measurement Study, which concluded that ‘DFPS 

caseworkers expended an average of 9.7 hours per month on case profiles most often 

associated with PMC children, and that these workers had an average of 137.9 hours per 

month to spend on their casework.’ Dividing the average time available (137.9) by the 

average time per case (9.7), each PMC caseworker could handle a caseload of 14 

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“high caseloads [] are a direct cause of high turnover rates,” and “DFPS

experiences extraordinary turnover among caseworkers.”9 By conservative 

estimates, “16% of caseworkers leave in their first six months, 25% in their 

first year, and 43% in their first two years.”10 The high attrition rates among 

caseworkers in turn “exacerbate the caseload problem.”11 With evidence 

that these problems have been presented to the State “repeatedly over the 

past two decades,” this Court determined “that the State is deliberately 

indifferent to the risks posed by its policies and practices” to the children in 

its care.12 

In its long superintendence of Melissa, DFPS never recorded or 

expressed concern that she physically abused any of the children in her care. 

To its credit, despite the difficulties of managing this large enterprise,13 it 

recognized that Melissa’s troubles centered on her inability to escape a 

succession of relationships with dominating and abusive men who to their 

own ends, encouraged her use of cocaine, a stimulant. That reality is strong 

footing for Melissa’s claimed denial of the opportunity to present a complete 

defense: that she only tried to accept the blame for the acts of others, a 

children. On the basis of the DFPS Study, the Special Masters recommended that the 

district court order DFPS to implement a caseload standard in the range of 14 to 17 PMC 

cases per caseworker.” Stukenberg I, 907 F.3d at 301.

9 Id. at 260, 291.

10 Id. at 291.

11 Id. at 260.

12 Id.

13 DFPS is a participant in a form of cooperative federalism through which the 

agency receives well over $700 million in federal funding, annually, representing roughly 

half of the agency’s yearly budget. Stukenberg II, 929 F.3d at 290 (Higginbotham, J. 

concurring in part and dissenting in part) (“[R]oughly half of the State’s child-welfare 

agency spending [is] covered by federal funds, over $730 million in fiscal year 2016.”).

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phenomenon of personality produced by her own lifetime of abuse in a world 

of abject poverty. 

II.

This is not the story writ large. It is the story drawn from the trial 

record—the factual matrix against which the now assailed proffers of counsel 

and Dr Pinkerton were made. Their words take their full meaning—not as an 

excised, freestanding abstraction—but as they were laced into the narrative 

fabric. Only with a walk away from the developed facts of the full record can 

the denial of Melissa’s sole defense be shrunk into an “evidentiary ruling” 

with its attending judicial discretion, one that, if rejected, it is then said would 

bring a cascade of federal reviews of state court rulings in defiance of 

federalism. But, of course, the walk away elides the reality that even the nigh 

routine matters of the constitutional order must have their factual footing. 

The footing here for Melissa’s claim that she was denied a complete 

defense cannot be brushed aside with an assertion that the trial court and 

hence the courts that followed were not put on notice. Facts matter. In this 

morality play of citizen decisions of life or death, the jury represents the 

people, but they did not hear her defense.14 The trial court ruled that 

14 The defense of false confession has for decades played a prominent role in 

exonerations. See Samuel Gross and Maurice Possley, For 50 Years, You’ve Had “The Right 

to Remain Silent” So why do so many suspects confess to crimes they didn’t commit?, The 

Marshall Project (June 12, 2016), 

https://www.themarshallproject.org/2016/06/12/for-50-years-you-ve-had-the-right-toremain-silent. It is not an esoteric creation of the defense bar, but a widely recognized 

phenomenon. See, e.g., Richard Leo, False Confessions: Causes, Consequences, and 

Implications, 37, J. Am. Acad. Psychiatry & L. (September 2009), 

http://jaapl.org/content/37/3/332. The State adopted one of the recommended responses

to this problem by taping the interrogation. But it ignored the recommendation that 

extended accusatorial tactics be banned.

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Melissa’s proposed defense was irrelevant to the question of her guilt or 

innocence, a ruling that amounted to a complete rejection of her defense, one 

not based on any deficiency in its presentation. For all the years that CPS 

looked over her shoulder it never found physical abuse; this child did not die 

of neglect, but of violent blows to her head so powerful as to produce fatal 

subdural bleeding. Whether these injuries could have been from a fall down 

the stairs or by a stronger hand than Melissa’s was disputed. The jury was 

entitled to hear her defense that it was not Melissa who struck the blow. And 

as Melissa well knew, the death of a child in her custody meant the automatic 

removal of all children from her custody, leaving her without support. It is 

plain that, with a fair reading of this record, the Court steps on no sovereign 

interest of the state, as explained by the Supreme Court in Crane.

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JENNIFER WALKER ELROD, Circuit Judge, joined by HIGGINSON, Circuit 

Judge, dissenting:

Melissa Lucio is not without culpability. Her young daughter, Mariah, 

endured a shockingly violent life, suffering horrific abuse that Lucio either 

perpetrated or tolerated. After Mariah’s death, a Texas jury convicted Lucio 

of capital murder, and Lucio was sentenced to death.

Lucio now sits on death row. Twelve jurors representing a crosssection of Cameron County concluded that Lucio killed her child, almost 

certainly because Lucio—five hours into interrogation on the night Mariah 

died—acceded to the interrogator’s pressing that she “did it.”

But did she? At trial, Lucio was barred from offering evidence to 

explain why she would confess if she were innocent.

In America, the vilest offenders—including abusers and murderers of 

children—are entitled to every protection that the Constitution guarantees. 

The Sixth Amendment has been called “the heartland of constitutional 

criminal procedure,” enshrining three clusters of rights so that criminal 

trials—designed to pursue truth and protect innocence—are speedy, public, 

and fair. See Akhil R. Amar, Sixth Amendment First Principles, 84 Geo. L.J. 

641, 641–43 (1996). And the Supreme Court has unanimously held that the 

right to be heard, an indispensable element of a fair trial, forbids the State 

from excluding, categorically, “competent, reliable evidence bearing on the 

credibility of a confession when such evidence is central to the defendant’s 

claim of innocence.” Crane v. Kentucky, 476 U.S. 683, 690 (1986). With 

confessions, content cannot be divorced from context.

That’s the lone issue in this case: Should a capital defendant be 

allowed to explain to a jury how to square her adamant profession of 

innocence today with her apparent confession of guilt yesterday?

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* * *

Lucio exhausted her complete-defense claim in the state court,1 which 

rejected the claim on the merits. Thus, under AEDPA, we may only grant 

habeas relief if that rejection was “contrary to” or “an unreasonable 

application of, clearly established Federal law, as determined by the Supreme 

Court of the United States.” 28 U.S.C. § 2254(d)(1). The principal dissent 

turns on the latter (“unreasonable application”), and I agree. I would go even 

further and say the adjudication was “contrary to” that law.

When is a state court decision a collision versus a misapplication?

• A decision is “contrary to” clearly established Federal law “if 

the state court arrives at a conclusion opposite to that reached 

by [the Supreme] Court on a question of law or if the state court 

decides a case differently than [the Supreme] Court has on a 

set of materially indistinguishable facts.” Williams v. Taylor, 

529 U.S. 362, 413 (2000) (emphasis added).

• A decision is an “unreasonable application” of Federal law “if 

the state court identifies the correct governing legal principle 

1 The plurality opinion makes much of how Lucio phrased her claims throughout 

the various pleading stages. But as my fellow dissenters have emphasized, the State 

affirmatively waived any exhaustion arguments by (1) expressly stating before the district 

court that “Lucio raised this claim in state habeas proceedings,” (2) analyzing and arguing 

against the merits of Lucio’s complete-defense claim (applying the same Supreme Court 

cases that Lucio now asks us to consider), and (3) expressly raising an exhaustion defense 

against some of Lucio’s claims but not the complete-defense claim. See Carty v. Thaler, 583 

F.3d 244, 256 (5th Cir. 2009) (explaining that a waiver of exhaustion must be express but 

that AEDPA “does not require ‘magic words’ ”); id. (finding express waiver of exhaustion 

on appeal where the State argued in the district court that one claim—not at issue on 

appeal—was not exhausted but did not raise the same argument with respect to other 

claims). “Clearly,” the State “considered exhaustion as a defense and chose not to exercise 

that defense.” Id.

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from [the Supreme] Court’s decisions but unreasonably 

applies that principle to the facts of the prisoner’s case.” Id.

In my view, the state court failed to even identify the correct legal 

principle, let alone apply it, reasonably or otherwise.2

I

As all agree, Crane v. Kentucky, 476 U.S. 683 (1986), is our North Star. 

I recap the facts at length to underscore exactly what the Supreme Court 

considered and what it did not. And to make clear that today’s case is about 

applying Crane, not extending it.

In Crane, the petitioner moved to suppress his confession to murder. 

Id. at 684–85. The trial court determined that the confession was made 

voluntarily and denied the motion. Id. at 685. Then, at trial, petitioner sought 

to introduce testimony regarding the physical and psychological environment 

in which the State obtained the confession for the purpose of demonstrating 

that the confession was “unworthy of belief.” Id. The trial court determined 

that this testimony pertained exclusively to the issue of whether his 

confession was voluntary—which, under a Kentucky evidentiary rule, could 

not be re-adjudicated—and deemed it inadmissible. Id. at 686. The Court 

heard the case to determine “whether the exclusion of testimony about the 

circumstances of the confession violated petitioner’s rights under the Sixth 

and Fourteenth Amendments to the Federal Constitution”—the 

“constitutional right to a fair opportunity to present a defense.” Id. at 686–

87.

2 The state court rejected Lucio’s complete-defense argument because, the court 

reasoned, her claim was “nearly identical to [the issues] raised on direct appeal,” and the 

trial court did not abuse its discretion in excluding Dr. Pinkerman’s testimony. 

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The Court began by explaining the importance of the right to 

challenge the credibility of a confession. It noted that “the Court has never 

questioned that evidence surrounding the making of a confession bears on its 

credibility” and that “the defendant[ has a] traditional prerogative to 

challenge the confession’s reliability during the course of the trial.” Id. at 688 

(internal quotation and emphasis omitted). See also Lego v. Twomey, 404 U.S. 

477, 485–86 (1972) (“A defendant has been as free since Jackson[ v. Denno, 

378 U.S. 368 (1964),] as he was before to familiarize a jury with circumstances 

that attend the taking of his confession, including facts bearing upon its 

weight and voluntariness.”). That’s why the Court “has expressly assumed 

that evidence about the manner in which a confession was secured will often 

be germane to its probative weight, a matter that is exclusively for the jury to 

assess.” Crane, 476 U.S. at 688.

The relevance of this evidence is not limited to assessing a 

confession’s voluntariness; the circumstances surrounding a defendant’s 

incriminating statements “can also be of substantial relevance to the ultimate 

factual issue of the defendant’s guilt or innocence.” Id. at 688–89. There is a 

simple reason for this. As the Court explained, a confession does not 

necessarily mean guilt: “as with any other part of the prosecutor’s case, a 

confession may be . . . unworthy of belief.” Id. at 689 (internal quotation 

omitted). Thus, the Court stressed, if the defendant is barred from 

presenting testimony regarding the circumstances of his confession, he is 

“stripped of the power to describe to the jury the circumstances that 

prompted his confession, [and] the defendant is effectively disabled from 

answering the one question every rational juror needs answered: If the 

defendant is innocent, why did he previously admit his guilt?” Id.

The Court went on to acknowledge that it has a general “reluctance 

to impose constitutional constraints on ordinary evidentiary rulings by state 

trial courts,” and it emphasized that it had “never questioned the power of 

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States to exclude evidence through the application of evidentiary rules that 

themselves serve the interests of fairness and reliability.” Id. at 689–90

(emphasis added) (citing Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). 

But given the facts of the case, it had “little trouble concluding” that the 

“blanket exclusion of the proffered testimony about the circumstances of 

petitioner’s confession deprived him of a fair trial.” Id. at 690.

As the unanimous Crane Court put it, “the Constitution guarantees 

criminal defendants ‘a meaningful opportunity to present a complete 

defense.’” Id. (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). 

And it added this admonition: “That opportunity would be an empty one if 

the State were permitted to exclude competent, reliable evidence bearing on 

the credibility of a confession when such evidence is central to the 

defendant’s claim of innocence.” Id. Therefore, the Court held, “[i]n the 

absence of any valid state justification, exclusion of this kind of exculpatory 

evidence deprives a defendant of the basic right to have the prosecutor’s case 

encounter and survive the crucible of meaningful adversarial testing.” Id. at 

690–91 (citation omitted).

So that’s the bedrock rule we’re applying: The jury must be allowed 

to hear “competent, reliable evidence bearing on the credibility of a 

confession when such evidence is central to the defendant’s claim of 

innocence.” Id. at 690. And that’s the bedrock rule Lucio argues the state

court contravened.

II

In my judgment, the state court flouted Crane when it rejected Lucio’s 

complete-defense claim by excluding Dr. Pinkerman’s testimony as having 

“no relevance to the question of [Lucio’s] guilt or innocence.” In Crane, on 

materially indistinguishable facts, the Supreme Court expressly foreclosed 

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this conclusion.3 Here, as in Crane, the State’s case relied principally on the 

defendant’s inculpatory statements to argue that she committed the crime.4

If the confession was false, then the State’s case crumbles. Also here, as in 

Crane, the trial court pointed to a rule of evidence to find the testimony 

inadmissible. The Crane Court unanimously held that trial courts commit 

constitutional error when they make such a determination.

The rule again: A trial court cannot reject “competent, reliable 

evidence bearing on the credibility of a confession when such evidence is 

central to the defendant’s claim of innocence.”Crane, 476 U.S. at 690. There 

is no question that Dr. Pinkerman’s proffered testimony was “reliable” and 

“competent”—neither party, nor the court, challenged his qualifications. 

And Dr. Pinkerman’s testimony regarding the credibility of Lucio’s 

supposed confession is central to her defense. Lucio sought to argue that she 

only confessed to causing Mariah’s injuries because she suffers from 

Battered Woman Syndrome and often takes blame for things that are not her 

fault, particularly when under the control of a male figure (here, Officer 

3 Williams, 529 U.S. at 406 (explaining the key inquiry is whether the facts are 

“materially indistinguishable”); cf. Panetti v. Quarterman, 551 U.S. 930, 953 (2007) 

(“AEDPA does not require state and federal courts to wait for some nearly identical factual 

pattern before a legal rule must be applied.” (citation omitted)). The plurality opinion 

suggests that if the facts are not exactly the same, the “contrary to” exception automatically 

fails, even though there are two ways in which the “contrary to” prong can be satisfied: 

imposition of a contradictory standard (as occurred here) or a “diametrically different” 

conclusion on “materially indistinguishable” facts (which also occurred here). See 

Williams, 529 U.S. at 405.

4 For instance, the State’s closing argument stressed that it is “unbelievable” that 

Lucio caused Mariah’s other injuries—to which Lucio had confessed—but that she never 

hit Mariah in the head. Because Lucio confessed to otherwise harming Mariah, the State 

argued, “the inference is clear that she caused [the head] injuries because it’s consistent. 

It’s consistent with her behavior. It’s consistent with her pattern of conduct towards this 

child.” Lucio must have delivered the final blow.

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Escalon).5 Without Lucio’s confession, the State had no direct evidence that 

she hit Mariah in the head, causing the fatal injury. The rule in Crane is clear; 

yet the state court declined to apply it. 

Federal habeas relief isn’t for correcting run-of-the-mill state law 

errors. But it is for correcting a state court’s evidentiary ruling that violates a 

defendant’s weighty interest in meaningfully presenting to the jury her 

version of the facts, particularly the circumstances surrounding her 

“confession,” the State’s strongest piece of evidence.

Crane’s holding clearly established that a court may not exclude 

reliable testimony regarding the credibility of a confession where that 

evidence is central to the defendant’s innocence claim. Dr. Pinkerman’s 

proffered testimony was reliable. It spoke to the credibility of Lucio’s 

confession. And the credibility (or lack thereof) of Lucio’s confession was 

central to her claim of innocence. She had a constitutionally enshrined right 

to present her complete defense. And without her expert, she was 

categorically denied the ability to scientifically explain about how Battered 

Woman Syndrome played a role in her supposed confession.

5 The plurality opinion notes that Dr. Pinkerman’s affidavit concerning the 

circumstances of Lucio’s interrogation and her experience with Battered Woman 

Syndrome was not presented during the original proffer at trial. See Pl. Op. at 29, 39. But, 

as the principal dissent explains, that affidavit is not precluded from our review. The State 

conceded as much in its response to our en banc questions, stating “Cullen v. Pinholster, 

563 U.S. 170, 180 (2011), indicates that this Court may also consider Dr. Pinkerman’s 2010 

affidavit because it was part of the record in the state court.” In Cullen, the Supreme Court 

held that our review “is limited to the record that was before the state court that 

adjudicated the claim on the merits.” 563 U.S. at 181. Here, we are asking whether the 

state-court adjudication of Lucio’s complete-defense claim was contrary to clearly 

established law; therefore, we must review “the record in existence at that same time i.e.,

the record before the state court.” Id. at 182 (emphasis added). That record included Dr. 

Pinkerman’s affidavit.

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* * *

Mariah suffered appalling abuse, including at the hands of her mother. 

Lucio is not without blame. But neither is she without rights. And the Sixth 

Amendment protects Lucio’s right to put on her defense.

Sound criminal procedure must adhere to sacred first principles. The 

Supreme Court is rightly exacting in death penalty cases, and Lucio has a 

constitutional right to present a complete defense. In my view, the state court 

disregarded clearly established federal standards and ignored materially 

indistinguishable Supreme Court precedent.

With great respect, I dissent.

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HAYNES, Circuit Judge, joined by HIGGINBOTHAM, STEWART, 

DENNIS, ELROD, GRAVES, and HIGGINSON, Circuit Judges, dissenting:

Is the conclusion that evidence refuting the core of the State’s case 

against the defendant is irrelevant an unreasonable application of clearly 

established Supreme Court precedent? Yes. Period. That is the crux of why 

the district court erred in rejecting Lucio’s complete defense claim. 

Unfortunately, the plurality opinion1 drives down numerous 

backroads untraversed by the parties, basing its affirmance largely on issues 

that were never raised by either party and necessitating a lengthier response 

in this opinion. The plurality opinion makes procedural arguments on the 

State’s behalf that the State clearly (and intentionally) waived, ignoring the 

Supreme Court’s recent reminder that we are “passive instruments of 

government” that should “decide only questions presented by the parties.” 

United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (internal 

quotation marks and citation omitted). In addressing only those issues 

properly before us, I conclude that the state habeas court’s adjudication of 

Lucio’s complete defense claim with regard to expert witness Pinkerman2

involved an unreasonable application of Crane v. Kentucky, 476 U.S. 683 

(1986), and Chambers v. Mississippi, 410 U.S. 284 (1973).3

 Pinkerman’s 

1

 It is ironic that the plurality opinion claims that the dissenting opinions disagree 

with each other when, in fact, the exact same number of judges join this dissenting opinion 

(7) as join the plurality opinion (7). 

2 As the plurality opinion states, Lucio also challenges the trial court’s refusal to 

allow a different expert, Norma Villanueva, to testify. Because of my conclusions regarding 

Pinkerman, it is not necessary to examine whether the state habeas court’s adjudication of 

Lucio’s complete defense as it relates to Villanueva involved an unreasonable application 

of Crane and Chambers.

3 I address this case applying AEDPA deference because the majority of our en banc 

court (several members of our court who conclude that Lucio should prevail as well as those 

in the plurality opinion) have determined that the state habeas court did adjudicate the 

merits of Lucio’s complete defense claim. I, however, continue to subscribe to the panel 

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testimony would have explained Lucio’s tendency to take blame for 

everything that goes on in the family and refuted the State’s core “evidence” 

of Lucio’s guilt: her interrogation statement characterized by the State as her 

“confession.” The testimony thus would have “answer[ed] the one question 

every rational juror need[ed] answered” before determining Lucio’s 

innocence: “If [Lucio] is innocent, why did [s]he previously admit h[er] 

guilt?” Crane, 476 U.S. at 689. The state trial court erroneously excluded 

the testimony as irrelevant, and the state habeas court in turn unreasonably 

applied Supreme Court precedent in concluding that the exclusion did not 

violate Lucio’s right to present a complete defense. For these reasons, I 

respectfully dissent from the plurality opinion’s judgment, and I would 

reverse the district court’s order denying Lucio’s federal habeas claim and 

remand for the district court to grant Lucio relief.

I. Background

A. Factual Background4

Lucio lived in an apartment accessed by a steep exterior staircase with 

her husband, Robert Alvarez, and nine of her children. See Lucio v. State, 351 

S.W.3d 878, 880 & n.1 (Tex. Crim. App. 2011). Lucio had trouble taking care 

of her many children: Lucio’s older children were “aggressive to the point 

opinion’s conclusion that Lucio’s complete defense claim merits de novo review because 

she exhausted her claim in state court and the state court failed to adjudicate her claim on 

the merits. Under de novo review, the state trial court denied Lucio of her right to present 

a complete defense when it prevented Pinkerman from testifying. Some judges joining in 

this dissent join in this footnote; some do not. But, under either standard of review, the 

result is the same: the district court erred in denying Lucio federal habeas relief.

4 This opinion does not engage in “relitigating” facts or “weighing evidence.” 

Plurality Op. Section IV.A. The reason to include a recitation of the facts is to understand 

why the absence of evidence is critical here. The jury was deprived of key evidence to weigh: 

that is the point. 

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of becoming violent,” and Lucio had difficulty disciplining her children. 

Mariah, Lucio’s youngest, developed behavioral issues; she would hit her 

head when having tantrums. A few months later, paramedics responded to a 

call to Lucio’s home and found Mariah dead, “face up on the floor” and with 

Lucio, Robert, and a number of children nearby. Lucio told the paramedics 

that Mariah “fell down the stairs,” and Lucio was taken in by police for 

questioning.

Lucio’s interrogation on the night her daughter was found dead was 

not as straightforward as the plurality opinion suggests. See Plurality. Op. at 

3. Her interrogation was over five hours long, lasting from before 10:00 p.m. 

to after 3:00 a.m. For the first three hours, Lucio maintained that, although 

she sometimes spanked her children,she did not hit or abuse Mariah, and she 

did not know who caused Mariah’s injuries. She also described Mariah’s 

physical condition leading up to her death: Mariah was “sick” on the 

Saturday that she died and the Friday before, but Lucio did not take Mariah 

to the doctor. Mariah would not eat, and her breathing was heavy. She slept 

all day Saturday, and she would lock her teeth together when Lucio would try 

to feed her. 

More than three hours after the interrogation began, after 1:00 a.m., 

Texas Ranger Victor Escalon entered the room and told Lucio—in a long, 

mostly one-person exchange—that the officers needed her story and that 

everyone would understand if she had hurt her daughter. At that point, Lucio 

told Escalon that she wanted a cigarette and wished to talk to her husband. 

Escalon told her that she could do those things after he took her statement. 

Escalon then asked Lucio, repeatedly, to tell him “everything.” 

Lucio eventually told Escalon that she “would spank [Mariah], but 

[Lucio] didn’t think [she] would spank her, to where . . . to where it got to 

this point.” Escalon prompted Lucio for more detail, but she responded, “I 

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don’t know what you want me to say. I’m responsible for it.” At Escalon’s 

suggestion, Lucio agreed that the spanking was “all over [Mariah’s] body.” 

She maintained that she was not angry at Mariah but was “frustrated” by the 

other kids who were “very hyper,” making it difficult to take care of them 

all. She also stated that she bit Mariah one day while tickling her; she did not 

know why she did it. While making these statements, Lucio continued to 

maintain that she had not hit Mariah in the head and had only spanked her. 

Lucio also stated that no one else was responsible for Mariah’s injuries 

and that she was the only one who spanked her. 

As the interrogation progressed, Escalon identified specific bruising 

on Mariah and asked Lucio to tell him how it happened. Lucio usually 

responded that she did not know how the bruises occurred and often said she 

that did not hit Mariah in particular spots. When Escalon insisted that Lucio 

was responsible for specific bruises, she responded, “I guess I did it.” She 

suggested that some of Mariah’s other injuries, like scratches, could have 

been caused by her other daughters. For some of the bruises, Lucio said she 

was the one who caused them, and said she would sometimes spank Mariah 

when she woke up other kids. 

Escalon then had Lucio take a break at 1:22 a.m. After the break, 

officers took DNA samples from Lucio, then took another break. 

At 3:00 a.m., Escalon resumed the interrogation. He brought in a doll 

to have Lucio show him how she bit and spanked Mariah. When Lucio was 

showing Escalon how she bit Mariah, Escalon asked if she was angry at 

Mariah. She said no, explained that she was frustrated with the other kids, 

and described how she bit Mariah after she finished brushing Mariah’s hair. 

When asked why she bit Mariah, Lucio said, “I just did it.” Escalon then 

asked Lucio to show how she spanked Mariah. When she demonstrated, 

Escalon told her, “Well do it real hard like . . . like you would do it.” When 

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she said that her demonstration was how hard she spanked Mariah, Escalon 

himself performed what he thought was a hard spank and had Lucio 

demonstrate again. He identified several sets of bruises and had her spank 

the doll in those areas to demonstrate how she would have spanked Mariah. 

At Lucio’s trial for capital murder, the State’s theory of the case 

depended on two critical points. First, the State sought to prove that 

Mariah’s death was caused by a fatal blow to the head that could not have 

been sustained from Mariah falling down the stairs, using a forensic 

pathologist who testified that a fall would not have caused the injuries in 

question. 

Second, the State used Lucio’s “confession” to support the 

conclusion that she killed Mariah. The State introduced the videos of 

Lucio’s interrogation the first day of trial; the state court admitted the videos 

into evidence and they were immediately played for the jury. The State later 

put Escalon on the stand, and he testified about Lucio’s demeanor during the 

interrogation. Escalon described Lucio’s demeanor as indicating that she 

was saying, “I did it.” During its closing argument, the State characterized 

Lucio’s admission as a “confession” that proved beyond a reasonable doubt 

that Lucio killed Mariah. The State emphasized that Lucio “did make the 

statement and the statement that she made was the true and correct 

statement at the end. She admitted it. She admitted that she caused all of 

the injuries to that child.” The State also highlighted Lucio’s demeanor 

during the interrogation, rhetorically asking why she would look or act a 

certain way if all she did “was physically beat the child, but didn’t cause the 

death.” It also referenced Escalon’s testimony that Lucio’s demeanor 

indicated she was “hiding the truth.” 

Lucio tried to defend against both points. First, she called a 

neurosurgeon who testified that the blunt force trauma causing Mariah’s 

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death could have resulted from falling down stairs. During closing 

arguments, Lucio’s counsel argued that the State failed to overcome 

reasonable doubt because evidence indicated that Mariah’s fatal injury could 

have resulted from falling down stairs. 

Second, Lucio wanted to present two expert witnesses to testify that 

her supposed confession was not trustworthy, but the state trial court did not 

let them testify. One of the experts was Dr. John Pinkerman, a psychologist 

who would have testified about Lucio’s psychological issues that cause her to 

take “blame for everything that goes on in the family.”5

 He formed his 

opinion after reviewing the interrogation tapes, meeting with Lucio on four 

occasions, reviewing her history, and administering various psychological 

tests to her. The state trial court prevented Pinkerman from testifying, not 

due to any lack of qualifications as an expert but because the judge considered 

the testimony irrelevant because Lucio “denied ever having anything to do 

with the killing of the child.” The state trial court permitted Pinkerman to 

submit a bill of particulars, but the judge left the courtroom after swearing 

Pinkerman in, not waiting to listen to Pinkerman’s proffer.

Beyond her medical expert and the two excluded experts, Lucio called 

one defense witness and recalled one of the State’s witnesses. Lucio’s 

defense witness was her sister, Sonia Chavez, who testified that Lucio “never 

disciplined her children.” The recalled witness was Joanne Estrada, a child 

protective services worker. Estrada was asked about whether she had 

reviewed documents that showed that Mariah had tantrums while in foster 

care and had hit her head on the floor. Estrada testified that she had not come 

5 The other expert was Norma Villanueva, a licensed social worker with graduate 

education, who would have testified about why Lucio “would have given police [officers] 

information . . . that was not correct” to show that Lucio “admits to things that she didn’t 

do.” 

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across anything in Lucio’s file that showed she was “physically abusive to 

any of the children.” Lucio presented no other witnesses. 

In closing argument, the State, citing only Lucio’s interrogation 

statements as evidence, contended that Lucio must have killed Mariah 

because she abused her. It argued that “there [wa]s no reasonable doubt that 

[Lucio] killed that little girl” because the jury had “[h]er confession.” 

Ultimately, Lucio was convicted and sentenced to death. 

B. Subsequent Appeals & Petitions For Post-Conviction Relief

Lucio appealed her conviction, raising several points of error, but the 

Texas Court of Criminal Appeals affirmed. Lucio, 351 S.W.3d at 910. On 

appeal, the State’s argument continued to rely on Lucio’s interrogation. In 

responding to Lucio’s sufficiency of the evidence challenge, the State argued 

that a “jury could have reasonably concluded that [Lucio] was responsible 

for delivering the fatal blow to Mariah’s head, as she had the opportunity to 

do so, and she had admitted to a pattern of abuse that had continued for some two 

months.” Id. at 894–95 (emphasis added) (cleaned up). The Texas Court of 

Criminal Appeals accepted that argument. Id. at 895.

Lucio also claimed that the trial court’s exclusion of Pinkerman’s 

testimony violated her “constitutional right to present evidence before the 

jury as to the circumstances under which [a] confession is taken.” She cited 

Crane for the proposition that a jury is “entitled to know about the 

circumstances under which [a] statement was given . . . so that [it] could 

assess the voluntariness of the statement.” The Texas Court of Criminal 

Appeals rejected Lucio’s challenge for two reasons: (1) Lucio’s “claim on 

appeal as to what Pinkerman’s testimony would have been d[id] not comport 

with what the trial attorney claimed . . . he was offering it for,” and 

(2) Pinkerman’s proffered testimony “had little, if any, relevance to a jury’s 

voluntariness determination under state law.” Id. at 902.

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After Lucio lost on direct appeal, she sought state habeas relief. As 

with her direct appeal, she raised several arguments, including the argument 

that Pinkerman’s testimony should have been admitted. This time, though, 

she distinguished her argument as going “to the core of the case—whether 

[Lucio] was likely to have engaged in ongoing abuse of Mariah.” She stated 

that the issue was the deprivation of “the constitutional right to present a 

complete defense,” and cited a state law case that relied on the U.S. 

Constitution for that right. Lucio also argued that her trial counsel provided 

ineffective assistance of counsel (“IAC”). Her habeas application offered a 

post-trial affidavit from Pinkerman as support. The state habeas court 

rejected all of Lucio’s claims. It concluded that her complete defense claim 

was “nearly identical to [the issues] raised on direct appeal,” and the 

additional evidence she presented did not demonstrate that she was entitled 

to relief. The state habeas court also concluded that the trial court “did not 

abuse its discretion in excluding” Pinkerman’s testimony. His testimony, 

the state habeas court reasoned, “had no relevance to the question of 

[Lucio’s] guilt or innocence.” 

Lucio appealed the state habeas court’s decision. The Texas Court of 

Criminal Appeals adopted the habeas court’s findings of fact and conclusions 

of law. It noted that some of the issues Lucio raised were procedurally barred, 

but it did not list her complete defense claim among them. 

Lucio then petitioned for federal habeas relief under 28 U.S.C. § 2254 

in federal district court and reasserted the complete defense claim she had 

raised before the state habeas court. The district court rejected the claim. It 

considered Pinkerman’s testimony to be “only tangentially related to the 

question of Lucio’s guilt or innocence” and noted that the “evidence that 

anyone but Lucio inflicted the fatal injuries is tenuous at best.” 

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Lucio filed a timely notice of appeal, and we granted her a Certificate 

of Appealability (“COA”) on her complete defense claim. See Lucio v. Davis, 

783 F. App’x 313, 319 (5th Cir. 2019) (per curiam). A panel of this court 

reversed the district court’s order denying her habeas petition on those 

grounds. Id. at 325. We granted en banc rehearing. Lucio v. Davis, 947 F.3d 

331 (5th Cir. 2020) (mem.). 

II. The Issue Presented on Appeal

The issue on appeal is whether the district court erred in its 

adjudication of Lucio’s complete defense claim. Before addressing the 

merits, I first explain what Lucio’s complete defense claim is and explain 

why, contrary to the plurality opinion’s contention, there are no other issues 

on appeal. 

A. Lucio’s Complete Defense Claim

Lucio’s complete defense claim is that her “right to present a 

complete defense [wa]s violated by the exclusion of [Pinkerman’s testimony] 

pursuant to a state evidentiary rule that categorically and arbitrarily prohibits 

[her] from offering otherwise relevant, reliable evidence that is vital to h[er] 

defense.” She cites Wiley v. State, 74 S.W.3d 399, 406–07 (Tex. Crim. App. 

2002), to support her claim. Lucio claims that Pinkerman would have 

testified to Lucio’s abuse and tendency to take blame for everything. She 

claims that Pinkerman’s testimony would have attacked a key part of the 

State’s case—that she physically abused Mariah—and was therefore vital to 

her defense. In other words, Lucio argues that the state trial court “stripped 

[her] of the power to describe to the jury the circumstances that prompted 

h[er] confession” and “effectively disabled” her from challenging the 

trustworthiness of her custodial confession that was on “every rational 

juror[’s]” mind when they decided her guilt. See Crane, 476 U.S. at 689.

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Lucio’s complete defense claim has not changed since Lucio first 

raised it in state habeas court.6 She argues that, if the state habeas court 

adjudicated her complete defense on the merits, then the state habeas court’s 

holding was “an unreasonable application of the substantially similar 

decisions of Chambers and Crane.”7

The plurality opinion contends that Lucio’s mere “flagging” of Wiley, 

which cites the U.S. Constitution, is insufficient to raise a federal claim and, 

therefore, is nothing more than an invitation for us to second-guess the state 

court on the rules of evidence. Plurality Op. at 31. But Lucio did much more 

than cite Wiley: she clearly stated that “[t]he trial court deprived [her] of the 

constitutional right to present a complete defense”—which Texas does not 

appear to recognize or reject—and she did not mention state evidentiary 

6 The plurality opinion states that it “is an undisputed proposition” that Lucio 

changed her complete defense claim over time. Plurality Op. at 45. The record proves that 

proposition false. Lucio’s complete defense claim—first raised in state habeas court—has 

not changed. In state habeas court, Lucio argued that the state trial court deprived her “of 

the constitutional right to present a complete defense when it excluded the testimony of 

defense experts during the guilt/innocence phase of trial.” In her federal habeas petition 

in district court, Lucio argued the same: that the state trial court violated her right to 

present a complete defense when it “Excluded the Testimony of Her Defense Experts 

During the Guilt/innocence Phase of Trial.” In her request for a COA from us, Lucio 

alleged that it was “debatable that [she] was deprived of her due process right to present a 

defense when the trial court excluded the testimony of defense expert witnesses at the 

guilt/innocence phase of the trial.” In her panel briefing, Lucio claimed that the trial court 

violated her right to present a complete defense because Pinkerman’s testimony would 

have challenged the credibility of her incriminating statement. She made the same claim in 

her en banc briefing. This case is therefore distinguishable from Rose v. Lundy, 455 U.S.

509 (1982), which the plurality opinion cites for the proposition that defendants cannot

“attempt[] to broaden [a state court] claim” in federal court; Lucio has repeatedly made 

the same claim, over and over, in every post-conviction setting. See Plurality Op. at 45.

7 Lucio also argues that the state habeas court’s adjudication was contrary to 

Chambers, Crane, and Green v. Georgia, 442 U.S. 95 (1979) (per curiam), and based on an 

unreasonable determination of the facts. Because the relevance determination turns on the 

facts as set forth herein, I do not address this issue separately.

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rules or standards to support her claim. Thus, Lucio does not ask us to act as 

a state court examining state evidentiary rules. Indeed, the State agrees that 

this complete defense claim is the issue before us today. 

The plurality opinion also contends that “Lucio adamantly insisted 

that her state habeas claim did not involve Crane” and thus her complete 

defense claim cannot implicate the case, either. Plurality Op. at 30. As 

explained above, Lucio cited Crane in her direct appeal for the proposition 

that a jury is “entitled to know about the circumstances under which [a] 

statement was given . . . so that [it] could assess the voluntariness of the 

statement.” In state habeas proceedings, Lucio clarified that herstate habeas 

complete defense claim did not concern the voluntariness of her confession, 

which was her point on direct appeal. But this distinction does not mean that 

we cannot consider Crane when assessing Lucio’s complete defense claim; a 

case can support multiple, different arguments. 

To see why this one does, it is worth taking a look at the case itself. In 

Crane, the Supreme Court reiterated that due process “requires that a jury 

not hear a confession unless . . . it was freely and voluntarily given.” 476 U.S. 

at 687–88 (internal quotation marks, alteration, and citation omitted). That 

due process requirement was relevant to Lucio’s argument on direct appeal. 

But the Crane Court also held that “the Constitution guarantees criminal 

defendants a meaningful opportunity to present a complete defense.” 476 

U.S. at 690 (internal quotation marks and citation omitted). That point 

supports Lucio’s state habeas claim. The reality that this second aspect of 

Crane is at play here appears to shock only the plurality opinion; again, the 

State understands that Lucio’s complete defense claim may implicate the 

case. 

Lastly, the plurality opinion contends that Lucio whipsawed the state 

courts with her complete defense claim because Pinkerman never proffered 

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at trial about the credibility of Lucio’s interrogation statements. Plurality Op. 

at 34–35. But how could he have done so? The trial judge chose to leave and 

not hear the proffer, having already concluded that Pinkerman’s testimony 

was “irrelevant” regardless. 

The plurality opinion tries to nuance its whipsawing point by 

highlighting that Pinkerman signed an expert report before he was called to 

testify and the report never “hint[ed] that any of [Lucio’s interrogation] 

statements were false.” Plurality Op. at 35. But the whole point of 

Pinkerman’s testimony was to contextualize Lucio’s statements as potentially 

influenced by Escalon’s questioning: the report observed that “[i]n times of 

significant stress, [Lucio] withdraws into simpler, concrete, unrealistic and 

constricted functioning marked by passivity, denial, acquiescence and 

resignation[,]” which is likely attributable to her experience with abuse. In 

that regard, the report noted that Lucio “tune[d] out” Escalon when he 

“raise[d] his voice” but then “eventually respond[ed] with resignation.” 

The report thus corresponds to the reason why Lucio’s trial counsel sought 

to introduce Pinkerman: it tended to show that Lucio would “take[] blame 

for everything that goes on in the family,” including potentially covering for 

her husband, other children, or Mariah herself. 

The plurality opinion further contends that Pinkerman’s mitigation 

testimony failed “to hint[] that any of [Lucio’s] statements were false.” 

Plurality Op. at 35. Mitigation testimony comes after a jury has decided on a 

defendant’s guilt. So, of course, Pinkerman’s mitigation testimony did not 

concern Lucio’s innocence (i.e., that Lucio likely made false statements in 

her interrogation). Indeed, when asked by the State whether he was testifying 

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that Lucio did not harm her child, Pinkerman responded that he was not 

“address[ing] the causation.”8 There was no whipsawing.

In sum, the question we have been asked to answer is whether the state 

trial court violated Lucio’s constitutional right to present a complete defense 

when it excluded Pinkerman’s testimony about her propensity to take blame 

for everything from the guilt/innocence stage. To the extent that we evaluate 

this question under AEDPA deference, the question becomes whether the 

state habeas court’s exclusion of Pinkerman’s testimony about her 

propensity to take blame for everything was an unreasonable application of 

Crane and Chambers.

 B. Issues Raised Sua Sponte by the Plurality Opinion

The plurality opinion bases its affirmance on the complete defense 

issue largely on four issues that were never raised by either party. The State 

has waived all four arguments and so our court should not consider them.

First, the plurality opinion contends that Lucio defaulted on her claim 

because she failed to raise it to the state trial court. See Plurality Op. at 18–

19. In particular, it asserts that Pinkerman’s bill of particulars was lacking in 

detail about the psychological pressure Lucio felt when she made her 

interrogation statements. See Plurality Op. at 19. On direct appeal, when 

Lucio made no IAC claim, the State argued this point. It argued that 

Pinkerman’s proffer was “broad and general,” referring to only “the 

8 Specifically, the State asked: “were you under the understanding that someone 

else harmed her and all she did was failed to protect her?” Pinkerman responded: “No. 

Again, I didn’t address the causation. What I’m trying to think that any mother would have 

looked to that pattern of abuse—and in a normal situation, a normal mother would have 

protected the child.” 

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characteristics and makeup of [Lucio’s] psychological functioning” and her 

demeanor. 

But the State intentionally waived this procedural default in state 

habeas court. Why? Well, in those proceedings, Lucio raised an IAC claim 

that her trial counsel had provided ineffective assistance by failing to 

adequately utilize Pinkerman; Lucio claimed that Pinkerman “could have 

assisted trial counsel in developing evidence that [her] history provided ‘little 

support for the idea that [she] physically abused her children’ to support the 

defense theory during guilt/innocence.” The State clearly made a strategic 

call not to reassert any failures in Pinkerman’s bill of particulars because 

doing so would effectively concede the legitimacy of Lucio’s IAC claim. The 

State instead went in a different direction, arguing that Pinkerman’s bill of 

particulars “indicated that he would testify as to . . . how there was little 

support in the ‘historical record’ for the idea that [Lucio] physically abused 

her children, that she suffered from battered woman syndrome, and the 

meaning of her demeanor after the incident and during questioning.” Given 

the switch in argument, it is plain that the State has waived its procedural 

default argument in these federal habeas proceedings.

Second, the plurality opinion contends that, to the extent that Lucio’s 

direct appeal claim is “nearly identical” to Lucio’s complete defense claim, 

Lucio’s complete defense claim is procedurally barred because Lucio failed 

to raise her claim in state trial court. See Plurality Op. at 13, 19. But the State 

also waived this procedural default. If, as the plurality opinion contends, 

Lucio’s complete defense claim from state habeas is the same as her claim on 

direct appeal, see Plurality Op. at 19, then the State’s response in state habeas 

proceedings to Lucio’s complete defense claim could have been one 

sentence: As the Texas Court of Criminal Appeals held, Lucio’s complete 

defense claim is procedurally barred because she failed to raise it in state trial 

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court. The State’s response was nothing of the sort, and the State has never 

brought the issue up in any later proceeding.

Third, the plurality opinion contends that Lucio’s claim is 

procedurally barred because the state habeas court held that she had 

attempted to raise the same argument from direct appeal in her state habeas

proceeding. See Plurality Op. at 13, 20. But the state habeas court did not 

come to that conclusion. What it did was observe that Lucio’s complete 

defense claim was “nearly identical” to her direct appeal claim and that it 

thus did not have to relitigate it. But, because “additional evidence,” here, 

Pinkerman’s affidavit, “may warrant relief even when the issue was raised on 

direct appeal,” the state habeas court did not rely on a procedural bar. 

Consistent with that reading, the Texas Court of Criminal Appeals, in 

adopting the state habeas court’s findings and conclusions, determined that 

the state habeas court did not hold Lucio’s complete defense claim as 

procedurally barred. What’s more, the State has waived this putative 

procedural bar, too. Indeed, the State (which drafted this exact finding of 

fact and conclusion of law on this point for the state habeas trial court) has 

explicitly argued to the contrary, stating in its en banc brief: “The state court 

did not deny Lucio’s complete-defense claim on procedural grounds.” 

Fourth, the plurality opinion states that Pinkerman’s post-trial 

affidavit cannot be considered because it was not before the Texas Court of 

Criminal Appeals on direct appeal. See Plurality Op. at 29–30. Not only did 

the State again waive this argument, but it did so expressly and unequivocally 

in response to our court’s direct question. In response to our en banc Q&A—

“whether we may also consider Dr. Pinkerman’s 2010 affidavit . . . in 

deciding whether exclusion of his guilt phase testimony was an unreasonable 

application of clearly established Supreme Court precedent”—the State 

answered, “Yes, . . . Cullen v. Pinholster, 563 U.S. 170, 180 (2011), indicates 

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that this Court may also consider Dr. Pinkerman’s 2010 affidavit because it 

was part of the record in the state court.” 

Even if the State had not clearly waived these arguments (which, as 

discussed, it did), the plurality opinion errs in making these four procedural 

holdings sua sponte. As the Supreme Court recently reminded the circuit 

courts: “In our adversarial system of adjudication, we follow the principle of 

party presentation.” Sineneng-Smith, 140 S. Ct. at 1579 (citation omitted). 

Thus, “in both civil and criminal cases, in the first instance and on appeal 

. . . , we rely on the parties to frame the issues for decision and assign to courts 

the role of neutral arbiter of matters the parties present.” Id. (quotation 

omitted). Departures from this principle are usually only warranted in 

criminal cases when doing so would “protect a pro se litigant’s rights.” Id.

(quotation omitted). This is not one of those cases; Texas is the largest state 

in our circuit and our second-biggest litigant. Its Attorney General’s office is 

chock-full of excellent attorneys who do nothing but habeas work. This court 

should not be making arguments on the State’s behalf, especially in a capital 

case.

If the Supreme Court’s admonition were not enough, our precedent 

also restrains us from doing so in this very context. When dealing with 

procedural bars, we have held that “even if we do have discretion in some 

circumstances to apply the procedural bar where the state has waived the 

defense[,] . . . we will not exercise such discretion” when: 

(1) “the habeas petitioner has [not] been given notice that 

procedural default will be an issue for consideration,” and

(2) “the petitioner has [not] had a reasonable opportunity to argue 

against the application of the bar;” or

(3) “the state intentionally waived the defense.”

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Fisher v. Texas, 169 F.3d 295, 301–02 (5th Cir. 1999).9 Here, deciding Lucio’s 

fate on procedural bars that the State never raised denies Lucio notice and a 

reasonable opportunity respond. Further, the State intentionally waived 

three of these procedural default arguments.

The issue with the plurality opinion’s sua sponte holdings is not 

merely academic: had the State taken a different tactic in the state habeas 

proceeding and beyond, then Lucio would have had an excellent IAC claim. 

Instead, the state habeas court denied that claim, as did the federal district 

court, and we denied a COA. If we are going to ignore the Supreme Court’s 

admonition in Sineneng-Smith, step in on our own initiative, and decide to 

redo the State’s strategic decisions to make the focus on whether the trial 

attorney properly presented a bill of particulars, well, then, we need to start 

over on the IAC issue too. If Lucio is to be executed because her lawyer did 

not make a perfect bill of particulars, that certainly sounds like she suffered 

ineffective assistance and prejudice.

Rather than decide this case on procedural arguments that the State 

itself has waived and that Lucio had no idea we would raise on our own, I 

9 Indeed, we have yet to apply a procedural bar sua sponte in a habeas case when 

the petitioner lacked notice and a reasonable opportunity to respond or when the State 

intentionally waived the defense. See, e.g., Fisher, 169 F.3d at 302 (declining to apply a 

procedural bar sua sponte because petitioner lacked notice and had no reasonable 

opportunity to respond). But see, e.g., Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) 

(applying a procedural bar sua sponte because petitioner was given notice and an

opportunity to respond and the State did not intentionally waive the defense); Smith v. 

Johnson, 216 F.3d 521, 524 (5th Cir. 2000) (per curiam) (concluding that it was appropriate 

to apply a procedural bar sua sponte because petitioner had notice and an opportunity to 

respond and the State did not intentionally waive the bar); Magouirk v. Phillips, 144 F.3d 

348, 360 (5th Cir. 1998) (holding that the federal district court did not abuse its discretion 

in raising a procedural default sua sponte because petitioner had notice and a reasonable 

opportunity to respond and the State did not intentionally waive the defense). The plurality 

opinion does not explain why we should reject this clear precedent as to when it is 

appropriate to raise procedural default issues sua sponte.

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respectfully submit that we should address the one issue that is actually

before us—Lucio’s complete defense claim raised in state habeas court—

based on the entire state record. Accordingly, I proceed to address the merits 

of Lucio’s complete defense claim.

III. Discussion

To prevail on her complete defense claim, Lucio must satisfy the 

statutory requirements of the Antiterrorism and Effective Death Penalty Act 

of 1996 (“AEDPA”). Under AEDPA, we review Lucio’s complete defense 

claim de novo if (1) Lucio exhausted her claim in state court, 28 U.S.C. 

§ 2254(b), and (2) the state court failed to adjudicate that claim on the merits, 

28 U.S.C. § 2254(d). See also Johnson v. Williams, 568 U.S. 289, 303 (2013). 

If the petitioner failed to present a federal claim in state court, then the claim 

is dismissed. If the petitioner did present a federal claim in state court and 

the state court adjudicated the claim on the merits, then AEDPA’s 

deferential standard under § 2254(d) applies. 

Under § 2254(d), relief will not be granted unless the state court’s 

adjudication of the federal claim was “contrary to . . . clearly established 

Federal law, as determined by the Supreme Court,” “an unreasonable 

application of” that law, or “was based in an unreasonable determination of 

the facts in light of the evidence presented in the State court proceeding.” 

28 U.S.C. § 2254(d)(1), (2).

The plurality opinion holds that AEDPA deference applies, see

Plurality Op. at 21, and that Lucio’s complete defense claim fails to satisfy 

§ 2554(d), Plurality Op. at 21–41. As mentioned above, several of the judges

joining in this dissenting opinion concur in the now-vacated panel’s 

viewpoint that the state habeas court failed to adjudicate Lucio’s complete 

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defense on the merits.10 However, because the majority of the en banc court 

has ruled that Lucio’s complete defense claim has been exhausted and 

adjudicated on the merits, I address her claim under AEDPA deference.11 

Even under AEDPA’s deferential standard of review, however, the state 

habeas court’s adjudication of Lucio’s complete defense claim “involved an 

unreasonable application of” Crane and Chambers. See 28 U.S.C. 

§ 2554(d)(1). First, I will summarize those cases, and then I will discuss why 

the state court’s determination is an unreasonable application of those key 

precedents.

A. Crane 

In Crane, the Supreme Court recognized that “the Constitution 

guarantees criminal defendants a meaningful opportunity to present a 

complete defense,” and held that such an “opportunity would be an empty 

one if the State were permitted to exclude competent, reliable evidence 

bearing on the credibility of a confession when such evidence is central to the 

defendant’s claim of innocence.” 476 U.S. at 690 (internal quotation marks 

and citations omitted). The Court thus concluded that the state court’s 

10 Those of us who adhere to this viewpoint would, absent the en banc conclusion 

to the contrary, conclude that the state habeas court failed to adjudicate Lucio’s complete 

defense claim on the merits because it erroneously determined that Lucio raised a state 

evidentiary challenge and rejected that claim based on state evidentiary standards. There 

is a rebuttable presumption that state courts have rejected a claim on the merits if a written 

order is silent regarding a claim. See Williams, 568 U.S. at 300–01. But Lucio rebuts this 

presumption because the state evidentiary standard is “less protective” than the federal 

standard for a complete defense claim. Id. at 301; see Wiley, 74 S.W.3d at 405 (recognizing 

that a complete defense claim asserts that the exclusion of “otherwise relevant, reliable 

evidence” precluded the defendant from presenting a defense).

11 Granted, if the state habeas court’s decision on Lucio’s complete defense claim 

was error under AEDPA deference, then it was also error under de novo review. Thus, 

there is nothing inconsistent, as the plurality opinion contends, about applying arguendo a 

more deferential standard of review when Lucio should prevail either way. 

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exclusion of testimony related to the “environment” in which the police 

secured the defendant’s confession violated the defendant’s right to present 

a complete defense. Id. at 691. 

The underlying proceedings in the case bring the issue into focus. In 

particular, the state court had excluded the testimony because it “related 

solely to [the] voluntariness” of the defendant’s confession and state 

evidence rules prohibited relitigation of a trial court’s pretrial voluntariness 

determination. See id. at 686–87 (citation omitted). Given its voluntariness 

holding, the state court further held that the testimony “did not relate to the 

credibility of the confession.” Crane v. Kentucky, 690 S.W.2d 753, 755 (Ky. 

1985).

The Supreme Court disagreed with the state court’s separation of 

those concepts, taking issue with its holding “that evidence bearing on the 

voluntariness of a confession and evidence bearing on its credibility f[e]ll in 

conceptually distinct and mutually exclusive categories.” Crane, 476 U.S. at 

687. It reiterated its precedent that “evidence surrounding the making of a 

confession bears on its credibility as well as its voluntariness.” Id. at 688 

(internal quotation marks and citation omitted). The Court thereby held that 

evidence on the circumstances of Crane’s confession was particularly 

relevant because Crane’s “entire defense was that there was no physical 

evidence to link him to the crime and that, for a variety of reasons, his earlier 

admission of guilt was not to be believed.” Id. at 691. Therefore, the Court 

concluded it was “plain that introducing evidence of the physical 

circumstances that yielded the confession was all but indispensable to any 

chance” of Crane’s defense succeeding. Id. The evidence would help 

answer “the one question every rational juror needs answered: If the 

defendant is innocent, why did he previously admit his guilt?” Id. at 689. In 

other words, the Court held that the evidence was indispensable to Crane’s 

defense. 

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Further, in holding that the state court violated Crane’s right to 

present a complete defense, the Court determined that it was not a case 

where the state court excluded the evidence for “fairness [or] reliability” 

issues. Id. at 690. The state court failed to “advance[] any rational 

justification for the wholesale exclusion of this body of potentially 

exculpatory evidence.” Id. at 691.

B. Chambers 

In Chambers, the Supreme Court held that the exclusion of hearsay 

evidence under a state hearsay rule and the refusal to allow the defendant to 

cross-examine a key witness under a state voucher rule violated the 

defendant’s right to present a complete defense. 410 U.S. at 302–03.

The facts of the case illustrate the contours of its rule. Chambers and 

three of his friends (James Williams, Berkley Turner, and Gable McDonald) 

were involved in a shooting, for which Chambers was convicted of murder. 

Id. at 285–87. At his trial, Chambers sought to prove that he did not shoot 

the victim but that McDonald did. Id. at 289. Chambers called McDonald 

as a witness to testify that McDonald had written a confession stating that he 

shot the victim. Id. at 291. On cross-examination, the State elicited from 

McDonald that he repudiated his prior confession. Id. When Chambers 

attempted to examine McDonald as an adverse witness, the state court 

denied Chambers’s request under the state “voucher” rule that prevented 

him from impeaching his own witness. Id. at 291, 295. To challenge 

McDonald’s renunciation of his prior confession, Chambers then sought to 

introduce testimony from three witnesses to whom McDonald had admitted 

shooting the victim. Id. at 292. All three witnesses were prevented from 

testifying under state hearsay rules. Id. at 292–93, 295. 

In sum, Chambers was prevented from presenting evidence that 

McDonald shot the victim. Id. at 294. Such evidence, the Court held, was 

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“critical to Chambers’ defense.” Id. at 302. The Court also held that the 

state court’s reason for its evidentiary decisions were irrational, taking issue 

first with the voucher rule in its entirety as an “archaic, irrational” rule that 

was “potentially destructive of the truth-gathering process.” Id. at 296 n.8. 

The state court’s application of the hearsay rules was also irrational: the 

hearsay statements, the Court concluded, were “well within the basic 

rationale of the exception for declarations against interest” and therefore had 

a “considerable assurance of their reliability.” Id. at 300, 302. Because the 

evidence was vital to Chambers’s defense and the state court’s reasons for 

excluding the testimony were irrational, the Supreme Court held that the 

state court violated Chambers’s right to present a complete defense.

C. Application of Crane and Chambers to Lucio

“A state court’s decision constitutes an unreasonable application of 

clearly established federal law if it is ‘objectively unreasonable.’” Gray v. 

Epps, 616 F.3d 436, 439 (5th Cir. 2010) (citing Williams v. Taylor, 529 U.S. 

362, 409 (2000)). “The court may grant relief under the ‘unreasonable 

application’ clause if the state court correctly identifies the governing legal 

principle from our decisions but unreasonably applies it to the facts of the 

particular case.” Bell v. Cone, 535 U.S. 685, 694 (2002) (citation omitted). 

Lucio satisfies this high threshold.

The Supreme Court in Crane and Chambers made clear that a state 

court violates a defendant’s right to present a complete defense if (1) the 

excluded evidence was critical to the defense, Crane, 476 U.S. at 689, 691; 

Chambers, 410 U.S. at 302, and (2) the state court failed to provide a rational 

justification for its exclusion, Crane, 476 U.S. at 689, 690–91; Chambers, 410 

U.S. at 296 & n.8, 302. Here, Pinkerman’s testimony was critical to Lucio’s 

defense because it was the centerpiece of her attempt to challenge the 

trustworthiness of her interrogation statement. Moreover, the state trial 

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court provided no reason why the testimony was irrelevant and all indications 

are to the contrary, making its exclusion irrational.

1. Pinkerman’s Testimony Critical to Lucio’s Defense

Pinkerman would have testified that Lucio “takes blame for 

everything that goes on in the family. . . [and] for everything that goes on in 

the house.” That tendency had implications for her interrogation: it was 

Pinkerman’s “professional opinion [that Lucio’s] psychological 

characteristics increase[d] the likelihood she would acquiesce while 

providing her confession.” In other words, Pinkerman would have testified 

that Lucio’s interrogation statement, including her abuse of Mariah, posed 

“serious questions” about its validity. 

Pinkerman’s excluded testimony was indispensable to Lucio’s 

defense because it rebutted the State’s most critical evidence of Lucio’s guilt: 

Lucio’s interrogation statement.12 The State presented no physical evidence 

or witness testimony establishing that Lucio abused Mariah or any of her 

children, let alone killed Mariah. Instead, it used Lucio’s interrogation 

statement as its crucial source of proving she committed the act. In closing 

argument, the State contended that Lucio must have killed Mariah because 

she abused her. The only evidence it cited in closing to establish that Lucio 

abused her was Lucio’s “confession.” On appeal, when the State argued that 

12 The plurality opinion suggests that the State had Lucio’s phone call to her sister 

as additional evidence of her guilt. See Plurality Op. at 12. But that was not part of the 

State’s argument at trial. See supra Section I.A. Indeed, the State made no mention of 

Lucio’s conversations with her sister in its closing argument. As Lucio’s trial counsel 

noted: “This whole case revolve[d] around th[e] video.” 

The State also argues that Pinkerman’s testimony was not indispensable because 

Lucio could have presented “fact witnesses to testify about her body language, her 

propensity to take blame, or any other issue.” But that is exactly what Pinkerman sought 

to testify about and, as explained below, the state habeas court provided no rational 

justification for excluding Pinkerman’s testimony.

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the evidence was sufficient to convict Lucio, it again relied on the assertion 

that Lucio “admitted to a pattern of abuse.” See Lucio, 351 S.W.3d at 894–

95. In short, the interrogation statement played a pivotal role in the State’s 

case. 

If the interrogation statement is taken away—or its validity is 

undermined—then the State’s case becomes much more tenuous, 

demonstrating both its criticality and the irrationality of excluding 

Pinkerman’s contextualizing testimony as “irrelevant.”13 A reasonable juror 

would have much less reason to assume that Lucio—rather than her husband, 

other children, or Mariah herself—caused Mariah’s injuries. To the extent 

that there was evidence beyond Lucio’s statement that implicated her—such 

as opportunity based upon being Mariah’s primary caretaker—it pales in 

comparison to the force of an alleged confession. Thus, as critical as that 

evidence was to the State, explaining why it could not be trusted was just as 

critical to Lucio’s defense.14 

13 The State’s best alternate evidence is a statement from a police officer that, after 

Lucio’s arrest and while the officer was driving, Lucio used the phone to call her sister. 

According to the officer, Lucio told her sister, “Don’t blame, Robert. This was me. I did 

it. So don’t blame Robert.” But this phone statement could well have stemmed from 

Lucio’s tendency to take blame for everything in the family, which the excluded expert 

evidence was intended to addressed. Further, this evidence does not come close to the 

power of Lucio’s interrogation statements, which went unchecked. The officer’s 

statement is also subject to attack. For example, he did not create a log of the incident until 

the month before trial, nearly sixteen months after Lucio allegedly made the statement. 

The statement also lacks context, which makes it less reliable.

14 The plurality opinion claims that “the trial court permitted Lucio’s sister to 

testify about Lucio’s . . . tendency to take the blame for things she did not do,” but provides 

no support for this claim. Plurality Op. at 26. Nor could it; Lucio’s sister said nothing at 

all about Lucio’s tendency to take the blame for anything. 

In addition, the plurality opinion and the State argue that Pinkerman’s testimony 

was not vital to Lucio’s defense because Pinkerman’s testimony at the mitigation stage 

never hinted that Lucio’s statements could not be trusted. Plurality Op. at 35–36. But, as 

explained supra Section II.A., Pinkerman’s mitigation testimony holds no bearing on 

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In sum, the indispensability of Pinkerman’s testimony to Lucio’s 

defense is on par with the excluded evidence at issue in Crane and Chambers. 

Like Crane’s excluded evidence, Pinkerman’s testimony related to the 

credibility of Lucio’s confession. See Crane, 476 U.S. at 688. Like 

Chambers’s excluded evidence, Lucio had no other means to present 

evidence to refute the State’s reliance on her interrogation statement. 

Chambers, 410 U.S. at 294. Thus, Pinkerman’s testimony was “all but 

indispensable to any chance of [Lucio’s] succeeding.”15 Crane, 476 U.S. at 

691. Moreover, as in Crane, the credibility of Lucio’s “confession” was the 

focus of the jury’s question as to her guilt. See id. at 689. Without 

Pinkerman’s testimony as to why Lucio would have confessed to abusing her 

daughter if she did not actually do so, the “question every rational juror 

need[ed] answered”—if she was innocent, why did she say all those things 

during her interrogation?—was left unaddressed. Id. Consequently, 

Pinkerman’s excluded testimony was vital for Lucio’s defense.

2. State Trial Court’s Unreasonable Application

The exclusion of Pinkerman’s testimony bears hallmark signs of 

irrationality such that the state court’s ruling was an unreasonable 

application of Supreme Court precedent. The state habeas court excluded 

Pinkerman’s testimony on relevance grounds.16 It concluded 

Lucio’s tendency to take blame for everything because the jury had already determined that 

Lucio was guilty.

15 As explained above, Lucio’s sister did not testify regarding Lucio’s tendency to 

take blame for everything. See supra n.14. 

16 The State asserts that the state habeas court rejected Pinkerman’s testimony as 

unreliable and as failing to qualify as an expert testimony under Texas Rule of Evidence 

702. The state habeas court made no determination about the reliability of Pinkerman’s 

testimony, nor did it make a determination about Pinkerman’s qualification as an expert to 

testify. 

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that Pinkerman’s “testimony as to [Lucio’s] psychological functioning, 

including how there was little support in the ‘historical record’ for the idea 

that [she] physically abused her children, that she suffered from battered 

woman syndrome, and the meaning of her demeanor after the incident and 

during questioning had no relevance to the question of [her] guilt or 

innocence.” It thus held that the state trial court did not “abuse its 

discretion” in excluding Pinkerman’s testimony. That is the entirety of the 

state habeas court’s reasoning on the matter. In other words, Pinkerman’s 

testimony was indispensable to Lucio’s defense, as explained above, and the 

state habeas court provided no reason why Pinkerman’s testimony was 

irrelevant as to the credibility of Lucio’s confession.

The plurality opinion contends that the Supreme Court’s holding in 

Crane does not permit a defendant to admit evidence that a state court 

excluded through a state evidence rule that “serve[s] the interests of fairness 

and reliability.” See Plurality Op. at 23 (quoting Crane, 476 U.S. at 689). 

Indeed, that is true. But, like the state court in Crane, the state habeas court 

here did not exclude Pinkerman’s testimony based on any rational 

application of a state evidence rule, even assuming the rule itself serves an 

interest of fairness or reliability.17 See Crane, 476 U.S. at 690–91. Rather, the 

state habeas court held that the state trial court did not abuse its discretion in 

excluding Pinkerman’s testimony because it was irrelevant and had no 

bearing on Lucio’s guilt. That is essentially what happened in Crane, where 

the state court had held that the excluded testimony about the 

“environment” surrounding the defendant’s confession was irrelevant 

because it had no bearing on the confession’s credibility. See id. at 687–88. 

But the Supreme Court did not defer to the state court’s holding on that 

17 There was no Daubert-like inquiry into the reliability of Pinkerman as an expert 

witness. Only Villanueva’s reliability was questioned. 

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point. It independently determined that the excluded testimony bore on the 

credibility of the defendant’s confession and was relevant to the defense’s 

theory that his confession could not be trusted. See id. at 688–89. In 

determining whether the state habeas court’s exclusion of Pinkerman’s 

testimony was an unreasonable application of Crane, then, we must also 

determine whether his testimony was relevant and vital to Lucio’s defense. 

As explained above, Pinkerman’s testimony was clearly relevant and vital to 

Lucio’s defense. It would have “answer[ed] the one question every rational 

juror needs answered: If [Lucio] is innocent, why did [s]he previously admit 

h[er] guilt?” See id. at 689. Thus, the state habeas court’s exclusion of the 

testimony as irrelevant was unreasonable and served no fairness or reliability 

interest.

The plurality opinion also contends that the state habeas court did not 

unreasonably apply Crane or Chambers because those cases concerned 

categorical, not discretionary, evidence rules. Plurality Op. 26–27, 33. In 

that regard, the plurality opinion claims that we would create a circuit split 

because five circuit courts have observed that Crane did not implicate 

discretionary evidence rules. Plurality Op. at 27–29.

But neither Chambers nor Crane holds that a defendant’s right to 

present a complete defense applies only when a state court excludes evidence 

based on categorical evidentiary rules. See Crane, 476 U.S. at 690 (holding 

that an opportunity to present a complete defense “would be an empty one 

if the State were permitted to exclude competent, reliable evidence bearing 

on the credibility of a confession when such evidence is central to the 

defendant’s claim of innocence”); Chambers, 410 U.S. at 302 (making no 

limitation that its holdingthat the exclusion of critical evidence violated the 

defendant’s right to present a complete defenseapplied to only categorical 

evidence rules). The only support for the plurality opinion’s narrow 

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interpretation of Chambers and Crane comes from (a) one line in Crane, 

which states “that the blanket exclusion of the proffered testimony about the 

circumstances of petitioner’s confession deprived him of a fair trial,” Crane, 

476 U.S. at 690 (emphasis added); and (b) the fact that the evidentiary rules 

at issue in those cases were categorical and non-discretionary. However, as 

the plurality opinion recognizes, the Supreme Court has since explained that 

the core “principle” of Crane is unrelated to either of those two points: 

rather, Crane establishes that the right to present a complete defense is 

violated when a state trial court excludes competent, reliable evidence 

without providing a valid reason. Montana v. Egelhoff, 518 U.S. 37, 53 (1996); 

accord Plurality Op. at 23–24. Further, the fact that the evidentiary rules at 

issue in Crane and Chambers were categorical would only matter if we were 

debating whether the state habeas court’s adjudication was “contrary to” 

Supreme Court precedent, but that is not the situation here, as we are only 

analyzing its application of that precedent. See Boyer v. Vannoy, 863 F.3d 428, 

441 (5th Cir. 2017) (explaining when a state court’s decision is contrary to 

clearly established federal law); Panetti v. Quarterman, 551 U.S. 930, 953 

(2007) (stating that an “unreasonable application” under AEDPA deference 

includes an unreasonable application of “even a general standard”).

The clearly established, general principle that we are evaluating today 

is straightforward: whether Lucio’s right to present a complete defense was 

violated when the state trial court excluded Pinkerman’s testimony without 

providing a valid reason. See Egelhoff, 518 U.S. at 53; see also supra Section 

III.C. The answer, as articulated above, is “Yes.” In Crane, the Supreme 

Court held that the defendant’s right to present a complete defense was 

violated because the state court’s “sole rationale for the exclusion (that the 

evidence did not relate to the credibility of the confession) was wrong.” See 

Egelhoff, 518 U.S. at 53 (internal quotation marks and citation omitted). Same 

here. The state trial court’s “sole rationale for the exclusion” of 

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Pinkerman’s testimony (that the evidence was irrelevant to Lucio’s 

innocence) was irrational and wrong. Thus, in the words of the plurality 

opinion, Supreme Court precedent “positively precludes the state court 

from holding what it held.” See Plurality Op. at 52.

Moreover, even if the plurality opinion is right and Crane and 

Chambers apply only to categorical rules, just such a categorical rule was 

applied here: to the extent that the state habeas court determined that the 

state trial court did not abuse its discretion in excluding Pinkerman’s 

testimony under Texas Rule of Evidence 402,18 that rule provides trial courts 

no discretion to admit or exclude irrelevant evidence. See Tex. R. Evid.

402 (“Irrelevant evidence is not admissible.”); cf. Moses v. Payne, 555 F.3d 

742, 758 (9th Cir. 2009) (holding that a California expert testimony rule 

differed from the categorical evidence rules at issue in Crane and Chambers

because the California rule “d[id] not require a trial court to exclude 

evidence”). In that regard then, using the plurality opinion’s reading of the 

state court’s decision, the state trial court “mechanistically” applied the 

state’s less protective relevant evidence rule “to defeat the ends of justice.”19 

See Chambers, 410 U.S. at 302.

Lastly, the plurality opinion’s fear of creating a circuit split is 

unfounded. See Plurality Op. at 27–29. The plurality opinion cites the Sixth, 

Eighth, Ninth, Tenth, and Eleventh circuits as holding that a state court’s 

18 The state trial court’s reason for excluding Pinkerman’s testimony did not 

specify the evidentiary rule it applied, stating only: “I am having a hard time figuring out 

how [Pinkerman’s testimony] goes to the guilt or innocence.” But, the plurality opinion 

contends that the state trial court applied Texas’s relevance rule, Rule 402, see Plurality 

Op. at 18, and this opinion does as well for argument sake.

19 Although the plurality opinion observes that the question of relevance is 

discretionary, once relevancy is determined, I note that the exclusion of that evidence (if 

deemed irrelevant) is not.

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conclusion that an application of a discretionary rule does not violate a 

defendant’s right to present a complete defense is not an unreasonable 

application of Crane. However, only the Ninth Circuit did what the plurality 

opinion says it did. See Moses, 555 F.3d at 758–59 (holding that “the state 

appellate court’s determination that the trial court’s exercise of discretion to 

exclude expert testimony under [a state expert testimony rule] did not violate 

Moses’s constitutional rights” was not an unreasonable application of Crane 

because Crane did not “squarely address . . . a court’s exercise of discretion 

to exclude expert testimony”). The Sixth Circuit independently determined 

that the excluded evidence at issue was not probative, that is, not critical to 

the defense, see Gange v. Booker, 680 F.3d 493, 515–16 (6th Cir. 2012) (en 

banc), and determined that the state court provided a rational justification for 

excluding the evidence, see Loza v. Mitchell, 766 F.3d 466, 485–86 (6th Cir. 

2014) (observing that the state trial court explained why the excluded 

evidence was not vital to the defense). Similarly, the Eighth, Tenth, and 

Eleventh Circuits held that the excluded evidence was not vital to the 

defense. Rucker v. Norris, 563 F.3d 766, 770 (8th Cir. 2009) (the excluded 

evidence was cumulative); Grant v. Royal, 886 F.3d 874, 957, 960 (10th Cir. 

2018) (same); Troy v. Sec’y, Fla. Dep’t of Corr., 763 F.3d 1305, 1316 (11th Cir. 

2014) (the excluded evidence provided “entirely speculative” testimony). 

Recently, the Seventh Circuit held that a state trial court’s exclusion of the 

defendant’s testimony as irrelevant (the same reason the state trial court gave 

for excluding Pinkerman’s testimony) was an unreasonable application of 

Crane because the testimony was critical to the defense and its exclusion was 

arbitrary. Fieldman v. Brannon, 969 F.3d 792, 802–09 (7th Cir. 2020).20 

20 In explaining the requirements to obtain relief under AEDPA deference, the 

Seventh Circuit summarized and applied the legal standard for the “unreasonable 

application” prong under § 2254(d)(1). See Fieldman, 969 F.3d at 802, 809 (summarizing 

Panetti, 551 U.S. at 953). Thus, although the court in Fieldman wrote that the state trial 

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Rather than support the plurality opinion’s circuit-split thesis, these cases 

actually contradict its argument that Crane prohibits courts from 

independently determining whether excluded evidence is relevant and vital 

to the defense as part of deciding the complete defense question. See

Plurality Op. at 27–29.

The plurality opinion is also wrong that, if we applied Crane and 

Chambers to a discretionary rule (which, again, this opinion does not), we 

would create a circuit split by disagreeing with the Ninth Circuit. The Second 

Circuit has held that a state court unreasonably applied Crane on evidence 

subject to a trial court’s discretion. See Scrimo v. Lee, 935 F.3d 103, 112, 115 

(2d Cir. 2019) (holding that the state trial court’s exclusion of witness 

testimony as extrinsic evidence on a collateral matter, a discretionary rule, 

was an unreasonable application of Crane and Chambers).21 We have as well. 

See Kittelson v. Dretke, 426 F.3d 306, 310, 319–21 (5th Cir. 2005) (per curiam) 

(holding that a state trial court’s discretionary limitation on crossexamination was an unreasonable application of complete defense 

precedents). Therefore, even if this case concerned a “discretionary 

evidence rule” (which it does not), our holding that the state habeas court 

unreasonably applied Crane and Chambers would not create a circuit split—

the Ninth Circuit has already done so with a decision inconsistent with seven 

other circuits, including ours. 

court’s adjudication was “contrary to” clearly established law, the holding was in fact 

based under the “unreasonable application” prong.

21 The plurality opinion contends that Scrimo does not support our position, but the 

plurality opinion misses the point. See Plurality Op. at 56–57. I identify Scrimo for the 

proposition that this opinion’s position—that an unreasonable application of Crane is not 

limited to evidence subject to categorical evidence rules—would not create a circuit split.

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IV. Conclusion

Pinkerman’s testimony on Lucio’s susceptibility to take blame for 

everything was critical to refuting the State’s primary evidence of her guilt: 

Lucio’s interrogation statements. The state habeas court’s rejection of 

Lucio’s complete defense claim as irrelevant was irrational and an 

unreasonable application of Crane and Chambers. I would thus reverse the 

district court’s order and remand for the district court to grant Lucio relief. 

Accordingly, I respectfully dissent from the decision to affirm.

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Stephen A. Higginson, Circuit Judge, joined by Stewart and 

Elrod, Circuit Judges, dissenting:

If we are to accept the death penalty as a practice, the Supreme Court 

has been exactingly clear that it is applied only to those whose cases leave no 

doubt that they are deserving of the ultimate punishment. 

I write separately for emphasis, an opportunity made possible by the 

comprehensiveness of Judge Haynes’s opinion, which I gratefully join, albeit 

with the caveat kindly noted in her third footnote. My emphasis is about what 

this case is, and what it is not. 

It is a death penalty case with one issue, namely Ms. Lucio’s effort to 

respond to the government’s insistence at trial that she confessed five hours 

into interrogation to killing her child.1 Legally, it is a case whose resolution 

should be controlled by the Supreme Court’s unanimous ruling in Crane v. 

Kentucky that the due process clause’s guarantee of an opportunity to be 

heard “would be an empty one if the State were permitted to exclude 

competent, reliable evidence bearing on the credibility of a confession when 

such evidence is central to the defendant’s claim of innocence.” Crane v. 

Kentucky, 476 U.S. 683, 690 (1986); Fieldman v. Brannon, 969 F.3d 792, 2020 

WL 4670875 (7th Cir. Aug. 12, 2020). 

1 Ms. Lucio’s comments arose out of the reality that Mariah was also a victim of 

Texas’s broken foster care system. The Texas Department of Family Protective Services 

(“DFPS”) removed all of Ms. Lucio’s children from her care in September, and then 

returned them, including Mariah, two months later; Mariah died in February. See 

Stukenburg v. Abbott, 907 F.3d 237, 256–68 (5th Cir. 2018) (finding that the State was 

deliberately indifferent to the substantial risk that children in the Texas foster care system 

would be exposed to serious harm such as physical, sexual, and psychological abuse given 

that it was “aware of the systemic deficiencies plaguing its monitoring and oversight 

practices” and did not “take[] any steps at all” to address them).

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Indeed, we are controlled by the Supreme Court’s verbatim 

vindication of the constitutional imperative that a capital defendant’s answer 

must be heard as to why, during government interrogation, without counsel 

present, she incriminated herself. Crane, 476 U.S. at 689 (“[S]tripped of the 

power to describe to the jury the circumstances that prompted his confession, 

the defendant is effectively disabled from answering the one question every 

rational juror needs answered: If the defendant is innocent, why did he 

previously admit his guilt?”).

On the other hand, what this case is not is a criminal prosecution where 

the execution should proceed because, contrary even to Texas’s arguments, 

we say constitutional error was forfeited, waived, shifted, or, in the words of 

the court, “radically shifted,” causing injury to “whipsaw[ed]” and 

“sandbagg[ed]” state courts.2 From the first, Ms. Lucio only had one answer 

to the prosecutor’s insistence that she was guilty because she said she was. 

Yet the trial court excluded that answer on a ground so indefensible that 

neither the plurality nor Texas defends it, namely that Ms. Lucio “denied 

ever having anything to do with the killing of the child,” making evidence 

about the circumstances of her confession irrelevant. Even if that reason for 

exclusion were not counterfactual, under Crane, “the physical and 

psychological environment that yielded [Ms. Lucio’s] confession” is of 

2 Notably, Texas agreed before the district court that the issue was preserved, 

conceding that “Lucio raised [her claim that Villanueva and Pinkerman were improperly 

excluded] in state habeas proceedings.” Even in its most recent briefing to our full court, 

Texas stated that “Lucio’s state habeas application presented a specific complete-defense 

claim: The trial court violated her right to present a complete defense when it excluded her 

expert testimony as irrelevant because ‘the evidence at issue here was not irrelevant to the 

issue of [her] guilt or innocence.’” Unmistakably, therefore, it is our court, and only at the 

en banc stage, that erects procedural bars against a capital defendant’s constitutional claim 

being considered on the merits. See United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 

(2020) (reiterating the importance of “party presentation” and emphasizing that courts 

should function as “essentially passive instruments of government” (citation omitted)).

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“substantial relevance to the ultimate factual issue of [Ms. Lucio’s] guilt or 

innocence,” especially because the State rested its case on that very 

confession. Id.; Fieldman, 2020 WL 4670875, at *8.

Furthermore, this is not a case about “extending” Crane’s imperative 

that a capital defendant’s answer to self-incrimination during interrogation is 

inherently relevant information for the jury to consider. Very specifically, it 

is not about constitutionalizing expert opinion testimony admissibility. As the 

facts of Crane demonstrate, fact testimony or other evidence about Ms. 

Lucio’s circumstances bearing on the credibility of her confession, situational 

and dispositional, could have taken the place of the proposed expert 

testimony offered. Crane, 476 U.S. at 688 (“‘[E]vidence surrounding the 

making of a confession bears on its credibility’ as well as its voluntariness.” 

(quoting Jackson v. Denno, 378 U.S. 368, 386 (1964))). The fundamental 

problem is not the form of evidence excluded, but that the trial judge applied 

an indefensible “blanket exclusion” of Pinkerman’s testimony by deeming it 

irrelevant without providing any “rational justification” for its exclusion. Id. 

at 690–91. Stated otherwise, the trial judge never reached any issue relating 

to the admissibility of Pinkerman’s testimony as expert opinion. The 

exclusion of Ms. Lucio’s evidence was a threshold irrelevancy one.3

Fieldman, 2020 WL 4670875, at *11.

A battered woman was convicted of capital murder because, in a case 

lacking direct evidence, prosecutors told the jury that, five hours into 

interrogation, in the middle of the night after the discovery of her dead child, 

Ms. Lucio accepted a seasoned interrogator’s suggestion that she was 

responsible, ultimately agreeing with him that she “did it.” The jury’s best 

3 By contrast, the trial judge did consider Villanueva’s testimony and determined 

that she was not qualified as an expert. Right or wrong, we must defer to that ruling.

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proof of guilt was Ms. Lucio’s eventual capitulation blaming herself.4 That 

may be appropriate inference and argument, but what violates our 

4 As Judge Haynes highlights, Ms. Lucio for hours proclaimed her innocence. 

About three hours into the interrogation, however, responding to suggestive questions and 

after viewing dozens of photographs of the child, she acquiesced:

Texas Ranger: Explain it [t]o us. Ok?

Ms. Lucio: I mean I would spank her, but I didn’t think I would spank 

her, to where . . . to where it got to this point. 

Texas Ranger: Cause you were mad?

Ms. Lucio: No. I mean I never took out my anger on my kids. I never

did.

Texas Ranger: Ok. Frustration? [Melissa nods head no]. Melissa. I’m 

being straight with you. And I need you to be completely 

honest with me. ok? It’s just you and I. ok? I’m meeting 

you halfway. ok? . . . Ok? . . . it’s ok. . . . You did it? Who 

did it? 

Ms. Lucio: I did.

Texas Ranger: Ok. You did? Did the world stop moving? No. . . . It’s for 

your own good. . . . You’re doing good. You’re doing 

good. Start from the beginning and break it down for me. 

Just let it out. I wanna hear yoursaid. Layed it all out. And 

then I’ll come back with questions. Explain this well this 

is anybody else responsible?

Ms. Lucio: No. 

Texas Ranger: Or am I talking to the right person? [Melissa nods head 

Yes]. Ok. Perfect. Tell me. Melissa tell me. Let’s do this 

together. ok? Let’s get it over with. Say yeah. We can get 

it over with and move on. Ok Melissa? Let’s just get it 

over with.

Ms. Lucio: I don’t know what you want me to say. I’m responsible for 

it.

About thirty minutes later, and after viewing more photographs of her dead child, Ms. 

Lucio acquiesced again: 

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Constitution and disregards binding, bedrock Supreme Court law, is the 

government’s simultaneous, successful effort excluding Ms. Lucio’s one 

answer to why she might capitulate, namely that a lifetime of abuse had made 

her acquiescent, desirous to please and to accept responsibility, and to avoid 

confrontation.5

Texas Ranger: What about all these [inaudible] spots? On her vagina?

Ms. Lucio: uh uh. I never did that.

Texas Ranger: Who did?

Ms. Lucio: [shaking head no]

Texas Ranger: Your husband?

Ms. Lucio: No.

Texas Ranger: Why don’t you wanna tell me? Why don’t you wanna tell 

me? 

Ms. Lucio: I didn’t do that and my husband didn’t do that. Must been 

he would touched her when he would spank her.

Texas Ranger: The who did it?

Ms. Lucio: [Melissa shakes head no]

Texas Ranger: Just tell me Melissa. . . . I can move on to the next. Get 

this picture out of your face. How did this happen? We 

know this is you .... You did this. 

Ms. Lucio: I guess I did it. I guess I did it. 

Texas Ranger: How?

Ms. Lucio: I don’t know. 

Texas Ranger: You would hit her there?

Ms. Lucio: No. I never hit her there. 

Finally, at about 3:00 a.m.—five hours into the interrogation—Ms. Lucio uttered the 

phrase seized on by the government to convict her, remarking “I just did it” in the context 

of a series of questions about whether she bit Mariah.

5 Notably again, Texas does not dispute that Pinkerman’s detailed affidavit given 

after trial is in the state record and therefore is properly before us in reviewing whether the 

district court’s ruling was violative of Crane. This affidavit further clarifies Pinkerman’s 

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This case squarely implicates Crane and we do no harm—whipsaw no 

court—when we vindicate binding Supreme Court law that a defendant, 

especially a capital defendant—here a battered woman and mother—must be 

heard to answer why she acquiesced and told her interrogator, “I just did it.”

testimony that “in [his] professional opinion her psychological characteristics increase the 

likelihood that she would acquiesce while providing her confession” due to being isolated 

for 5 hours, “repeatedly interrogated by male police officers in close quarters, not provided 

a place or opportunity to rest nor provided food or water.” Pinkerman also would testify to 

Ms. Lucio’s behavior based on her “emotional and physically abusive relationships with 

males,” including being “very capable of making self-sacrifice in providing a false 

confession in order to avoid investigation of her children,” several of whom had “bad 

behavioral disorders marked by severe aggression against the[ir] siblings,” including 

Mariah. Pinkerman’s proffer thereforeinterlocks with interrogation techniques used against 

Ms. Lucio where the interrogator targeted Ms. Lucio’s desire for male approval. For 

example, at 1:22 a.m., so hours into interrogation, the interrogator offered to “to let [Ms. 

Lucio’s] hair down” and “put it in a pony tail” and then left the room. After he returned, 

Ms. Lucio uttered her “I just did it” confession at about 3:00 a.m.

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