Jonathan Wayne Nobles, Petitioner-appellant, v. Gary L. Johnson, Director, Texas Department of Criminaljustice, Institutional Division, Respondent-appellee, 127 F.3d 409 (5th Cir. 1997)

Appellant Jonathan Wayne Nobles ("Nobles") appeals the district court's denial of his application for writ of habeas corpus. For the reasons that follow, we affirm.

FACTUAL BACKGROUND

Appellant Nobles broke into a house in Austin, Texas where Mitzi Nalley and her roommate Kelly Farquar were living. Nobles brutally stabbed Nalley and Farquar to death and severely injured Nalley's boyfriend, Ron Ross. Ross survived the attack, despite receiving nineteen stab wounds and losing an eye.

After the murders, Nobles went home and called his friend Marlly O'Brien, asking her to come over and help him.¹  She found Nobles in the bathroom with his arm, which had been badly cut, wrapped in a towel. There was blood all over the bathroom. Nobles then changed clothes, cleaned the bathroom, and put everything with blood on it into a trash bag which he placed in the trunk of O'Brien's car. O'Brien dropped Nobles off at a friend's house, where Nobles shaved his beard and had his arm taped up. O'Brien later picked Nobles up and let him borrow her car while she went to work. Nobles lied to O'Brien and his other friends about what had happened, saying he had been involved in a fight.

Based on physical evidence from the murder scene²  and on information obtained from O'Brien and others, Nobles was arrested. Nobles confessed to the murders and then led police to where he had hidden the trash bag, containing the murder weapon and the blood-soaked clothes he had worn during the killings.

PROCEDURAL HISTORY

In 1987 a jury found Nobles guilty of the murders of Nalley and Farquar. The jury responded affirmatively to the two special sentencing issues submitted pursuant to former Article 37.071 of the Texas Code of Criminal Procedure, Tex.Code Crim. P. Ann. art. 37.071(b) (West 1981), and the trial court imposed the death penalty.

Nobles's conviction and sentence were automatically appealed to the Texas Court of Criminal Appeals, which affirmed both. Nobles v. State, 843 S.W.2d 503 (Tex.Crim.App.1992). In 1993 Nobles filed a state habeas petition which the trial court and the Court of Criminal Appeals denied. The United States Supreme Court denied Nobles's petition for writ of certiorari on February 21, 1995.

Nobles moved the United States District Court for appointment of counsel and to proceed in forma pauperis on a petition for federal writ of habeas corpus. The district court granted a stay of execution and appointed counsel who petitioned for writ of habeas corpus. The district court denied Nobles's petition for habeas relief and Nobles appealed. The district court granted a certificate of appealability on all of Nobles's claims.

ISSUES RAISED

Nobles's Certificate of Appealability addresses the applicability of the Antiterrorism and Effective Death Penalty Act, the prosecution's use of an edited confession, and the effectiveness of counsel. We address each of these issues in turn.

DISCUSSION

The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996), amended, inter alia, § 2244 and §§ 2253-2255 of chapter 153 of title 28 of the United States Code, the provisions that govern all habeas proceedings in federal courts. See 110 Stat. 1217-21. The AEDPA also created a new chapter 154, applicable to habeas proceedings against a state in capital cases. New chapter 154 applies, however, only if a state "opts in" by establishing certain mechanisms for the appointment and compensation of competent counsel.³  See 110 Stat. 1221-26. The AEDPA became effective on April 24, 1996.

In Lindh v. Murphy, --- U.S. ----, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997), the Supreme Court held that § 107(c) of the AEDPA, which explicitly made new chapter 154 applicable to cases pending on the effective date of the Act, created a "negative implication ... that the new provisions of chapter 153 generally apply only to cases filed after the Act became effective." Lindh, --- U.S. at ----, 117 S. Ct. at 2068 (emphasis added). Lindh effectively overruled our decision in Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996), in which we held that the AEDPA's amendments to chapter 153 were procedural in nature and therefore applied to cases pending on the effective date of the Act without having "retroactive" effect.⁴  Drinkard, 97 F.3d at 764-66. Thus, under Lindh, if a case was "filed" before April 24, 1996, the pre-AEDPA habeas standards apply.

Nobles filed his habeas petition on June 28, 1996, after the AEDPA's effective date. Before the effective date, however, Nobles had moved the district court for appointment of counsel and to proceed in forma pauperis.⁵  The district court denied Nobles's habeas petition before Lindh was decided and thus relied on Drinkard and Mata in applying the AEDPA to Nobles's petition. See Drinkard, 97 F.3d at 764-66; Mata, 99 F.3d at 1266. Nobles contends that because he made a "filing" (i.e., his motion for appointment of counsel) in his federal habeas action before the AEDPA's effective date, his case was therefore "pending" under Lindh and thus not subject to the AEDPA.⁶  Lindh, however, does not define when a case is "pending" for purposes of application vel non of the AEDPA; in fact, Lindh uses the expressions "cases pending," "cases filed," and "applications pending" interchangeably.⁷ 

In McFarland v. Scott, 512 U.S. 849, 114 S. Ct. 2568, 129 L. Ed. 2d 666 (1994), the Supreme Court held that a "post conviction proceeding" under 21 U.S.C. § 848(q) (4) (B)⁸  commences with a death row defendant's motion requesting the appointment of counsel for his federal habeas proceeding. McFarland, 512 U.S. at 856-57, 114 S. Ct. at 2572-73. The Court also held that "once a capital defendant invokes his right to appointed counsel, the federal court also has jurisdiction under [28 U.S.C.] § 2251 to enter a stay of execution." McFarland, 512 U.S. at 858, 114 S. Ct. at 2573. Reading the two sections in pari materia, the Court found that the terms "post conviction proceeding" in § 848(q) (4) (B) and "habeas corpus proceeding" in § 2251 referred to the same event, i.e., habeas proceedings under 28 U.S.C. §§ 2254 and 2255. Id.

One could read McFarland to stand for the proposition that when a capital defendant moves for appointment of habeas counsel, his case is "pending" even though no habeas application has been filed. Justice Thomas, dissenting in McFarland, took such a view of the majority's reasoning:

Thus, after today, the "proceeding" to which § 2251 refers will have two different meanings depending upon whether the stay is sought by a capital or non-capital prisoner. In the former situation, a "habeas corpus proceeding" under § 2251 will be "pending" once a motion for appointment for counsel is filed. In the latter, no matter how many preliminary motions a prisoner might file, a proceeding will not be "pending" until an application for habeas relief is filed.

McFarland, 512 U.S. at 872 n. 3, 114 S. Ct. at 2580 n. 3 (Thomas, J., dissenting) (emphasis added).⁹  Justice O'Connor, concurring in part and dissenting in part, agreed with the dissent that a habeas proceeding was not "pending" under § 2251 upon filing of a motion for appointment of counsel. McFarland, 512 U.S. at 862, 114 S. Ct. at 2575 (O'Connor, J., concurring in part and dissenting in part) (" [T]he text and structure of the federal habeas statute suggest that the stay provision contained in § 2251 is intended to apply only after a petition has been filed.").¹⁰ 

Our recent decision in Williams v. Cain, 125 F.3d 269 (5th Cir. 1997), construes McFarland and resolves the issue. In Williams, we found that McFarland did not "answer the question of what date a habeas petition becomes 'pending' for determining the applicability of substantive statutes." Williams, 125 F.3d at 274, 1997 WL 612739, at * 3. The date of a capital defendant's motion for appointment of counsel is therefore irrelevant to the question whether his case is "pending" for purposes of Lindh and the applicability of the AEDPA. Thus, under Williams, "the relevant date for determining the applicability of the AEDPA to habeas corpus petitions is the date that the actual habeas corpus petition is filed." Id.

Since Nobles did not file his petition for habeas corpus relief until June 28, 1996--some two months after the AEDPA's effective date--Williams instructs that we apply the AEDPA standards to Nobles's petition.

Nobles claims the prosecution knowingly used false evidence against him when it introduced at trial an edited version of his taped confession that omitted remarks indicating Nobles did not remember certain details of the murders. Nobles argues that had the jury considered these remarks, it could have found that, because of mental impairment from drugs and alcohol, he had not deliberately committed the murders.¹¹  He further contends that in closing argument the prosecutor compounded the misrepresentation by emphasizing the lack of evidence that Nobles had been unaware of his actions. For these reasons, Nobles concludes that he was denied the fundamentally fair and impartial trial guaranteed him by the Due Process Clause of the Fifth Amendment.

To establish a due process violation based on the State's knowing use of false or misleading evidence, Nobles must show (1) the evidence was false, (2) the evidence was material, and (3) the prosecution knew that the evidence was false. Giglio v. United States, 405 U.S. 150, 153-154, 92 S. Ct. 763, 765-766, 31 L. Ed. 2d 104 (1972); Boyle v. Johnson, 93 F.3d 180, 186 (5th Cir. 1996). Evidence is "false" if, inter alia, it is "specific misleading evidence important to the prosecution's case in chief." See Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S. Ct. 1868, 1873, 40 L. Ed. 2d 431 (1974). False evidence is "material" only "if there is any reasonable likelihood that [it] could have affected the jury's verdict." Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996), cert. denied, --- U.S. ----, 117 S. Ct. 773, 136 L. Ed. 2d 718 (1997).

The state habeas court denied this claim, finding that " [Nobles's] allegations do not suggest ... the presentation of false evidence by the State." The district court observed that the state court addressed the "falsity" of the evidence but made no findings as to its "materiality." The district court then found that the edited confession "was, at least to some degree, misleading in an important way," but ruled that Nobles's claim failed the "materiality" prong of the Giglio test. Specifically, the district court found that Nobles's asserted memory loss was not credible given his detailed descriptions of trivial events before and after the murders, and that, in any case, such evidence was cumulative of other evidence presented to the jury.¹²  Thus, the court found no "reasonable likelihood the jury would have returned a different verdict at the guilt or punishment stages of trial if it had heard the unedited confession." Nobles v. Johnson, No. A95-CA-703 SS, mem. op. at 19 (W.D. Tex. Dec. 19, 1996).¹³ 1.

We need not decide whether the edited confession constituted "false evidence" under Giglio, because we agree with the district court that the confession, even if "false," was not "material," because it could not have reasonably affected the jury's determination that Nobles deliberately committed the murders.

Whether false evidence is "material" under Giglio is a mixed question of law and fact. United States v. Bagley, 473 U.S. 667, 679 n. 8, 105 S. Ct. 3375, 3382 n. 8, 87 L. Ed. 2d 481. (1985); Napue v. Illinois, 360 U.S. 264, 271-72, 79 S. Ct. 1173, 1178-79, 3 L. Ed. 2d 1217 (1959). When reviewing a mixed question of law and fact under the AEDPA, a federal court may grant habeas relief only if it determines that the state court decision rested on "an unreasonable application of [ ] clearly established Federal law, as determined by the Supreme Court," to the facts of the case. 28 U.S.C. § 2254(d) (1) (West 1997); see Drinkard, 97 F.3d at 767-68. An application of law to facts is unreasonable "only when it can be said that reasonable jurists considering the question would be of one view that the state court ruling was incorrect." Drinkard, 97 F.3d at 769.

Before applying amended § 2254(d) (1), we must first determine whether Nobles's Giglio claim was "adjudicated on the merits" in the state court proceedings. See 28 U.S.C. § 2254(d) (West 1997). We feel some reservation about applying the more stringent AEDPA standards to this claim because we are not convinced that the state habeas court sufficiently addressed Nobles's Giglio claim. As the district court observed, the state habeas court did not address the "materiality" prong of Giglio but simply ruled, without evidentiary hearing, that "applicant's allegations do not suggest ... the presentation of false evidence by the state."¹⁴ 

We need not determine, however, whether the state habeas court sufficiently adjudicated Nobles's Giglio claim on the merits for purposes of amended § 2254(d), because we find that the allegedly misleading edited confession was not "material" even applying the pre-AEDPA de novo standard of review. See Gochicoa v. Johnson, 118 F.3d 440, 445 (5th Cir. 1997); 28 U.S.C. § 2254(d) (West 1994).

Nobles claims the prosecution selectively edited his confession to omit portions which supported his defense of mental impairment. His abridged confession, Nobles contends, presented to the jury a "more inculpatory statement" than his actual, unedited confession. Nobles offers as a primary example the following excerpt heard by the jury:

I remember going out for a walk so I could catch my breath. I did have a knife in my hand and I felt the warmth hit my hand.

The unedited version reads as follows:

Okay, well anyway at the point that I got back home and I walked out the door I don't remember. I remember going out for a walk so I could catch my breath. The next thing I remember was getting kicked in the face and hearing a girl scream it had to be a woman scream and I did not lunge out and for some reason I had a knife in my hand. I did have a knife in my hand because I did not reach out and stab anybody but I felt somebody run at me after I got kicked or hit or whatever but somebody moved into me and I felt the warmth hit my hand.

Nobles contends this example, and others like it, show that the prosecution cobbled together unrelated bits of his confession to present a misleading picture of his culpability.¹⁵ 

Assuming that the edited confession constituted "false evidence," we must ask if there is any reasonable likelihood that the false evidence could have affected the jury's determination that Nobles deliberately committed the murders. See Westley, 83 F.3d at 726. We find none.

We first observe that the edited confession is replete with references both to Nobles's failure to remember significant portions of the murders and also to his generally fragmented state of mind.¹⁶  Additionally, other witnesses testified that Nobles told them he had taken drugs and could not remember what happened on the night of the murders.¹⁷  There was also evidence that Nobles ingested the drugs and alcohol some seven to ten hours before the murders; that Nobles drove around with O'Brien after taking the drugs and spoke rationally to her about a business venture; and, that Nobles wore gloves during the murders and afterwards disposed of the evidence of his crime. Given the evidence of mental impairment in the edited confession and the other evidence of the deliberateness of Nobles's acts, we find no reasonable likelihood that the allegedly misleading edited confession could have affected the jury's determination.¹⁸ 

We offer, as did the district court, an alternative basis for rejecting Nobles's due process claim. During trial, Nobles's counsel objected to the manner in which the State introduced the edited confession.¹⁹  During the ensuing bench conference, the trial judge gave defense counsel the opportunity to compare the edited and unedited versions, and also specifically instructed counsel that he had "an absolute right pursuant to [Texas Rule of Criminal Evidence] 106 to complete the record" if he so desired. Nobles's counsel chose not to do so.

We find that Nobles's counsel waived any error regarding the edited confession, since he had the unedited version in his possession and chose not to enter it into evidence. Nobles cannot now claim that the introduction of the edited version violated his right to due process when his trial attorneys possessed, and chose not to use, the very evidence that would have corrected the asserted misrepresentation. See United States v. Sutherland, 656 F.2d 1181, 1203-04 (5th Cir. 1981) (denying claim of prosecutorial misconduct because, inter alia, defense counsel possessed impeaching grand jury testimony of Government witness but failed to use it, and also denying new trial for Brady violation because exculpatory evidence was made available to defense).

Nobles also claims that trial counsel's failure to present his unedited confession to the jury denied him the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments. He argues that counsel's deficient performance resulted, at the guilt phase of trial, in denial of an instruction on the lesser-included offense of voluntary manslaughter. He also contends that had the jury been able to consider his unedited confession during the punishment phase, it reasonably could have found Nobles had not acted deliberately. Nobles also argues there was no conceivable tactical reason at either phase for counsel's failure to introduce the unedited confession.

To prevail on this claim, Nobles must show (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Washington v. Johnson, 90 F.3d 945, 953 (5th Cir. 1996). Performance is deficient when counsel's representation falls below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65; Washington, 90 F.3d at 953. Deficient performance is prejudicial when there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different; a reasonable probability is one sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Washington, 90 F.3d at 953.

Both prongs of the Strickland test involve mixed questions of law and fact. Strickland, 466 U.S. at 698, 104 S. Ct. at 2070. Under the AEDPA, a federal court will thus not grant a writ of habeas corpus unless the state court's conclusions involved an "unreasonable application" of clearly established federal law as determined by the Supreme Court. See Carter v. Johnson, 110 F.3d 1098, 1110; Moore, 101 F.3d at 1075-76, 28 U.S.C § 2254(d) (1). An application of federal law is "unreasonable" if it is "so clearly incorrect that it would not be debatable among reasonable jurists." Drinkard, 97 F.3d at 769.

The state habeas court concluded that, because the portions omitted from Nobles's proffered confession would not have supported a voluntary manslaughter charge under Texas law, Nobles had not demonstrated prejudice from counsel's alleged error. We cannot say that the state court's conclusion involved an unreasonable application of the Strickland v. Washington test.

Nobles's claim that the portions omitted from the confession would have supported a voluntary manslaughter charge is devoid of merit. At the time of the murders, one was guilty of voluntary manslaughter in Texas if one committed what would otherwise be murder "under immediate influence of sudden passion arising from adequate cause." Tex. Penal Code Ann. § 19.04 (West 1974).²⁰  Voluntary manslaughter is a lesser-included offense of capital murder; a defendant is entitled, upon request, to the lesser-included charge if "it is included within the proof necessary to establish the offense charged" and if "there [is] some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense." See Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985).

The omitted portions of Nobles's confession simply fail to demonstrate either the "sudden passion" or "adequate cause" necessary to support a voluntary manslaughter charge. The portions in which Nobles states that one of the victims "kicked him in the face" or "kept hitting him" show, at most, the victims' attempts to ward off Nobles's vicious attack. Texas courts have repeatedly held that when a defendant initiates a criminal episode, a victim's attempts to defend himself will not constitute "adequate cause" from which sudden passion will arise for purposes of voluntary manslaughter. See, e.g., Adanandus v. State, 866 S.W.2d 210, 231 (Tex.Crim.App.1993), cert. denied, 510 U.S. 1215, 114 S. Ct. 1338, 127 L. Ed. 2d 686 (1994); Vuong v. State, 830 S.W.2d 929, 939 (Tex.Crim.App.), cert. denied, 506 U.S. 997, 113 S. Ct. 595, 121 L. Ed. 2d 533 (1992).²¹  We further note that parts of Nobles's confession presented to the jury contained similar references to the victims' striking Nobles.

Because the omitted portions of Nobles's confession could not have conceivably supported a voluntary manslaughter charge under Texas law, Nobles can demonstrate no prejudice at the guilt phase resulting from counsel's allegedly deficient performance.

Nobles also claims that counsel's deficient performance prejudiced him at the punishment phase, in that the jury could reasonably have found from the omitted portions of the confession that Nobles did not deliberately kill his victims. The state habeas court found that, even assuming counsel's deficient performance, Nobles failed to demonstrate prejudice.²²  Given the cumulative nature of the omitted evidence, the essential unbelieveability of Nobles's asserted memory loss, and the otherwise overwhelming evidence of deliberateness, we do not find the state court's determination to be an unreasonable application of Strickland.

Nobles also claims that he was denied the effective assistance of counsel because his attorneys failed to present at the punishment phase a sufficient amount of the mitigating evidence in their possession regarding Nobles's traumatic childhood and his history of drug abuse and mental illness. Nobles argues that this unprofferred evidence could have led the jury to conclude that Nobles did not commit his crimes deliberately. See discussion supra Part II.A. Respondent argues that Nobles did not raise this ineffective assistance of counsel claim in the state courts and has thus failed to exhaust available state remedies. Furthermore, since the Texas court to which Nobles would present this claim would now find it barred under the Texas abuse-of-writ doctrine, Respondent contends Nobles has procedurally defaulted for purposes of federal habeas review.

A state prisoner normally must exhaust all available state remedies before he can apply for federal habeas relief. See Ex parte Royall, 117 U.S. 241, 251, 6 S. Ct. 734, 740, 29 L. Ed. 868 (1886).²³  To have exhausted his state remedies, a habeas petitioner must have fairly presented the substance of his claim to the state courts. Picard v. Connor, 404 U.S. 270, 275-76, 92 S. Ct. 509, 512-13, 30 L. Ed. 2d 438 (1971). The exhaustion requirement is not satisfied if the prisoner presents new legal theories or factual claims in his federal habeas petition. Anderson v. Harless, 459 U.S. 4, 6-7, 103 S. Ct. 276, 277-78, 74 L. Ed. 2d 3 (1982); Vela v. Estelle, 708 F.2d 954, 958 (5th Cir. 1983).

A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default. If a state court clearly and expressly bases its dismissal of a prisoner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the prisoner has procedurally defaulted his federal habeas claim. Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S. Ct. 2546, 2555, 115 L. Ed. 2d 640 (1991); see Harris v. Reed, 489 U.S. 255, 262-63, 109 S. Ct. 1038, 1043-44, 103 L. Ed. 2d 308 (1989); Wainwright v. Sykes, 433 U.S. 72, 81, 97 S. Ct. 2497, 2503, 53 L. Ed. 2d 594 (1977). A procedural default also occurs when a prisoner fails to exhaust available state remedies and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Coleman, 501 U.S. at 735 n. 1, 111 S. Ct. at 2557 n. 1.

Nobles admits that in his state habeas proceeding he did not claim ineffective assistance of counsel based on failure to introduce mitigating evidence. Instead, Nobles asserted the related Sixth Amendment claim that he had been denied the effective assistance of a competent court-appointed psychiatrist. See Ake v. Oklahoma, 470 U.S. 68, 83, 105 S. Ct. 1087, 1096, 84 L. Ed. 2d 53 (1985). On appeal, Nobles urges us to entertain his re-postured ineffective assistance of counsel claim because the "gist" of it, and the factual issues, are the same as those involved in his ineffective psychiatric assistance claim. The district court rejected this argument, finding that the claims implicate "two wholly different inquiries" and that Nobles thus did not fairly present his ineffective assistance of counsel claim to the state courts. We agree with the district court.

To meet the exhaustion requirement, " [i]t is not enough that all the facts necessary to support the federal claim were before the state courts." Anderson, 459 U.S. at 6, 103 S. Ct. at 277. Rather, the federal habeas petitioner must have provided the state courts with a " 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." Id., quoting Picard, 404 U.S. at 276-77, 92 S. Ct. at 513. Nobles's argument to the state habeas court that he was not provided with competent psychiatric assistance did not give that court a "fair opportunity" to consider the factually related but legally distinct ineffective assistance of counsel claim he now presses upon us.

In his state habeas petition, Nobles based his due process claim on the "lack of a reliable mental health evaluation by his state-appointed experts in competently investigating petitioner's background to discover a mother-lode of information indicative of life-long mental disorders." Nobles primarily²⁴  relied on the Supreme Court's decision in Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), which recognized an indigent defendant's due process right to a competent psychological evaluation when his sanity would be a significant factor at trial. Ake, 470 U.S. at 83, 105 S. Ct. at 1096. Nobles asserted that, because of the failure of his court-appointed psychiatrist to conduct a competent investigation into his traumatic past, the jury did not hear evidence that, during the murders, Nobles was in the grip of a dissociative episode and was thus not acting deliberately. The state habeas court rejected Nobles's claim, finding that he had provided no "rational basis for finding that the psychiatrist ... was incompetent or performed incompetently."

In his federal habeas petition, Nobles shifted focus from the alleged incompetence of his court-appointed psychiatrist to that of his trial counsel.²⁵  He claimed that counsel failed to present most of the available mitigating evidence regarding Nobles's childhood and history of mental illness.²⁶  Given that one of the primary issues the jury had to resolve during the punishment phase was deliberateness, Nobles asserts there was no conceivable reason for counsel's failure to introduce all available evidence of his troubled psyche.

Nowhere in his state habeas petition did Nobles claim that his trial counsel provided ineffective assistance regarding the introduction of mitigating evidence. He focused exclusively on the allegedly incompetent investigation performed by his court-appointed psychiatrist. Only in his federal habeas petition did Nobles call into question his attorneys' performance on this ground.

In addressing a due process claim based on ineffective psychiatric assistance, a court must inquire whether the defendant was provided access to a "competent psychiatrist" and whether that psychiatrist competently examined the defendant and "assist [ed] in evaluation, preparation and presentation of the defense." Ake, 470 U.S. at 83, 105 S. Ct. at 1093. By contrast, a court assessing whether a defendant was provided with the effective assistance of counsel must focus on the reasonableness of counsel's decisions and in particular whether allegedly deficient performance falls within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 688-91, 104 S. Ct. at 2065-67. The court's focus does not change even when the ineffective assistance of counsel claim is predicated on counsel's failure to introduce mitigating psychological evidence. See Black v. Collins, 962 F.2d 394, 403 (5th Cir. 1992) (finding reasonable counsel's decision not to present evidence that defendant suffered from Post-Traumatic Stress Syndrome in light of defense strategy at punishment phase).²⁷ 

In sum, Nobles "advance [d] in federal court an argument based on a legal theory distinct from that relied upon in state court," and therefore failed to satisfy the exhaustion requirement. Vela, 708 F.2d at 958 n. 5, citing Anderson, 459 U.S. at 7, 103 S. Ct. at 277-78.

As noted above, the district court also found Nobles's claim barred by the doctrine of procedural default. The court reasoned that because Tex.Code Crim. Proc. Ann. art. 11.071 § 5(a)²⁸  would prohibit Nobles from filing a successive habeas petition at the state level, Nobles had procedurally defaulted his ineffective assistance of counsel claim. See Coleman, 501 U.S. at 735 n. 1, 111 S. Ct. at 2557 n. 1.

Were Nobles to file a successive habeas petition in the Texas state courts, his application would be governed by § 5(a) of article 11.071. See Ex parte Davis, 947 S.W.2d 216, 222 (Tex.Crim.App.1996) (McCormick, J., concurring).²⁹  That section would prohibit a Texas court from considering the successive petition on the merits, unless it met certain exceptions. Id. The only exception arguably applicable here would allow consideration of the successive petition if it contained

sufficient specific facts establishing that ... by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state's favor one or more of the special issues that were submitted to the jury in the applicant's trial under Article 37.071 or 37.011.³⁰ 

Tex.Code Crim. P. Ann. art. 11.071 § 5(a) (3) (West 1997).

After considering Nobles's Sixth Amendment claim based on counsel's failure to sufficiently introduce mitigating evidence, we fail to discern evidence of any constitutional violation whatsoever, much less a constitutional violation that impacted the jury's findings at the punishment phase. The so-called "mitigating" psychological evidence Nobles refers to was at best double-edged: not to present evidence of Nobles's volatile mental state, especially given counsel's decision to emphasize Nobles's non-violent history,³¹  was clearly reasonable trial strategy. See Black, 962 F.2d at 403 (finding that, where counsel chose to emphasize defendant's non-violent history, decision not to present all evidence tending to negate "deliberateness" element not unreasonable); see also Green, 116 F.3d at 1123. Even assuming counsel's deficient performance, Nobles could not in any case demonstrate prejudice, given that the evidence of his childhood trauma and history of mental illness was cumulative of other evidence actually presented during the punishment phase. We thus find that a Texas court, presented with a successive state habeas petition on this claim, would find it barred under article 11.071 § 5(a).

Given that article 11.071 is "a new statute, largely uninterpreted by state cases," we provide an alternate basis for applying the doctrine of procedural default. See Emery v. Johnson, 123 F.3d 213, 217-18 (5th Cir. 1997); Mangaroo v. Nelson, 864 F.2d 1202, 1204 n. 2 (5th Cir. 1989). The Texas abuse-of-writ doctrine³²  prohibits a second habeas petition, absent a showing of cause, if the applicant urges grounds therein that could have been, but were not, raised in his first habeas petition. See Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App.1994) (en banc) (plurality opinion). That doctrine represents an adequate state procedural bar for purposes of federal habeas review. See Emery, 123 F.3d at 217-18; Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995). Given that Nobles has cited no cause for his failure to raise his Sixth Amendment claim in his initial state habeas petition, the Texas abuse-of-writ doctrine would constitute an independent and adequate bar to a successive habeas petition.³³ 

Thus, whether we consider article 11.071 or the abuse-of-writ doctrine, Nobles has procedurally defaulted his unexhausted Sixth Amendment claim.

The AEDPA amended 28 U.S.C. § 2254(b) to allow a federal court to deny an application on the merits, "notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b) (2) (West 1997). We note that amended § 2254(b) (2) is permissive (" [a]n application ... may be denied ..."). The district court, after finding Nobles's claim procedurally defaulted, found in the alternative that his claim would not have succeeded on the merits. We review the district court's resolution of this mixed question of law and fact de novo. See Green, 116 F.3d at 1122.

We agree with the district court that Nobles's allegations fail to demonstrate his counsel's deficient performance, and that, in any case, Nobles could not show prejudice resulting therefrom. As the district court observed, "mitigation is in the eye of the beholder." While the unprofferred evidence of Nobles's childhood abuse and emotional problems may have helped Nobles on the deliberateness issue, the same evidence could have strengthened the prosecution's argument that Nobles posed a continuing threat to society. Thus, counsel's decision not to offer such evidence did not constitute deficient performance. Furthermore, the unprofferred evidence was cumulative and thus could not have affected the outcome of the punishment phase.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court's denial of Nobles's petition for writ of habeas corpus.