# United States Court **of Appeals**  **f or 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, Cos ta, 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 Case: 16-70027 Document: 00515739449 Page: 1 Date Filed: 02/09/2021No. 16

- 70027

2 A Te xas jury convicted Melissa Lucio of capital murder for beating to d eath 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 Antiterr orism and Effective Death Penalty Act of 1996 (“AEDPA”). Ten member s 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 o n the ever

- evolving arguments that Lucio offered at trial, on direc t 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 Maria h on the living

- room floor. ROA. 14922

– 23, 14936. No one was near her. ROA.14922. Her bod y 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 pulle d out. ROA.14813

– 16, 14937, 15051

– 54, 15066. She was not breathing. ROA.14923. She had n o pulse. ROA.1492 3

. 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.1481 3

. Mariah was pronounced dead. ROA.1481 3. She was two years old. ROA.14922. Case: 16-70027 Document: 00515739449 Page: 2 Date Filed: 02/09/2021No. 16

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3 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 tha t 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.822 4

– 2 5. Lucio said “ n obody else would hit her.” ROA.8189. As for the bitemark on Mariah, Lucio explained that two weeks before Mariah’s death, while Lucio c ombed 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 [Maria h’s] back and bit her.” ROA.8222. During the interrogation, Lucio denied ever punching M ar iah, 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 of ficer 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 di d it. So don’t blame Robert.” ROA.14990

– 91. The State of Texas charged Lucio with capital murder. At the trial, L ucio’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 hear d testimony concerning Mariah’s injuries. The forensic pathologist who performed Mariah’s autopsy testified that h er 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 Case: 16-70027 Document: 00515739449 Page: 3 Date Filed: 02/09/2021No. 16

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4 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 Mariah was 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.151 94. The defense sought to call two additional expert witnesses, Dr. John Pinker man and Ms. Norma Villanue va. The defense offered Pinkerman, a psychologist, to testify a bout 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 sente ncing 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 P inkerman’s testimony for an offer of proof. 1 Here is the entirety of what Pinkerm an 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 defe ndant 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 understandi ng and appreciating the psychological elements and previous history and backgroun d

1 “ The primary purpose of an offer of proof is to enable an appellate court to determine whether the excl usion was erroneous and harmful.” Mays v. State , 285 S.W.3d 884, 8 90 (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). Case: 16-70027 Document: 00515739449 Page: 4 Date Filed: 02/09/2021No. 16

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5 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 minimal ly offered. And those are the highlights.

ROA.15301. Pinkerman did not proffer an y 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 de fense also offered the testimony of Ms. Villanue va, 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 Se e **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 te stimony in the offer of proof included no such opinion. Moreover, Pinkerman’s e xpert 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 P art 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 th e actual evidence, will not suffice to preserve error.”).

3 The term “ Daubert h earing” 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 Pha rm., 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. Sta te , 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. Case: 16-70027 Document: 00515739449 Page: 5 Date Filed: 02/09/2021No. 16

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6 Villanueva said her expertise derived from “clinical training and clinical experience, . . . a combination of knowing life span development the ories, 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, Villan ueva 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 proces s with the investigators th at 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 i nvestigators, male and fema le, 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 la stly, looking at her CPS hi story, 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 his tory 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 )

. Case: 16-70027 Document: 00515739449 Page: 6 Date Filed: 02/09/2021No. 16

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7 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 th erefore concluded that Vill anueva wa s 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 cou ld 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.809 3. And it found insufficien t 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: Case: 16-70027 Document: 00515739449 Page: 7 Date Filed: 02/09/2021No. 16

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8 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 th ey could asse ss 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 sta tement 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; R OA.10844 (sam e).

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 testifie d at the admi ssibility hearing that she would give opinions about the truthfulness of Lucio’s videotaped statements based on her knowledge of body language. Id. at 899

– 90 0 . But on appeal, counsel claimed she would have given an opinion on whether Lucio suf fered from ba ttered woman syndrome. I bi

d. 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 w ould 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 Case: 16-70027 Document: 00515739449 Page: 8 Date Filed: 02/09/2021No. 16

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9 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 scop e than th ose 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 “d irect testimony as to a witnesses ’ [sic] credibility is inadmissible under [ **Tex. R. Evid.** ] 702 because it does not

concern a subject u pon 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 Appeal s found sim ilar 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 90 1 (quotation omitted) . But the court observed that was not what Pinkerman had offere d 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 a dmission during her recorded
statem ent 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 o ccur during a custodial interrogati on, 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. Case: 16-70027 Document: 00515739449 Page: 9 Date Filed: 02/09/2021No. 16

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10 that referred to Lucio’s “psychological functioning” and “demeanor.” Id. at 902 n.26 (quotation omitted). The court concluded that because of this variance betwee n 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 becau se, 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 Oursbo u rn , 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. Suprem e 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 fra med 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: Case: 16-70027 Document: 00515739449 Page: 10 Date Filed: 02/09/2021No. 16

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11 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 Meliss a 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 Ma riah.

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 evidenc e pursuant to a state evidentiary rule that categorically and arb itrarily 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 i tself 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 innocen ce.” 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 o f ongoing abuse” without their opinions. ROA.803 3

– 3 4 . On that acc ount, “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 cou nsel provided ineffective assistance of counsel (“IAC”). For example, she argued that trial counsel provided IAC by failing “to file a pre

trial motion to suppress [ her ] custodial statements. ” ROA.7970 (“Issue Case: 16-70027 Document: 00515739449 Page: 11 Date Filed: 02/09/2021No. 16

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12 Two”). She also argued that trial counsel “fai led 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, Pin kerman testified that Lucio’s “psychological characteristics increase the likelihood that she would acquiesce while providing her confession” during her custodial interrogation. ROA.8975. Pin kerman 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 co unsel 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 Luci o might accept blame when talking on the phone to her sister about what happened to Mariah.

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

- defense claim in issu e four

. ROA.10083

– 96. The state habeas court explained its analys is of issue four in t wo paragraphs :
39. [Lucio’s] complaint about this Court’s exclusion of her mitigation experts [Villanueva and Pinkerman] from the guilt

innocence 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 dir ect appeal, Applicant has not demonstrated that she is entitled to relief herein because of any additional evidence herein. Case: 16-70027 Document: 00515739449 Page: 12 Date Filed: 02/09/2021No. 16

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13 40. Moreover, this Court did not abuse its discretion in excluding the testimony of Norma Villanueva and Dr. John Pinkerman from th e 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 la nguage and patterns of behavior during police interviews. Dr. Pin kerman’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 child ren, that she suffered from battered woman syndrome, and the mean ing 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 s tate habeas court’s findings of fact and conclusions of law

. ROA.5866

– 93

. In those ob jections, 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 dire ct appeal

— did not challenge the circumstances of her custodial interrogation or the exclusion of her experts under Crane

. ROA.5884. And Luci o’s objections did not say that Pinkerman’s post

- trial affidavit

— submitted to buttress her IAC claims

— had any releva nce whatsoever to her complete

- defense claim. ROA.5883

– 84. The Court of Criminal Appeals adopted the lower court’s decision and denied relie f. ROA.7768

– 69.

D. Lucio then petitioned for habeas relief in federal court. See 28 U.S.C. § 2254. She raised 25 cla ims 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 Case: 16-70027 Document: 00515739449 Page: 13 Date Filed: 02/09/2021No. 16

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14 that analyzed all 25 claims. As to the complete

- defe nse claim, the district court held that Lucio “attempt[ed] to dress up [a] state evidence law claim as a constituti onal claim” and that her attempt was “without merit.” Id. at *65

– 66. The district court denied the petition and denied a Certificate of Appea lability (“COA”). Id. at *92

– 94.
Lucio asked for a COA from our court

. Lucio v. Davis , 783 F. App’x 313 (5th Cir. 2 019). We granted one on “ the question of whether the exclusion of Lucio’s proffered experts on the credibility of her alleged confession viol ated her constitutional right to present a complete defense.” Id. at 319 (quotation omitted) . Thereafter, a panel o f our c ourt determined that Lucio had raised the issue of her right to a complete defense in state court, but that no state court had adjudic ated 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 affi davit 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 rem anded 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 c omplete

- 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

- defen se claim in federal court. That was error. To explain why, we Case: 16-70027 Document: 00515739449 Page: 14 Date Filed: 02/09/2021No. 16

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15 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

s tate prisoners. The Supreme Court first announced it in Ex parte Royall , 117 U.S. 241 (1886) , short ly after Congress extended the writ of habeas corpus ad subjiciendum to prisoners in state custody. Then, in 1948, Congress codified the exhaustion requireme nt in 28 U.S.C. § 2254. Today the statute provides that Lucio’s federal habeas application “shall n ot 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 c ourts 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 co urts are obligated to enforce federal law, they must be given the first chance

— after the state pris oner fully explains the federal claim

— to correct any error. See id. at 844. “T his 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 wi thout 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 s tate courts. If the exhaustion doctrine is to prevent unnecessary conflict between courts equall y bound to guard Case: 16-70027 Document: 00515739449 Page: 15 Date Filed: 02/09/2021No. 16

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16 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 cou rts 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 pro ceeding does it make sense to speak of the exhaustion of state remedies. Accordingly, we have

re quired 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) (emphas is 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 th e parent of another child he allegedly molested 20 years earlier. In the state courts, Henry fra med his objection in terms of California evidentiary law. But in the federal courts, Henry argued the erroneous introduction of the testimony violated the Due P rocess Clause. The Ninth Circuit held that Henry exhausted his state remedies because he gave th e 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 challe nged 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 cour t based on a different claim

. . . .” Ibid. Therefore, the exhaustion requirement Case: 16-70027 Document: 00515739449 Page: 16 Date Filed: 02/09/2021No. 16

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

co urts 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 t o 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 t he merits, AEDPA’s relitigation bar applies. See 28 U.S.C. § 2254(d) (generally barring

r elitigation of claims that are “adjudicated on the merits” in state court); see also i bi

d. (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 Unite d States , ” i d. § 2254(d) (1) ; or (2) the state court’s adjudication of the claim “ resulte d in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedin g,” id. § 2254(d)(2).

For e ach claim governed by AEDPA’s relitigation bar, we must identify the relevant state

- court “decision.” Id. § 2254(d)(1)

– (2). To that Case: 16-70027 Document: 00515739449 Page: 17 Date Filed: 02/09/2021No. 16

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18 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,
80 5 (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 shifte d 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 ad mitted 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 stan dard for Daub ert 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 tria l counsel sug gest 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 d ue process of law Case: 16-70027 Document: 00515739449 Page: 18 Date Filed: 02/09/2021No. 16

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19 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 p sychological 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 Cra ne 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 adjudica ted 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 F ederal C onstitution. See id. a t 900 (quoting Oursbo u rn , 259 S.W.3d at 172

– 73 , for various examples of “fact scenarios that ca n raise a state

- law claim of involuntariness ( even though they do not raise a federal constitutional claim )” (emphasis added)). Thus, the Court of Criminal Appea ls 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 Case: 16-70027 Document: 00515739449 Page: 19 Date Filed: 02/09/2021No. 16

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20 the exclusion of Villanueva and Pinkerman deprived her of the constitution al 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 s tate habeas court held that Lucio’s claim was procedurally barred insofar as she attempted to re

- raise her Crane c laim regarding the circumstances of her custodial interrogation. ROA.10091 . And beyond that, the claim was meritless because Villanueva’s prof fered body

- language testimony failed the Texas Daubert standard, and Pinkerman’s gene ralized 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.

Bas ed 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 Cr iminal 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 dist inct claim that the exclusion of Villanueva and Pinkerman from the guilt phase of her trial prevented her from pro ving 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 AED PA ’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 ev er

- 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). Case: 16-70027 Document: 00515739449 Page: 20 Date Filed: 02/09/2021No. 16

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21 III.
We next evaluate the relevant state

- court decisions under AEDPA’s relitigation ba r, 28 U.S.C. § 2254(d). In enacting that provision, Congress imposed strict limitations on federal courts consider ing 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 exce ptions. ” 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 “invol ved an unreasonable application o f ” Crane . 28 U.S.C. § 2254(d)(1). She next argues (B) the state court’s dec ision was “contrary to” or “involved an unreasonable application o f ” Chambers v. Mississippi , 410 U.S. 284 (1973). 28 U.S.C. § 2254(d)(1). S he final ly argues (C) the state court’s decision was “based on an unreasonable determination of the facts in light of the evidence presented in the S tate court proceeding.” 28 U.S.C. § 2254(d)(2). We consider and reject each argument in turn.

A.
We start with Luci o’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 Case: 16-70027 Document: 00515739449 Page: 21 Date Filed: 02/09/2021No. 16

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22 Lucio’s direct appeal

— and evaluate that decision u nde r 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 curi am) (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. S outh Carolina , 547 U.S. 31 9, 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 , 7 53 (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 con sis ting 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 the reof 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. Case: 16-70027 Document: 00515739449 Page: 22 Date Filed: 02/09/2021No. 16

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23 Ibi d. 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 evid ence that the confession was voluntary, that findin g 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 Suprem e 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.” Cr ane , 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 Fede ral 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 Cour t 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 subsequen tly reminded us that Crane does “ not
set [ ] forth an absolute entitlement to introduce crucial, relevant evidence” Case: 16-70027 Document: 00515739449 Page: 23 Date Filed: 02/09/2021No. 16

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24 at a criminal trial. Montana v. Egelhoff , 518 U.S. 37, 53 (1996) (plurality opinion). It ex plained : 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 Kentuc ky’s sole rationale for the exclusion (that the evi dence 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 t o 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 r eject 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 proce eding 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 demons trate a reasonable probability that the result of the proceeding woul d have been different. Case: 16-70027 Document: 00515739449 Page: 24 Date Filed: 02/09/2021No. 16

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25 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 n o 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 W illiams , 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 o f ” Crane

. See 28 U.S.C. § 2254(d)(1). To meet that exception to the relitigat ion 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 be cause that court concludes in its independent judgment that the relev ant 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 f or Lucio or the State. After the pa rties provided their answers to the court’s questions, they both submitted rebuttals to each other’s answers. Both parties provided thorough and helpful answers. Case: 16-70027 Document: 00515739449 Page: 25 Date Filed: 02/09/2021No. 16

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26 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 t he 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. P roc** 

**.** art s

. 38.21, 38.22, and Oursbo u rn , 259 S.W.3 d
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 an y 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 stand ards 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 othe rwise uncontroversial rules.” Caldwell v. Davis , 757 F. App’x 336, 339 (5th Cir. 20 18) (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 admissi on of expert

- opinion testimony. Lucio Opening En Banc Q&A 24

– 25. Nor does Lucio all ege that the Texas courts categorically prohibited her from undermining her own inculpatory statements. For example, the trial court permitted Lucio’s sister to testify abou t 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 Case: 16-70027 Document: 00515739449 Page: 26 Date Filed: 02/09/2021No. 16

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27 it.” 7 Her only complaint is that the trial court made discretionary errors in excluding the particular exp ert 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 li cense 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 expe rt testimony” as it relates to a “criminal defendant’s constitutional right to
pres ent 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 decid ed any case either squarely address[ing] the discretionary exclusion of evidence an d the right to present a complete

7 Our now

- vacated panel opinion made much of the fact that a police officer overheard this st atement 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 mon th 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 evi dence to undermine her inculpatory statement. Case: 16-70027 Document: 00515739449 Page: 27 Date Filed: 02/09/2021No. 16

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28 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 pris oners’ 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 relitigat ion 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, 51 6 (6th Cir. 201 2) (en banc) (rej ecting 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 jus tification” (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 credibili ty 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

c onfession.” Id. a t 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 spe cific 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 Case: 16-70027 Document: 00515739449 Page: 28 Date Filed: 02/09/2021No. 16

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29 confession.” Ibid . And the jury had the opportunity to watch the vi deo of the defend ant’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 clinica l 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 discusse d, 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 fou nd their opinions to be inadmissible as a matter of state l aw. 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 office r’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 di rect

- appeal record rises to that level. Accordingly, the Co urt 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, beca use 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, 1 81 (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, Case: 16-70027 Document: 00515739449 Page: 29 Date Filed: 02/09/2021No. 16

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30 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 habea s claim did not involve Crane

. ROA.8029 n.36 . She presumabl y 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 h is 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 evidenti ary 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 man y 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 i nvolve direct appeals of mine

- run evidentiary challenges. See ROA.8032

– 33 (citing United States v. Hall , 9 3 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. S

tate , No. 05

- 97

- 00328

- CR, 1998 WL 209060 (Tex. App.

— Dallas Apr. 30,
1998 , no pet. )). These precedents illu strate that state

- law evidentiary claims are cognizable on direct appeal. But they are not cognizable in federal habeas. Case: 16-70027 Document: 00515739449 Page: 30 Date Filed: 02/09/2021No. 16

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31 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 3 19 (citing Wiley v. Sta te , 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 c laim because “a state court may not regard [it] as sufficient to raise a separate federal claim”). And W iley itself did not purport to apply Crane , Chambers , or any U.S. Supreme Court precedent whatsoever. The most charitable interpretation of Lucio’s stat e 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]like ly to have e ngaged in ongoing abuse of Mariah , ” ROA.8029 n.36. This claim does not attack the circumstances of Lucio’s custodial interrogation as in Cra ne . Rather, Lucio’s objection is that the exclusion of the experts’ opinions made her trial unfair becau se it precluded her from proving that she did not beat her child to death Case: 16-70027 Document: 00515739449 Page: 31 Date Filed: 02/09/2021No. 16

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32 or commit ongoing abuse of Mariah, even though she admitted to committing abus e. And the state habeas court’s contrary conclusion, she says, is contrary to or an unreasonable applica tion 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 o fficer “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

wr itten 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

- ex amination, the State elicited testimony from McDonald repudiating the confession. Ibid. After the State’ s cross

examination, Chambers moved to examine McDonald as a hostile witness. Ibid. But the state court denied his request based on an idiosyncratic sta te

law rule called the “voucher rule”

— which prevented Chambers from impeaching his own witness on the th eory 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 Sup reme 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 “vouc her rule” violated Chambers’ s rights to confront and cross

‐ examine witnesses like McDonald. Case: 16-70027 Document: 00515739449 Page: 32 Date Filed: 02/09/2021No. 16

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33 The state habeas court’s adjudication of Lucio’s complete

- defense claim is n ot “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 evi dence concerning the admissibility of expert opinions

— not pursuant to some i diosyncratic, arbitrary, archaic, and indefensible rule that prohibited her from impeaching her own witness. This significant distinction is far more than sufficient to bar a “cont rary to” claim.

Nor is the state habeas court’s decision an “unreasonable
ap plication” 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 “arb itrary,” “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. Te xas , 388 U.S. 14, 22 (1967) ). The Supreme Court has never applied its comple te

defense cases to discretionary evidentiary decisions under rules that are themselves constitutional, like the rules of evidence involving the admissibility of expert opinions he re. Thus, to hold that the state habeas court unreasonably applied these cas es, 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 (q uoting 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 re sulting combination to condemn the Case: 16-70027 Document: 00515739449 Page: 33 Date Filed: 02/09/2021No. 16

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34 evidentiary decision made at trial

. S pecifically, 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 tria l) 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 opini on 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 th e State’s key evidence.” Ibid

. AEDPA prohibits whipsawing the state cour ts 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 goi ng to address ho w 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 goin g 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 abo ut what facts or opinions Pinkerman was prepared to offer. It certainly did not say

— as our panel decision concluded

— “that Lucio was Case: 16-70027 Document: 00515739449 Page: 34 Date Filed: 02/09/2021No. 16

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35 susceptible to taking blame for something that was not her fault and that this behavior was manifested in the interrogation video.” Lucio , 7 83 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 whipsawin g embraced by ou r 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 h is proffer, he a uthored an expert report that detailed his testimony. ROA.15301 (Pinkerman’s guilt

phase 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 al so described Pinkerman’s findings from watching the interrogat ion 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 : “Seve ral 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 t hat she got “fru strated” 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 co me 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 Case: 16-70027 Document: 00515739449 Page: 35 Date Filed: 02/09/2021No. 16

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36 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 abou t the circumstances of the offense and Lucio’s moral culpability. E.g. , ROA.5131

– 34 ; s ee **Tex. Code**  **Crim. Proc.** art. 37.071, § 2(e)(1) (requiring the punishment

- phase jury to consider, inter alia , “t he circumstances of the offense ” and “ the personal moral c ulpability 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

v ideo.” 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 d id 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 Case: 16-70027 Document: 00515739449 Page: 36 Date Filed: 02/09/2021No. 16

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37 the claim that Lucio b rought 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 stat e 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 i n a state habeas application that disclaimed the panel’s legal theory , s ee 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 Vil lanueva’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 ba sed 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 th at 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). More over, even if Villanueva w ere a qualified body

- language expert and w ere 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 ther efore reasonable for the stat e 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 Case: 16-70027 Document: 00515739449 Page: 37 Date Filed: 02/09/2021No. 16

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38 C. Finally, Lucio argues that the state habeas court’s d ecision was based on “an unre asonable 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 b e correct.” Id. § 2254(e)(1). Furthermore, the “applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” I bid . Thus, while the “general standard” for evaluating a state cour t’s findings of fact is

reaso nableness, § 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. Thale r , 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 Esca lon 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, pu rsued to an adverse rul ing, 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 t o qualify Villanueva as an expert on body language under Texas’s Daubert standard. See ROA.4700. Case: 16-70027 Document: 00515739449 Page: 38 Date Filed: 02/09/2021No. 16

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39 Lucio argues that the state habeas court made a n 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 w as error

— either under Texas Rule of Evidence 40 2 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 , 5 5 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 tha t’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 P arts III.A and III.B. Our panel decision in this case relied h eavily 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 t rial 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 a ppreciating the psychological elements and previous history an d 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 t o the Pinkerman affidavit, the trial court did not violate her constitutional rights

— Case: 16-70027 Document: 00515739449 Page: 39 Date Filed: 02/09/2021No. 16

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40 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.

A s for Villanueva, Lucio argues that the state habeas court

unr easonably 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

- a dmissibility 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

- examina tion, 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 F ederal C onstit ution, it suffers from the same defects as Lucio’s argume nts 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 guilt

innocence port ion of the trial is nearly identical to issues nine and t en 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. Case: 16-70027 Document: 00515739449 Page: 40 Date Filed: 02/09/2021No. 16

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41 Tex. Tech U niv. 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 o pinions contradict AEDPA, Supreme Court precedent, and th e 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 g rant habeas relief. Cf. Richter , 562 U.S. at 103 (“ As a c ondition for obtaining habeas corpus from a federal court, a state prisoner must show that the state cour t’ 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

ex isting law beyond any possibility for fairminded disagreement

. ” (emphasis added)). F our of the dissenters’ arguments merit additional responses.

A. First, the dissenters spill much ink relitigating t he facts. For example, Judge Haynes emphasizes that “Luci o had trouble taking care of her many children.” Post , at 79 (Haynes, J., dissenting). Judge s Higginson and Higginbotham suggest Texas’s foster

- care system is the real culprit. Id. at 110 n.1 (Higgin son, J., dissenting) ; id. at 63

– 69 (Higginbotham, J., dis senting) . 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 u nreasonable.” As Lucio acknowledges, that argument is foreclosed b y 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 fin dings of fact nor to applying § 2254(d)’s standards of review”). W e decline Lucio’s invitation to overturn Valdez

. Case: 16-70027 Document: 00515739449 Page: 41 Date Filed: 02/09/2021No. 16

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42 badgered Lucio during the interrogation. Id. at 80

– 82 (Haynes, J., dissenting); id. at 11 3 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 proffer ed at tri al , 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 7 5

– 76 (Elrod, J., dissenting); id. at 111 (Higginson, J., dissenting); id. at 6 8 (Hig ginbotham , 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

e nterprise. 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 h orrific i njuries 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 pe ople 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 judg ment 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: Case: 16-70027 Document: 00515739449 Page: 42 Date Filed: 02/09/2021No. 16

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43 The dissent ’ s review of the evidence presented to the jury over seven days is prec isely the sort of reweighing of facts that is prec luded 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 vi ews 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 Pinkerma n’s post

- trial affidavit).

And even if AEDPA allo wed 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 p ay 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 app roximately $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 m eal a day at Loaves and Fishes. ROA.15638. Case: 16-70027 Document: 00515739449 Page: 43 Date Filed: 02/09/2021No. 16

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44 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 dissente rs repeatedly accuse us of “sua sponte” raising procedural argumen ts that the State waived. See post , at 78 , 90

– 9 5 (Haynes, J., dissenting); id. at 71 n.1 (Elrod, J., dissenting); id. at 111 & n.2 (Higginson, J., dissenting). For example, some dissenters c riticize us for holding that Lucio “procedural [ ly ] default [ ed ] ” he r 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 accusation s 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 1 10

– 11 (Higginson, J., dissenting); id. at 64 n. 1 (Higgi nbotham, 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 b etter 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 co nfessed to bruising that child from head to foot. She confessed to neglect. She didn’t

co nfess to murder.” ROA.4789. Lucio’s lawyers could’ve changed that strategy or even made inconsistent alternative arguments when proffering Pinkerman and Villanueva
out side the presence of the jury. But the defense decided to maintain its no

- confession theo ry 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. Mirza yance , 556 U.S. 111, 123 (2009). Case: 16-70027 Document: 00515739449 Page: 44 Date Filed: 02/09/2021No. 16

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45 n.5; post , at 95

– 96 (Haynes, J., di ssenting) (agreeing with ou r 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 E n B anc Q&A 1

– 8; Lucio’s Opening E n B anc Q&A 1

– 11. And because Lucio changed her argument over time, we must a nalyze each claim as it exi sted 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

s mush 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 exh austed 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 t o broaden his claim to include additional prosecutorial sta tements 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 prosecutorial

misconduct c laim and then considered them in the context of the trial “ taken as a whole .” I bid

. 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 cl aims of constitutional error .” Id. at 518

– 19 (emphases adde d). 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 (e mphasis in original) ; Case: 16-70027 Document: 00515739449 Page: 45 Date Filed: 02/09/2021No. 16

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46 see also Boerckel , 526 U.S. at 845 (h olding 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 ce rtainly exhausted something . As in Lundy , the State concede s 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 Lu cio 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 “bac kward

looking language requires an examination of the state

- court decision at the time it was mad e ”). 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 T wo 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 p ost , at 92

– 93 (Haynes, J., dissenting); id. at 7 6 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 cl aim on the merits.” 563 U.S. at 181. At the time the state courts adjudicated Lucio’s Cra ne claim on direct appeal, the Pinkerman affidavit did not even exist. Nothing in Pinholster required the direct

- appeal court to predict w hat Lucio and Pinkerman would file in the future. And when Lucio and Pinkerman eventually did file the affidavit durin g her state habeas proceedings, nothing in Pinholster required 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 applicati on. See Pinholster , 563 U.S. at 181

– 82; ROA 8029 n.36. Case: 16-70027 Document: 00515739449 Page: 46 Date Filed: 02/09/2021No. 16

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47 Pinkerman

- Villanueva testimony was compe lled 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 th e testimony mattered; never said anything about Lucio’s constitutional right to present a complete defense; never said anything abou t 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 questi on 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 Vill anueva ’ 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 proffere d 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 cour t 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 su ggest the trial court’s apparent absence violates any pr ovision 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 hypo thesis, Lucio’s trial lawyer and Pinkerman could have pu t 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 any thing in federal law. Case: 16-70027 Document: 00515739449 Page: 47 Date Filed: 02/09/2021No. 16

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48 Second, if the diss enters 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 rais ing 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. Se e, 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, how ever, 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. T he dissenters do not offer a single citation to justify that novel habeas theo ry.

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 i t erroneously det ermined that Lucio raised a state evidentiary Case: 16-70027 Document: 00515739449 Page: 48 Date Filed: 02/09/2021No. 16

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49 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 vi olated 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 innoce nce.” ROA.10091. We struggle to see how resolving an issue in the exact same terms presented ca n constitute a failure to adjudicate it

. T he principles of comity and federalism that undergird the entirety of federal habeas for state prisoners dating back t o Reconstruction require closer attention to the s tate

- court litigation

. S o does the party

- pres entation principle that features so prominently in the principal dissent. S ee 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 li tigation ).

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 evid ence is central to the defendant’s claim of innocence.” Post , at 74 (quotation omitted). Sh e then says the state court’s decision was “contrary” to this “bedrock rule.” See id. at 7 6

. Sh e concludes that this case and Crane should come out the same way beca use they involve materially indistinguishable facts. See id. at 74

– 75 & n.3

. Case: 16-70027 Document: 00515739449 Page: 49 Date Filed: 02/09/2021No. 16

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50 That analysis falters at every step. Crane does not establish

— much less clearly establish

— a universal, freestanding right to introduce competent and reliable evidence challengin g 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 constitutio nally problematic “[i]n the absence of any valid state justification.” Crane , 476 U.S. at 69 0. 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 justificati on? “[E]stablished Kentucky procedure” made “a trial court’s pretrial voluntariness determin ation . . . 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, d iscretionary 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 t o even identify the correct legal principle.” Post , at 72 (Elrod, J., dissenting) (emphasis in original)

. T he 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 § 2 254(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 th e issue has recognized, determining whether a state court ’s decision resulted from an unreasonable legal or factual conclusion does not Case: 16-70027 Document: 00515739449 Page: 50 Date Filed: 02/09/2021No. 16

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51 require that there be an opinion from the state court explaining the state court’s reasoning. ”). And where the state cou rt offers an explanation, it

“ need not cite or even be aw are 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 fa cts.” Post , at 74 ( Elrod , J., dissenting). It is true tha t “here, as in Crane , the trial court pointed to a rule of evidence to find the testimony inadmissible.” Id. at 7 5

. But at that level of generality,
every state

- law evidentiary ruling in a criminal c ase 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 Co urt 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 E lrod 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 7 5 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 a t 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 decisio n 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 st ate

- court evidentiary decision is exactly what we have h ere. 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 ‘mutua lly opposed’ to [ Crane ] itself.” Terry Williams , 529 U.S . at 406. Case: 16-70027 Document: 00515739449 Page: 51 Date Filed: 02/09/2021No. 16

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52 3.
The d issenters’ 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 ir relevant.” Post , at 103 . It’s true that Cran e 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 involve s neither a pretrial voluntarin ess ruling nor a blanket exclusion of anythi ng. 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 ev identiary 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 e xcludes 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 pos itively 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 Case: 16-70027 Document: 00515739449 Page: 52 Date Filed: 02/09/2021No. 16

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53 exclusion of the proffered testimony about the circumsta nces of petitioner’s confession”

— but she suggests we should ignore that li mitation 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 l imitations come from “one line” in the opinion. 14 And even if it was, Crane ’s holding remains binding on us in all events.

I t’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 Proces s Clause and Crane to establish “t he right to present and have considered by the jury all relevant evidence to rebut the Sta te ’ s evidence on all elements of the offense charged.” 518 U.S. at 41

– 42 (emphasis omitted) (quotation omitted)

. The Supreme Court e mphatically 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 po st , 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 ap plication 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 exculp atory evidence, the decision below must be reversed.”). Case: 16-70027 Document: 00515739449 Page: 53 Date Filed: 02/09/2021No. 16

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54 irrelevant evidence in absolute terms, stat e courts necessarily act “mechanistically” and with “no discretion” when they apply it. Ibid. Not so. Court decisions are “discretio nary” 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 “calle d 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). A nd 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 d iscretion.” (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 othe rwise.
In her last effort to liken this case to Crane , Judge Haynes admits that the cases are distinguishable. See p ost , 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 (emphase s 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 nonethel ess 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 Case: 16-70027 Document: 00515739449 Page: 54 Date Filed: 02/09/2021No. 16

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55 “how long the questioning lasted” and “how many policemen were there.” ROA.10841. So she invited the Court of Criminal Appeals t o 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 t he circumstances under which [a] confession [i]s taken.” ROA. 8029 n.36. And because Lucio had changed her defense s trategy from challenging voluntariness to challenging “whether [she] was likely to have engaged in ongoing abuse of Mariah” in the first pla ce, 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

– 7 4 ( Elrod , J., dissenting). Rather than contest ing the credibility of her statements, Lucio contended the Constitution compelled the admission of Pinkerman’s testimony because it “wa s relevant to . . . demonstrating that [she] did not have the propensity to commit violence against Mariah.” ROA.803 3

– 3 4

. So me might wish that Lucio litigated the case differently. But we are not free to condemn the state court for addressing Lucio’s claim s as she presented them. See also supra at 44 n. 10

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56 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 p ost , at 10 7

– 0 8 (Haynes, J., dissent ing). Neither helps the dissent er s.
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); se e 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 t hree reasons. First, no member of our court agrees with the Se cond 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 (rejecti ng “the unreasonable

- refusal

- to

- extend rule on which responden t relies”). Second, far from supporting the dissenters, Scrimo hold s “‘[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 unasser ted 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 Case: 16-70027 Document: 00515739449 Page: 56 Date Filed: 02/09/2021No. 16

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57 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 evaluat ed in the context of the entire record creat es 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 exclud ed 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 n o 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. 2 0 (Haynes, J., dissenting) (“[A]lthough t he court in Fieldman wrote that the state tr ial 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 dissent ers misunderstand Fiel dman or whether Fieldman misunderstands itse lf. 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 im pose such limits on a defendant’s own testim ony. 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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58 **Leslie H. Southwick** , Circuit Judge , joined by **Costa** and **Willett,** Circuit Judge s , conc urring **:** 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 ha ve s hown 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 re ject 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 un able 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 with in 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 ch alle nging the state

court 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 thi s co urt’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 test imon y of Dr. John Case: 16-70027 Document: 00515739449 Page: 58 Date Filed: 02/09/2021No. 16

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59 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 Luci o’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 “permitt ed t o 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 proc e edi ngs 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 seem s th e 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 alle gedl y 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, I sta te 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 Case: 16-70027 Document: 00515739449 Page: 59 Date Filed: 02/09/2021No. 16

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60 what a new rule of state procedure meant as to juror consideration of confessions. See **K Y** 

**. R.**  **C RIM** 

**. P.**  9.78 (repealed 2014). The state trial

court judge determined prior to trial that the confession was voluntary; at trial, the court excluded eviden ce 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 Supr eme 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 Kentuc ky’s evidentiary rule: (1) it f ound no support in Supreme Court cases, (2) i t 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. Denn o , 378 U.S. 368, 386 n.13 (1964)).

The Court then identified a near consensu s 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 i nevitably 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 th at “serve the interests of fairness and r eliability.” 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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61 The Supreme Court did not choose among different possible

const itutional sources for its holding. It he ld 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 n ew ground” being broken in saying that th e “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 cent ral 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 cat egory of evidence and in the specific cas e prevented a defendant from presenting a meaningful defense. I agree with that sense of the Court’s opinion. An other possibility is that a federal court may grant relief based on an everyday evidentiary ruling, s uch as the one about relevance in this ca se, 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 ,
ev identiary 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 t his 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 Case: 16-70027 Document: 00515739449 Page: 61 Date Filed: 02/09/2021No. 16

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62 original)

. I find no Supreme Court opinion holding that a n 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 t hat 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 c learly established law helpful to Lucio

. M y joining the refusal to allow relief in this case comes from the interplay of my interpretation of the limitations tha t AEDPA places on federal courts and my analysis of the limitations of Crane. This case, tho ugh, is a clear example that justice to a defendant may necessitate a more comprehensive review of state

- court evidentiary rulings than is presently permissible un der law that is established with sufficient clarity. Case: 16-70027 Document: 00515739449 Page: 62 Date Filed: 02/09/2021No. 16

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63 **Patrick E. Higginbotham** , Circuit Judg e , 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 faithfu lly drawing upon fealty to an abstraction of our “federalism , ” one that screens the performan ce of poorly funded state judicial systems

— themselves victims of political subscription to the death penalty while refusing to fund it. As the Court majority uphol ds the ending of one life at the hand of the state

— Melissa Lucio’s, now on death row for twel ve 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 wi th springs at every

turn. This with a prosecution deeply flawed from its inception and leav in g our hand a s 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 n ot 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 C hild 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 no t contribute to the family’s wellbeing , so

c are for Melissa and her siblings often devolved to these m en 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 conti nued , 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 marr y Guadalupe Lucio and Case: 16-70027 Document: 00515739449 Page: 63 Date Filed: 02/09/2021No. 16

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64 bore him five children by the time she turned 24. Guadalupe was a physically and emotionally abusive alcoholic, who abandone d Melissa and his children in 1994. So too was his successor Robert Alvarez, who, among other reported incidents, publicly punched Melissa. Yet on the nig ht Mariah died, after hours of interrogation, it was Robert, not a lawyer, who Melissa asked Ranger Es calante 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 th e latest, CPS was aware that Robert in service of himself had introduced Melissa to cocaine. Between 1 999 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 dr ugs.” 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

- rel ated incidents with Melissa in November and December of 2001, as well as two apparently separate incid ents of “physical neglect.” Again , CPS performed no drug tests and made no inquiry concerning the nature or quantity of drugs involved. In 2002, CPS recor ded a charge of neglectful supervision against Melissa , prompted by reports that her young son had bee n seen in the street “chasing cars” and that several of

1 It is telli ng 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 ad missions that the State relied on as a confession of responsibility f or 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

ove rlooking the equivocal nature of her confession, Melissa was denied t he opportunity to explain why she would have taken responsibility for Mariah’s death if she did not inflict the fatal injuries. Case: 16-70027 Document: 00515739449 Page: 64 Date Filed: 02/09/2021No. 16

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65 her daughters were engaged in inappropriate sexual activity. In 2003, CPS was informed that anothe r of Melissa ’s children, Sara, tested positive for cocaine at birth. CPS recorded additional charges o f neglectful supervision and physical neglect in 2004, just prior to Mariah’s birth; CPS closed those cases without taking any action. Mariah tes ted posit ive 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 t he records reflect that she seldom remained with these programs. Case notes consistently reflect issues with Melissa ’s income and housing; CPS documented that the famil y was homeless at least once. Case notes also reflect CPS’s awareness of a consistent set of behavioral problem s for the Lucio children, including physical aggression to the point of violence and sexual misbehavior. On more than one occasion , there was evi dence t hat the older children had beaten their younger siblings, but CPS made little , if any , inquiry into thes e 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. C PS 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 sys temic failures, now documented in this C ourt’s recent Case: 16-70027 Document: 00515739449 Page: 65 Date Filed: 02/09/2021No. 16

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66 opinions. 2 We there observed that DFPS , and by extension CPS, ha ve persisted in a state of “organizational and administrative chaos” for decades resulting in an “epidemic of physical and sexual abuse” a mong the thousands of children in its care ; 3 that “ [w] here children have reported abuse or neglect to the agenc y, 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 r oughly 51 ,000 children in DFPS’s legal care, with several thousand more throughout Texas receiving family preservation services. 6 Its “c aseworker s 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 p reviously recognized,

2 See M.D. by Stukenberg v. Abbott (Stukenberg I) , 907 F.3 d 237, 260

– 68 (5th Cir. 2018); M. D. by next friend Stukenberg v. Abb ott (Stukenberg I I ) , 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 pa rt 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 , 90 7 F.3d at 290

.

8 “ DFPS produced a Work Measurement Study, which concluded that ‘ DFPS caseworkers expended an aver age 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

m onth 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 Case: 16-70027 Document: 00515739449 Page: 66 Date Filed: 02/09/2021No. 16

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67 “ 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 “ exacer bate the caseload problem .” 11 With evidence that these problems have been presented to the State “ repeatedly over the past two decades ,” this Court determined “ th at 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
recog nized 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 o f 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 2 60.

12 Id.

13 DFPS is a participant in a form of cooperative federalism through wh ich 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.

conc urring 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. ”). Case: 16-70027 Document: 00515739449 Page: 67 Date Filed: 02/09/2021No. 16

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68 phenomenon of personality produced by her own l ifetime 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 mea ning

— 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 at tending judicial discretion, one that, if rejecte d, 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 consti tutional 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 mat ter. In this morality pla y 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

exone rations. See Samuel Gross and Maurice Possley, For 50 Years, You’ve H ad “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

- to

remain

- silent

. It is not an esoteric creation of the defense b ar, but a widely recognized phenomenon. See, e.g. , Richard Leo, False Confessions: Causes, Consequences, and Implicati ons , 37, J

. Am

. Acad

. Psychiatry & L . (September 2009), http://jaapl.org/content/37/3/33 2

. T he S tate adopted one of the recommended responses to this problem by taping the interrogation. But it ignored the recommendation that extended accusatorial tactics be banned. Case: 16-70027 Document: 00515739449 Page: 68 Date Filed: 02/09/2021No. 16

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69 Melissa’s proposed defense was irrelevant to the question of her guilt or innocence, a ruling t hat amounted to a complet e 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 produc e 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 th e Supreme Court in Crane

. Case: 16-70027 Document: 00515739449 Page: 69 Date Filed: 02/09/2021No. 16

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70 **J ENNIFER**  **W ALKER**  **E LROD**  , Circuit Judge , joined by **H IGGINSON**  , Circuit Judge , dissenting **:** Melissa Lucio is not without culpability. Her young daughter, Mariah, endured a shockingly violent life, suffering horr ific abuse that Lucio eit her 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 cross

section of Cameron County conclud ed 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 sh e would confess if she we re 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 crimi nal procedure,” enshrinin g 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 C ourt 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 d efendant’s claim of innoc ence.” 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? Case: 16-70027 Document: 00515739449 Page: 70 Date Filed: 02/09/2021No. 16

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71 * * * 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 reject ion was “contra ry 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 ev en 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 oppo site to that re ached 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 throughou t the various pleading stages. But as my fellow dissenters have emphasized, the State affirmatively waived any exhaust ion 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 no w 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 th at AEDPA “does not require ‘magic words ’ ” ); id. (finding express waiver of exhaustion on appeal where the State argued in the district cou rt that one claim

— not at issue on appeal

— was not exhausted but did not raise the same argument with respect to other

c laims). “Clearly,” the State “considered exhaustion as a defense and chose not to exercise that defense.” Id. Case: 16-70027 Document: 00515739449 Page: 71 Date Filed: 02/09/2021No. 16

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72 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 cou rt 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 Supre me Court consid ered 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 m ade 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. a t 686. The Cour t 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 fa ir 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 o n direct appeal,” and the trial court did not abuse its discretion in excluding Dr. Pinkerman’s testimony. Case: 16-70027 Document: 00515739449 Page: 72 Date Filed: 02/09/2021No. 16

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73 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

cr edibility” 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 def endant 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 w hy the Court “h as 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 re ason 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 st ressed, 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 fro m 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 rul ings by state trial courts,” and it emphasized that it had “never questioned the power of Case: 16-70027 Document: 00515739449 Page: 73 Date Filed: 02/09/2021No. 16

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74 States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability .” Id. at 689

– 90 (emphasis adde d) (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 depr ived him of a f air 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. Therefor e, the Court held, “[i]n the absence of any valid state justif ication, 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 rul e 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 questio n of [Lucio’s] guilt or innocence.” In Crane , on materially indistinguishable facts, the Supreme Court expressly foreclosed Case: 16-70027 Document: 00515739449 Page: 74 Date Filed: 02/09/2021No. 16

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75 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 constitu tional error when they make such a determina tion. 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 W illiams , 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 p attern 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 ca n be satisfied: imposition of a contradictory standard (as occurred here) or a “diametrically different” conclusion on “materially indistinguisha ble” facts (which also occurred here). See Williams , 529 U.S. at 405.

4 For instance, the State’s closing argum ent stressed that it is “unbelievable” that Lucio caused Mariah’s other injuries

— to which Lucio had confessed

— but that she never hit Mariah in th e 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. Case: 16-70027 Document: 00515739449 Page: 75 Date Filed: 02/09/2021No. 16

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76 Escalon). 5 Without Lucio’s confess ion, 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 r un

- of

- the

- mill state law errors. But it is f or 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 “confe ssion,” the State’s strongest piece of evide nce.
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 def ense. And without her expert, she was catego rically 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 proff er at trial. See Pl. Op. at 29, 39. But, as the principal dissent explains, that affidavit is not precluded fro m 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), indic ates 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 cl aim on the merits.” 563 U.S. at 181. Here, we are asking whether the
state

- court adjudication of Lucio’s comple te

- defense claim was contrary to clearly established law; therefore, we must review “the record in existence at that same time i.e. , the record b efore the state court.” Id. at 182 (emphasis added). That record included Dr. Pinkerman’s affidavit. Case: 16-70027 Document: 00515739449 Page: 76 Date Filed: 02/09/2021No. 16

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77 * * * Mariah suffered appalling abuse, including at the hands of her mother. Lucio is not without blame. But neither is she wit hout 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, an d Lucio has a constitutional right to presen t 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. Case: 16-70027 Document: 00515739449 Page: 77 Date Filed: 02/09/2021No. 16

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78 **H AYNES**  **,** Circui t Judge **,** joined by **H IGGINBOTHAM**  **, S**  **TEWART ,**  **D ENNIS**  **, E**  **LROD ,**  **G RAVES**  **,** and **H IGGINSON**  **,** 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

est ablished Supreme Court precedent? Yes. Period. That is the crux of why the district court erred in reject ing Lucio’s complete defense claim. Unfortunately, the plurality opinion 1 drives down numerous backroads untraversed by the parties, basing its af firmance 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 th e Supreme Court’s recent reminder that we are “passive instruments of government” that should “decide only q uestions 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 o f Lucio’s complete defense claim with regard to expert witness Pinkerman 2 involved an unreasonable application of Crane v. Kentucky , 476 U.S. 683 (1 986), and Chambers v. Mississippi , 410 U.S. 284 (1973). 3 Pinkerman’s

1 It is i ronic 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 al so 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 i t relates to Villanueva involved an unreasonable application of Crane and Chambers

.

3 I address this case applying AEDPA deference because the ma jority 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 t he panel Case: 16-70027 Document: 00515739449 Page: 78 Date Filed: 02/09/2021No. 16

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79 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 statem ent characterized by the State as her “confession.” The testimony thus would have “answer[ed] the one quest ion every rational juror need[ed] answered” before determining Lucio’s innocence: “If [Lucio] is innocent, why did [s]he previously admit h[er] guil t?” Crane , 476 U.S. at 689. The state trial court erroneously excluded the testimony as irrelevant, and th e 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. Backgroun d

A. Factual Background 4 Lucio lived in an apartment accessed by a steep exterior staircase with her husban d, 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

o f 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 Luc io 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: t he district court erred in d enying 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. Case: 16-70027 Document: 00515739449 Page: 79 Date Filed: 02/09/2021No. 16

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80 of becoming violent,” and Lucio h ad 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 po lice for questioning. Lucio’s interrogation on the night her daughter was found dead was not as straightforw ard 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 aft er 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 h er death: Mariah was “sick” on the Saturday that she died and the Friday before, but Lucio did not take Mari ah 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 unde rstand if she had hurt her daughter. At that point, Lucio told Escalon that she wanted a cigarette and wish ed 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 t ell him “everything.” Lucio eventually told Escalon that she “would spank [Mariah], but [Lucio] didn’t thi nk [she] would spank her, to where .

. . to where it got to this point.” Escalon prompted Lucio for more detail, but she responded, “I Case: 16-70027 Document: 00515739449 Page: 80 Date Filed: 02/09/2021No. 16

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81 don’t know w hat you want me to say. I’m responsible for it.” At Escalon’s suggestion, Lucio agreed that the spanking w as “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 spank ed her. Lucio also stated that no one else was responsible for Mariah’s injuries and that she was the on ly one who spanked her. As the interrogation progressed, Escalon identified specific bruising on Mariah and asked Lucio to tell him how it happene d. Lucio usually responded that she did not know how the bruises occurred and often said she that did not h it Mariah in particular spots. When Escalon insisted that Lucio was responsible for specific bruises, she responded, “I guess I did it.” She
sugge sted that some of Mariah’s other injuries, like scratches, could have been caused by her other daughters. F or 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 bi t 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 Case: 16-70027 Document: 00515739449 Page: 81 Date Filed: 02/09/2021No. 16

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82 she said that her demonstration was how hard she spanke d 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 tri al 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, usin g a for ensic 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 de meanor 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

s tatemen t 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 b oth poi nts. First, she called a neurosurgeon who testified that the blunt force trauma causing Mariah’s Case: 16-70027 Document: 00515739449 Page: 82 Date Filed: 02/09/2021No. 16

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83 death could have resulted from falling down stairs. During closing arguments, Lucio’s counsel argued that the State failed to overcome reasonable doub t becau se 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 te stify. 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 inter rogatio n 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 th e 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 Pinkerm an 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 th at Luci o “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 h ead on the floor. Estrada testified that she had not come

5 The other expert was Norma Villanueva, a licensed social worker with g raduate 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.” Case: 16-70027 Document: 00515739449 Page: 83 Date Filed: 02/09/2021No. 16

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84 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 interroga tion

st atements 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 convict ed 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 argumen t 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 cla imed th at 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 “entitle d to kn ow 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 w hat Pin kerman’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. a t 902. Case: 16-70027 Document: 00515739449 Page: 84 Date Filed: 02/09/2021No. 16

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85 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 argum ent 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 o f 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 conc luded t hat 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 dec ision. 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 petiti oned 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 b e “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.” Case: 16-70027 Document: 00515739449 Page: 85 Date Filed: 02/09/2021No. 16

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86 Lucio filed a timely notice of appeal, and we granted her a Certificate of Ap pealabi lity (“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 r ehearing. 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 firs t expla in 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 compl ete def ense [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 W iley 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 ke y 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] confess ion” an d “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. Case: 16-70027 Document: 00515739449 Page: 86 Date Filed: 02/09/2021No. 16

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87 Lucio’s complete defense claim has not changed since Lucio f irst 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 Chamb ers 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 rul es 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

— a nd she did not mention state evidentiary

6 The plurality opinion states that it “is an undisputed pr oposition” that Lucio changed her complete defense claim over time. Plurality Op. at 4 5

. 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 th at the state trial court deprived her “of the constitutional right to present a comple te 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 t he same: that the state trial court violated her right to present a complete defense w hen 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 c ourt 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 he r right to present a complete defense because Pinkerman’s testimony would have challen ged the credibility of her incriminating statement. She made the same claim in her en banc briefing. T his case is therefore distinguishable from Rose v. Lundy , 455 U.S. 509 (1982), which the plurality opinion cites for the proposition that defendant s can not “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 Plurali ty Op. at 4 5

.

7 Lucio also argues that the state habeas court’s adjudication was contr ary 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 determinati on turns on the facts as set forth herein, I do not address this issue separately. Case: 16-70027 Document: 00515739449 Page: 87 Date Filed: 02/09/2021No. 16

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88 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 toda y.
Th e 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 i n her d irect 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 her state 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 supp ort mul tiple, 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 giv en.” 4 76 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 m eaningf ul 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 plural ity 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 Case: 16-70027 Document: 00515739449 Page: 88 Date Filed: 02/09/2021No. 16

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89 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” regard less. 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 O p. at 3 5. 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, unreal istic a nd 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 t hen “ev entually 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 potent ially c overing 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 co mes aft er 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 te stifyin g Case: 16-70027 Document: 00515739449 Page: 89 Date Filed: 02/09/2021No. 16

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90 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 righ t to pr esent 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

s tate ha beas 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 affirman ce 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 cl aim beca use 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 stat ements. 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 S pecifically, 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.” Case: 16-70027 Document: 00515739449 Page: 90 Date Filed: 02/09/2021No. 16

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91 characteristics and makeup of [Lucio’s] psychological functi oning” a nd 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 ut ilize Pi nkerman; 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 Pinke rman’s b ill 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 demeano r 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 waive d this p rocedural 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 complet e defens e 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 Case: 16-70027 Document: 00515739449 Page: 91 Date Filed: 02/09/2021No. 16

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92 court. The State’s response was nothing of the sort, and the St ate 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 stat e 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 relitiga te 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 o f Crimin al 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, t oo. Ind eed, 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

- defen se 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 th e 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 p hase 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 Case: 16-70027 Document: 00515739449 Page: 92 Date Filed: 02/09/2021No. 16

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93 that this Court may also consider Dr. Pinkerman’s 2010 affidav it becau se 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 recentl y remind ed 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 appea l

. . . , 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 wh o do not hing 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 deali ng 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] b een give n 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.” Case: 16-70027 Document: 00515739449 Page: 93 Date Filed: 02/09/2021No. 16

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94 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 argumen ts. 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 co urt deni ed 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 wheth er 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 suffer ed ineff ective 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 resp ond 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 o pportunity to respond and the State did not intentionally waive the bar); Magouirk v. Phillips , 144 F.3d 348, 360 (5th Cir. 1998) (holding that t he federal district court did not abuse its discretion in raising a procedural default sua sponte because petit ioner 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 issu es sua sponte. Case: 16-70027 Document: 00515739449 Page: 94 Date Filed: 02/09/2021No. 16

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95 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 stat e 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 pr esent 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 clai m was “c ontrary 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 proc eeding.” 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

– 4 1 . 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 Case: 16-70027 Document: 00515739449 Page: 95 Date Filed: 02/09/2021No. 16

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96 defense on the merits. 10 However, because the majority of the en banc court has ruled that Lucio’s complete de fense cl aim 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 wi ll discuss why the state court’s determination is an unreasonable application of those key precedents.

A. Crane

In Crane , the Supreme Cou rt recognized that “the Constitution guarantees criminal defendants a meaningful opportunity to present a complete de fense,” and held that such an “opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearin g 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 co urt failed to adjudicate Lucio’s complete defense claim on the merits because it erroneously determined that Lu cio raised a state evidentiary challenge and rejected that claim based on state evidentiary standards. There is a rebuttable presumption that st ate courts have rejected a claim on the merits if a written order is silent regarding a claim. See Williams , 5 68 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. I d

. at 301; see Wiley , 74 S.W.3d at 405 (recognizing that a complete defense claim as serts that the exclusion of “otherwise relevant, reliable evidence” precluded the defendant from presenting a defense).

11 Granted, if the state h abeas court’s decision on Lucio’s complete defense claim was error under AEDPA deference, then it was also erro r under de novo review. Thus, there is nothing inconsistent, as the plurality opinion contends, about applying arguendo a more deferential stand ard of review when Lucio should prevail either way. Case: 16-70027 Document: 00515739449 Page: 96 Date Filed: 02/09/2021No. 16

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97 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 ex cluded the testimony because it “related solely to [the] voluntariness” of the defendant’s confession and state evide nce rules prohibited relitigation of a trial court’s pretrial voluntariness determination. See id. at 686

– 87 (citation omitted). Given it s voluntariness holding, the state court further held that the testimony “did not relate to the credibility of the co nfession.” Crane v. Kentucky , 690 S.W.2d 753, 755 (Ky. 1985). The Supreme Court disagreed with the state court’s separation of those conce pts, taking issue with its holding “that evidence bearing on the voluntariness of a confession and evidence bearing o n 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. a t 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 cr ime and that, for a variety of reasons, his earlier admission of guilt was not to be believed.” Id. at 691. Therefore, the Court conclude d it was “plain that introducing evidence of the physical circumstances that yielded the confession was all but indis pensable to any chance” of Crane’s defense succeeding. Id. The evidence would help answer “the one question every rational juror needs an swered: 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. Case: 16-70027 Document: 00515739449 Page: 97 Date Filed: 02/09/2021No. 16

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98 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 “fair ness [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 in volved in a shooting, for which Chambers was convicted of murder. Id. at 285

– 87. At his trial, Chamb ers 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 h ad 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 wi tness. Id. at 291, 295. To challenge McDonald’s renunciation of his prior confession, Chambers then sought to introduce testimony from three witnesses t o whom McDonald had admitted shooting the victim. Id. at 292. All three witnesses were prevented fro m 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 Case: 16-70027 Document: 00515739449 Page: 98 Date Filed: 02/09/2021No. 16

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99 “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 “arc haic, 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

rat ionale 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 decisio n constitutes an unreasonable application of clearly established fe deral 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 th e ‘unreasonable application’ clause if the state court correctly id entifies 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). Luci o satisfies this high threshold. The Supreme Court in Crane and Cha mbers 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; Chamber s , 410 U.S. at 302, and (2) the state court failed to provide a rat ional 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 Case: 16-70027 Document: 00515739449 Page: 99 Date Filed: 02/09/2021No. 16

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100 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 h ave 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] psychologic al characteristics increase[d] the likelihood she would acquiesce while providing her confession.” In other words, Pinkerman would have testified that Lucio’s interrogation statement, incl uding her abuse of Mariah, posed “serious questions” about its vali dity. 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 S tate presented no physical evidence or witness testimony establishi ng 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 cl osing argument, the State contended that Lucio must have killed Mar iah 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 tria l. See supra Section I.A. Indeed, the State made no mention of Lucio’s conversations with her sister in its c losing argument. As Lucio’s trial counsel noted: “This whole case revolve[d] around th[e] video.” The State also argues that Pinkerman’s testi mony was not indispensable because Lucio could have presented “fact witnesses to testify about her body languag e, her propensity to take blame, or any other issue.” But that is exactly what Pinkerman sought to testify about and, as explained below, the st ate habeas court provided no rational justification for excluding Pinkerman’s testimony. Case: 16-70027 Document: 00515739449 Page: 100 Date Filed: 02/09/2021No. 16

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101 the evidence was suffi cient 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 ta ken away

— or its validity is undermined

— then the State’s case become s 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 r eason 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 careta ker

— 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 alt ernate 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 h er 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 t he 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 stateme nt. The statement also lacks context, which makes it less reliable.

14 The plurality opinion claims that “the trial court permitted Lucio’s siste r 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 def ense because Pinkerman’s testimony at the mitigation stage never hinted that Lucio’s statements could not be trusted. Plurality Op. at 35

– 36. B ut, as explained supra Section II.A., Pinkerman’s mitigation testimony holds no bearing on Case: 16-70027 Document: 00515739449 Page: 101 Date Filed: 02/09/2021No. 16

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102 In sum, the indispensability of Pinkerman’s testimony to Lucio’s defense is on par with the excluded evidence at issue i n 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 evidenc e, 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 d o 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 Pinker man’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 reg arding Lucio’s tendency to take blame for everything. See supra n.14.

16 The State asserts that the state hab eas court rejected Pinkerman’s testimony as unreliable and as failing to qualify as an expert testimony under Texas Rule of Evidence 702. The st ate habeas court made no determination about the reliability of Pinkerman’s testimony, nor did it make a determ ination about Pinkerman’s qualification as an expert to testify. Case: 16-70027 Document: 00515739449 Page: 102 Date Filed: 02/09/2021No. 16

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103 that Pinkerman’s “tes timony 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 s uffered from battered woman syndrome, and the meaning of her demeanor afte r 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 exclud ing 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 Pinkerma n’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. a t 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 rati onal application of a state evidence rule, even assuming the rule itself s erves 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 excludi ng Pinkerman’s testimony because it was irrelevant and had no bearing on L ucio’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 w as 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 ex pert witness. Only Villanueva’s reliability was questioned. Case: 16-70027 Document: 00515739449 Page: 103 Date Filed: 02/09/2021No. 16

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104 point. It independently determined that the excluded testimony bore on the credibility o f 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 vita l 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 n eeds 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 opi nion 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 Cran e did not implicate discretionary evidence rules. Plurality Op. at 27

– 2 9

. But neither Chambers nor Crane holds that a defendant’s right to present a complete defense applies only wh en 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 bea ring on the credibility of a confession when such evidence is central to t he 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 presen t a complete defense

 applied to only categorical evidence rules). The onl y support for the plurality opinion’s narrow Case: 16-70027 Document: 00515739449 Page: 104 Date Filed: 02/09/2021No. 16

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105 interpretation of Chambers and Crane comes from (a) one line in Crane , which states “that the blanket exclusion of the proffered testimon y about the circumstances of petitioner’s confession deprived him of a fai r 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 plural ity opinion recognizes, the Supreme Court has since explained that the cor e “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 exclude s 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 “contr ary to” Supreme Court precedent, but that is not the situation her e, 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 establ ished 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 pre sent 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 Suprem e 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 credib ility 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 Case: 16-70027 Document: 00515739449 Page: 105 Date Filed: 02/09/2021No. 16

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106 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 5 2

. Moreover, even if the plurality opinion is right and Cr ane and Chambers apply only to categorical rules, just such a cate gorical 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 Rul e 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 e xpert 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 co urt’s decision, the state trial court “mechanistically” applied th e 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 unfound ed. See Plurality Op. at 27

– 2 9 . 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 testim ony] goes to the guilt or innocence.” But, the plurality opinio n 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 obser ves that the question of relevance is discretionary, once releva ncy is determined, I note that the exclusion of that evidence (if deemed irrelevant) is not. Case: 16-70027 Document: 00515739449 Page: 106 Date Filed: 02/09/2021No. 16

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107 conclusion that an application of a discretionary rule does not violate a defendant’s right to present a co mplete defense is not an unreasonable application of Crane . Howev er, 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 t estimony 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 e xclude expert testimony”). The Sixth Circuit independently determ ined 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 e vidence, 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 E ighth, Tenth, and Eleventh Circuits held that the excluded evidenc e 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); T roy 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 summar ized and applied the legal standard for the “unreasonable applic ation” 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 Case: 16-70027 Document: 00515739449 Page: 107 Date Filed: 02/09/2021No. 16

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108 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 de ciding the complete defense question. See Plurality Op. at 2 7

– 2 9

. 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 w itness

tes timony 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 tri al court’s discretionary limitation on cross

examination 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 habe as court

u nreasonably 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 adjudicati on 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 O p. at 56

– 57. I identify Scrimo for the proposition that this op inion’s position

— that an unreasonable application of Crane is not limited to evidence subject to categorical evidence rules

— would not create a circuit split. Case: 16-70027 Document: 00515739449 Page: 108 Date Filed: 02/09/2021No. 16

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109 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

unre asonable appli cation 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. Case: 16-70027 Document: 00515739449 Page: 109 Date Filed: 02/09/2021No. 16

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110 **S tephen**  **A. H igginson**  **,** Circuit Judge **,** joi ned by **S tewart**  and **E lrod**  **,** 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 wri te separately for emphasis, an opportunit y 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 Cran e 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 confessi on when such evidence is central to the d efendant’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 o f the reality that Mariah was also a victim of Texas’s broken fo ster 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 mont hs 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 su ch as physical, sexual, and psychological abuse given that it wa s “aware of the systemic deficiencies plaguing its monitoring and oversight practices” and did not “take[] any steps at all” to address them). Case: 16-70027 Document: 00515739449 Page: 110 Date Filed: 02/09/2021No. 16

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111 Indeed, we are controlled by the Supreme Court’s verbatim vi ndication of the constitutional imperativ e 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 ju ry the circumstances that prompted his co nfession, 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 th is 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 “whip saw[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 plur ality nor Texas defends it, namely that M s. 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 Cran e , “the physical and psychological enviro nment 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 applica tion presented a specific complete

- defense claim: The trial cour t 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 inn ocence.’” 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 (20 20) (reiterating the importance of “party presentation” and emph asizing that courts should function as “essentially passive instruments of government” (citation omitted)). Case: 16-70027 Document: 00515739449 Page: 111 Date Filed: 02/09/2021No. 16

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112 “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.

Furth ermore, 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 specific ally, 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 dispositiona l, could have taken the place of the prop osed 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 fo rm 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

.
a t 690

– 91. Stated otherwise, the trial jud ge 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 batte red 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 interrogato r’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 th at she was not qualified as an expert. Right or wrong, we must d efer to that ruling. Case: 16-70027 Document: 00515739449 Page: 112 Date Filed: 02/09/2021No. 16

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113 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 afte r viewing dozens of photographs of the child, she acquiesced:
Te xas 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 ma d?
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 meetin g 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 your said. 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 d o 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 f or it. About thirty minutes later, and after viewing more photographs of her dead child, Ms. Lucio acquiesced again: Case: 16-70027 Document: 00515739449 Page: 113 Date Filed: 02/09/2021No. 16

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114 Constituti on and disregards binding, bedrock Suprem e 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 acce pt responsibility, and to avoid confronta tion. 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. Luci o: [shaking head no] Texas Ranger: Your husband?
Ms. Luci o: 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.
Texa s 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 gover nment to convict her, remarking “I just did it” in the context of a series of questions about whether s he 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 prop erly before us in reviewing whether the district court’s ruling was violative of Crane . This affidavit further clarifies Pinkerman’s Case: 16-70027 Document: 00515739449 Page: 114 Date Filed: 02/09/2021No. 16

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115 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 h eard to answer why she acquiesced and tol d her interrogator, “I just did it.”

testimony that “in [his] professional opinion her psychological characteristics increase the likelihood that she would acqu iesce while providing her confession” due to being isolated for 5 hours, “repeatedly interrogated by ma le 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 “v ery capable of making self

- sacrifice in providing a false confession in order to avoid investigation of her children,” several of whom had “bad behaviora l disorders marked by severe aggression against the[ir] siblings,” including Mariah. Pinkerman’s proffe r therefore interlocks with interrogation techniques used against Ms. Lucio where the interrogator targeted Ms. Lucio’s desire for male approval. For

exa mple, 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. Case: 16-70027 Document: 00515739449 Page: 115 Date Filed: 02/09/2021