Billie Coble v. Lorie Davis, Director ( 2017 )


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  •      Case: 15-70037      Document: 00513914988         Page: 1    Date Filed: 03/16/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 15-70037                          March 16, 2017
    Lyle W. Cayce
    Clerk
    BILLIE WAYNE COBLE,
    Petitioner - Appellant
    v.
    LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
    JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
    Respondent – Appellee
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 6:12-CV-39
    Before STEWART, Chief Judge, JOLLY, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Billie Wayne Coble, sentenced to death for the murders of his third wife’s
    parents and brother, requests a certificate of appealability (COA) to appeal the
    district court’s denial of federal habeas relief. We GRANT a COA for two of his
    claims and deny a COA for the remaining claims.
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 15-70037      Document: 00513914988        Page: 2    Date Filed: 03/16/2017
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    I. Facts and Procedural History
    The Texas Court of Criminal Appeals (TCCA) summarized the evidence
    presented at trial as follows:
    Karen Vicha was [Coble’s] third wife. They were married in
    July 1988 and lived in a house down the road from her brother and
    across the street from her parents. [Coble] was almost forty years
    old. The marriage quickly disintegrated, 1 and after a year, Karen
    told [Coble] to move out. She wanted a divorce. [Coble] attempted
    to talk her out of this decision and would randomly call her and
    show up at her work place.
    [Coble] then kidnapped Karen as a further effort to dissuade
    her from divorcing him. He hid in the trunk of her car while she
    was at a bar one evening with a girlfriend. When Karen started to
    drive home, [Coble] folded down the back seat and “popped out of
    the trunk with a knife.” He jumped over the console, halfway into
    the front seat, and stuck the knife against Karen’s ribs. He told
    her to keep driving until they came to a field. Karen stopped the
    car, and [Coble] said that if he couldn’t have her, then no one else
    could. He pulled out a roll of black electrical tape, but Karen kept
    talking, and, after about two hours, she convinced him that she
    would reconsider the divorce issue. He let her go, and she called
    her brother, Bobby, who was a police officer. Bobby told Karen to
    report the kidnapping.
    After he arrested [Coble] for kidnapping Karen, Officer
    James Head looked in his patrol-car mirror and saw [Coble]
    staring at him with a look that “made the hair on the back of [his]
    head stand up.” He got “the heebie-jeebies.” [Coble] muttered
    something like “They’re going to be sorry.” Officer Head called
    Karen’s brother, Bobby, and warned him about [Coble]. When
    [Coble] was released on bail for the kidnapping charge, Bobby got
    Karen a German shepherd for protection. A few days later, [Coble]
    told Karen, “oh, I see you—you’ve got a dog now . . . [T]hat’s a big
    mean dog you’ve got.” Shortly thereafter, Karen found the dog
    lying dead in front of her house.
    1 Karen was worried by [Coble]’s sudden personality switches from calm
    to aggressive—“agitated and angry”—as well as his interest in watching young
    girls.
    2
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    Nine days after he had kidnapped Karen, [Coble] went to her
    house in the early afternoon. As Karen’s three daughters each
    came home from school along with Bobby’s son, 2 [Coble]
    handcuffed them, tied up their feet, and taped their mouths closed.
    Karen’s oldest daughter testified that she heard [Coble] cut the
    telephone lines. Then he left to ambush and shoot Karen’s father,
    mother and brother Bobby as each of them came home. 3
    [Coble] returned to Karen’s house after the triple killings
    and waited for his wife to come home from work. He told the
    children, “I wish I had blown you away like I intended to.” When
    Karen arrived, [Coble] came out of one of the bedrooms with a gun.
    [Coble] said, “Karen, I’ve killed your momma and your daddy and
    your brother, and they are all dead, and nobody is going to come
    help you now.” She didn’t believe him, so [Coble] showed her
    Bobby’s gun lying on the kitchen table and pulled the curtains so
    she could see her father’s truck parked behind the house. He
    showed her $1,000 in cash that he had taken from her mother.
    [Coble] told Karen that she was lucky that he hadn’t molested her
    daughters, and he told her to kiss them good-bye. She did. He
    made her put on handcuffs. Karen talked [Coble] into leaving the
    house and taking her with him. 4 He said he was going to take her
    away for a few weeks and torture her. 5
    2  All four children, ages 16, 14, 11, and 10, testified that they had liked
    [Coble] prior to the murders.
    3 Karen’s father, the first victim, was found inside his home, covered
    with blankets and towels. Karen’s mother was found in her garage. Bobby
    was found in his car in his garage. Later that day, [Coble] told Karen that her
    brother was tough. “He put up one hell of a fight . . . I chased him down the
    road one way, and I chased him back. And then I shot him, and he was going
    for the gun in his car. And he wouldn’t die . . . So, finally, I had to blow a hole
    that big in his neck.” [Coble] also told Karen that he “really hated to do that
    to your mom. But when she found out about your dad, she just went crazy.”
    4 While Karen and [Coble] were still at her house, Bobby’s girlfriend
    dropped by and saw Karen in handcuffs. She then went to Bobby’s house and
    called Karen’s uncle to tell him about seeing Karen in handcuffs. After that
    call, she looked around Bobby’s house and saw blood everywhere, plants and
    furniture up-ended, and general disarray. She called the sheriff’s office.
    Officers then came to Karen’s house, talked to the four children, found the
    bodies of the three victims, and started the hunt for [Coble].
    5 Karen testified that when she came to a court hearing in 1998, [Coble]
    kept turning around and smiling at her with “a wicked evil grin.” Even in
    3
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    As [Coble] drove, Karen tried to escape by freeing one hand
    from the handcuffs and grabbing at the steering wheel, making the
    car swerve into a ditch. She grabbed one of [Coble]’s guns, pointed
    it at his stomach, and pulled the trigger, but nothing happened.
    Then Karen and [Coble] fought over the gun, with [Coble]
    repeatedly pulling the trigger, but still the gun did not fire. [Coble]
    pistol-whipped Karen until she couldn’t see for all of the blood on
    her face. A woman passerby started shouting at [Coble], “[W]hat
    are you trying to do to that woman,” so [Coble] drove the car out of
    the ditch as Karen lay in the passenger seat. He shouted at her
    that if she got blood on his clothes, he would kill her. But he was
    also rubbing her between her legs as he drove. He told her that
    his reputation was ruined because she had had him arrested and
    his name was in the papers.
    He drove to a deserted field in Bosque County where he
    threatened to rape her. After dark, he drove out of the field, but
    they passed a sheriff’s patrol car which turned around to follow
    them. [Coble] grabbed a knife and started stabbing Karen’s chin,
    forehead, and nose, as he was driving. [Coble] said that he did not
    want to die in prison, so he “floored it” and rammed into a parked
    car. After the crash, [Coble] turned to Karen and said, “I guess
    now you’ll get a new car.” Both [Coble] and Karen were injured in
    the crash. Officers had to cut the car door open to get Karen out.
    [Coble] was found with Karen’s father’s watch and wallet, as well
    as .37 and .38 caliber revolvers.
    Coble v. State, 
    330 S.W.3d 253
    , 261–63 (Tex. Crim. App. 2010).
    Coble was convicted and sentenced to death. His conviction and sentence
    were affirmed on direct appeal. Coble v. State, 
    871 S.W.2d 192
    (Tex. Crim.
    App. 1993). His initial state habeas application was denied. Ex parte Billie
    Wayne Coble, No. 39,707-01 (Tex. Crim. App. 1999).
    The district court denied Coble’s petition for federal habeas relief. This
    Court reversed and ordered a new trial on punishment, holding that there was
    a reasonable likelihood that the special punishment issues (which at that time
    2008, she was still scared of him and felt that he was a continuing threat to
    her.
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    did not include a special issue on mitigation) did not permit the jury to give
    meaningful consideration and effect to Coble’s mitigating evidence of mental
    illness and troubled background. Coble v. Quarterman, 
    496 F.3d 430
    (5th Cir.
    2007).
    Russell Hunt, Jr. and Alexander Calhoun were appointed to represent
    Coble for the punishment retrial, which was held in September 2008. The
    following evidence was presented at the 2008 retrial.
    Pamela Wooley, Coble’s first wife, testified that she married Coble in
    1970, when she was 20 years old. She had been married twice previously.
    Coble was nice to her and their marriage went well in the early years. Coble
    adopted her daughter from her first marriage and was a good parent to her.
    They had a son, Gordon Coble. While she was pregnant, Coble told her that if
    the baby was not a boy, he would not bring her home from the hospital and
    would leave her.     During the latter part of their marriage, Coble became
    possessive and then abusive. He hit her with an open hand and with his fist,
    but was remorseful afterward and asked for forgiveness. She also testified that
    Coble threatened to kill himself in an attempt to get her to change her mind
    about the divorce, and attempted to commit suicide at the courthouse during
    their divorce proceedings; and that she filed an assault charge against him
    after he threw a baseball and hit her in the back. She testified that he got into
    a fight with another man at work, and told her that he took a hammer and
    tried to kill the man after the man attacked him.
    Patricia Wooley, Pam’s younger sister, testified that in 1970, when she
    was 13, Coble caressed her upper thigh while she was in the back seat of a car
    with him. In 1972 or 1973, he tickled her “outside” of her clothing. While
    swimming in a lake when she was 16, Coble touched her between her legs.
    When she was 17 or 18, Coble opened the glass doors when she was taking a
    shower and made lewd comments about her body. At the time of Coble’s
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    divorce when he was attempting to pick up his son, he hit her, causing a
    “busted lip.” She admitted that she had not told anyone about these alleged
    incidents until after Coble had been convicted.
    Christy Smith testified that in 1973, when she was 13 years old, Coble
    touched her breast and put his hand between her legs while teaching her to
    water-ski. She did not tell anyone about the incident at the time, and admitted
    that she continued to baby-sit for the Cobles after the incident.
    Terry Ferguson testified that in 1974 or 1975, when she was 12 to 14
    years old, she went to Coble’s home to apologize for not going water skiing with
    him. He tried to touch her around her shoulders and breasts. He backed off
    after she said she was going to scream. Later, she applied for and got a job at
    the drive-in movie theater where Coble and his wife worked. Coble tried to do
    the same things to her two or three other times.
    Amy Loreis Ivey Zuniga, Coble’s niece, testified that Coble was a model
    father figure as she was growing up. However, when she was 15, Coble came
    by her apartment to pick up her brother for work. He saw her sitting in a chair
    and spread her legs with his hands and made licking motions with his tongue.
    Later that day he returned, grabbed her, and started trying to kiss her. Then
    he stopped, threw her a five-dollar bill, said he was sorry, and left. She told
    her mother about the incident, but nothing was done. The following year,
    Coble told her that no one believed her and that she should stop telling stories.
    Later, in 1989, Coble watched her through a window as she was getting
    dressed.
    Phillip Pierce, an administrator in the McLennan County Criminal
    District Attorney’s Office, summarized Coble’s military history with the
    Marine Corps. Coble enlisted in September 1965 and served as a rifleman and
    machine gunner in Vietnam.        His active service ended in 1971 and his
    character of service was listed as honorable.
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    Michael Trantham, a retired Waco police officer, testified that in July
    1989, Bobby Vicha brought Karen to talk to him after Coble had kidnapped her
    and held her at knifepoint. He asked Karen if she wanted to file charges
    against Coble and she said yes, so an arrest warrant was issued for false
    imprisonment. The case was presented to a grand jury, which indicted Coble
    for kidnapping on August 24, 1989.
    Candy Ryan, Coble’s second wife, testified that their marriage went
    really well the first year, but then he became physically violent and controlling.
    He threw a sledgehammer at her and hit her elbow. He usually hit her on the
    back or side of the head so that bruises would not be visible. These episodes
    occurred every three to five months, but they had a lot of fun between the
    episodes of violence, as long as things were going his way. A co-worker once
    had to call the police after Coble came to her workplace and accused her of
    running around on him. She left him in August 1987 after he slammed her
    head up against the cabinet, floor, and counter. He stalked her and called her
    in the middle of the night. He also threatened to kill her dog.
    Neomi Rodriguez testified that she worked at a toy store, where Coble
    purchased toy handcuffs a few days before the murders. When she testified at
    his first trial, he stared at her intensely and made a gesture with his finger
    going across his throat, which she interpreted as a threat.
    James Head, a Waco Police detective, testified that he arrested Coble for
    false imprisonment on August 4, 1989. While driving Coble to the jail, he
    watched Coble in the rearview mirror. Coble was staring at him and it made
    the hairs on the back of his neck stand up. As they were walking into the jail,
    Coble said under his breath that “they’re going to be sorry” or “somebody’s
    going to pay.” Head later warned Bobby Vicha to watch out because he felt
    that Coble was dangerous and was going to go after Bobby.
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    Karen Vicha’s daughters, Anne Marie Tidmore, Tracy Tidmore Habern,
    and Heather Moss, described how Coble waited for them and their cousin, J.R.
    Vicha, to come home from school on the day of the murders and then held them
    at gunpoint, handcuffed them, taped their mouths, and tied them to the bed
    with curtain cords while he went and murdered their grandparents and uncle.
    Coble told them he was going to take their mother away and they would not
    see her again. They said that Coble talked about Vietnam during the ordeal.
    All three of them testified that they were still scared of Coble.
    J. R. Vicha, who was 11 years old in August 1989, testified that he
    accompanied his cousins when they came home from school on the afternoon
    of the murders. He described how Coble knelt down beside him and asked his
    age, and then told him he should be grateful that he had known his dad for 11
    years, because that was longer than Coble had known his father. After Coble
    returned from killing Bobby Vicha, he bragged about being on the television
    show, “America’s Most Wanted.”
    Michael Voss, who was dating Anne Marie Tidmore at the time of the
    murders, described going to her home on the afternoon of the murders. Her
    mother, Karen Vicha, answered the door and told him that Anne Marie was
    grounded. She had been crying and seemed to be frightened. He went to a
    friend’s house and called Anne Marie, but no one answered. He and his friends
    went back to the house and knocked on the door. Karen came to the door,
    crying, and told them that Anne Marie had gone to town with a friend.
    Knowing that something was amiss, they went to a store to call the police.
    When they returned to Karen’s home, they went inside and found her
    daughters and J.R. handcuffed and bound.
    Karen Vicha testified about her relationship with Coble, the incident
    that led to the kidnapping charge against him, the death of the dog her brother
    had bought for her protection from Coble after the kidnapping, and the details
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    of the events on the day of the murders. She testified that Coble had the same
    “weird evil grin” in court that day that she had seen in the courtroom in 1998.
    Robert Brennand, a Bosque County deputy sheriff who followed Coble in
    the ambulance to the hospital after he was arrested, recorded what Coble said
    in the hospital. The tape was played for the jury.
    The State presented testimony from a firearms expert, and a medical
    examiner testified about the autopsies of all three victims. V. R. Price, Jr., who
    took photographs as part of the crime scene investigation, testified that the
    way John Vicha’s body was covered and arranged was similar to a field
    dressing that a person might do in a military operation.
    Dr. Ralph G. Hodges, a psychiatrist, read to the jury his report from his
    psychiatric consultation with Coble in 1964, when Coble was 15 1/2 years old
    and living in the Corsicana State Home. Coble and his brother and sister were
    admitted to the home when Coble was 11 1/2 years old, after their mother was
    hospitalized. Coble told Dr. Hodges that he stole the ball bearings from other
    children’s bicycles so the wheels would not turn. Coble explained that he did
    it because he did not have a bicycle. Coble also admitted to several thefts and
    burglaries.   Throughout the interview, Coble seemed extremely hostile to
    women, made very deprecating remarks about them, and seemed to have a
    very low opinion of them. Coble recounted beating up a young girl in the
    classroom, and explained that he did not like her because she had said
    something smart to him. Coble seemed to be impulsive, had poor controls, very
    low self-esteem, and seemed to hold other people responsible for his own
    actions.   It was Dr. Hodges’s impression at the time that Coble had a
    sociopathic personality disturbance of the dissocial type and that the long-term
    prognosis did not look good.
    Dr. Hodges testified that after he made this diagnosis, the Diagnostic
    and Statistical Manual was revised to provide that character disorders were
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    not diagnosable before age 18. The diagnosis under the revised edition would
    have been conduct disorder, which describes an individual who is extremely
    self-centered and concerned about gratifying his own wishes, with little regard
    for the cost in terms of money or pain inflicted on others.
    On cross-examination, Coble’s counsel elicited testimony that Coble’s
    half-sister, Dora Jean, who was 10 years old and the daughter of Coble’s
    mother and stepfather, stayed at home with her parents while the three other
    Coble children were sent to the orphanage. Coble’s biological father died three
    months before he was born, and his mother had a fourth grade education. The
    family lived in a poor neighborhood and the home was in poor repair. Coble’s
    mother was mentally ill and had a nervous breakdown in 1953 following the
    death of her sister.
    Dee Smith, a prison guard and property officer, identified property taken
    from Coble’s cell. It included photographs of young girls engaged in gymnastic
    activities. Those photographs were admitted into evidence.
    Lorna Sawyer, Coble’s cousin, testified that in 1979, when she was 16
    years old, Coble offered her a job at the drive-in theater concession stand where
    he worked. She worked there three weeks. One day when he came to pick her
    up for work, they went to his house. She said she did not remember what
    happened, but knew that she was about to be raped. She did not go to the
    police and did not testify at Coble’s first trial.
    Dr. Richard E. Coons, a psychiatrist, testified in response to a lengthy
    hypothetical question that there is a probability that Coble would be a
    continuing threat to commit criminal acts of violence that would constitute a
    danger to society. On cross-examination, he admitted that his opinion was the
    same when he testified in the first trial 18 years earlier. He also acknowledged
    that the hypothetical question did not include any acts of violence committed
    by Coble during the 19 years he had been in prison prior to the retrial. On
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    redirect examination, the prosecutor showed Dr. Coons the photographs of
    young girls that were found in Coble’s cell, and Dr. Coons testified that it was
    his opinion that Coble’s interest in young girls continues.
    Joy Howard Marvin was called as a witness by Coble. She was the office
    manager for a company that sold disability and life insurance.                Coble
    interviewed for a position in March 1989. He was hired and worked there for
    about three months. She was shocked when she heard about the murders
    because she knew him as peaceful, well-behaved, and friendly.             Marvin’s
    husband, Thomas, testified that he never saw Coble get aggressive with
    anyone and that Coble did not seem like a violent person. He maintained
    contact with Coble after Coble went to prison, and testified that Coble has
    become very involved with his Christian faith.
    Janine Swindler, Coble’s first cousin, testified that Coble was “real fun”
    when she was young, but that he was “different” when he returned from the
    Vietnam War. She had maintained contact with him while he had been in
    prison and assisted him in purchasing commissary items for other inmates.
    She also described his efforts to organize tournaments and contests for the
    inmates. The inmates made Christmas ornaments that he sent to her and
    asked her to give to first grade students. She visited Coble at the Ellis Unit
    and observed mutual respect between him and the guards.
    Swindler testified that her sister, Lorna Sue Sawyer, has a reputation
    among family members for being untruthful; that Sawyer had used LSD often
    in 1979; and that Coble was one of 50 or 100 men Sawyer claimed had sexually
    assaulted her. On cross-examination by the prosecution, she admitted Sawyer
    had told her that Coble fondled her and that she had told the State’s
    investigator that she believed Sawyer. She also admitted that she knew Coble
    had abused his first wife, Pam; that she believes he is a danger to other people,
    women especially; and that he needs to spend the rest of his life in prison.
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    Dr. Joseph Bond Browder, medical director for the McLennan County
    Jail, testified that Coble would be 60 years old the following week, that he had
    a heart attack in 2004, and that he was on medication for hypertension, high
    cholesterol and heart disease.
    Martin Draughon, an inmate who was on death row with Coble from
    June 1999 – April 2006, testified that Coble was well liked, upbeat, and happy.
    He had never seen Coble angry or violent. Coble interacted well with prisoners
    and guards. When they were at the Ellis Unit, they worked in the garment
    factory.   They used sewing machines, cut stacks of fabric with motorized
    knives, and used scissors and shears, as well as tools to work on the machines.
    He described Coble’s efforts to organize sports tournaments and his work as a
    reporter for the prison newspaper. Coble helped illiterate prisoners read their
    mail and write letters to family and friends. After they moved to the Polunsky
    Unit, they were locked in their cells most of the day, but Coble had the same
    reputation for being peaceful that he had at the Ellis Unit.
    Antonio Barrientes, a convicted murderer, testified that he met Coble on
    death row at the Ellis Unit in 1990. Coble tried to help inmates who were
    agitated and getting in trouble. Coble was peaceful and had a good reputation
    at the unit. He never saw Coble act aggressively toward any of the guards or
    inmates. Coble worked in the garment factory and then got a job as a trustee,
    helping the officers feed the inmates and clean the day rooms. They made
    crafts and had access to knitting needles and razor blades. Coble made clocks
    for other inmates who lacked resources and helped other inmates obtain items
    from the commissary.
    Don Youngblood, a private investigator for the defense for Coble’s first
    trial, narrated films from the Department of Defense to show the conditions
    that Coble experienced in Vietnam in 1966–67.
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    Mariano Rosales, an inmate at the Polunsky Unit, testified that he
    worked with Coble in the garment factory at the Ellis Unit. Coble never
    threatened anyone, obeyed the rules, minded his business, helped the younger
    offenders, shared his commissary with other inmates, and interacted well with
    the guards.
    Bernardo Tercero, a death-sentenced capital murderer, testified that
    Coble helped him learn how to speak and read English. Coble taught other
    inmates how to behave, and took a particular interest in the intellectually
    disabled inmates. Coble did not get angry easily and was known for his respect
    for the law and for God.
    The defense presented an affidavit of Joni White, Chairman of
    Classification and Records for TDCJ, to show that Coble had no disciplinary
    records for his entire period of incarceration.
    Mary Oller, Coble’s older sister, testified that their father died before
    Coble was born. Their stepfather was an alcoholic and their mother suffered
    from mental illness. They lived in impoverished circumstances. After their
    mother was hospitalized, she and Coble and their brother were sent to the
    Corsicana State Home. Coble and his brother resented the fact that their
    stepsister, Dora, remained at home with her parents. Coble was seven or eight
    years old at the time, and he remained at Corsicana until he was about 17
    years old. Coble enlisted in the Marines when he was 17 years old, and had
    his 18th birthday on the ship to Vietnam. She and Coble exchanged letters
    while he was in Vietnam. When he returned, he was different; she did not see
    him smile. He joined the Army Reserve after he left the Marines. In 1989 he
    completed an Army Reserve instructor training course and traveled around the
    country to do Army Reserve training exercises. Coble loved his son, G.W., and
    his stepchildren. He was involved in coaching their sports games and was very
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    active in the community. He also served on the board of the Corsicana State
    Home ex-students association.
    Oller testified that Coble came to live with her after he and Karen
    separated. He was sad and seemed depressed. He had been charged with
    kidnapping and needed money for bail and a lawyer. He started talking about
    Vietnam, which he had never done previously. He also talked about killing
    himself. A few days before the murders, he called Karen’s father and tried to
    give Mr. Vicha a Mustang that he had been working on. Mr. Vicha laughed at
    him and told him they would get the Mustang and Coble, too. He threw many
    of his prized possessions into the dumpster. He stopped eating and began
    talking about a dog that he no longer had. She feared he was planning to take
    his own life. On the weekend before the murders, he started calling her by a
    name he had called her when he was a young boy.
    Terry Lechler testified that Coble worked for a drive-in theater managed
    by his mother. Although the work was stressful, Coble was a good, dependable
    worker and did not act inappropriately.
    Coble’s nephew, Dennis Ivey, testified that Coble taught him how to
    weld. He worked for Coble at his welding service. Coble was a good teacher
    and was very patient. Coble loved his son and loved children.
    Jerry Crowder was associated with Coble in the Army Reserve for ten or
    eleven years. He testified that Coble supervised a section of 20–25 men. Coble
    was fair with the soldiers and was a good supervisor and teacher. Coble
    cherished his son. Crowder was stunned when he heard about the murders.
    Paul Midgett knew Coble from peewee football. Coble was a coach.
    Midgett testified that Coble was very kind to the children and was a good role
    model for them. Midgett described an incident when another coach threatened
    Coble, but Coble refused to get into a confrontation and just shrugged it off.
    Midgett was shocked when he heard about the murders.
    14
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    No. 15-70037
    Dewayne Kerr testified that he met Coble at the Corsicana State Home.
    It was a good home and a loving place. Coble was easygoing and well liked.
    Kerr maintained contact with Coble after Coble went to prison. Coble made
    some clocks for him.
    James Steele was Coble’s roommate and good friend at the Corsicana
    State Home. He testified that Coble was always laughing and happy. Coble
    did not have a reputation for being a fighter, bully, or vandal. Coble’s brother,
    Arthur, however, was a troublemaker. Coble once paid off one of Steele’s debts.
    T. C. Bigham testified that he hired Coble to work as a welder at his
    company. Coble worked there for five years and performed very well as a
    supervisor.
    Dr. Mark Cunningham, a psychologist, testified that Coble is in the
    group least likely to commit acts of violence in the future. He listed six factors
    that point to Coble having a positive adjustment to prison and a reduced
    likelihood of serious violence in prison:
    (1) Age. Coble was nearly 60 years old at the time of the retrial in 2008.
    The risk of violence is high for inmates in their early twenties and falls steadily
    as they get older.
    (2) and (3) Lack of Disciplinary Record and No Evidence of Violent Acts
    in Prison. Coble had no disciplinary record during the 19 years he had been in
    prison, and there was no evidence that Coble had committed any acts of
    violence while he had been in prison. The best predictor of future behavior is
    past behavior. Violence in the community does not predict violence in prison.
    Coble worked at a garment factory handling scissors, needles, tools, and
    machines, but committed no acts of violence. When death row inmates were
    housed at the Ellis Unit, Coble was eligible to have a cellmate. After he was
    locked down in a cell by himself for eight or nine years at the Polunsky Unit,
    he was cooperative and did not have authority conflicts, demonstrating a pretty
    15
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    No. 15-70037
    good tolerance for frustration. Coble facilitated interactions rather than trying
    to dominate in a predatory sort of way. Research shows that the longer an
    inmate remains in a compliant mode, without an assault, the less likely that
    is to occur. Murderers have been shown to be less likely to be involved in
    potentially violent misconduct than other inmates. In prison, an inmate’s life
    is substantially structured and he is no longer in relationships that trigger the
    situations that lead to violence. The longer sentence an inmate is facing,
    generally the lower the rate of misconduct and assaultive misconduct. In a
    Texas study he found that death-sentenced inmates were more likely to be
    involved in assaultive misconduct than inmates serving capital life terms.
    (4) Education. Inmates who have earned a high school diploma or a
    GED, such as Coble, have lower rates of violence in prison.
    (5) History of employment.          Persons who have had long-term
    employment in the community are industrious and the best adapted in prison.
    They contribute to the order and stability of the prison setting. The testimony
    about Coble’s organization of sports tournaments and crafts projects is
    significant because it shows that he is trying to occupy himself in a constructive
    fashion.   It is what would be expected considering his education and
    employment in the community. Coble’s lack of a nurturing and caring mother
    damaged him but, in spite of that very rocky beginning, Coble has continued
    to try to do something constructive.
    (6) Community relationships. Coble had maintained contact with friends
    and relatives while in prison. Inmates who continue to have links with the
    community tend to have better adjustments in prison and are less likely to
    present a risk of violence.
    Dr. Cunningham did not identify any factors that would put Coble at an
    increased risk of violence.
    16
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    No. 15-70037
    Dr. Cunningham’s opinion was that it is “quite unlikely” that Coble
    would commit serious violence if confined for life in prison. He testified that
    his opinion is based on scientific methodology which has been peer reviewed.
    The methodology used by the State’s expert, Dr. Coons, for predicting violence
    in prison is notoriously unreliable, entirely speculative, blind guessing. The
    major psychological associations are opposed to making the kind of subjective
    risk assessment that Dr. Coons made in this case, because that method is
    unreliable and inconsistent with the standard of practice. There is a 94.8
    percent error rate in the accuracy of predictions of future dangerousness and
    only a 1.4 percent error rate in the accuracy of predictions of improbability of
    future dangerousness.
    Coble’s son, Gordon W. Coble, testified that his father taught him to
    weld, worked with him in sports, and taught him about hunting and gun safety,
    occupational skills, and work ethics. He enjoyed spending time with Coble.
    Coble was a children’s football coach and was active in the community. Coble
    was very patient, and helped strangers and neighbors. Since Coble has been
    in prison, they have exchanged letters and greeting cards. Coble has a good
    relationship with his grandsons and they love him.
    Marilyn Finley, who worked with Coble’s second wife, Candy Ryan,
    testified that she called the police because she feared there would be violence
    when Coble showed up at Ryan’s workplace, but no violence occurred. She and
    Coble were friends.     He was never aggressive or violent, but would get
    depressed. He was a hard worker.
    Coble did not testify.
    In rebuttal, the State called A. P. Merillat, a Criminal Investigator with
    the Special Prosecution Unit, which prosecutes crimes committed in prisons or
    by employees of the prison system. He testified that the Special Prosecution
    Unit has prosecuted 94 inmates who were serving life sentences for capital
    17
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    No. 15-70037
    murder. Merillat described the classification process and the categories within
    general population. According to Merillat, many violent acts committed in
    prison are unreported.     There are abundant opportunities for violence in
    prison. As an example of unreported prison violence, he testified that a general
    population inmate at the Telford Unit in Bowie County was beaten, tortured
    and starved to death by his cellmate and was discovered dead in his cell long
    after he had died.
    In closing argument, Coble’s counsel told the jury that Coble had adapted
    to prison life and was in the lowest risk category for committing acts of violence
    in prison based on his age, education, lack of disciplinary record, history of
    employment, and family ties.       He argued that Dr. Coons’s opinion was
    unreliable because Dr. Coons was a tea-leaf reader, not a scientist.           He
    characterized Coble’s military service, coaching of children’s sports teams,
    volunteer work, craft projects and assistance to other inmates in prison, as
    mitigating. Coble’s impulse to lash out with violence in the context of romantic
    relationships would not reoccur in prison. Those impulses stemmed from his
    mother’s illiteracy and mental illness and his exposure to horrible things in
    Vietnam.
    During deliberations, the jury asked to see the psychiatric evaluations,
    testimony regarding a 1967 fight while Coble was in the Marines, and the
    photographs that had been taken from his cell.
    The jury answered the special issues in a manner that required
    imposition of the death penalty. The TCCA affirmed on direct appeal. Coble
    v. State, 
    330 S.W.3d 253
    (Tex. Crim. App. 2010). The Supreme Court of the
    United States denied Coble’s petition for a writ of certiorari. Coble v. Texas,
    
    131 S. Ct. 3030
    (2011).
    While his direct appeal was still pending, Coble filed a state habeas
    application on June 3, 2010. An evidentiary hearing was held in state court in
    18
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    No. 15-70037
    2011 on Coble’s claims regarding prejudicial publicity, ineffective assistance of
    counsel in failing to move for a change of venue, and the district attorney’s
    office’s alleged conflict of interest. Following the hearing, the State submitted
    an affidavit of Russell D. Hunt, Jr., Coble’s lead counsel at the retrial. The
    trial court adopted the State’s proposed findings of fact and conclusions of law,
    and the TCCA denied relief. Ex parte Billie Wayne Coble, WR-39,707-03 (Tex.
    Crim. App. Feb. 8, 2012).
    Coble filed a 600-page petition for federal habeas relief, raising 21
    claims. The district court did not conduct an evidentiary hearing. It denied
    relief on September 30, 2015, and also denied a COA. Coble v. Stephens, 
    2015 WL 5737707
    (W.D. Tex. Sept. 30, 2015). Coble timely appealed.
    II. Issues Presented
    Coble requests a COA from this Court for seven claims:
    (1) and (2) He was deprived of his constitutional right to a fair trial, due
    process of law, and a reliable sentence because his trial was conducted in an
    inherently unfair venue, and trial counsel rendered ineffective assistance by
    failing to move for a change of venue;
    (3) and (4) The prosecution had a disqualifying conflict of interest and
    trial counsel rendered ineffective assistance by failing to seek to recuse the
    prosecution;
    (5) The unreliable “junk” science testimony of Dr. Coons violated his
    constitutional rights;
    (6) The irrelevant, inflammatory, false, and perjured testimony of A. P.
    Merillat violated his constitutional rights; and
    (7) Trial counsel rendered ineffective assistance by failing to present
    expert psychiatric testimony.
    19
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    III. Discussion of Issues
    In order to obtain a COA, Coble must make a “substantial showing of the
    denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court
    has rejected the constitutional claims on the merits, the showing required to
    satisfy § 2253(c) is straightforward: The petitioner must demonstrate that
    reasonable jurists would find the district court’s assessment of the
    constitutional claims debatable or wrong.” Slack v. McDaniel, 
    529 U.S. 473
    ,
    484 (2000).   With respect to claims dismissed on procedural grounds, the
    petitioner must show both “[1] that jurists of reason would find it debatable
    whether the petition states a valid claim of the denial of a constitutional right
    and [2] that jurists of reason would find it debatable whether the district court
    was correct in its procedural ruling.” 
    Id. When “reviewing
    [a] request for a COA, we only conduct a threshold
    inquiry into the merits of the claims [the petitioner] raise[s] in his underlying
    habeas petition.” Reed v. Stephens, 
    739 F.3d 753
    , 764 (5th Cir. 2014) (citing
    Miller-El v. Cockrell, 
    537 U.S. 322
    , 336 (2003)). This “threshold inquiry” is not
    a “full consideration of the factual or legal bases adduced in support of the
    claims,” but rather “an overview of the claims in the habeas petition and a
    general assessment of their merits.” 
    Miller-El, 537 U.S. at 336
    ; see also Buck
    v. Davis, ___ S. Ct. ___, 
    2017 WL 685534
    , at *11–*12 (U.S. Feb. 22, 2017). In
    generally assessing the claims for relief in a COA application, “[t]he question
    is the debatability of the underlying constitutional claim, not the resolution of
    that debate.” 
    Id. at 342.
    And “in a death penalty case, ‘any doubts as to
    whether a COA should issue must be resolved in [the petitioner’s] favor.’”
    Ramirez v. Dretke, 
    398 F.3d 691
    , 694 (5th Cir. 2005) (alteration in original)
    (quoting Hernandez v. Johnson, 
    213 F.3d 243
    , 248 (5th Cir. 2000)).
    For the reasons that follow, we DENY a COA for claims 1-4 and 7
    because Coble has not shown that “jurists of reason could disagree with the
    20
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    district court’s resolution of his constitutional claims or that jurists could
    conclude the issues presented are adequate to deserve encouragement to
    proceed further.” 
    Miller-El, 537 U.S. at 327
    . Because this is a death penalty
    case and we are to resolve in Coble’s favor any doubts as to whether a COA
    should issue, we GRANT a COA for claims 5 and 6. These issues appear to
    have been addressed fully in the briefing filed in the district court and this
    court. If, however, Coble wishes to file a supplemental brief with respect to the
    merits of the claims, he may do so within thirty days of the date of this order.
    The supplemental brief should address only matters, if any, that have not
    already been covered in his brief in support of the COA application. If Coble
    files a supplemental brief, the State may file a response fifteen days thereafter,
    to be similarly limited to matters that have not already been covered in its brief
    in opposition to Coble’s COA application. We now turn to address the five
    remaining claims.
    A. Claims (1) and (2), Venue
    Coble requests a COA for his claims that he was deprived of due process
    and a fair trial because his trial was conducted in an inherently unfair venue,
    and that trial counsel rendered ineffective assistance by failing to move for a
    change of venue.
    The Sixth Amendment guarantees a criminal defendant the right to a
    fair trial by an impartial jury. Skilling v. United States, 
    561 U.S. 358
    , 377
    (2010). The failure to provide such a trial violates due process. 
    Id. at 378.
    However, the Constitution does not require that jurors be ignorant of the facts
    and issues involved. Dobbert v. Florida, 
    432 U.S. 282
    , 301 (1977). “[E]xtensive
    knowledge in the community of either the crimes or the putative criminal is
    not sufficient by itself to render a trial constitutionally unfair.” 
    Id. at 303.
    To
    succeed on a claim of denial of a fair trial because of adverse pretrial publicity,
    a habeas petitioner must demonstrate that “the particular jurors selected for
    21
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    No. 15-70037
    service in his case were biased against him.” Busby v. Dretke, 
    359 F.3d 708
    ,
    725 (5th Cir. 2004); see also Moore v. Johnson, 
    225 F.3d 495
    , 504 (5th Cir. 2000)
    (stating that generally, a habeas petitioner seeking “relief as a result of pretrial
    publicity must demonstrate an actual, identifiable prejudice on the part of
    members of the jury that is attributable to that publicity”).
    Alternatively, prejudice may be presumed when the record demonstrates
    that the trial was conducted in an inherently prejudicial atmosphere “utterly
    corrupted by press coverage.” 
    Dobbert, 432 U.S. at 303
    (internal quotation
    marks and citation omitted); see also Rideau v. Louisiana, 
    373 U.S. 723
    , 726–
    27 (1963). The presumption applies only in “extreme” cases. See 
    Skilling, 561 U.S. at 381
    .
    To establish ineffective assistance of trial counsel, a petitioner must
    show that counsel’s performance was deficient and that he was prejudiced by
    the deficient performance. Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984).
    In an affidavit submitted to the state habeas court, Coble’s lead counsel,
    Russell D. Hunt, Jr., stated that after conducting research to obtain the
    perspective of McLennan County residents, he decided that Coble was not
    entitled to a change of venue. Hunt was also concerned that if a motion were
    filed and granted, the case might be moved to a less favorable venue with
    potentially more pro-death penalty jurors. As part of their trial strategy, Hunt
    stated that they included questions about media exposure on the questionnaire
    completed by all venire members, believing that would sufficiently alert them
    to individuals who had been previously exposed to media coverage about the
    case.
    The state habeas court held that Coble’s due process claim is
    procedurally barred because it was not raised on direct appeal and because
    trial counsel did not move for a change of venue. With respect to Coble’s
    ineffective assistance of counsel claim, the state habeas court found that
    22
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    Coble’s counsel discussed a change of venue and performed legal research on
    the issue, but decided not to pursue it because they did not believe it would be
    meritorious. The court stated that there was nothing to indicate that the jury
    selected was not impartial and did not give Coble a fair trial. It thus concluded
    that counsel did not perform deficiently.
    The district court held that Coble failed to establish that any of the jurors
    who served were prejudiced by the publicity. It concluded that Coble was not
    entitled to a presumption of prejudice because he failed to present anything to
    indicate that the general environment in McLennan County was “utterly
    corrupted by press coverage.” 
    Dobbert, 432 U.S. at 303
    . The court stated that
    the murder and first trial occurred over 20 years prior—sufficient time for
    almost two generations of citizens to become eligible to serve on a jury, who
    had not been exposed to the level of publicity and public interest that
    surrounded the first trial.
    Coble argues that his due process claim is not procedurally defaulted,
    because the claim depended on extra-record evidence, including the
    compilation of media coverage, which was not in the record on direct appeal.
    He contends further that to the extent the claim was barred because trial
    counsel did not move for a change of venue, they rendered ineffective
    assistance by failing to do so.
    Coble argues that he is entitled to a presumption of prejudice and need
    not show that any juror was biased, because the publicity “so pervaded or
    saturated the community as to render virtually impossible a fair trial by an
    impartial jury drawn from that community.” Willie v. Maggio, 
    737 F.2d 1372
    ,
    1386 (5th Cir. 1984). As support, he offers the following:
    (1) Of the 80 prospective jurors who submitted questionnaires, most of
    them (43) had heard of the case. Of those 43, 29 had either made up their
    23
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    No. 15-70037
    minds already or were uncertain. Of the 29, 17 had made up their minds as to
    punishment.
    (2) Six of the jurors who served had heard of the case beforehand.
    (3) In 2008 (the year of the punishment retrial) there were 22 local
    newspaper articles and 61 television stories about the case. In 1990, when the
    case was tried the first time, there were only 18 articles. Six additional articles
    were published in 2007, when the punishment phase retrial was ordered.
    (4) A state court judge, who presided in the same courthouse where the
    retrial was to be conducted, criticized the Fifth Circuit for ordering the retrial
    and referred to Coble as “this vermin who snuffed out three innocent lives like
    they were nothing more than a candle.”
    (5) The main road outside the victims’ former residence was renamed
    “Vicha Road” in their honor.
    (6) The prejudice was exacerbated by the community’s indignation at the
    retrial, which was seen as an outrage and a waste of taxpayer money.
    The State responds that Coble’s claim could have been raised on direct
    appeal because it relies heavily on the voir dire testimony and juror
    questionnaires, which were in the record on direct appeal. Even assuming that
    the issue could not have been raised on direct appeal, the State contends that
    it is still procedurally barred because Coble’s counsel did not move for a change
    of venue. The State argues that ineffective assistance of counsel is not an
    exception to the procedural default doctrine but is, instead, a separate and
    independent claim which Coble abandoned, by failing to adequately brief it.
    The State contends further that, even if the due process claim is not
    procedurally barred, Coble failed to establish the existence of any jury bias
    resulting from the publicity. It points out that none of the 17 venire members
    who indicated on their questionnaires that they had made up their minds were
    selected to serve. Although half of the jurors admitted to having heard of the
    24
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    No. 15-70037
    case before trial, the record does not indicate that any of them were persuaded
    by any publicity.
    The State argues that presumptive prejudice is inapplicable because
    Coble has not shown that the trial atmosphere was “utterly corrupted by press
    coverage.” 
    Dobbert, 432 U.S. at 303
    . According to the State, most of the
    articles written around the time of Coble’s 2008 retrial are almost entirely
    factual. The articles that Coble believes are the most prejudicial – those
    quoting Judge Ralph Strother, who originally prosecuted Coble in 1990 – were
    published years before Coble’s retrial.
    Reasonable jurists would not debate the district court’s conclusions that
    (1) Coble failed to show that the jurors who served were affected by the
    publicity and could not render a verdict based solely on the evidence, and (2)
    he failed to demonstrate inherent prejudice. Coble’s ineffective assistance
    claim is not adequate to deserve encouragement to proceed further in the light
    of trial counsel’s affidavit outlining the strategic reasons for counsel’s decision
    not to seek a change of venue. We therefore deny a COA for Claims (1) and (2).
    B. (3) and (4) Conflict of Interest
    J. R. Vicha, who was 11 years old when Coble murdered his father and
    grandparents, was a prosecuting attorney in the McLennan County District
    Attorney’s Office at the time of the retrial and testified at the retrial regarding
    the events on the day of the murders. Although he testified that he was an
    attorney, he did not identify his employer. Coble requests a COA for his claim
    that Mr. Vicha’s employment with the prosecutor’s office was a disqualifying
    conflict of interest that deprived Coble of his due process rights. He also
    requests a COA for his related claim that his counsel rendered ineffective
    assistance by failing to file a motion to recuse the prosecution.
    Prior to the retrial, the prosecutor stated that his office had built a
    “Chinese wall” and did not think J. R. Vicha was disqualified as a witness.
    25
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    Defense counsel agreed, but questioned Mr. Vicha to make a record that he had
    been totally separated from the District Attorney’s office “in case somebody
    would later come by and accuse you of pressuring your boss to seek the death
    penalty, you can say no, you never put any pressure on them to do that.” Mr.
    Vicha testified outside the presence of the jury that he had nothing to do with
    the case; that he had not had any discussions about the case with anyone from
    the prosecutor’s office; that he did not even know that he was going to testify
    until just a few weeks before trial; and that he had nothing to do with the
    prosecutor’s decision to seek the death penalty.
    Coble raised these claims in his state habeas petition. At the state court
    evidentiary hearing in 2011, Coble’s initial co-counsel for the retrial, Scott
    Stevens, testified that Mr. Vicha’s employment with the prosecutor’s office was
    an absolute conflict of interest and an ethical violation, but that a motion for
    disqualification would likely be unsuccessful because it would require proof
    rising to the level of a due process violation. Alex Calhoun, who replaced
    Stevens as co-counsel, testified that he discussed with lead counsel Hunt the
    possibility of filing a motion to recuse the District Attorney’s Office.     He
    conducted some research, but found nothing conclusive in Coble’s favor. He
    admitted that he was not familiar with cases holding that the failure of the
    prosecutor to recuse may be reversible error if it amounts to a due process
    violation. Calhoun could not say whether Mr. Vicha’s testimony affected the
    outcome of the case. Lead trial counsel Hunt stated in his affidavit that after
    researching the issue and conducting his own investigation into whether Mr.
    Vicha complied with the Chinese wall policy, he determined that there was no
    legal basis to seek recusal of the prosecutor’s office. Further, he was not sure
    he wanted the District Attorney’s Office to be recused because it was possible
    that the court would have appointed a more aggressive and effective special
    prosecutor.
    26
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    The state habeas court found that Mr. Vicha did not have access to any
    information and did not participate in any decisions regarding Coble’s retrial.
    The court found that Coble’s counsel were not ineffective because they
    investigated the issue, performed legal research, and concluded that they did
    not have a legal basis to seek recusal of the District Attorney’s office. The state
    habeas court rejected Coble’s contention that defense counsel’s voir dire of Mr.
    Vicha was a ploy designed to insulate counsel from future ineffective assistance
    claims.
    The district court held that the conflict of interest claim was procedurally
    defaulted. Alternatively, the district court held that Coble failed to identify
    any constitutional rights violated by Mr. Vicha’s testimony and that Coble
    merely speculated that the death penalty was pursued on retrial because of
    Mr. Vicha’s employment with the District Attorney’s Office.
    Coble contends that the claim is not procedurally barred because, to the
    extent it was based on the failure to raise the claim at trial, his counsel were
    ineffective. He contends further that the claim could not have been raised on
    direct appeal because it relies on extra-record evidence.
    With respect to the merits, Coble points out that Mr. Vicha was a
    member of the District Attorney’s office; Mr. Vicha’s father had a long
    relationship with the head of that office; and Mr. Vicha was personally close to
    a sitting judge who was Coble’s prosecutor at the initial trial. Coble argues
    that because the prosecutor at the retrial indicated that he knew Mr. Vicha
    and addressed him as “J.R.”, the jurors could have inferred that Mr. Vicha
    worked in the prosecutor’s office.          Coble argues that under these
    circumstances, an impartial decision on whether to seek the death penalty was
    compromised, because Mr. Vicha’s status as a prosecutor made it a foregone
    conclusion.
    27
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    Coble claims that the conflict of interest prejudiced him because a
    disinterested prosecutor would not have sought the death penalty at a retrial
    in the light of the facts that Coble was 60 years old, was in very poor health,
    and had no disciplinary charges while serving in prison for the prior 19 years.
    Coble maintains that the danger was not that Mr. Vicha might have been
    involved in the prosecution or that errors occurred as a result of his testimony.
    Instead, the prejudice resulted from Mr. Vicha’s status as a member of the
    District Attorney’s office, which biased his employer’s decision-making process
    as to whether to seek the death penalty.
    Coble contends that Texas does not recognize the “Chinese wall” concept
    and under Texas law, there is a presumption of shared confidences, so that the
    personal conflicts of one attorney are imputed to all other members of a firm.
    He contends further that the prosecution was disqualified under Texas ethical
    rules, because there was at least a public suspicion of ethical impropriety and
    bias resulting from the victim’s employer’s decision to seek the death penalty.
    He contends that counsel were ineffective in their failure to research, follow,
    and apply state law.
    The State responds that Coble’s conflict of interest claim is procedurally
    barred because he failed to preserve it for appeal and failed to properly raise it
    on direct appeal. The State contends that because Coble’s claim relies on Texas
    law, it is not constitutionally cognizable on federal habeas. The district court
    was therefore correct in concluding that Coble failed to identify any
    constitutional right that was violated by the admission of Mr. Vicha’s
    testimony. The State contends further that the claim is frivolous because no
    conflict of interest existed and, even if it did, counsel’s decision not to file a
    motion to recuse was a reasonable strategic decision that did not prejudice
    Coble’s right to a fair trial. Finally, the State argues that even assuming
    deficient performance, Coble was not prejudiced because it is not hard to
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    imagine another prosecutor, faced with the details of Coble’s triple murder and
    other crimes, choosing to seek the death penalty.
    The district court’s resolution of these claims is not debatable. As the
    district court noted, to the extent that the claims are based on Texas law, they
    are not grounds for federal habeas relief. These claims are not adequate to
    deserve encouragement to proceed further, in the light of the fact that trial
    counsel articulated reasonable strategic reasons for not moving to disqualify
    the District Attorney’s Office, and Coble offered nothing more than speculation
    to support his contention that Mr. Vicha’s employment as a prosecutor had any
    influence on the prosecutor’s decision to seek the death penalty in the retrial.
    We therefore deny a COA for these claims.
    C. Claim (7) Ineffective Assistance, Psychiatric Testimony
    Finally, we turn to consider Coble’s request for a COA for his claim that
    his counsel rendered ineffective assistance by failing to present expert
    psychiatric testimony linking his behavior at the time of the murders to his
    mitigating evidence of mental illness and troubled background.
    This Court described the mitigating evidence presented at Coble’s first
    trial, much of which was also presented at the 2008 retrial:
    Coble’s father died before he was born, and when he was
    eleven, his mother suffered a nervous breakdown, so Coble was
    sent to live at a state facility. He lived at the orphanage until he
    was seventeen, at which point he joined the Marines and served in
    Vietnam. During his four years of service, Coble served as a
    machine gunner and was involved in combat. Upon his return to
    the states, Coble was hospitalized due to trauma he experienced in
    the war. Likewise, Coble’s sister testified that he was different
    after he returned from Vietnam. Coble offered testimony that he
    was involved with various youth programs over the years, that he
    had a good relationship with his son, and that he got along well
    with co-workers. Coble served as a section leader in the U. S. Army
    reserves and was well respected.
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    Coble v. Cockrell, 80 F. App’x 301, 306 (5th Cir. 2003) (opinion granting a COA).
    In addition, at Coble’s first trial, the defense presented expert psychiatric
    testimony:
    Coble also presented the testimony of two psychiatrists. The
    first, Dr. Stephen Mark, testified that Coble was dangerous and
    might continue to be a danger. In fact, Mark testified that
    everything in Coble’s history would make him a continuing threat.
    Mark also testified that Coble suffered from post-traumatic stress
    disorder (PTSD) and bipolar disorder, and was prone to become
    “[p]otentially explosive and potentially aggressive and assaultive.”
    Mark traced the post-traumatic disorder to Coble’s experience in
    Vietnam, and suggested that the bipolar disorder might be
    hereditary. Mark also indicated that these illnesses made Coble
    susceptible to severe mood swings, which resulted in a loss of
    control on the day of the murders.
    Mark did, however, indicate that Coble would be less likely
    to be violent if he took medication. In fact, Mark indicated that,
    had he known, before the murders, of Coble’s past and the
    depression Coble was experiencing because of the pending divorce
    and kidnapping charges, he would have recommended
    hospitalization for further treatment and evaluation. Mark also
    conceded that if Coble refused to take medication he would
    probably be violent in the future.
    Dr. Grigson, the second defense expert, testified that Coble
    was suffering from severe depression at the time of the murders,
    and that it was very improbable that Coble would commit this type
    of offense again. Specifically, Grigson stated that Coble was more
    horrified by the pictures of the victims than anyone, and that Coble
    had feelings of remorse and guilt. Both psychiatrists agreed that
    Coble linked the loss of his wives with the loss of his mother, such
    that the divorces triggered severe bouts of suicidal depression….
    
    Id. at 306–07.
                Dr. Grigson also discussed a 1964 psychiatric report, created
    by Dr. Ralph Hodges, which classified the fifteen-year-old Coble as
    having a “sociopathic personality disturbance of the dissocial
    type.” Dr. Grigson stated that the term “sociopath” did not mean
    the same thing in 1964 as it does now, and that a diagnosis of an
    individual as a sociopath could not be made until a person was
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    eighteen years old. He concluded that Coble “was not a sociopath
    then, and not a sociopath now.”
    Coble v. Quarterman, 
    496 F.3d 430
    , 445–46 (5th Cir. 2007) (opinion granting
    habeas relief).
    This Court granted federal habeas relief on the ground that “there is a
    reasonable likelihood that the jury was precluded from giving full effect to
    Coble’s mitigating evidence.” 
    Id. at 447.
    The Court stated the evidence could
    not be given effect in response to the deliberateness special issue. 
    Id. Although such
    evidence may have had mitigating relevance to the future dangerousness
    special issue, and the jury could have given it some effect in response to that
    issue, the Court found that it was equally conceivable that the jury might have
    found the evidence aggravating rather than mitigating. 
    Id. at 448.
    The Court
    concluded that:
    [i]t is clear that Coble’s evidence of mental illness and troubled
    background had meaningful mitigating relevance beyond the scope
    of the two special issues [and] there is a reasonable likelihood that
    the jury was unable to give meaningful consideration and effect to
    a major mitigating thrust of Coble’s evidence—its tendency to
    make him less morally culpable for his crimes. . . .
    
    Id. When Coble’s
    punishment retrial was conducted in 2008, the jury was
    asked to answer a special punishment issue on mitigation. Coble argues that
    his counsel were ineffective by not presenting at his retrial psychiatric
    evidence similar to that presented in his initial trial, and by failing to heed this
    Court’s explicit roadmap when it remanded the case for a new punishment
    hearing. He notes that the jury asked to view his psychiatric evaluations, but
    the defense had none to offer. Coble contends that such testimony would have
    discredited Dr. Hodges, would have shown Coble to be less morally culpable,
    and would have buttressed the testimony of the lay witnesses about Coble’s
    depression, military service, and troubled background.
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    In his affidavit presented in the state habeas proceedings, Coble’s lead
    counsel at the retrial, Hunt, explained that the defense did not present expert
    testimony because it would be extremely negative and harmful to their
    mitigation case, and because the State could have required Coble to undergo
    an examination by Dr. Coons, outside of counsel’s presence:
    We decided not to present psychological testimony based on
    personal interviews of Mr. Coble because our psychologist Dr.
    Carter who had examined Mr. Coble personally felt that any
    credible psychological or psychiatric evaluation of Mr. Coble would
    result in testimony which would be extremely negative and
    harmful to our mitigation case.
    Additionally, if we had presented Dr. Carter’s examination
    results to the jury, the State could then have submitted Mr. Coble
    to an examination by Dr. Coons, out of our presence. As stated
    above, the results of such a personal examination by Dr. Coons
    would have strengthened the credibility of Dr. Coons’s opinion
    regarding future dangerousness. We were concerned that this
    would in turn strengthen the State’s argument that Coble was a
    sociopath and thus a future danger, thereby warranting the death
    penalty.
    Hunt consulted with Dr. Carter about the possibility of PTSD playing a role in
    the offense, and Dr. Carter indicated that he did not believe such evidence
    would be useful for mitigation. Based on Dr. Carter’s opinion, Hunt agreed
    that evidence of PTSD would have been of marginal relevance because of the
    difficulty of establishing a nexus between that disorder and the murders that
    occurred 20 years after Coble had served in Vietnam. 6
    Hunt described the defense strategy in his affidavit:
    6 One of the exhibits attached to Coble’s first state habeas application, filed in 1997
    by the same lawyer who currently represents him, was a report of Dr. Mary Alice Conroy,
    who had evaluated Coble and found no evidence that Coble’s actions at the time of the
    murders were specifically related to any of his Vietnam experiences. Instead, she found that
    Coble’s PTSD symptoms seemed to have resolved in a year or two.
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    Our primary strategy was to focus on the “future
    dangerousness” special issue, and to secondarily argue that Mr.
    Coble’s post-offense rehabilitative efforts were mitigating. We
    knew that we could not argue about guilt or innocence, and that
    the facts of the case were bad enough that the previous jury had
    imposed the death penalty, so we figured that our best approach
    would be to focus on Mr. Coble’s intervening 19 years of sterling
    behavior in prison. We thought that if we could get the jury to
    focus on how well Mr. Coble had acted while in prison and
    institutional settings, rather than on the facts of the original case,
    we would have a reasonable shot at a life sentence.
    In furtherance of that strategy, the defense presented Dr. Cunningham’s
    testimony, which was based on statistical analysis of the likelihood of Coble’s
    future dangerousness; character witnesses to establish Coble’s good character
    outside of romantic relationships; the testimony of death row inmates about
    Coble’s exceptional character while he was on death row; and the testimony of
    family members to show the deprivation of emotional nourishment that Coble
    received as a child. Hunt stated that the defense wanted to negate the effect
    of Dr. Coons’s testimony and therefore wanted to keep him from interviewing
    Coble, thereby further weakening the basis for Dr. Coons’s opinion regarding
    future dangerousness.
    The state habeas court found that Coble’s counsel made a tactical
    decision not to present expert testimony on PTSD based on the advice of the
    defense expert, Dr. Carter. It found that Coble’s counsel were concerned that
    any potential benefit from having Coble evaluated by a testifying expert for the
    defense was outweighed by the risk to Coble of being evaluated by Dr. Coons.
    Dr. Carter had indicated to counsel that such an examination could be
    seriously damaging to Coble’s case. Counsel’s overall goal was to get a sentence
    other than death by establishing that Coble was not a future danger, by
    focusing on Coble’s 19 years of good behavior in prison.
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    The district court held that counsel’s decision to not present psychiatric
    evidence was a strategic decision and that the evidence could have been more
    harmful to Coble’s case than mitigating. Even if counsel’s performance were
    deficient, the court stated that Coble had not presented anything to call into
    doubt the state court’s determination that there was no prejudice. The district
    court concluded that the lack of prejudice is clear because the evidence of
    Coble’s future dangerousness was overwhelming.
    Coble challenges the validity of counsel’s strategic decision, pointing to
    his unblemished 19-year prison record, the fact that he was elderly and in bad
    health, and the fact that his 20-year-old violence arose in a situational context
    that could never re-occur in prison. Coble argues that he was prejudiced by
    counsel’s failure to present expert testimony because it crippled the defense
    presentation and final argument. Instead of showing the jury how Coble’s
    mental state at the time of the murders was characterized by severe
    depression, and without expert testimony about the lifelong effects of his bi-
    polar disorder and PTSD due to his Vietnam service, the defense was reduced
    to arguing that Vietnam was a “bad place” and that Coble had seen horrors
    there. Coble argues that the failure to link his depression, mental illness, bi-
    polar disorder and PTSD to his behavior at the time of the murders, as the
    Fifth Circuit did in its prior opinion, meant that the jury was unable to give it
    significant mitigating value in answering the special issue.
    The State responds that counsel had valid strategic reasons for not
    presenting the testimony, and Coble has failed to demonstrate that counsel’s
    chosen strategy was so poor that it deprived him of any opportunity to get a
    fair trial. The State maintains that it was reasonable for Coble’s counsel to
    believe that evidence of his mental disorders would likely be perceived as
    aggravating rather than mitigating. Evidence that Coble was bipolar and
    susceptible to violent mood swings and manic depression could be more
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    damaging than beneficial.       According to the State, using a potentially
    hereditary condition such as bipolar disorder along with a condition (PTSD)
    that he developed over 20 years prior to the murders to excuse his acts as
    “beyond his control” could also appear callous to the jury and potentially
    bolster the State’s contention that Coble is a sociopath who has no concern for
    the well-being of others.
    The State contends further that even if counsel’s performance was
    deficient, Coble cannot demonstrate a reasonable probability that the alleged
    errors would have affected the outcome of the punishment retrial, because the
    evidence of his future dangerousness was overwhelming. Therefore, he was
    not prejudiced.
    Reasonable jurists would not debate the district court’s decision to defer
    to the state court’s conclusion that counsel did not perform deficiently and that
    Coble was not prejudiced. It is true that this Court ordered a retrial on the
    ground that the jury was unable to give effect to Coble’s mitigating evidence
    presented in the first trial, which included psychiatric testimony linking his
    actions at the time of the murders to his mental health issues and troubled
    background. However, the decision turned on the fact that the law at that time
    did not require the jury to be given a mitigation special issue, such as the one
    given at Coble’s retrial. The district court deferred to the state habeas court’s
    findings that, (1) after consulting with their expert, Dr. Carter, defense counsel
    made a strategic decision not to use similar evidence at the retrial, but to focus
    instead on the future dangerousness special issue, relying on Coble’s age, poor
    health, his lack of a disciplinary record after having served 19 years in prison,
    and the fact that the circumstances in which the murders took place, arising
    out of a romantic relationship, would not reoccur in prison; and (2) their
    decision to present mitigating evidence of his background, mental condition,
    and service in Vietnam through lay witnesses, and not to present mental
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    health expert testimony, was intended to prevent the State’s expert, Dr. Coons,
    from examining Coble. Reasonable jurists would not debate the district court’s
    conclusion that this decision was not unreasonable inasmuch as the defense
    expert had warned counsel that such an examination could result in damaging
    testimony. We therefore deny a COA for this claim.
    IV. Conclusion
    For the reasons given above, we grant a COA for Claims (5) and (6), and
    deny a COA for Claims (1), (2), (3), (4), and (7). Coble may file a supplemental
    brief addressing the merits of Claims 5 and 6 within thirty days of the date of
    this order, addressing only matters that have not already been covered in his
    COA brief. If Coble files a supplemental brief, the State may file a response
    fifteen days thereafter, limited to matters not already addressed in its COA
    opposition brief.
    36