John Gardner v. Lorie Davis, Director ( 2019 )


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  •      Case: 18-70012      Document: 00515001552         Page: 1    Date Filed: 06/19/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 18-70012
    Fifth Circuit
    FILED
    June 19, 2019
    JOHN STEVEN GARDNER,                                                   Lyle W. Cayce
    Clerk
    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 Eastern District of Texas
    USDC No. 1:10-CV-610
    Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
    PER CURIAM:*
    John Steven Gardner seeks a certificate of appealability (COA) to
    challenge the denial of his petition for habeas corpus under 28 U.S.C. § 2254
    alleging that his trial counsel were ineffective. Because reasonable jurists
    would not debate the district court’s resolution of Gardner’s ineffective
    assistance of trial counsel (IATC) claims, we DENY his application for a COA.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-70012     Document: 00515001552     Page: 2   Date Filed: 06/19/2019
    No. 18-70012
    I.
    A Texas jury convicted Gardner of the capital murder of his wife, Tammy
    Gardner, in the course of committing or attempting to commit burglary or in
    retaliation for her service or status as a prospective witness in their divorce
    proceeding.   The jury sentenced Gardner to death.          The Texas Court of
    Criminal Appeals affirmed Gardner’s conviction and death sentence.            See
    Gardner v. State, 
    306 S.W.3d 274
    (Tex. Crim. App. 2009). The Supreme Court
    denied Gardner’s petition for certiorari. See Gardner v. Texas, 
    562 U.S. 850
    (2010). Gardner then filed a state petition for a writ of habeas corpus, which
    was denied. See Ex parte Gardner, No. WR-74030-01, 
    2010 WL 3583072
    , at *1
    (Tex. Crim. App. Sept. 15, 2010). He next filed the instant federal habeas
    petition, which the district court denied and denied a COA. See Gardner v.
    Director, TDCJ-CID, No. 1:10-CV-610 (E.D. Tex. Mar. 1, 2018). Gardner now
    seeks a COA from this court.
    “A state prisoner whose petition for a writ of habeas corpus is denied by
    a federal district court does not enjoy an absolute right to appeal. Federal law
    requires that he first obtain a COA from a circuit justice or judge.” Buck v.
    Davis, 
    137 S. Ct. 759
    , 773 (2017) (citing 28 U.S.C. § 2253(c)(1)). “A COA may
    issue ‘only if the applicant has made a substantial showing of the denial of a
    constitutional right.’” 
    Id. (quoting 28
    U.S.C. § 2253(c)(2)).
    “At the COA stage, the only question is whether the applicant has shown
    that ‘jurists of reason could disagree with the district court’s resolution of his
    constitutional claims or that jurists could conclude the issues presented are
    adequate to deserve encouragement to proceed further.’” 
    Id. (quoting Miller-
    El v. Cockrell, 
    537 U.S. 322
    , 327 (2003)). Federal courts cannot grant habeas
    relief if a claim was adjudicated on the merits in state court unless the state-
    court decision “was contrary to, or involved an unreasonable application of,
    clearly established Federal law, as determined by the Supreme Court of the
    2
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    No. 18-70012
    United States” or “was based on an unreasonable determination of the facts in
    light of the evidence presented in the State court proceeding.” 28 U.S.C.
    § 2254(d). When, as here, “the last state court to decide a prisoner’s federal
    claim explains its decision on the merits in a reasoned opinion . . . a federal
    habeas court simply reviews the specific reasons given by the state court and
    defers to those reasons if they are reasonable.” Wilson v. Sellers, 
    138 S. Ct. 1188
    , 1192 (2018).
    Gardner claims that reasonable jurists would debate whether his trial
    counsel was ineffective in (1) failing to present the theory of abandonment rage
    as a defense during the guilt phase of his trial; (2) failing to develop and present
    abandonment rage as a consistent theory of the case in both guilt and
    punishment phases; (3) failing to investigate and develop mitigating evidence
    for the punishment phase of trial; and (4) failing to get the work product of
    their mitigation specialist. The state habeas court and the federal district
    court rejected these claims.
    II.
    To succeed on his ineffective assistance of trial counsel (IATC) claims,
    Gardner must establish that his counsel’s performance (1) was deficient, and
    (2) resulted in prejudice. Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984).
    “Strickland’s first prong sets a high bar.” 
    Buck, 137 S. Ct. at 775
    . Trial counsel
    is “strongly presumed to have rendered adequate assistance and made all
    significant decisions in the exercise of reasonable professional judgment.”
    Cullen v. Pinholster, 
    563 U.S. 170
    , 189 (2011) (citation and internal quotation
    marks omitted). Failure to establish either deficient performance or prejudice
    defeats a petitioner’s claim. 
    Strickland, 466 U.S. at 697
    . In federal habeas
    proceedings, a petitioner must also show that “the state court’s application of
    the Strickland standard was unreasonable.” Harrington v. Richter, 
    562 U.S. 86
    , 101 (2011); see also 28 U.S.C. § 2254(d)(1).
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    No. 18-70012
    A.
    The bulk of Gardner’s argument turns on the theory of abandonment
    rage, a condition that Gardner claims causes men to kill their female
    companions with excessive force when faced with recent or imminent
    abandonment. First, Gardner argues that his counsel performed deficiently in
    failing to present the theory of abandonment rage at the guilt phase of his trial
    because he claims that the theory “would have allowed [him] to negate the
    mens rea element of capital murder” and negate the enhancement elements of
    burglary and retaliation.
    Trial counsel’s strategy during the guilt phase was to challenge the
    aggravating elements of capital murder—that the murder was committed in
    the course of either a burglary or retaliation. In preparing for trial, counsel
    employed a fact investigator, a mitigation specialist, a consulting mental
    health expert, a testifying mental health expert, and a risk assessment expert.
    No investigator or expert raised abandonment rage “as an issue or potential
    trial strategy.” Additionally, trial counsel attested in affidavits prepared for
    the habeas proceedings that even if the experts had raised the theory, counsel
    would not have relied on the theory at trial because it would have opened the
    door to evidence of Gardner’s prior history of violence, including the murder of
    his second wife Rhoda and his abuse of his wives Margaret and Sandra.
    The state habeas court found that trial counsel were not deficient in
    failing to argue abandonment rage at trial for several reasons, including that
    the experts employed by counsel never raised the theory and “counsel’s
    decision   to   pursue    a   fact-based    rather   than      psychological   defense
    . . . was a reasoned, strategic choice” based on counsel’s experience and
    knowledge of jurors in Collin County. The court also explained that the theory
    was not supported by the evidence and noted several pieces of evidence that
    were not consistent with abandonment rage, as Gardner has a history of
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    violence unconnected to any abandonment. Further, the court concluded that
    abandonment rage supplied only psychological context, not legal justification,
    for Tammy’s murder and “did not address the independent aggravating
    element of murder committed in the course of a burglary, which was sufficient
    to support the jury’s verdict.” The district court found that the state habeas
    court’s findings on this claim were not unreasonable. We agree.
    “Counsel should be permitted to rely upon the objectively reasonable
    evaluations and opinions of expert witnesses without worrying that a
    reviewing court will substitute its own judgment, with the inevitable hindsight
    that a bad outcome creates, and rule that his performance was substandard for
    doing so.” Smith v. Cockrell, 
    311 F.3d 661
    , 676-77 (5th Cir. 2002), abrogated
    on other grounds by Tennard v. Dretke, 
    542 U.S. 274
    (2004).              We have
    previously found on habeas review that counsel was not deficient in failing to
    argue that abandonment rage was a mitigating factor because “a tactical
    decision not to pursue and present potential mitigating evidence on the
    grounds that it is double-edged in nature is objectively reasonable, and
    therefore does not amount to deficient performance.” Rayford v. Stephens, 622
    F. App’x 315, 337 (5th Cir. 2015) (quoting Lamb v. Johnson, 
    179 F.3d 352
    , 358
    (5th Cir. 1999)).
    Given trial counsel’s investigation and reliance on reasonable expert
    evaluations, Gardner cannot overcome the strong presumption that counsel’s
    representation fell within the wide range of reasonable professional assistance,
    and counsel’s performance was therefore not deficient. 
    Strickland, 466 U.S. at 689
    ; Dowthitt v. Johnson, 
    230 F.3d 733
    , 748 (5th Cir. 2000) (holding counsel is
    entitled to rely on the opinions of their experts and is not required to “canvass[]
    the field to find a more favorable defense expert”). Reasonable jurists would
    not debate the propriety of granting a COA on this issue.
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    B.
    Second, Gardner argues that his trial counsel were ineffective in failing
    to develop and present abandonment rage as a consistent theory of the case in
    both guilt and punishment phases. Counsel pursued separate strategies at the
    guilt and punishment phases—during the guilt phase, counsel’s strategy was
    to challenge the aggravating elements that elevated the crime to capital
    murder, namely whether the murder was committed in the course of a burglary
    or retaliation, while at the punishment phase, counsel challenged the State’s
    claim of future dangerousness and humanized Gardner to the jury. The state
    habeas court found that counsel’s choice of strategies during punishment was
    a reasoned decision based on the evidence, their investigation, and their
    experience in practicing criminal law, and though Gardner’s attorneys utilized
    one strategy for guilt and another for sentencing, those strategies were not
    inconsistent. The district court found that the state habeas court’s findings on
    this claim were not unreasonable. We agree.
    As discussed in the previous section, there were numerous weaknesses
    in Gardner’s proposed abandonment rage theory. Counsel was not deficient in
    declining to present abandonment rage because it was not raised by any of the
    experts or investigators after a diligent investigation, was unsupported by the
    evidence, and would have likely permitted the prosecution to elaborate on
    Gardner’s violent history. See Rayford, 622 F. App’x at 337. Accordingly,
    Gardner has failed to raise a substantial claim that counsel’s “representation
    fell below an objective standard of reasonableness” in utilizing different
    strategies at guilt and punishment instead of relying on abandonment rage in
    both phases. See 
    Strickland, 466 U.S. at 687-88
    . Reasonable jurists would not
    debate the propriety of granting a COA on this issue.
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    No. 18-70012
    C.
    Third, Gardner argues that his trial counsel were ineffective in failing to
    investigate and present mitigating evidence for the punishment phase of trial. 1
    As for the investigation, Gardner asserts that the interviews were limited to
    Gardner’s parents, his sister, and primarily Gardner himself, and the
    mitigation specialist “failed to do a diverse investigation and interviews of
    corroborating witnesses” and “did not adequately investigate [Gardner’s]
    former friends, and other life history informants.”               As for presentation,
    Gardner argues that his counsel were deficient in failing to make a mitigation
    presentation at the punishment phase because the witnesses that the defense
    called “provided very limited testimony with no unifying theme that explained
    why [Gardner] was less morally culpable and not deserving of death.” He
    argues that new potential witnesses uncovered through his state habeas
    investigation were familiar with and could have provided evidence relating to
    his mental health and would have supported a sentence less than death.
    The state habeas court analyzed the extent of Gardner’s counsel’s
    investigation and determined it was adequate.                The court found that in
    preparation for trial, Gardner’s counsel compiled a team of experts to assist
    them—a fact investigator, a mitigation specialist, a consulting mental-health
    expert, a testifying mental-health expert, and a risk-assessment expert.
    Counsel, the mitigation specialist, and the fact investigator traveled to
    Mississippi to develop specific mitigation witnesses.             Counsel investigated
    Gardner’s prior childhood accidents, injuries, and illnesses; any history of
    sexual abuse toward Gardner; any drug or alcohol abuse by Gardner or his
    1 He also argues that his other ineffectiveness claims—failing to argue abandonment
    rage at the guilt phase and failing to present a consistent theory of the case through guilt
    and punishment—resulted from counsel’s inadequate investigation. Because we determine
    that the investigation was adequate, we deny a COA on those claims to the extent that they
    rely on the allegation of insufficient investigation.
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    family; Gardner’s mental health treatment; the cohesiveness of Gardner’s
    family and their living conditions; Gardner’s military background; and his
    memberships in religious, social, educational, and charitable groups. Counsel
    also attempted to investigate Gardner’s school records but could not locate
    them. Counsel acknowledged that their mitigation specialist was “overly close”
    with Gardner’s family and refused to turn over her notes because she was
    concerned about what would be discoverable by the State.                       Counsel’s
    investigation uncovered evidence of Gardner’s childhood physical abuse.
    Gardner’s parents denied any abuse and claimed that though Gardner had few
    friends growing up, he was a “normal kid,” which Gardner’s attorneys say led
    to “very little of importance being developed through the time spent with
    them.” 2
    The defense presented the following witnesses at the punishment phase:
    (1) Bill Miles, Gardner’s former co-worker, who testified that Gardner was a
    diligent, responsible employee and that he believed Gardner had “Christ in his
    heart”; (2) Kelly Dowdy, Gardner’s former co-worker, who worked with
    Gardner at Wal-Mart and testified that he was a diligent, responsible
    employee; (3) Juan Sewell, Tammy’s ex-husband, who testified that Tammy
    could be manipulative; and (4) Elaine Holifield, Gardner’s sister, who described
    the death of their sister as a source of stress on the family and described
    repeated incidents where Gardner was abused by his father and where there
    was violence between his parents.            For example, Holifield testified that
    Gardner’s father, a Baptist preacher, would interrupt a church service to take
    2   The state habeas court’s “determination of a factual issue [is] presumed to be
    correct,” and Gardner has “the burden of rebutting the presumption of correctness by clear
    and convincing evidence.” 28 U.S.C. § 2254(e)(1). He has made no such showing here.
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    Gardner to the fellowship hall to beat him with a belt while the congregants
    listened.
    Gardner’s attorneys did not present expert testimony at the punishment
    phase. After hearing the testimony of some of the State’s witnesses, one of the
    mental health experts hired by counsel “decided she didn’t want to testify
    because of lack of information and [because she] felt that [Gardner] was
    psychotic.”
    The state habeas court found that counsel were not deficient in their
    investigation and presentation of evidence. The court concluded that counsel’s
    investigation uncovered significant harmful information that counsel
    reasonably concluded did not merit further investigation, including Gardner’s
    prior sexual relationship with a drag queen and his history of violence in his
    previous relationships. The court credited counsel’s affidavit attesting that
    they thought the information about Gardner’s relationship with a drag queen
    would be more harmful than helpful in the conservative county where Gardner
    was tried, and that his history of violence in prior relationships would be
    harmful. The court also concluded that Gardner’s parents, who denied any
    childhood abuse, would not have been helpful had they been called to testify
    on Gardner’s behalf, nor would the mental health expert who believed Gardner
    was psychotic. The district court found that the state habeas court’s findings
    on this claim were not unreasonable. We agree.
    A petitioner alleging ineffective assistance of counsel on the basis of a
    failure to investigate “must allege with specificity what the investigation would
    have revealed and how it would have changed the outcome of the trial.” Miller
    v. Dretke, 
    420 F.3d 356
    , 361 (5th Cir. 2005) (citing United States v. Green, 
    882 F.2d 999
    , 1003 (5th Cir. 1989)). The state habeas investigation revealed the
    following witnesses that Gardner argues his trial counsel should have
    discovered and presented at the sentencing phase: Sylvia Reeves, Gardner’s
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    former sister-in-law via his third wife Margaret Westmoreland, and her
    husband Donald “Red” Reeves, both of whom lived with Gardner and could
    “have revealed the manipulation of his first wife, Rhoda, detailed [his] remorse,
    and revealed [his] use of codeine in cold medication . . . prior to the shooting”
    of Rhoda; and Louise Lillis, a former parishioner of the church where Gardner’s
    father was the pastor, who Gardner argues could “have corroborated . . . that
    [his] father physically abused him” by testifying to “a particularly harsh
    whipping” she overheard during a church service. 3 The Reeves family had no
    contact with Gardner after he assaulted Sylvia’s niece, Becky, nearly twenty
    years before trial, and Lillis knew Gardner as a child because she was friends
    with his parents thirty-five years earlier.
    “Complaints of uncalled witnesses are not favored, because the
    presentation of testimonial evidence is a matter of trial strategy and because
    allegations of what a witness would have testified are largely speculative.”
    Boyd v. Estelle, 
    661 F.2d 388
    , 390 (5th Cir. 1981) (quoting Buckelew v. United
    States, 
    575 F.2d 515
    , 521 (5th Cir. 1978)) (alteration omitted).                     Counsel’s
    decision not to present cumulative testimony does not constitute ineffective
    assistance, nor does counsel’s failure to present evidence that is more harmful
    than helpful to the defense. Murray v. Maggio, 
    736 F.2d 279
    , 282 (5th Cir.
    3  Gardner argued to the state habeas court and federal district court that the
    investigation should have uncovered two additional witnesses: Randy Reeves, the son of
    Sylvia and Donald who knew Gardner, and Billy Stone, Gardner’s friend from when he served
    in the Army. He presents no argument that the district court erred with respect to its finding
    that counsel was not deficient for failing to locate and present these witnesses and has
    therefore abandoned any such argument. See, e.g., Crose v. Humana Ins. Co., 
    823 F.3d 344
    ,
    351 n.5 (5th Cir. 2016) (“We have consistently held that failure to brief an issue in the opening
    brief abandons that issue on appeal. This rule is applied regardless of whether the claims
    are intertwined or related.” (internal citations omitted)).
    10
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    1984); Mitchell v. Epps, 
    641 F.3d 134
    , 143 (5th Cir. 2011) (quoting 
    Harrington, 562 U.S. at 789-90
    ).
    Gardner’s counsel was not ineffective in failing to present these
    witnesses. Lillis would have presented cumulative testimony already provided
    by Gardner’s sister Elaine, who testified to the harsh whippings Gardner took
    from his father as a child. As for the Reeveses, they attested that Gardner took
    Red’s gun to shoot Rhoda; that he became “increasingly unstable and treated
    Margaret [Westmoreland] like she was property”; and that they wanted
    nothing to do with Gardner after he assaulted Sylvia’s niece, Becky. As the
    state habeas court explained, the Reeveses’ affidavits contained “significant
    harmful evidence that would have been explored by the state had counsel
    presented their testimony,” such as reinforcing the parallels between Rhoda’s
    and Tammy’s murders, including Gardner stealing the murder weapon from
    the person he was living with, showing premeditation and planning in the
    murders, immediately claiming remorse and crying to family members, and
    later changing his story about the murders.
    Gardner also alleges that counsel’s investigation should have uncovered
    abandonment rage. There is no evidence suggesting that Gardner’s counsel
    conducted less than a reasonable investigation, and we have already explained
    why the state court’s findings on counsel’s failure to uncover and present
    abandonment rage are not unreasonable. See Segundo v. Davis, 
    831 F.3d 345
    ,
    352 (5th Cir. 2016); Rayford, 622 F. App’x at 337. Reasonable jurists would
    not debate the propriety of granting a COA on this issue.
    D.
    Finally, Gardner argues that his trial counsel were ineffective in failing
    to get the work product of their “recalcitrant mitigation specialist.”        The
    mitigation specialist allegedly “developed an overly close relationship with
    Gardner’s family,” “refused to share notes from her mitigation investigation[,]
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    and refused to summarize her findings in a report to the attorneys” because
    “[s]he was overly concerned with what could be discoverable by the state.”
    Gardner argues that trial counsel were deficient because they did not demand
    that the specialist turn over her notes or prepare a report.
    Under AEDPA, a federal court may not grant habeas relief to a state
    prisoner unless “the applicant has exhausted the remedies available in the
    courts of the State.” 28 U.S.C. § 2254(b)(1)(A). Gardner argues that this IATC
    argument was not exhausted in the state habeas court, but this procedural
    default should be excused under Martinez v. Ryan, 
    566 U.S. 1
    (2012), and
    Trevino v. Thaler, 
    569 U.S. 413
    (2013). 4 The district court found that Gardner’s
    claim was presented to and adjudicated by the state habeas court and therefore
    “Martinez/Trevino does not apply to this case.” We agree with the district court
    that this claim was adjudicated by the state habeas court and therefore is not
    procedurally defaulted, and that the state court’s determination on the merits
    of this claim was not unreasonable. See 28 U.S.C. § 2254(d)(1).
    The Supreme Court has held that to exhaust a claim, a “habeas
    petitioner must have ‘fairly presented’ to the state courts the ‘substance’” of
    that claim, and must have “provide[d] the state courts with a ‘fair opportunity’
    to apply controlling legal principles to the facts bearing upon his constitutional
    claim.” Anderson v. Harless, 
    459 U.S. 4
    , 6 (1982) (citing Picard v. Connor, 
    404 U.S. 270
    , 275, 277-78 (1971)). To satisfy the “fairly presented” requirement,
    “[a] federal court claim must be the ‘substantial equivalent’ of one presented to
    4 In Martinez, the Supreme Court held: “Where, under state law, claims of ineffective
    assistance of trial counsel must be raised in an initial-review collateral proceeding, a
    procedural default will not bar a federal habeas court from hearing a substantial claim of
    ineffective assistance at trial if, in the initial-review collateral proceeding, there was no
    counsel or counsel in that proceeding was 
    ineffective.” 566 U.S. at 17
    . Trevino applied this
    rule to habeas proceedings in Texas, where it is “virtually impossible for an ineffective
    assistance claim to be presented on direct 
    review.” 569 U.S. at 417
    (internal quotation marks
    omitted).
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    the state courts.” Whitehead v. Johnson, 
    157 F.3d 384
    , 387 (5th Cir. 1998).
    While “[i]t is not enough that all the facts necessary to support the federal
    claim were before the state courts, or that a somewhat similar state-law claim
    was made,” 
    Anderson, 459 U.S. at 6
    (citations omitted), it is not necessary for
    the habeas petitioner to “spell out each syllable of the claim before the state
    court to satisfy the exhaustion requirement.” 
    Whitehead, 157 F.3d at 387
    . The
    question here is whether the state habeas court “had a fair opportunity to
    consider the . . . claim and to correct that asserted constitutional defect in
    [Gardner’s] conviction.” 
    Picard, 404 U.S. at 276
    .
    We agree with the district court’s conclusion that Gardner fairly
    presented this claim to the state habeas court. The state habeas petition
    asserted that counsel were deficient in part because of the close relationship
    the mitigation specialist developed with Gardner and his family and her
    refusal to share notes. Gardner himself provides support for the fact that this
    IATC claim was before the state court, explaining that much of the information
    presented in support of this claim was presented in the state court and
    repeatedly citing to the state habeas court record in his brief to the district
    court.
    In addressing the merits of Gardner’s IATC claim for failure to
    adequately investigate and present mitigating evidence, the state habeas court
    referenced the mitigation specialist’s actions, which provides further support
    for the district court’s finding that the question was adjudicated. Gardner does
    not assert a new claim of IATC that was not raised or adjudicated by the state
    habeas court so much as he highlights a fact supporting the claim already
    adjudicated by the state habeas court. This is insufficient to render his claim
    unexhausted. See 
    Whitehead, 157 F.3d at 387
    ; Vollmer v. Davis, 673 F. App’x
    406, 410 (5th Cir. 2016) (“Greater specificity or better framing of a claim in the
    federal application as compared to the state petition does not necessarily
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    render the claim unexhausted.”).      Thus, we conclude that this claim was
    exhausted because the court “had a fair opportunity to consider the . . . claim.”
    
    Picard, 404 U.S. at 276
    . Accordingly, Martinez/Trevino does not apply. See
    Escamilla v. Stephens, 
    749 F.3d 380
    , 394 (5th Cir. 2014) (concluding that
    “Martinez does not apply to claims that were fully adjudicated on the merits
    by the state habeas court because those claims are, by definition, not
    procedurally defaulted”).
    ***
    For the foregoing reasons, Gardner’s application for a COA is DENIED.
    14