Avila v. Quarterman ( 2010 )


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  •                REVISED FEBRUARY 12, 2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT   United States Court of Appeals
    Fifth Circuit
    FILED
    February 17, 2009
    No. 07-70028
    Charles R. Fulbruge III
    Clerk
    RIGOBERTA AVILA, JR.
    Petitioner-Appellant-Cross-Appellee
    v.
    NATHANIEL QUARTERMAN,
    Director, Texas Department of Criminal Justice,
    Correctional Institutions Division
    Respondent-Appellee-Cross-Appellant
    Appeal from the United States District Court
    for the Western District of Texas, El Paso
    USDC No. 3:04-CV-419-FM
    Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
    FORTUNATO P. BENAVIDES, Circuit Judge:
    Petitioner Rigoberta Avila, Jr., (“Avila”), convicted of capital murder in
    Texas and sentenced to death, appeals the district court’s denial of federal
    habeas relief with respect to his conviction. Respondent cross-appeals the
    district court’s grant of habeas relief with respect to Avila’s sentence.
    Avila contends that the State suppressed a pathologist’s expert opinion in
    violation of his due process rights. He also contends that his counsel’s failure to
    discover the suppressed evidence constituted ineffective assistance in violation
    No. 07-70028
    of the Sixth Amendment. Finally, Avila contends that because the jury was not
    required to find the mitigation issue at punishment beyond a reasonable doubt,
    his right to a jury trial was violated. Respondent cross-appeals, asserting that
    the district court erred in holding that the State’s suppression of evidence during
    the punishment phase of trial violated Avila’s due process rights. Concluding
    that the state court’s adjudication of Avila’s claims was not an unreasonable
    application of clearly established Federal law and that Avila has not made a
    substantial showing of the denial of a constitutional right, we AFFIRM in part,
    REVERSE in part, and DENY a Certificate of Appealability.
    I. BACKGROUND
    An El Paso grand jury charged Avila with the capital murder of Nicholas
    Macias, an individual younger than six years of age. Tex. Penal Code Ann. §
    19.03(a).1 Avila pleaded not guilty and was tried by a jury. At trial, the evidence
    established that sometime between 6:00 and 6:15 p.m., on February 29, 2000,
    Marcelina Macias left her home to attend a class, leaving her 19-month-old son,
    Nicholas Macias, and his four-year-old brother, Dylan Salinas, in Avila’s care.
    At 7:02 p.m., Avila called “911” and told the operator that the infant boy he was
    babysitting had stopped breathing. When the paramedics arrived, they
    administered emergency treatment to the child before transporting him to the
    hospital. While treating the boy, paramedics found a bruise on Nicholas’s
    abdomen in the shape of a foot print. When they asked Avila about the bruise,
    he denied any knowledge of the marking. At the hospital, surgical attempts to
    save Nicholas’s life by repairing the injury to Nicholas’s intestines and other
    abdominal injuries were unsuccessful, and Nicholas died.
    1
    The facts are taken largely verbatim from the Texas Court of Criminal Appeals
    opinion on direct appeal. Avila v. State, No. 74142, 
    2003 WL 21513440
    , at *1-3 (Tex. Crim.
    App. July 2, 2003) (unpublished).
    2
    No. 07-70028
    An autopsy revealed that major organs in Nicholas’s body had been split
    in two by considerable blunt-force trauma consistent with being stomped by an
    adult.     Specifically, the medical examiner reported that Nicholas “died of
    internal bleeding due to massive abdominal trauma resulting from blunt for[ce]
    injury.” The surgeon’s testimony likened Nicholas’s injuries to those caused by
    such events as exiting an automobile traveling at sixty miles per hour or being
    dropped twenty feet.
    Officer Jose Lopez testified that on February 29, 2000, he was dispatched
    to the home of a child who had stopped breathing. Avila told Lopez that he had
    been watching the television when Dylan came into the room and told him that
    Nicholas was not breathing. Dylan told Avila that “he had held [Nicholas’]
    mouth” and then Nicholas stopped breathing. Lopez then allowed Avila to drive
    to the hospital.
    Detective Tony Tabullo arrived at the hospital to assess the situation.
    Because Avila was the last adult known to be with Nicholas, Tabullo asked him
    if he would be willing to discuss the incident with him at the Crimes Against
    Persons (CAP) offices. Avila initially gave a statement in which he denied
    injuring Nicholas. Subsequently, Tabullo received from other detectives Polaroid
    photographs which appeared to show an adult-sized footprint on Nicholas’s
    stomach. Tabullo confronted Avila with the photographs, after which Avila
    orally admitted to stomping Nicholas. Tabullo typed the confession, which Avila
    signed. The confession was admitted at trial. During the guilt-innocence phase
    of trial, Avila testified that he did not injure Nicolas.
    The jury found Avila guilty of capital murder. After the punishment phase
    of trial, the jury affirmatively answered the first special issue regarding whether
    Avila would be a continuing threat to society. The jury answered negatively the
    second special issue regarding whether mitigating circumstances warranted a
    3
    No. 07-70028
    sentence of life imprisonment. Avila appealed, and the Texas Court of Criminal
    Appeals affirmed his conviction and sentence. Avila v. State, 
    2003 WL 21513440
    (Tex. Crim. App. July 2, 2003) (unpublished). Avila filed an application for writ
    of habeas corpus in Texas state court, which was denied by the Texas Court of
    Criminal Appeals. Avila then filed a petition for federal habeas corpus in
    district court. The district court denied his petition as to his conviction, but
    granted relief as to the punishment phase of trial. Avila v. Quarterman, 499 F.
    Supp. 2d 713 (W.D. Tex. 2007). Avila appeals the denial of habeas relief, and
    Respondent cross-appeals the grant of habeas relief.
    II.   STANDARDS OF REVIEW
    Avila filed his 28 U.S.C. § 2254 petition for a writ of habeas corpus after
    the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA).
    The petition, therefore, is subject to AEDPA. See Lindh v. Murphy, 
    521 U.S. 320
    , 336 (1997). Pursuant to the federal habeas statute, as amended by AEDPA,
    we defer to a state court’s adjudication of a petitioner’s claims on the merits
    unless the state court’s decision was: (1) “contrary to, or involved an
    unreasonable application of, clearly established Federal law, as determined by
    the Supreme Court of the United States”; or (2) “resulted in a decision that was
    based on an unreasonable determination of the facts in light of the evidence
    presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court’s
    decision is deemed contrary to clearly established federal law if it reaches a legal
    conclusion in direct conflict with a prior decision of the Supreme Court or if it
    reaches a different conclusion than the Supreme Court based on materially
    indistinguishable facts. Williams v. Taylor, 
    529 U.S. 362
    , 404-08 (2000). A state
    court’s decision constitutes an unreasonable application of clearly established
    federal law if it is “objectively unreasonable.” 
    Id. at 409.
    Further, pursuant to
    section 2254(e)(1), state court findings of fact are presumed to be correct, and the
    petitioner has the burden of rebutting the presumption of correctness by clear
    4
    No. 07-70028
    and convincing evidence. See Valdez v. Cockrell, 
    274 F.3d 941
    , 947 (5th Cir.
    2001).
    Additionally, under AEDPA, a petitioner must obtain a Certificate of
    Appealability (COA) before he can appeal the district court’s denial of habeas
    relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 
    537 U.S. 322
    ,
    335-36 (2003) (“[U]ntil a COA has been issued federal courts of appeals lack
    jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the
    Supreme Court has explained:
    The COA determination under § 2253(c) requires an overview
    of the claims in the habeas petition and a general assessment of
    their merits. We look to the District Court’s application of AEDPA
    to petitioner’s constitutional claims and ask whether that resolution
    was debatable among jurists of reason. This threshold inquiry does
    not require full consideration of the factual or legal bases adduced
    in support of the claims. In fact, the statute forbids it.
    
    Miller-El, 537 U.S. at 336
    .
    A COA will be granted only if the petitioner makes “a substantial showing
    of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
    satisfies this standard by demonstrating that 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.” 
    Miller-El, 537 U.S. at 327
    (citation omitted). “The question is
    the debatability of the underlying constitutional claim, not the resolution of that
    debate.” 
    Id. at 342.
    “Indeed, a claim can be debatable even though every jurist
    of reason might agree, after the COA has been granted and the case has received
    full consideration, that petitioner will not prevail.” 
    Id. at 338.
    Moreover,
    “[b]ecause the present case involves the death penalty, any doubts as to whether
    a COA should issue must be resolved in [petitioner’s] favor.” Hernandez v.
    Johnson, 
    213 F.3d 243
    , 248 (5th Cir. 2000) (citation omitted).
    5
    No. 07-70028
    III.   SUPPRESSION OF EVIDENCE
    Avila contends that the State failed to disclose certain evidence in
    violation of his due process rights. The district court granted a COA as to this
    issue. The State has a duty to disclose evidence favorable to the accused that is
    material to guilt or punishment. See Brady v. Maryland, 
    373 U.S. 83
    , 86-87
    (1963). To establish this due process violation, an accused must show that the
    State withheld evidence, that the evidence was favorable, and that the evidence
    was material to the defense. Little v. Johnson, 
    162 F.3d 855
    , 861 (5th Cir. 1998).
    Additionally, the petitioner must show that his belated “discovery of the
    allegedly favorable evidence was not the result of a lack of due diligence.” Rector
    v. Johnson, 
    120 F.3d 551
    , 558 (5th Cir. 1997).2
    The Supreme Court has explained that a new trial is not “automatically
    require[d] . . . whenever a combing of the prosecutors’ files after the trial has
    disclosed evidence possibly useful to the defense but not likely to have changed
    the verdict.”    Giglio v. United States, 
    405 U.S. 150
    , 154 (1972) (internal
    quotation marks and citation omitted).               The standard for determining
    “materiality is a ‘reasonable probability’ of a different result.” Kyles v. Whitley,
    
    514 U.S. 419
    , 434 (1995). In assessing Brady materiality, “[t]he question is not
    whether the defendant would more likely than not have received a different
    verdict with the evidence, but whether in its absence he received a fair trial,
    understood as a trial resulting in a verdict worthy of confidence.” 
    Id. In other
    words, “[a] ‘reasonable probability’ of a different result is accordingly shown
    when the [State’s] evidentiary suppression ‘undermines confidence in the
    outcome of the trial.’” 
    Id. (quoting United
    States v. Bagley, 
    473 U.S. 667
    , 678
    (1985)).
    2
    We note that “[t]he State’s good or bad faith in withholding favorable evidence is
    irrelevant.” 
    Id. 6 No.
    07-70028
    Avila contends that the prosecution team violated his due process rights
    by failing to disclose the expert opinion of Dr. Harry Wilson, a pathologist. In
    his capacity as a physician at Memorial Hospital, Dr. Wilson prepared a
    pathology report regarding the victim’s injuries around the time of the victim’s
    death.3    The State designated Dr. Wilson as an expert witness based on this
    involvement in the victim’s medical care. During the investigation of the instant
    offense, the State contacted Dr. Wilson and met with him to discuss the case.
    Dr. Wilson was present when Dr. Fausto Rodriguez, the defense’s pathologist,
    conducted a second autopsy on the victim.
    The State did not, however, call Dr. Wilson to testify at either phase of
    Avila’s trial. Instead, the State called Dr. Juan Contin, the medical examiner
    in El Paso County. Dr. Contin testified that he performed an autopsy on the
    victim and that the victim had several bruises, with the largest one on the right
    side of the abdomen. Dr. Contin explained that the injury was caused by either
    a “blunt force instrument or object.” The shape of the injury was roughly oval
    and consistent with the shape of a shoe. The blunt force applied to the child’s
    abdomen entailed “considerable force” and compressed his internal organs
    against the spine, resulting in the organs’ detachment from the spine. The
    duodenum and the large bowel were detached, and the pancreas was “cut in
    two.” There was a second bruise on the left side of the abdomen that “was not
    very big.” The third bruise was in the upper lumbar region in the center of the
    3
    In the clinical history section of his report, Dr. Wilson stated that the victim had
    “severe abdominal trauma allegedly occurring in a care-taking setting as possible non-
    accidental inflicted trauma.” The report described the surgery performed and the described
    the injuries in detail. The report provided that “[m]ultiple sites of acute serosal and surface
    mural hemorrhage are identified in the specimen.” The report also provided that “[i]n general
    the surface sites of hemorrhage on these various gastrointestinal portions are considered to be
    a result of surface impact trauma with the diffuse mucosal hemorrhage representing a
    widespread effect of diffuse ischemic injury secondary to a traumatically interrupted blood
    supply.”
    7
    No. 07-70028
    back.4 Dr. Contin further testified that the three injuries were likely caused by
    separate blows. There are “no specific techniques to age bruises”; however, the
    abdominal bruises were “very fresh because you cannot survive that injury for
    long.” In Dr. Contin’s opinion, the abdominal bruises were inflicted “probably
    within an hour” of the victim arriving at the hospital. After sustaining these
    injuries, a child would not be walking or playing because such injuries would
    send a child into shock. These types of injuries are usually seen in children who
    were not buckled during a traffic accident. Dr. Contin did not think the injuries
    happened accidentally because “they are too big and they are too many.” On
    cross-examination, Dr. Contin testified that the victim’s mother was capable of
    inflicting the injuries.
    The State also called Dr. George Raschbaum, a board certified pediatric
    surgeon. On the night of the offense, Dr. Raschbaum saw Nicholas in the
    emergency room and described him as non-responsive and having a distended
    abdomen. X-rays showed that there was “free air” inside the abdomen, and the
    likelihood of survival was minimal. Nonetheless, because the child was only 19
    months old, Dr. Raschbaum performed surgery. The surgery was not an attempt
    to “fix things permanently but fix things so that we could achieve stability if
    there was any way humanly possible.” Dr. Raschbaum testified with respect to
    observing the duodenum and pancreas being “split into two.” Dr. Raschbaum,
    like Dr. Contin, testified that this type of injury is not uncommon in “high speed
    accidents.” He had observed “almost identical injuries” when a person “had
    jumped out of a vehicle going 60 miles an hour.” Despite resuscitative efforts,
    the victim expired. In his opinion, a four-year old was not capable of inflicting
    these injuries in a normal household. He further opined that “[t]he magnitude
    4
    The victim also had five bruises on his skull. Those appeared to be two or three days
    old.
    8
    No. 07-70028
    of impact is so dramatic that I can’t imagine that this could be any kind of
    accident.” “It would be a strong force, like a stomping force.”
    The defense called Dr. Fausto Rodriguez, the pathologist who had
    conducted a second autopsy on the victim. Dr. Rodriguez testified that he
    reviewed Dr. Contin’s autopsy report, Dr. Raschbaum’s surgical report, Dr.
    Wilson’s report, and the microscopic slides from the hospital. Dr. Rodriguez
    testified that “all the [fatal] injuries - internal injuries in this case could be
    explained by a single traumatic event.” Dr. Rodriguez testified that the injuries
    could have been inflicted by an adult accidentally falling on the child but he
    could not make such a determination. He further opined that the older bruises
    on the victim’s skull were “[p]robably just the daily activities of the child.” It
    was very unlikely that the older bruises were caused by blunt force trauma. On
    cross-examination, Dr. Rodriguez reiterated that the injuries could have been
    the result of a single blow.
    A. Guilt-Innocence Phase of Trial
    Avila contends that the prosecution suppressed Dr. Wilson’s opinion that
    the fatal injuries were inflicted by one stomp, as opposed to the State’s
    contention at trial that the victim was stomped or kicked three times. Dr.
    Wilson’s opinion, Avila argues, would have enabled counsel “to argue
    persuasively that [his] conduct resulted from a sudden loss of control, not a
    conscious desire to kill.”     In an affidavit submitted during post-conviction
    proceedings, Dr. Wilson stated that:
    The nature of the child’s injuries, the manner and circumstances
    under which I understand that they were inflicted, and the reported
    response of Rigoberto Avila to those injuries are all consistent with
    cases in which caretakers of children, under conditions of stress,
    lose control and act without reflection in a manner which endangers
    the safety of the infant or child under their care and control.
    9
    No. 07-70028
    As set forth above, Avila must first show that the State withheld the
    evidence. The state habeas court made a finding that “[b]efore and during trial,
    the State was not aware of the opinion now expressed by Dr. Harry Wilson that
    a single blow caused the fatal injuries sustained by the victim.” Avila has the
    burden of rebutting this presumed correct factual finding with clear and
    convincing evidence. Both trial prosecutors submitted affidavits stating that Dr.
    Wilson never stated to them or any member of the prosecution team during the
    trial of the case that a single blow caused all the injuries to Nicholas. Also, Dr.
    Rodriguez, the defense’s pathologist, submitted an affidavit stating that “Dr.
    Wilson told me that it was his opinion that the fatal injuries to Nicholas could
    have been caused by a single blow or they could have been caused by multiple
    blows.” Further, there is no written documentation of Dr. Wilson’s single-blow
    opinion from the time of the trial.
    On the other hand, Dr. Wilson has submitted an affidavit indicating that
    he communicated his single-blow theory to the prosecutors. This affidavit, which
    was not executed until long after the trial, does not constitute clear and
    convincing evidence sufficient to rebut the presumption of correctness afforded
    the state court’s finding under § 2254(e)(1). See Pippin v. Dretke, 
    434 F.3d 782
    ,
    792 (5th Cir. 2005) (explaining that a state trial court’s credibility determination
    based on conflicting evidence is “virtually unreviewable” by a federal court).5
    Nonetheless, Avila contends that Dr. Wilson’s opinion should be imputed
    to the prosecutors because Dr. Wilson was part of the prosecution team. It is
    well settled that if a member of the prosecution team has knowledge of Brady
    5
    Avila complains that the factual findings were made without an evidentiary hearing.
    This Court has stated that a “full and fair hearing does not necessarily require live testimony.”
    Clark v. Johnson, 
    202 F.3d 760
    , 766 (5th Cir. 2000). “Indeed, we have repeatedly found that
    a paper hearing is sufficient to afford a petitioner a full and fair hearing on the factual issues
    underlying the petitioner’s claims, especially where, as here, the trial court and the state
    habeas court were one in the same.” 
    Id. We note
    that Judge Woody Densen presided over both
    Avila’s capital murder trial and the state habeas proceedings.
    10
    No. 07-70028
    material, such knowledge is imputed to the prosecutors. United States v.
    Antone, 
    603 F.2d 566
    , 569 (5th Cir. 1979); Schneider v. Estelle, 
    552 F.2d 593
    , 595
    (5th Cir. 1977). In Antone, the issue was whether knowledge held by state law
    enforcement agents could be imputed to the federal 
    prosecutors. 603 F.3d at 569-70
    . In that case, FBI agents and Florida state law enforcement agents had
    formed a joint task force to investigate the murder of a former police officer. 
    Id. at 568.
    The government argued that the knowledge should not be imputed
    because the two agencies represent entirely separate sovereigns. 
    Id. at 570.
    This Court declined to impose a bright line rule, explaining that such a rule
    “would artificially contort the determination of what is mandated by due
    process.” 
    Id. Instead, we
    concluded that the determination should be made on
    a “case-by-case analysis of the extent of interaction and cooperation between the
    two governments.” 
    Id. After recognizing
    the extensive cooperation between the
    agencies, we concluded that the state investigators acted as agents of the federal
    government pursuant to the principles of agency law. 
    Id. Thus, in
    the instant case, we must determine whether Dr. Wilson was part
    of the “‘prosecution team[,]’ which includes both investigative and prosecutorial
    personnel.” 
    Id. at 569.
    “The question is not whether any expert witness can be
    treated as ‘an arm of the prosecution,’ but whether [the expert] played such a
    role.” United States v. Stewart, 
    323 F. Supp. 2d 606
    , 618 (S.D.N.Y. 2004).6 In
    Hill v. Johnson, this Court addressed a claim that an expert witness acted as an
    arm of the prosecution. 
    210 F.3d 481
    , 488-89 (5th Cir. 2000). During the
    sentencing phase of Hill’s trial, a psychiatric expert testified for the State with
    respect to the probability that Hill would be a danger to society in the future.
    6
    The State relies on Summers v. Dretke, in which this Court rejected a Brady claim
    involving an expert witness. 
    431 F.3d 861
    (5th Cir. 2005). In Summers, the petitioner did not
    argue that the relevant knowledge should be imputed to the prosecutors and therefore, its
    analysis is inapposite. 
    Id. at 874
    (explaining that petitioner “has made no such claim” after
    citing a case that involved imputation of knowledge).
    11
    No. 07-70028
    
    Id. at 488.
    Relying on language in Estelle v. Smith, 
    451 U.S. 454
    , 467 (1981),
    Hill contended that because the psychiatric expert testified for the prosecution
    that Hill would be a future danger, the expert transformed into an agent of the
    State.     
    Hill, 210 F.3d at 489
    .      Estelle v. Smith involved a court-ordered
    psychiatric exam given without advising the defendant of his 
    rights. 451 U.S. at 466
    . The psychiatrist subsequently testified with respect to the results of that
    examination. 
    Id. at 459-60.
    This Court quickly rejected Hill’s argument,
    recognizing that the psychiatrist did not examine Hill but rather testified in
    response to hypotheticals with respect to future dangerousness. 
    Hill, 210 F.3d at 489
    n.5. Unlike the petitioner in Hill, Avila is not relying on Estelle v. Smith.
    Nonetheless, Hill suggests that merely testifying as an expert witness for the
    State does not necessarily transfer an expert witness into an “arm of the state.”
    
    Hill, 210 F.3d at 488-89
    . Further, deeming every expert witness to be an arm
    of the state would be inconsistent with our previously cited precedent declining
    to impose a bright line rule and, instead, directing that a case-by-case analysis
    is better suited for determining whether an individual is deemed part of the
    prosecution team pursuant to the principles of agency law. See 
    Antone, 603 F.2d at 570
    .
    Similarly, in United States v. Stewart, in the context of a use-of-perjured-
    testimony claim, the Second Circuit rejected a defendant’s argument that the
    expert witness’s knowledge should be imputed to the prosecution. 
    433 F.3d 273
    ,
    297-99 (2d Cir. 2006). There, the witness was an expert with respect to ink, and
    the district court had concluded that the expert witness had “acted as an
    ordinary expert witness and not as part of the ‘prosecution team.’” 
    Id. at 298.
    The Second Circuit stated that the district court’s findings “demonstrate that
    [the expert’s] role was limited to matters concerning his area of expertise.” 
    Id. The expert
    witness’s duties included analyzing a document, explaining the
    forensic ink tests that had been conducted, discussing possible testimony that
    12
    No. 07-70028
    the defense expert would give, assisting the prosecutors in developing cross-
    examination questions with respect to technical aspects of testing, taking part
    in a mock examination prior to trial, and testifying at trial regarding the tests
    and his resulting conclusions. 
    Id. The Second
    Circuit held that none of those
    duties “suggest[ed] that [the expert] was in any way involved with the
    investigation or presentation of the case.” 
    Id. at 298-99.
    Concluding that the
    witness had “acted only in the capacity of an expert witness, . . . and not as a
    ‘fully functioning member of the prosecution team,’” the Second Circuit held that
    the expert’s knowledge should not be imputed to the prosecutors. 
    Id. at 299.
           Here, we are not persuaded that Dr. Wilson became part of the prosecution
    team. Indeed, Dr. Wilson’s own affidavit does not portray his role as anything
    but a pathologist. Because Dr. Wilson did not become part of the prosecution
    team, his opinion is not imputed to the State. Thus, we hold that the district
    court erred in finding the state court’s conclusion was “an objectively
    unreasonable application of clearly established federal constitutional law.”
    
    Avila, 499 F. Supp. 2d at 748
    .7
    In the alternative, even assuming arguendo that Dr. Wilson did become
    part of the prosecution team and thus his opinion would be imputed to the trial
    prosecutors, we conclude that the state court’s conclusion that his opinion was
    not material is not unreasonable. The Supreme Court has explained that to
    determine materiality with respect to a Brady claim, “the reviewing court may
    consider directly any adverse effect that the prosecutor’s failure to respond
    might have had on the preparation or presentation of the defendant’s case.”
    United States v. Bagley, 
    473 U.S. 667
    , 683 (1985). More specifically, this Court
    7
    Although the district court found that Dr. Wilson acted as an arm of the prosecution,
    the district court ultimately denied relief on this claim because it found that the state court’s
    conclusion that the evidence was not material was not an unreasonable application of clearly
    established Federal law. 
    Avila, 499 F. Supp. 2d at 757
    .
    13
    No. 07-70028
    “should assess the possibility that such effect might have occurred in light of the
    totality of the circumstances and with an awareness of the difficulty of
    reconstructing in a post-trial proceeding the course that the defense and the trial
    would have taken had the defense” been aware of the suppressed evidence. 
    Id. To the
    extent the undisclosed evidence is cumulative, “no Brady violation
    occurs.” Spence v. Johnson, 
    80 F.3d 989
    , 995 (5th Cir. 1996). At trial, the
    defense called a pathologist, Dr. Rodriguez, who testified that “all the [fatal]
    injuries - internal injuries in this case could be explained by a single traumatic
    event.” Dr. Rodriguez never testified that the injuries were caused by multiple
    blows. Indeed, in his affidavit, even Dr. Wilson admits that he “cannot say with
    certainty that multiple blows did not occur.” Dr. Rodriguez’s opinion was
    consistent with Dr. Wilson’s opinion and, thus, to some extent cumulative.
    Avila acknowledges Dr. Rodriguez’s opinion but nonetheless contends that
    Dr. Rodriguez did not have as much experience or prominence in the field as Dr.
    Wilson. Avila also points to Dr. Wilson’s theory that caregivers of small children
    sometimes find themselves in stressful situations and act violently but without
    the intent to kill. Thus, he argues that the opinion is material to the guilt phase
    because it might have persuaded a juror that he was not guilty of capital murder
    but instead a lesser offense. At trial, however, Avila testified before the jury
    that he did not stomp the baby. Dr. Wilson’s theory therefore directly conflicts
    with the defense at the guilt-innocence phase of the trial. Avila admits as much
    but contends that, had his defense attorneys known of Dr. Wilson’s stressed-
    caregiver theory, they perhaps would have been able to persuade him not to
    testify.8   Avila fails to point to any evidence supporting this speculative
    8
    Pursuant to AEDPA, a district court is precluded from granted relief with respect to
    an unexhausted claim. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, the
    petitioner must fairly present the substance of his federal claim to the highest state court.”
    Ries v. Quarterman, 
    522 F.3d 517
    , 523 (5th Cir. 2008). The State contends that Avila, in his
    state court habeas pleadings, did not assert that the prosecutor withheld evidence of Dr.
    14
    No. 07-70028
    contention. Avila further contends that, had counsel been aware of Dr. Wilson’s
    opinion, “it is likely they would have altered their defensive strategy to focus
    more on the question of Avila’s mental state than on his conduct.” Again, Avila
    points to no evidence in support of this contention. Further, this contention
    ignores defense counsel’s affidavit that was submitted during the post-conviction
    proceedings. In his affidavit, Avila’s trial attorney stated that his strategy was
    not to put on psychological or psychiatric evidence to prevent the State from
    examining Avila. Although counsel’s affidavit did not specifically address Dr.
    Wilson’s opinion, it certainly does not offer support for the contention that
    counsel, with hindsight, would have changed his strategy to focus on Avila’s
    psychological or mental state.
    Finally, we are mindful that Dr. Wilson’s opinion regarding the stressed
    care-giver pertains to Avila’s intent or state of mind. Dr. Wilson’s expertise is
    pathology, not psychology or psychiatry. Under these circumstances, the state
    court’s conclusion that the evidence was not material at the guilt-innocent phase
    of trial is not objectively unreasonable. The district court’s denial of habeas
    relief on this claim is affirmed.9
    B.     Punishment Phase of Trial
    Wilson’s stressed care-giver theory. In his reply brief, Avila does not claim that he did assert
    the stressed care-giver theory in his state writ application; instead, he relies on “Dr. Wilson’s
    state court affidavit and related exhibits” as urging the stressed care-giver theory. We are not
    necessarily satisfied that Avila exhausted the stressed care-giver theory in state court.
    Nonetheless, because we ultimately deny relief, we may address the claim even if it is
    unexhausted. See Granados v. Quarterman, 
    455 F.3d 529
    , 536 (5th Cir. 2006).
    9
    In light of our determination with respect to materiality, we need not reach the
    question of whether the failure to discover the evidence was a result of a lack of due diligence.
    See Rector v. Johnson, 
    120 F.3d 551
    , 558 (5th Cir. 1997). Nonetheless, we note that Avila’s
    claim that counsel rendered ineffective assistance during the guilt-innocence phase by failing
    to discover Dr. Wilson’s opinion, discussed infra, tends to support a conclusion of lack of due
    diligence.
    15
    No. 07-70028
    The State cross-appeals the grant of habeas relief based upon the district
    court’s ruling that the State suppressed Dr. Wilson’s opinion with respect to the
    punishment phase of trial. As set forth above, we hold that Dr. Wilson’s actions
    were not sufficient for him to be deemed part of the prosecution team.
    In the alternative, again assuming arguendo that Dr. Wilson was part of
    the prosecution team and thus knowledge of his opinion must be imputed to the
    prosecutors, we find that it was not material.               At the conclusion of the
    punishment phase of trial, the jurors had to answer two questions: (1) do you
    find from the evidence beyond a reasonable doubt that there is a probability that
    the defendant Rigoberto Avila would commit criminal acts of violence that would
    constitute a continuing threat to society?; and (2) do you find from the evidence,
    taking into consideration all the evidence including the circumstances of the
    offense, the defendant’s character and background and the personal moral
    culpability of the defendant, that there is a sufficient mitigating circumstance
    or circumstances to warrant that a sentence of life imprisonment rather than a
    death sentence should be imposed? The jury unanimously answered the first
    special issue regarding whether Avila would be a future danger “yes.” The jury
    unanimously answered the second special issue regarding whether mitigating
    circumstances warranted a life sentence “no.”
    Although the court below ruled that Avila had not shown materiality with
    respect to the guilt phase of trial, the court ruled that Avila successfully
    demonstrated materiality with respect to the punishment phase of trial. Based
    on this conclusion, the district court conditionally granted habeas relief, ruling
    that Avila was entitled to a new trial on the issue of punishment.10 We conclude
    that the district court erred in finding unreasonable the state court’s conclusion
    that Avila had failed to satisfy the materiality prong. As previously discussed,
    10
    This Court granted the Respondent’s motion to stay the ruling pending appeal.
    16
    No. 07-70028
    to determine materiality, this Court should assess what course the defense
    would have taken during the punishment phase if Dr. Wilson’s opinion and
    theory had been known. See 
    Bagley, 473 U.S. at 683
    .
    The State argues that the district court erred in “rewriting the defense’s
    trial strategy.”   We agree.    The district court found that “Dr. Wilson’s
    experienced professional opinion would have lent support to the single-blow
    theory, and undermined the prosecution’s multiple-blow theory” and that his
    opinion was relevant to the special issues. 
    Avila, 499 F. Supp. 2d at 758
    . In
    finding that the evidence satisfied the materiality prong, the district court
    explained as follows:
    Dr. Wilson’s opinion regarding the potentially unpremeditated
    nature of petitioner’s violent actions (based on Dr. Wilson’s
    extensive experience with injuries to children resulting from violent,
    albeit unpremeditated, misconduct by care givers) dove-tailed
    remarkably well with petitioner’s description of his offense
    contained in petitioner’s second written statement to police. In that
    regard, Dr. Wilson could have furnished petitioner’s defense counsel
    with a rational explanation for petitioner’s violent conduct which
    was vastly more beneficial to petitioner’s efforts to obtain a
    favorable verdict on the future dangerousness and mitigation
    special issues than petitioner’s trial counsel’s dubious suggestion to
    the jury that petitioner had murdered Nicolas in a jealous rage.
    
    Id. Although the
    district court concludes that Dr. Wilson’s opinion would have
    afforded a better defense strategy at the punishment phase, Avila has offered no
    evidence demonstrating that counsel would have changed strategies.             As
    referenced above, Avila’s defense counsel executed an affidavit during post-
    conviction proceedings. In pertinent part, the affidavit provides:
    In the investigation of the case, and in preparation for the
    presentation of mitigating evidence at the punishment phase, I
    made the strategic decision to not put on any psychiatric or
    psychological evidence to prevent the State from being able to
    examine the defendant under Soria v. State, 
    933 S.W.2d 46
    (Tex.
    17
    No. 07-70028
    Crim. App. 1996), and gain possible damaging evidence. That
    strategy worked as neither side presented such evidence at trial.
    *      *      *
    During my cross-examination of Marcelina Macias (Avila’s girlfriend
    and mother of the deceased, Nicholas Macias), I made the strategic
    decision to bring out the pressure that she had put on Avila in her
    relationship. She knew that he was jealous of her and of her alleged
    relationships with other men, and I had her admit that she knew he
    knew about those relationships, she knew he was jealous, and he
    was a ticking time bomb at the time of the offense. I did this in
    order to give the jury a motive for the offense, namely, to show that
    Avila was not a cold-blooded killer who committed the offense for no
    reason. Bringing out the pressure he was under in his relationship
    with Marcelina was done in hopes of showing that the alleged
    offense was spur-of-the-moment, and something that was a total
    aberration in Avila’s life. This evidence, I hoped, would show a one-
    time error in judgment with a likelihood that he would not be a
    danger in the future. In my opinion, if I had not brought that
    evidence out, the jury would have just thought that Avila was a
    cold-blooded killer who committed the offense with deliberation and
    would likely be a danger in the future. I believe it was a valid
    strategical decision at the time that it was made.
    Avila had the burden of demonstrating how the evidence would have
    changed the course of the punishment hearing, and defense counsel’s affidavit
    does not indicate that he would have changed his strategy at the punishment
    phase. Moreover, as previously noted, Dr. Wilson’s expertise is pathology, not
    psychology or psychiatry. Simply put, under these circumstances, our confidence
    in the verdict is not undermined by the State’s alleged suppression of a
    pathologist’s opinion as to Avila’s intent at the time of the murder. Avila has not
    shown that the state court’s conclusion was an unreasonable application of
    clearly established Federal law. We therefore reverse the district court’s grant
    of habeas relief with respect to Avila’s Brady claim during the punishment phase
    of trial.
    18
    No. 07-70028
    IV.   INEFFECTIVE ASSISTANCE OF COUNSEL
    Avila contends that defense counsel’s failure to discover Dr. Wilson’s
    opinion constituted ineffective assistance of counsel during both phases of the
    murder trial. To establish ineffective assistance of counsel, Avila must show (1)
    defense counsel’s performance was deficient and (2) this deficient performance
    prejudiced the defense. Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984). We
    must find that trial counsel “made errors so serious that counsel was not
    functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” 
    Id. The Supreme
    Court instructs courts to look at the “norms of practice as reflected in
    the American Bar Association and the like” and to consider “all the
    circumstances” of a case. 
    Id. at 688.
    While “[j]udicial scrutiny of counsel’s
    performance must be highly deferential,” Avila can demonstrate deficient
    performance if he shows “that counsel’s representation fell below an objective
    standard of reasonableness.”      
    Id. at 688.
       However, “[t]here is a ‘strong
    presumption that counsel’s conduct falls within the wide range of reasonable
    professional assistance.’” United States v. Webster, 
    392 F.3d 787
    , 793 (5th Cir.
    2004) (quoting 
    Strickland, 466 U.S. at 689
    ). Strickland’s “prejudice” prong
    requires a reasonable probability that, but for the deficient performance of his
    trial counsel, the outcome of his capital murder trial would have been different.
    
    Strickland, 466 U.S. at 694
    . “A reasonable probability is a probability sufficient
    to undermine confidence in the outcome.” 
    Id. A. Guilt-Innocence
    Phase of Trial
    Avila contends that counsel rendered ineffective assistance by failing to
    discover the opinion of Dr. Wilson during the guilt-innocence phase of the trial.
    The district court denied a COA with respect to this issue. We must therefore
    determine whether Avila has made a substantial showing of the denial of
    effective assistance during the guilt-innocence phase.
    1. Performance Prong
    19
    No. 07-70028
    Avila faults counsel for not discovering Dr. Wilson’s opinion that the
    victim’s fatal injuries most likely were inflicted by one stomp as opposed to three
    stomps or kicks. Avila contends that Dr. Wilson’s one-stomp theory would have
    impeached the testimony the State elicited from Dr. Contin that there were
    multiple blows. Of course, defense counsel was aware of the theory that Avila
    could have inflicted the injuries with only one stomp based on defense expert
    Dr. Rodriguez’s testimony that the victim’s internal injuries could be explained
    by one single event of trauma.11 Counsel, though undisputably aware that the
    injuries could have been inflicted with one stomp, never argued that theory to
    the jury. We now consider whether Avila has made a substantial showing that
    counsel’s performance was deficient.
    Trial counsel’s defense strategy is made clear in his closing argument.
    During the closing argument at the guilt-innocence phase, defense counsel urged
    the jury to find Avila not guilty, which was consistent with Avila’s trial
    testimony. Defense counsel argued that there was no evidence that Avila had
    any motive to kill the 19-month old child. Counsel spoke of the four character
    witnesses who testified that Avila always treated children well.                   Counsel
    highlighted Avila’s lack of any felony convictions or crimes involving moral
    turpitude. Counsel reminded the jury that a Department of Public Safety crime
    lab employee testified that his comparison of the soles of Avila’s shoes did not
    match the impression of the victim’s body. Counsel sought to create reasonable
    doubt by asking why the State had not called the victim’s mother to testify
    regarding either the night of the offense or the older bruises on her son’s head.
    Counsel also questioned why the State had not had compared the victim’s
    mother’s shoes to the victim’s body. Counsel discounted the testimony of Dylan,
    the victim’s brother, asserting that Dylan’s testimony indicated he had no
    11
    Additionally, Avila’s confession arguably indicates that it was one blow: “I walked
    over to [Nicholas] and stamped on him with my right foot.”
    20
    No. 07-70028
    independent memory of what happened. Counsel argued that Avila’s call to the
    emergency number 911 and his efforts to revive Nicholas would be inconsistent
    with guilt. Counsel emphasized that Avila did not flee the scene but instead,
    drove the victim’s brother, Dylan, to the hospital.
    Counsel pointed out that Avila’s first statement after interrogation
    provided that he did not hit Nicholas and had no knowledge of the bruise. That
    statement, counsel noted, bore Avila’s initials next to the paragraphs. The
    second statement, in which Avila admitted that he “stamped on [Nicholas] with
    his right foot,” contains no such initials on the individual paragraphs. Counsel
    stated to the jury that the second statement was “generate[d]” by Detective Tony
    Tabullo and signed by a sleepless Avila at 6:00 the next morning. Counsel
    argued that Detective Tabullo told Avila that he “had only made some grammar
    changes, . . . just sign it, you don’t need to read it.” Counsel further argued that
    the incriminating statement, unlike the first statement, contained no initials
    and no notation of the time when it was completed. Counsel reminded the jury
    that the State, not the defense, had the burden of proving the offense beyond a
    reasonable doubt. Counsel concluded by asking the jury for a verdict of not
    guilty.
    Counsel’s chosen strategy comported with Avila’s trial testimony in which
    he denied striking the victim.12 We are mindful that “Strickland does not allow
    second guessing of trial strategy and must be applied with keen awareness that
    this is an after-the-fact inquiry.” Granados v. Quarterman, 
    455 F.3d 529
    , 534
    (5th Cir. 2006). Dr. Wilson’s opinion regarding Avila’s intent to kill would have
    been in direct conflict with Avila’s testimony that he did not kill the victim.
    Simply because counsel’s strategy did not successfully convince the jury does not
    12
    We note that “[t]he decision of whether to testify belongs to the defendant and his
    lawyer cannot waive it over his objection.” United States v. Mullins, 
    315 F.3d 449
    , 454 (5th
    Cir. 2002).
    21
    No. 07-70028
    mean counsel’s performance was deficient. Counsel’s strategy falls within the
    range of reasonable professional assistance. We conclude that counsel’s “failure”
    to discover Dr. Wilson’s opinion did not constitute deficient performance in light
    of the defense used at trial.
    2.     Prejudice Prong
    Because we find no deficient performance, we need not reach the prejudice
    prong. Nonetheless, “[t]he test for prejudice under Brady and Strickland is the
    same.” Gonzales v. Quarterman, 
    458 F.3d 384
    , 390 (5th Cir. 2006). Having
    already found that Dr. Wilson’s opinion did not show prejudice under Brady, we
    would also find no prejudice under Strickland. Avila has not made a substantial
    showing with respect to ineffective assistance of counsel during the guilt phase.
    We therefore DENY a COA with respect to this claim.
    B.      Punishment Phase of Trial
    Avila next contends that counsel’s failure to discover Dr. Wilson’s opinion
    constituted ineffective assistance during the punishment phase of trial. The
    court below granted a COA with respect to this issue. As previously set forth,
    we are constrained under AEDPA to determine whether the state court’s
    conclusion is “contrary to, or involved an unreasonable application of, clearly
    established Federal law.” § 2254(d).
    1.     Performance Prong
    We must first consider whether defense counsel’s failure to discover Dr.
    Wilson’s opinion constituted deficient performance.13 Again, although defense
    counsel was aware of the theory that all three bruises could be a result of one
    13
    Avila contends that the prosecution’s case for death was based on the theory that
    Avila stomped and kicked the victim repeatedly. We believe Avila overstates the importance
    of the number of blows described by the prosecutor in closing argument. The prosecutor did
    assert that Avila kicked the child twice and then stomped his abdomen. Although the
    prosecution’s closing arguments fill 32 pages of transcript, the prosecutor’s description of the
    killing is only about one-half of one page.
    22
    No. 07-70028
    blow, counsel did not argue that to the jury during the punishment phase.
    Instead, counsel’s argument focused on the prosecutor’s failure to demonstrate
    that Avila would commit further acts of violence. Counsel argued that Avila’s
    actions immediately after the killing showed that he had a conscience. Counsel
    emphasized that the prosecution was not able to find evidence of any other bad
    act that Avila had committed. Counsel argued that the killing was an isolated
    incident and that even the victim’s mother testified that Avila had been good to
    her children. Counsel referred to the evidence that Avila was a good father to
    his son and paid child support. Counsel pointed to the respected members of the
    community who testified on behalf of Avila. Counsel closed by asking the jury
    to vote “no” with respect to the future dangerousness special issue.
    Counsel’s decision not to argue the one-stomp theory fell within the range
    of reasonable professional assistance. We conclude that counsel’s “failure” to
    discover Dr. Wilson’s opinion did not constitute deficient performance in light of
    the strategy at the punishment phase.14
    2.     Prejudice Prong
    As previously set forth, “[t]he test for prejudice under Brady and
    Strickland is the same.” 
    Gonzales, 458 F.3d at 390
    . Having already found that
    Dr. Wilson’s opinion did not show prejudice under Brady, we would also find no
    prejudice under Strickland. Accordingly, Avila has not shown that the state
    court’s ruling was an unreasonable application of Federal law.
    V.     RIGHT TO JURY TRIAL
    Finally, Avila contends that allowing a sentence of death without a jury
    finding beyond a reasonable doubt that there were no mitigating circumstances
    sufficient to warrant a sentence of life imprisonment violated his Sixth and
    14
    We note that counsel’s decision to not put on any psychiatric evidence at the
    punishment phase successfully kept the State from discovering potentially aggravating
    evidence that surfaced during post-conviction proceedings regarding Avila having a suicidal
    ideation and his diagnosis of Major Depressive Disorder.
    23
    No. 07-70028
    Fourteenth Amendment right to due process and a fair trial. The district court
    denied a COA with respect to this issue.
    This Court previously has rejected this claim. Rowell v. Quarterman, 
    398 F.3d 370
    , 378 (5th Cir. 2005) (opining that “[n]o Supreme Court or Circuit
    precedent constitutionally requires that Texas’s mitigation special issue be
    assigned a burden of proof”). We are bound by our precedent and must conclude
    that Avila has not made a substantial showing with respect to the denial of his
    right to a jury finding of beyond a reasonable doubt. Scheanette v. Quarterman,
    
    482 F.3d 815
    , 828-29 (5th Cir. 2007) (ruling that reasonable jurists would not
    debate the district court’s rejection of petitioner’s claim that the jury was
    required to find the mitigating issue beyond a reasonable doubt).
    VI.   CONCLUSION
    For the above reasons, the district court’s judgment is AFFIRMED in part
    and REVERSED in part. Avila’s application for a COA is DENIED. Avila is
    denied any relief on his section 2254 claims.
    24