Rodney Reed v. William Stephens, Director ( 2014 )


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  •      Case: 13-70009    Document: 00512496780   Page: 1   Date Filed: 01/10/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 13-70009                        January 10, 2014
    Lyle W. Cayce
    RODNEY REED,                                                               Clerk
    Petitioner-Appellant
    v.
    WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
    JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
    Respondent-Appellee
    Appeal from the United States District Court
    for the Western District of Texas
    Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
    KING, Circuit Judge:
    Petitioner-Appellant Rodney Reed was convicted of capital murder in a
    jury trial in Texas and sentenced to death. The Texas Court of Criminal
    Appeals affirmed his conviction and sentence on direct appeal.                Reed
    unsuccessfully sought state habeas relief in six petitions. He also sought
    federal habeas relief in district court and now seeks a certificate of
    appealability to challenge the district court’s denial of habeas relief. Reed
    argues that he should be granted a certificate of appealability based on his
    assertions of actual innocence, ineffective assistance of trial, appellate, and
    habeas counsel, Brady violations, and violations of his Sixth, Eighth, and
    Fourteenth Amendment rights. We hold that reasonable jurists could not
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    debate the district court’s conclusions and accordingly DENY Reed’s request
    for a certificate of appealability.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    The lengthy history of Petitioner-Appellant Rodney Reed’s conviction for
    the murder of Stacey Lee Stites has been aptly recounted by numerous courts,
    most comprehensively by the Texas Court of Criminal Appeals (“CCA”) in
    Reed’s 2008 post-conviction proceeding. Ex parte Reed, 
    271 S.W.3d 698
    (Tex.
    Crim. App. 2008). We rely on the CCA’s factual recitation, and limit our
    discussion to those facts most pertinent to Reed’s present application for a
    certificate of appealability (“COA”).
    A.    Stacey Stites’s Murder
    Stites moved, along with her mother, to Bastrop, Texas in 1995 after
    graduating from high school, and began working at the Bastrop H.E.B. grocery
    store. By late December 1995, she was engaged to Jimmy Fennell, a recent
    police academy graduate. The following month, Stites moved to Giddings,
    Texas to be closer to her fiancé, who had been hired as a patrol officer with the
    Giddings Police Department.
    Stites continued working at H.E.B., but eventually transferred to the
    store’s produce department to earn more money in preparation for her
    wedding, scheduled for May 11, 1996. Stites was required to report to work
    daily at 3:30 a.m. to stock produce. Around 6:30 a.m. on April 23, 1996, one of
    Stites’s coworkers called Stites’s mother to inform her that Stites had failed to
    report to work. Stites’s mother called Fennell who set out looking for Stites,
    while Stites’s mother called the police to report her daughter missing.
    Earlier that morning, at 5:23 a.m., a police officer with the Bastrop
    Sheriff’s Department had observed Fennell’s pickup truck (which Stites
    routinely drove to work) parked in the Bastrop High School parking lot. After
    confirming that the vehicle was not reported stolen, there was no broken glass,
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    and the driver’s side door was locked, the officer returned to his patrol duties.
    Later, after Stites was reported missing, Officer Ed Selmala, an investigator
    with the Bastrop Police Department, conducted an investigation of the vehicle.
    Stites’s body was discovered shortly before 3:00 p.m. later that day in a
    ditch on the side of a road. Investigators observed that Stites was partially
    unclothed.   She was missing a shoe.          Although she wore a bra, she was
    otherwise shirtless. Her H.E.B. nametag was found in the crook of her leg.
    Additionally, Stites’s pants were undone, her pants’ zipper was broken, and
    her underwear was bunched around her hips. A piece of webbed belt belonging
    to Stites was located at the edge of the road, and matched a piece of belt
    discovered outside Fennell’s truck. Two beer cans lying across the road from
    Stites’s body were also collected.
    Karen Blakely, a criminalist and serologist with the Texas Department
    of Public Safety, took vaginal and breast swabs from Stites’s body, which
    showed the presence of semen. However, as a result of rigor mortis, Blakely
    could not determine whether Stites had been anally sodomized.               Blakely
    observed various other injuries to Stites’s body, including an indentation in her
    neck, apparently caused by the piece of belt found nearby, scratches on her
    abdomen and arms, a cigarette burn on one arm, and shallow wounds on her
    wrists and back that appeared to have been caused by fire-ants.
    An autopsy the following day by medical examiner Dr. Roberto Bayardo
    revealed bruises on Stites’s arms, bruises on her head in a pattern consistent
    with the knuckles of a fist, and bruises on her left shoulder and abdomen
    consistent with a seatbelt. A wide mark across her neck matched the pattern
    of her belt. Dr. Bayardo concluded that the belt was the murder weapon, and
    that Stites was strangled to death.           He estimated her time of death as
    approximately 3:00 a.m.
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    Dr. Bayardo also took vaginal swabs and identified intact sperm,
    indicating that the sperm had entered Stites’s vagina “quite recently.” Dr.
    Bayardo also observed injuries to her anus, including dilation and superficial
    lacerations consistent with penile penetration inflicted at or near the time of
    Stites’s death. Rectal swabs showed sperm heads without visible tails leading
    Dr. Bayardo to report a “negative” result. Dr. Bayardo also could not rule out
    the possibility that the presence of sperm in the anus was the result of seepage
    from the vagina. Further DNA testing on Stites’s blood, the vaginal swabs,
    and liquid in Stites’s underwear showed that there was a single semen donor.
    Authorities thereafter engaged in an eleven-month-long investigation.
    Police interviewed hundreds of individuals and identified over twenty-eight
    male suspects, including Fennell (Stites’s fiancé), Officer David Hall (one of
    Fennell’s fellow officers), and David Lawhon (a man who, officials learned, was
    bragging about killing Stites and who had killed another woman, Mary Ann
    Arldt, a few weeks after Stites’s murder). None of the suspects’ DNA matched
    that recovered from Stites’s body.
    Eventually, Reed was identified as a suspect. Bastrop police officers
    frequently saw Reed in the early morning hours near Stites’s usual work route
    and the parking lot where Fennell’s pickup was found. A comparison between
    Reed’s DNA and that found on Stites’s body revealed that Reed could not be
    excluded as a suspect. Additional DNA analysis proved that Reed’s genetic
    profile matched that of the semen found at the crime scene.
    B.    Reed’s Trial
    Reed was charged with capital murder in May 1997. At trial, state
    prosecutors presented evidence of the murder investigation, as well as
    testimony by Dr. Bayardo, Blakely, and DNA analyst Meghan Clement. Reed’s
    trial defense consisted of two parts: First, Reed attempted to show that
    Fennell, Lawhon, or someone else could have committed the offense; and
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    second, Reed tried to explain why his semen was in Stites’s body by evidencing
    a romantic relationship between himself and Stites. In furtherance of this trial
    strategy, Reed’s defense team called multiple witnesses, including a DNA
    expert, Dr. Elizabeth Ann Johnson. A jury ultimately rejected Reed’s defense
    and found him guilty.
    During the trial’s punishment phase, state prosecutors introduced
    evidence that Reed had committed numerous other sexual assaults. The jury,
    after weighing the evidence, answered the special issues submitted pursuant
    to Texas Code of Criminal Procedure Article 37.071, and sentenced Reed to
    death. 1
    C.      State Post-Conviction Proceedings
    On direct appeal, the CCA affirmed Reed’s conviction and sentence.
    While his direct appeal was pending, Reed filed the first of six state habeas
    applications. Based on the state trial court’s recommended findings of fact and
    1Article 37.071 § 2 provides that on conclusion of the presentation of the evidence in
    a capital murder case, the court shall submit the following issues to the jury:
    (1) whether there is a probability that the defendant would commit criminal
    acts of violence that would constitute a continuing threat to society; and
    (2) in cases in which the jury charge at the guilt or innocence stage permitted
    the jury to find the defendant guilty as a party under Sections 7.01 and 7.02,
    Penal Code, whether the defendant actually caused the death of the deceased
    or did not actually cause the death of the deceased but intended to kill the
    deceased or another or anticipated that a human life would be taken.
    Tex. Code Crim. Proc. Ann. art. 37.071 § 2(b).
    If the answers to these questions are in the affirmative, the court will submit
    the following issue:
    [(3)] [w]hether, taking into consideration all of the evidence, including the
    circumstances of the offense, the defendant’s character and background, and
    the personal moral culpability of the defendant, there is a sufficient mitigating
    circumstance or circumstances to warrant that a sentence of life imprisonment
    without parole rather than a death sentence be imposed.
    
    Id. § 2(e)(1).
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    conclusions of law, and the CCA’s own review of the record, the CCA denied
    Reed’s petition on February 13, 2002.
    Before the CCA ruled on Reed’s state habeas petition, Reed filed a
    supplemental habeas claim, which the CCA interpreted as a subsequent
    application. In his second application, Reed argued that the State failed to
    turn over a letter containing DNA results from the beer cans found near the
    crime scene in violation of Brady v. Maryland, 
    373 U.S. 83
    (1963). The CCA
    dismissed Reed’s subsequent habeas petition as an abuse of the writ for not
    meeting any of the exceptions listed in Article 11.071 of the Texas Code of
    Criminal Procedure. 2
    In March 2005, Reed filed his third state habeas petition, again arguing
    that the State suppressed evidence in violation of Brady. Reed also added
    other claims, including a freestanding actual innocence claim, ineffective
    assistance of trial and appellate counsel claims, and a claim that Texas’s
    capital sentencing statute unconstitutionally prohibits jury instructions on the
    2   Article 11.071 § 5(a) provides in relevant part that:
    If a subsequent application for a writ of habeas corpus is filed after filing an
    initial application, a court may not consider the merits of or grant relief based
    on the subsequent application unless the application contains sufficient
    specific facts establishing that:
    (1) the current claims and issues have not been and could not have been
    presented previously in a timely initial application or in a previously
    considered application . . . because the factual or legal basis for the
    claim was unavailable on the date the applicant filed the previous
    application;
    (2) by a preponderance of the evidence, but for a violation of the United
    States Constitution no rational juror could have found the applicant
    guilty beyond a reasonable doubt; or
    (3) 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 . . . .
    Tex. Code Crim. Proc. Ann. art. 11.071 § 5(a).
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    effect of a juror’s “no” vote. The CCA directed the trial court to hold a hearing
    as to some of the allegedly suppressed evidence, and dismissed the remaining
    claims as abuses of the writ. After conducting an evidentiary hearing, the trial
    judge recommended that Reed’s third state habeas petition be denied. The
    CCA ordered supplemental briefing and held oral argument. It then issued a
    lengthy, detailed opinion holding that the record did not support Reed’s Brady
    claims, and further that Reed had failed to make a prima facie showing of
    innocence by a preponderance of the evidence, foreclosing review of the other
    claims raised in his third state habeas petition.
    Reed filed a fourth habeas petition in February 2007, again raising
    Brady claims. A fifth state habeas petition followed in July 2008, raising still
    more Brady claims. On January 14, 2009, the CCA rejected the claims raised
    in Reed’s fourth and fifth petitions as abuses of the writ. Reed filed a sixth
    state habeas petition on April 21, 2009, but this too was dismissed by the CCA
    as an abuse of the writ.
    D.    Federal Post-Conviction Proceedings
    Following the CCA’s denial of Reed’s second state habeas petition, Reed
    sought federal habeas relief under 28 U.S.C. § 2254. The district court allowed
    limited discovery and depositions, and determined that Reed had failed to
    exhaust in state court several of his claims arising out of evidence that was not
    discovered until after the federal writ was filed. The district court entered a
    stay of the federal writ in March 2004 to allow Reed to pursue his claims in
    state court.
    On August 5, 2009, after the last of Reed’s state habeas petitions was
    denied, Reed moved the district court to lift its stay. Reed filed a corrected
    second amended petition on February 12, 2010, and the State moved for
    summary judgment. The district court referred Reed’s petition to a magistrate
    judge who issued a comprehensive report and recommendation exhaustively
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    listing each of Reed’s claims, and recommending that federal habeas relief be
    denied.
    On September 26, 2012, after reviewing objections by both parties, the
    district court issued a lengthy order largely adopting the magistrate judge’s
    report and recommendation, denying habeas relief, and denying a COA. Reed
    subsequently filed a motion to alter or amend judgment on October 23, and a
    motion for leave to amend his petition and abate proceedings on November 30.
    In these two motions, Reed asked the district court to reopen his case, vacate
    its prior judgment, grant him leave to add an additional due process claim, and
    abate all further proceedings until he exhausted the due process claim in state
    court. The district court denied Reed’s motions on February 4, 2013.
    Reed timely filed his application for a COA to appeal the district court’s
    decision on March 1, 2013.
    II. STANDARD OF REVIEW
    Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
    (“AEDPA”), §§ 101–108, Pub. L. No. 104-132, 110 Stat. 1214 (codified as
    amended at 28 U.S.C. §§ 2244, 2253–2266), a state habeas petitioner may
    appeal a district court’s dismissal of his petition only if he first obtains a COA
    from the district court or the court of appeals. 28 U.S.C. § 2253(c)(1)(A). To
    obtain a COA, the petitioner must make “a substantial showing of the denial
    of a constitutional right.” 
    Id. § 2253(c)(2).
    “Where a district court has rejected
    the constitutional claims on the merits, the showing required to satisfy
    § 2253(c) is straightforward: The petitioner must demonstrate that reasonable
    jurists would find the district court’s assessment of the constitutional claims
    debatable or wrong.” Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000). By contrast:
    When the district court denies a habeas petition on procedural
    grounds without reaching the prisoner’s underlying constitutional
    claim, a COA should issue when the prisoner shows, at least, that
    jurists of reason would find it debatable whether the petition
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    states a valid claim of the denial of a constitutional right and that
    jurists of reason would find it debatable whether the district court
    was correct in its procedural ruling.
    
    Id. In reviewing
    Reed’s request for a COA, we only conduct a threshold
    inquiry into the merits of the claims Reed raised in his underlying habeas
    petition. See Miller-El v. Cockrell, 
    537 U.S. 322
    , 336 (2003). “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.” 
    Id. In death
    penalty
    cases, “any doubts as to whether a COA should issue must be resolved in [the
    petitioner’s] favor.” Ramirez v. Dretke, 
    398 F.3d 691
    , 694 (5th Cir. 2005)
    (alteration in original) (internal quotation marks and citation omitted).
    AEDPA provides that a district court may not grant habeas relief with
    respect to any claim that was adjudicated on the merits in the state court
    proceedings, unless the state habeas court’s denial:
    (1) resulted in a decision that was contrary to, or involved an
    unreasonable application of, clearly established Federal law, as
    determined by the Supreme Court of the United States; 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 contrary to Supreme Court precedent if: (1)
    ‘the state court arrives at a conclusion opposite to that reached by [the
    Supreme Court] on a question of law’; or (2) ‘the state court confronts facts that
    are materially indistinguishable from a relevant Supreme Court precedent and
    arrives at a result opposite to [that of the Supreme Court].’” Pippin v. Dretke,
    
    434 F.3d 782
    , 787 (5th Cir. 2005) (alterations in original) (quoting Williams v.
    Taylor, 
    529 U.S. 362
    , 405 (2000)), cert. denied, 
    549 U.S. 828
    (2006). “A state
    court’s decision is an unreasonable application of clearly established federal
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    law whenever the state court identifies the correct governing legal principle
    from the Supreme Court’s decisions but applies that principle to the facts of
    the prisoner’s case in an objectively unreasonable manner.” 
    Id. (quoting Young
    v. Dretke, 
    356 F.3d 616
    , 623 (5th Cir. 2004)). “An unreasonable application
    may also occur if ‘the state court either unreasonably extends a legal principle
    from [Supreme Court] precedent to a new context where it should not apply or
    unreasonably refuses to extend that principle to a new context where it should
    apply.’” 
    Id. at 787–88
    (alteration in original) (quoting 
    Young, 356 F.3d at 623
    ).
    In evaluating the evidence presented in state court, we presume the state
    court’s factual findings correct unless a petitioner “rebut[s] the presumption of
    correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
    III. DISCUSSION
    Reed broadly can be understood as seeking a COA on his claims that
    (1) he was actually innocent of Stites’s murder; (2) he received ineffective
    assistance of trial counsel; (3) he received ineffective assistance of appellate
    counsel; (4) his appellate counsel labored under a conflict-of-interest in
    violation of the Sixth Amendment; (5) the State suppressed evidence in
    violation of Brady; and (6) his Eighth and Fourteenth Amendment rights were
    violated when the State presented evidence during the trial’s punishment
    phase of an alleged sexual assault of which he had been acquitted.
    The substance of the arguments he presents in support of these claims
    follows the principle themes of his defense at trial. These were, first, that
    someone other than him murdered Stites, and, second, that he had a romantic
    relationship with Stites.    As to the first, Reed posited that there were
    numerous other individuals who could have murdered Stites. These included
    Fennell, Stites’s fiancé; Lawhon, who actually bragged of killing Stites; and
    Officer Hall, another Giddings police officer. As to the second, Reed attempted
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    to explain the presence of his semen in Stites as the result of a consensual
    sexual relationship between him and Stites.
    Reed presented evidence during trial in support of both theories. A jury
    considered the evidence, and rejected it, finding Reed guilty of Stites’s murder.
    Throughout his habeas petitions, Reed presented additional evidence to show
    that one of the other suspects committed the murder, and that he and Stites
    were dating.         The CCA ordered an evidentiary hearing, requested
    supplemental briefing, and ultimately rejected Reed’s arguments. Including
    the trial jury and, on habeas, the state trial court and the CCA, three fact-
    finders thus have considered the very theories and much of the evidence Reed
    pursued in federal court. 3
    Reed’s request for a COA is further distinguished based on the DNA
    evidence in this case. DNA evidence is sometimes claimed to be relevant
    because it may exculpate the defendant. Here, by contrast, the fact that Reed’s
    sperm was in Stites is undisputed. The need to explain that fact drives Reed’s
    efforts to show that he and Stites were engaged in a clandestine sexual affair.
    Against this backdrop, we turn to consider Reed’s multiple requests for
    a COA. As we discuss, the district court denied habeas relief under AEDPA’s
    deferential framework, after largely adopting a magistrate judge’s report and
    recommendation.         Our task is to consider whether the district court’s
    conclusions are debatable. We note that although many of Reed’s claims were
    3  In Texas, “[o]n postconviction review of habeas corpus applications, the convicting
    court is the ‘original factfinder,’ and [the CCA] is the ultimate factfinder.” Ex parte Chavez,
    
    371 S.W.3d 200
    , 207 (Tex. Crim. App. 2012). Although the CCA will “generally defer to and
    accept the convicting court’s findings of fact and conclusions of law,” the CCA may exercise
    its authority “to make contrary or alternative findings and conclusions” when its
    “independent review of the record reveals that the trial judge’s findings and conclusions are
    not supported by the record.” 
    Id. (internal quotation
    marks and citations omitted); see also
    Ex parte Flores, 
    387 S.W.3d 626
    , 634–35 (Tex. Crim. App. 2012) (CCA acts as “the ultimate
    fact finder” when the lower court’s findings “do not resolve the necessary factual issues”).
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    procedurally defaulted, a COA should still issue as to them if Reed can show
    “that jurists of reason would find it debatable whether the petition states a
    valid claim of the denial of a constitutional right and that jurists of reason
    would find it debatable whether the district court was correct in its procedural
    ruling.” 
    Slack, 529 U.S. at 484
    . Because Reed’s ability to show constitutional
    and procedural debatability determines whether he is entitled to have his
    procedurally defaulted claims reviewed on the merits, we consider first his
    reasons for overcoming the procedural bar—actual innocence under Schlup v.
    Delo, 
    513 U.S. 298
    (1995), and ineffective assistance of counsel under Martinez
    v. Ryan, 
    132 S. Ct. 1309
    (2012). Other than prioritizing our review of his
    Schlup and Martinez arguments, we consider Reed’s other claims in turn.
    A.     Actual Innocence
    Reed asks for two separate COAs arising out of his assertion that he is
    actually innocent of murdering Stites. First, he asks that we grant a COA on
    his freestanding actual innocence claim. Second, he asks that we grant a COA
    to review whether he satisfies Schlup’s actual innocence standard, which
    would permit a federal court to review the merits of his otherwise procedurally
    defaulted claims. Of his two actual innocence arguments, the first is easily
    resolved.
    Reed raised his freestanding actual innocence claim in his third state
    habeas petition. The CCA dismissed the claim pursuant to its abuse-of-the-
    writ doctrine. Under that doctrine, the CCA will not consider an argument not
    raised in an initial state habeas petition unless one of a narrow set of
    exceptions applies. See Tex. Code Crim. Proc. Ann. art. 11.071 § 5(a). We
    previously have held that “since 1994, the Texas abuse of the writ doctrine has
    been consistently applied as a procedural bar, and that it is an independent
    and adequate state ground for the purpose of imposing a procedural bar.”
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    Hughes v. Quarterman, 
    530 F.3d 336
    , 342 (5th Cir. 2008). 4 The district court
    does not appear to have considered whether this claim was procedurally
    barred, rejecting it instead on the ground that this circuit does not recognize
    freestanding actual innocence claims.
    Reed concedes that our precedent precludes his freestanding actual
    innocence claim. See In re Swearingen, 
    556 F.3d 344
    , 348 (5th Cir. 2009); see
    also Foster v. Quarterman, 
    466 F.3d 359
    , 367 (5th Cir. 2006) (“[A]ctual-
    innocence is not an independently cognizable federal-habeas claim.”); see, e.g.,
    Matheson v. United States, 440 F. App’x 420, 421 (5th Cir. 2011). Reasonable
    jurists thus would not debate the district court’s denial of habeas relief on this
    claim, and we similarly deny a COA.
    Reed’s other actual innocence argument requires more detailed
    consideration. Reed argues that reasonable jurists would debate the district
    court’s decision not to consider his procedurally defaulted claims because he
    has shown that he is actually innocent of Stites’s murder under Schlup, 
    513 U.S. 298
    . As he did at trial, Reed argues that he did not sexually assault and
    murder Stites, but rather that he was in a relationship with her, and that the
    semen present in her vagina was the result of consensual sexual intercourse.
    Reed attempted to establish such a relationship through testimony that he and
    Stites were seen together. He now argues his consensual relationship with
    Stites is demonstrated by forensic evidence showing that his sperm entered
    Stites’s body more than twenty-four hours before the murder.                     This is
    significant, Reed claims, because Stites’s failure to report non-consensual sex
    to law enforcement indicates that the encounter was the product of their
    romantic relationship. In support of the part of this theory relating to the age
    4  We deny Reed a COA as to his assertion that Texas’s abuse-of-the-writ doctrine is
    not an independent and adequate state procedural bar. See 
    Hughes, 530 F.3d at 342
    .
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    of the sperm found in Stites, he primarily relies on affidavits by Dr. Bayardo
    and Dr. Leroy Riddick.
    A district court must deny federal habeas relief on procedurally
    defaulted claims dismissed “pursuant to an independent and adequate state
    procedural rule,” such as Texas’s abuse-of-the-writ doctrine.       Coleman v.
    Thompson, 
    501 U.S. 722
    , 750 (1991); see Maples v. Thomas, 
    132 S. Ct. 912
    , 922
    (2012); Finley v. Johnson, 
    243 F.3d 215
    , 218 (5th Cir. 2001). Schlup held that,
    in “rare” and “extraordinary case[s],” a federal habeas petitioner may overcome
    a procedural default in state court by demonstrating a “fundamental
    miscarriage of 
    justice.” 513 U.S. at 321
    . A petitioner makes such a showing
    where he establishes that he is “actually innocent” of the offense for which he
    was convicted. Williams v. Thaler, 
    602 F.3d 291
    , 307 (5th Cir. 2010) (citing
    
    Schlup, 513 U.S. at 326
    –27). To do so, a petitioner must “establish through
    new and reliable evidence that it was more likely than not that no reasonable
    juror would have convicted him in the light of the new evidence.” Woodfox v.
    Cain, 
    609 F.3d 774
    , 794 (5th Cir. 2010) (internal quotation marks and citation
    omitted). This evidence may include “exculpatory scientific evidence, credible
    declarations of guilt by another, trustworthy eyewitness accounts, and certain
    physical evidence.” Fairman v. Anderson, 
    188 F.3d 635
    , 644 (5th Cir. 1999).
    But “the habeas court’s analysis is not limited to such evidence.” House v. Bell,
    
    547 U.S. 518
    , 537 (2006). Rather, “the habeas court must consider all the
    evidence, old and new, incriminating and exculpatory, without regard to
    whether it would necessarily be admitted under rules of admissibility that
    would govern at trial.” 
    Id. at 538
    (internal quotation marks and citation
    omitted).
    “Based on this total record, the court must make ‘a probabilistic
    determination about what reasonable, properly instructed jurors would do.’”
    
    Id. (quoting Schlup,
    513 U.S. at 329). The actual-innocence standard “does not
    14
    Case: 13-70009     Document: 00512496780      Page: 15   Date Filed: 01/10/2014
    No. 13-70009
    merely require a showing that a reasonable doubt exists in the light of the new
    evidence, but rather that no reasonable juror would have found the defendant
    guilty.” 
    Schlup, 513 U.S. at 329
    . Put differently, “a petitioner does not meet
    the threshold requirement unless he persuades the district court that, in light
    of the new evidence, no juror, acting reasonably, would have voted to find him
    guilty beyond a reasonable doubt.” 
    Id. We observe
    that this is not the first time Reed has argued actual
    innocence.   Reed raised the same argument before the CCA.             The CCA
    considered his argument under Article 11.071 § 5(a)(2), which provides that
    the CCA will consider an argument not raised in an initial state habeas
    petition if “by a preponderance of the evidence, but for a violation of the United
    States Constitution[,] no rational juror could have found the applicant guilty
    beyond a reasonable doubt.” See 
    Reed, 271 S.W.3d at 733
    –34, 746–47. Because
    Article 11.071 § 5(a)(2) was enacted in response to Schlup, the CCA concluded
    that the “standards set forth for evaluating a gateway-actual-innocence claim
    announced by the Supreme Court should guide our consideration of such
    claims under Section 5(a)(2).” 
    Id. at 733.
          The CCA proceeded to engage in a voluminous discussion of all the
    evidence, “old and new,” before concluding that “Reed [had] not made a
    threshold, prima facie showing of innocence by a preponderance of the
    evidence.” 
    Id. at 751.
    The CCA considered—and dismissed as insufficient—
    evidence that: DNA test results from the beer cans found at the crime scene
    showed that Officer Hall was a potential suspect; Fennell and the Giddings
    Police Department had a reputation for violence; Reed and Stites had a
    consensual sexual relationship prior to her death; and unidentified men were
    seen in Stites’s company the morning of the murder. 
    Id. at 746–51.
    It rejected
    as unreliable and not credible a host of additional evidence, including from the
    many witnesses Reed contends knew of his purported relationship with Stites.
    15
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    Id. at 747.
    Because Reed had not shown that he was actually innocent of
    Stites’s murder, the CCA “refuse[d] to consider the merits of Reed’s other
    constitutional claims.” 
    Id. The magistrate
    judge deferred to the CCA’s findings of fact after
    adopting the Fourth Circuit’s reasoning in Sharpe v. Bell, 
    593 F.3d 372
    , 379
    (4th Cir. 2010), that “[w]here a state court looks at the same body of relevant
    evidence and applies essentially the same legal standard to that evidence that
    the federal court does under Schlup, [§] 2254(e)(1) requires that the state
    court’s findings of fact not be casually set aside.” In particular, the magistrate
    judge remarked that “[a] detailed explanation of why the CCA’s decision on
    actual innocence is worthy of deference from this Court would entail simply
    repeating what the CCA itself has already stated in great detail.” However,
    the magistrate judge nevertheless reviewed the CCA’s analysis, focusing on
    the alleged consensual relationship between Reed and Stites that would
    explain the presence of Reed’s semen. The magistrate judge concluded that
    “[e]ven if the Court were not required to defer to the CCA’s determinations, the
    Court would reach the same conclusion the CCA did for the same reasons.”
    The district court was similarly unpersuaded by Reed’s arguments
    because the evidence Reed submitted only created the possibility that the
    sperm was deposited at an earlier time. The court found that the lack of
    evidence of an actual relationship between Stites and Reed, combined with the
    condition in which Stites’s body was found (which strongly indicated a violent
    sexual assault), defeated Reed’s assertion of actual innocence. The district
    court found that the magistrate judge did not err in adopting the Sharpe
    standard, and rejected Reed’s contention that the magistrate judge improperly
    failed to consider certain evidence. Addressing Dr. Bayardo’s affidavit, the
    district court refused to accept it, finding the “timing and content” of Reed’s
    submission, after the magistrate judge issued his report and recommendation,
    16
    Case: 13-70009        Document: 00512496780           Page: 17     Date Filed: 01/10/2014
    No. 13-70009
    “extremely suspect.”            The court further found, however, that even
    substantively considered, Dr. Bayardo’s affidavit would have “little probative
    value.” 5 As to Dr. Riddick’s affidavit, the district court found that the “evidence
    strongly suggest[ed] that Stites was sexually assaulted,” and that evidence like
    Dr. Riddick’s affidavit “would not exculpate Reed absent evidence that Reed
    and Stites were involved in a consensual sexual relationship.”
    We conclude that the district court did not err in its analysis under
    AEDPA, and that its conclusion is not debatable by reasonable jurists. Reed
    primarily faults the district court for not giving sufficient weight to the
    affidavits of Dr. Bayardo and Dr. Riddick, which he argues show “that Stites
    and Reed likely had intercourse more than 24 hours before Stites’s murder.”
    In Reed’s view, “[b]ecause the forensic testimony offered in this habeas
    proceeding is itself persuasive evidence of a consensual relationship [between
    Reed and Stites], a COA should issue.” We disagree.
    5  In its order denying Reed’s motion to alter or amend judgment, the district court
    clarified that it “ha[d] considered Reed’s arguments with respect to [Dr. Bayardo’s] . . .
    affidavit, despite Reed’s delay in presenting [Dr.] Bayardo’s statements.” Regardless, we find
    that even had the district court not considered Dr. Bayardo’s affidavit, it would have acted
    within its discretion because the affidavit was untimely. Reed has provided no persuasive
    reason for waiting well over a decade to revisit Dr. Bayardo’s testimony. Although “the
    district court need not reject newly-proffered evidence simply because it was not presented
    to the magistrate judge,” it also is true that “[l]itigants may not . . . use the magistrate judge
    as a mere sounding-board for the sufficiency of the evidence.” Freeman v. Cnty. of Bexar, 
    142 F.3d 848
    , 852 (5th Cir. 1998); see also Brown v. Roe, 
    279 F.3d 742
    , 744 (9th Cir. 2002). We
    consider whether the affidavit would alter our conclusion, assuming it properly is before us.
    In so doing, we do not reach the question of whether evidence like Dr. Bayardo’s affidavit is
    “new” within the meaning of Schlup. See In re Warren, – F. App’x —, 
    2013 WL 3870423
    , at
    *4 n.2 (5th Cir. July 29, 2013) (Dennis, J., dissenting in part and concurring in part) (citing
    Wright v. Quarterman, 
    470 F.3d 581
    (5th Cir. 2006)) (noting circuit split “as to whether, under
    Schlup, the evidence was not discoverable at the time of trial or whether it is sufficient that
    the evidence be newly presented,” and declining to resolve issue). But see Moore v.
    Quarterman, 
    534 F.3d 454
    , 465 (5th Cir. 2008) (describing evidence as not “new” where “it
    was always within the reach of [petitioner’s] personal knowledge or reasonable
    investigation”).
    17
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    No. 13-70009
    Dr. Bayardo testified at trial and estimated that Stites died on April 23,
    1996, at approximately 3:00 a.m., give or take a few hours.            He further
    determined that the presence of intact sperm indicated that the sperm entered
    Stites’s body “quite recently.” In an affidavit submitted by Reed’s counsel after
    the magistrate judge recommended denying habeas relief, Dr. Bayardo sought
    to distance himself from the State’s interpretation of his trial testimony.
    The affidavit clarifies that the estimated time of death was a mere
    “estimate” and should not have been used as an accurate statement of when
    Stites died. Dr. Bayardo also questions the qualifications of other State experts
    who testified that spermatozoa could remain intact in a vagina for no more
    than twenty-four or twenty-six hours. He adds that “the spermatozoa [he]
    found in Ms. Stites’s vaginal cavity could have been deposited days before her
    death” and that the few spermatozoa that were found suggested that they were
    deposited more than twenty-four hours before Stites’s death. Dr. Bayardo
    further opines that, although having testified that Stites “was sexually
    assaulted,” the “presence of spermatozoa in Ms. Stites’s vaginal cavity was not
    evidence of sexual assault.”      Further, “[t]here was no indication that the
    spermatozoa in Ms. Stites’s vaginal cavity was placed there in any fashion
    other than consensually.”        Dr. Bayardo instead believes that Stites was
    sexually assaulted in her anal cavity, but that the assault “did not result in the
    deposit of any spermatozoa.” Although conceding that the injuries to Stites’s
    anus were consistent with penile penetration, Dr. Bayardo believes the injuries
    “are more consistent with penetration by a rod-like instrument, such as a police
    baton,” an apparent attempt to implicate Stites’s fiancé, Fennell, a former
    police officer, in the murder.
    Like the district court, we conclude that Dr. Bayardo’s affidavit
    contributes little to the evidence already in the record. Dr. Bayardo’s affidavit
    is largely bereft of scientific evidence supporting his belief that Reed’s sperm
    18
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    No. 13-70009
    was deposited in Stites more than twenty-four hours before the murder or that
    the forensic evidence points more strongly to someone else having committed
    the sexual assault. In particular, his contention that, despite Stites having
    been the victim of a sexual assault, there is no indication that the sperm found
    in her vaginal cavity “was placed there in any fashion other than consensually”
    is blatantly contradicted by the condition in which Stites’s body was found.
    Dr. Bayardo’s purported “disavowal” of his trial testimony also does not
    contradict much of his original testimony. The jury was well aware that the
    time of death proffered at trial was only an “estimate.” Asked whether time-
    of-death determinations were “an exact science,” Dr. Bayardo responded at
    trial “[n]o, it’s not a precise scientific way of making a determination of the
    time of death, we only can make estimates.” Other facts and opinions in Dr.
    Bayardo’s affidavit were put before the jury through other witnesses. The jury
    heard from Reed’s DNA expert, Dr. Johnson, that sperm could remain present
    in a vaginal cavity for more than twenty-four hours after death. Likewise, Dr.
    Bayardo only states that the “very few” spermatozoa found “suggest[]” that the
    sperm was deposited in Stites more than a day before the murder.
    Dr. Riddick’s affidavit likewise offers Reed less support than he believes.
    Dr. Riddick’s affidavit disputes the State experts’ testimony that spermatozoa
    would not be found more than twenty-four hours after a sexual encounter, and
    Dr. Bayardo’s trial testimony that the sperm was introduced into Stites’s
    vagina a day or two before the autopsy exam. Dr. Riddick opines that “it is
    impossible to conclude with any degree of scientific certainty, or even
    probability, that Rodney Reed had sexual intercourse with Stacey Stites less
    than 24 hours before her death, or even less than 48 hours before her death,”
    and, in fact, “it is possible to conclude that Rodney Reed and Stacey Stites had
    sexual intercourse as long as a week before Ms. Stites’s death, and perhaps
    even more than a week before.” In Dr. Riddick’s opinion, “it is highly unlikely
    19
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    No. 13-70009
    that Mr. Reed and Ms. Stites had sexual intercourse within 24 or even 48 hours
    of Ms. Stites’s death” because if they had “there likely would have been a large
    amount of semen present.”
    Notably, Dr. Riddick’s affidavit says nothing about the condition in
    which Stites was found.       Furthermore, the significance of Dr. Riddick’s
    affidavit, like Dr. Bayardo’s affidavit, is strongly undercut by the fact that the
    information contained therein only presents the jury with an alternative
    scenario it could consider, namely that Reed’s sperm entered Stites hours or
    days before her death. But the jury had evidence in support of such a scenario
    and evidently chose to reject it. Dr. Riddick’s affidavit merely presents the
    possibility that Reed could have had sex with Stites earlier. A reasonable juror
    would not be swayed by Dr. Riddick’s affidavit, and the district court’s
    conclusion to that effect is not debatable.
    Our evaluation of both affidavits is unaltered by Reed’s reliance on the
    Supreme Court’s House decision, which he contends is factually analogous to
    this case. In House, the defendant was found guilty of murder based in part
    on the fact that blood consistent with that of the victim was found on his
    clothes, and semen consistent with that of the defendant was found on the
    victim’s 
    clothing. 547 U.S. at 528
    –30. The defendant in House was able to
    meet Schlup’s actual innocence standard by proving that the semen actually
    came from the victim’s husband, and that blood from the victim’s autopsy had
    spilled while stored with House’s clothing. 
    Id. at 540–48.
    Reed argues that,
    similarly here, “the State’s forensic proof purportedly connecting Reed (by his
    sperm) to Stites’s murder has been debunked by Drs. Riddick and Bayardo.”
    Contrary to Reed’s description, Dr. Bayardo’s and Dr. Riddick’s affidavits
    have not “debunked” the State’s DNA evidence. Instead, they merely reinforce
    evidence already in the record. There is trial testimony that sperm could be
    discovered up to three weeks after a victim’s death, and that in one case sperm
    20
    Case: 13-70009       Document: 00512496780          Page: 21     Date Filed: 01/10/2014
    No. 13-70009
    had been discovered sixteen days after death. The jury also was aware that
    the intact sperm in Stites were discovered almost thirty-six hours after the
    estimated time of death. Consequently, to the extent Reed’s new evidence is
    limited to these affidavits, the district court’s rejection of Reed’s gateway-
    innocence argument is not debatable. 6 See 
    Moore, 534 F.3d at 465
    n.17 (actual
    innocence showing “requires something more than pointing to ‘[a] mere
    possibility of prejudice,’ because a speculative claim ‘will not satisfy the actual
    prejudice prong of the cause and prejudice test, much less demonstrate actual
    innocence’” (emphasis in original) (citation omitted)).
    Our conclusion is reinforced by the other evidence in this case, which the
    district court took note of, but which Reed largely ignores. The affidavits Reed
    submits create, at best, the possibility that Reed’s sperm entered Stites more
    than a day before her death, leading to the inference that Reed did not sexually
    assault Stites, who presumably would have reported such a crime. By contrast,
    the evidence that Reed forced himself on Stites and subsequently murdered
    her is extensive.
    Apart from the DNA evidence itself, there is the condition of Stites’s
    body. Stites was found shirtless. Her pants were undone, the zipper broken,
    and her underwear bunched around her hips. There were fresh bruises along
    her arms, and marks that appeared to be fingernails dug into flesh. There
    were bruises on her head in a pattern consistent with the knuckles of a fist,
    bruises on her left shoulder and abdomen consistent with a seatbelt, and a wide
    6 In his Rule 59(e) motion to alter or amend judgment, Reed also attached the affidavit
    of Dr. Joseph Warren. That affidavit, like Dr. Bayardo’s and Dr. Riddick’s, contends that
    “intact sperm can be found inside a human woman more than 24 hours after intercourse.” In
    Dr. Warren’s experience, “a period of twenty-four to seventy-two hours post coitus, is a good
    rule of thumb for how long a forensic biologist can expect to identify intact sperm after
    intercourse.” Assuming Dr. Warren’s affidavit is properly before us, we find the district
    court’s conclusion that Dr. Warren’s affidavit does not invalidate the State’s theory of guilt
    because it “merely establishes the possibility of earlier sexual intercourse” not debatable.
    21
    Case: 13-70009         Document: 00512496780           Page: 22     Date Filed: 01/10/2014
    No. 13-70009
    mark across her neck matching the pattern of her belt. All this strongly
    supports the conclusion that Stites was the victim of a sexual assault and that
    the sperm inside her did not result from a consensual encounter.
    Along with this evidence, Reed was known to frequent the route along
    which Stites drove to work. He also was known to do so almost every night
    between 9:00 p.m. and 3:00 or 4:00 a.m.—overlapping with the hours Stites
    would be driving to work.
    Furthermore, there was no credible evidence that Reed was in a
    relationship with Stites. 7 Reed himself denied knowing Stites when police first
    approached him about her murder. To be sure, many witnesses, at trial and
    in the course of Reed’s state habeas proceedings, testified or submitted
    evidence that Reed had some kind of a relationship with Stites. But these
    witnesses were found, in the words of the CCA, “unreliable.” 
    Reed, 271 S.W.3d at 747
    . At oral argument, Reed suggested that the witnesses’ statements were
    rejected because the only theory the trial DNA evidence supported was that
    Reed’s sperm likely entered Stites’s body close to when she died. But as the
    magistrate judge ably summarized, Reed’s witnesses were found not credible
    for a host of reasons independent of the DNA evidence:
    Most of [Reed’s] witnesses did not know Stacey Stites, and
    identified her from memory by viewing her photograph. Those who
    claimed to have known her were proven to be badly mistaken. All
    of these witnesses were family, friends, or associates of Reed’s.
    Reed was never able to identify anyone who was a friend, family
    member, or associate of Stacey Stites who claimed to have been
    7 Reed asserts that the district court held him to an unreasonably high standard by
    requiring him to submit “compelling eyewitness evidence of Stites and Reed’s affair.” In fact,
    the district court simply required Reed to evidence the existence of a relationship between
    himself and Stites. Reed’s failure to do so is simply a reflection of the complete lack of credible
    evidence that such a relationship existed, rather than the product of an improper evidentiary
    burden.
    22
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    No. 13-70009
    aware of a relationship between Reed and Stites. In short, there is
    no reliable evidence that ties Reed to Stites before her murder.
    (footnote omitted).
    For example, one witness who claimed to know Stites from school stated
    that he saw Stites and Reed together several times, and that they kissed and
    called each other “baby.” The witness further stated that while the witness
    was in Bastrop County jail, Reed told him that he did not kill Stites. The CCA
    found these statements not credible because the evidence at trial showed that
    the witness could not have known Stites from school because Stites moved to
    Bastrop only after graduating. The witness’s general statements also offered
    no specific facts to be corroborated and did not comport with other evidence.
    Two trial witnesses also were found not reliable by the CCA. Julia Estes
    testified at trial that she once saw Stites and Reed talking at H.E.B. Estes’s
    testimony was impeached by the fact that Reed and his family frequented
    Estes’s bar. Iris Lindley, a longtime friend of Reed’s parents, also testified that
    Stites came by Reed’s home looking for him. But Lindley initially misidentified
    Stites as “Stephanie,” and also admitted to not knowing whether Reed and
    Stites were dating.
    These witnesses are but a short selection of the many individuals who
    submitted evidence purportedly showing Reed’s relationship with Stites. As
    we have noted, the CCA concluded that the evidence as to all the “witnesses
    who affirmed a relationship between Reed and [Stites]” was “unreliable.” 
    Reed, 271 S.W.3d at 747
    . Reed provides no discussion of the individual witnesses’
    testimonies.     The district court saw no reason not to defer to the CCA’s
    credibility determination, and we see none. See 28 U.S.C. § 2254(e)(1). 8 As a
    8 Reed urges us not to apply § 2254(e)(1)’s presumption of correctness to the CCA’s
    review of his actual innocence claim under Schlup. The only authority he presents in support
    is the Supreme Court’s decision in House, 
    547 U.S. 518
    . But that decision discussed
    § 2254(e)(2), not (e)(1), 
    id. at 539,
    and we previously have applied § 2254(e)(1) in the context
    23
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    No. 13-70009
    result, Reed’s forensic evidence exists in a vacuum and only presents a possible
    factual scenario that is not borne out by any of the other evidence. To the
    extent Reed relies on other evidence not included in the relevant portion of his
    brief, we discuss that evidence in the course of addressing the claim under
    which it arises. We conclude that reasonable jurists would not debate the
    district court’s determination that Reed has failed to establish his actual
    innocence under Schlup and deny a COA on this basis.
    B.     Ineffective Assistance of Trial Counsel
    Reed argues that his trial counsel was constitutionally deficient for
    failing to (1) refute the State’s forensic evidence; (2) present evidence of Stites’s
    and Reed’s alleged relationship; and (3) present evidence of Fennell’s bad
    character. 9 He contends that reasonable jurists would debate the correctness
    of the district court’s decision to deny relief. The State responds that all his
    ineffective-assistance-of-trial-counsel claims were procedurally barred.
    The standard for evaluating whether a counsel’s performance was
    constitutionally adequate is set forth in Strickland v. Washington, 
    466 U.S. 668
    (1984). “First, the defendant must show that counsel’s performance was
    deficient.” 
    Id. at 687.
    “Second, the defendant must show that the deficient
    performance prejudiced the defense.” 
    Id. To show
    deficient performance, “the
    defendant must show that counsel’s representation fell below an objective
    of an actual innocence claim, see In re Wright, 298 F. App’x 342, 344 (5th Cir. 2008); cf. Graves
    v. Cockrell, 
    351 F.3d 143
    , 151 (5th Cir. 2003) (applying § 2254(e)(1)’s presumption in the
    context of a freestanding actual innocence claim). Other courts have done likewise. See, e.g.,
    Carr v. Warden, Leb. Corr. Inst., 401 F. App’x 34, 38–39 (6th Cir. 2010); 
    Sharpe, 593 F.3d at 379
    ; Storey v. Roper, 
    603 F.3d 507
    , 524 (8th Cir. 2010); Love v. Roberts, 259 F. App’x 58, 63
    (10th Cir. 2007); Goldblum v. Klem, 
    510 F.3d 204
    , 221 n.13 (3d Cir. 2007); Johnson v. Hooks,
    138 F. App’x 207, 208 (11th Cir. 2005); Madrid v. Gregoire, 
    187 F.3d 648
    , 
    1999 WL 439460
    ,
    at *2 (9th Cir. 1999) (unpublished table decision).
    9 Reed also argues that his habeas counsel was constitutionally deficient for failing to
    investigate and present expert forensic evidence in response to the State’s forensic proof.
    This argument appears to relate only to his contention that his ineffective-assistance-of-trial-
    counsel claims should be considered despite being otherwise procedurally defaulted.
    24
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    No. 13-70009
    standard of reasonableness.”           
    Id. at 688.
          To demonstrate prejudice, a
    petitioner “must show that there is a reasonable probability that, but for
    counsel’s unprofessional errors, the result of the proceeding would have been
    different.” 
    Id. at 694.
    “A reasonable probability is a probability sufficient to
    undermine confidence in the outcome.” 
    Id. “Unless a
    defendant makes both
    showings, it cannot be said that the conviction or death sentence resulted from
    a breakdown in the adversary process that renders the result unreliable.” 
    Id. at 687.
            Reed raised his ineffective assistance claims in his third state habeas
    petition. Because Reed did not raise these claims in his initial petition, and
    because it concluded that none of the exceptions under Article 11.071 § 5(a)(2)
    applied, the CCA dismissed Reed’s ineffective assistance claims “as an abuse
    of the writ.” Ex parte Reed, No. WR-50961-03, 
    2005 WL 2659440
    (Tex. Crim.
    App. Oct. 19, 2005). As Texas’s abuse-of-the-writ doctrine is an “independent
    and adequate state procedural rule,” 
    Coleman, 501 U.S. at 750
    , the district
    court found Reed’s ineffective assistance claims procedurally defaulted and did
    not consider them on the merits. It did, however, briefly consider whether
    procedural default as to those claims could be excused following the Supreme
    Court’s Martinez decision. 10
    In Martinez, the Supreme Court held that a petitioner may establish
    cause to excuse a procedural default as to an ineffective-assistance-of-trial-
    counsel claim by showing that (1) his state habeas counsel was constitutionally
    deficient in failing to include the claim in his first state habeas application;
    and     (2)   the   underlying     ineffective-assistance-of-trial-counsel        claim    is
    
    “substantial.” 132 S. Ct. at 1318
    ; see Preyor v. Stephens, – F. App’x —, 2013
    10The district court also considered whether procedurally defaulted claims like Reed’s
    ineffective-assistance-of-trial-counsel claims could be considered because Reed had
    demonstrated that he was actually innocent. As 
    discussed supra
    , this argument also fails.
    25
    Case: 13-70009        Document: 00512496780           Page: 26      Date Filed: 01/10/2014
    No. 13-70009
    WL 3830160, at *8 (5th Cir. July 25, 2013); Sells v. Stephens, – F. App’x —,
    
    2013 WL 3784348
    , at *8 (5th Cir. July 22, 2013).                         For a claim to be
    “substantial,” a “prisoner must demonstrate that the claim has some merit.”
    
    Martinez, 132 S. Ct. at 1318
    .              Conversely, an “insubstantial” ineffective
    assistance claim is one that “does not have any merit” or that is “wholly without
    factual support.” 
    Id. at 1319.
           The district court concluded that it was not required to review Reed’s
    ineffective assistance claims under Martinez in light of our decision in Ibarra
    v. Thaler, 
    687 F.3d 222
    , 227 (5th Cir. 2012) (holding that Martinez does not
    apply to Texas court decisions). Ibarra has since been overruled by Trevino v.
    Thaler, in which the Supreme Court expanded Martinez’s reach because “the
    Texas procedural system—as a matter of its structure, design, and operation—
    does not offer most defendants a meaningful opportunity to present a claim of
    ineffective assistance of trial counsel on direct appeal.” 
    133 S. Ct. 1911
    , 1921
    (2013). Reed’s Martinez argument thus is no longer foreclosed.
    However, although the district court’s reliance on Ibarra is incorrect
    following Trevino, and thus its procedural ruling is, at the very least,
    debatable, to obtain a COA Reed must still demonstrate that reasonable jurists
    would debate “whether the petition states a valid claim of the denial of a
    constitutional right.” 
    Slack, 529 U.S. at 478
    , 484; see also Womack v. Thaler,
    
    591 F.3d 757
    , 758 (5th Cir. 2009); Blanton v. Quarterman, 287 F. App’x 407,
    408 n.1 (5th Cir. 2008). Concluding that Reed has failed to state any debatable
    ineffective-assistance-of-counsel claims, we deny a COA. We address each of
    the purported deficiencies of counsel below. 11
    11 Reed asks that we remand this issue to the district court, citing our decision in
    Cantu v. Thaler, 
    682 F.3d 1053
    , 1054 (5th Cir. 2012) (remanding “so that the district court
    may decide in the first instance the impact of Martinez”). But as we explain, Reed has not
    presented a debatable ineffective assistance claim. See Amos v. Thornton, 
    646 F.3d 199
    , 203
    n.4 (5th Cir. 2011) (“In light of our determination that [petitioner] is not entitled to relief on
    26
    Case: 13-70009        Document: 00512496780          Page: 27      Date Filed: 01/10/2014
    No. 13-70009
    1.     Failure to refute State’s forensic proof
    Reed asserts that his “trial counsel was deficient for not using competent
    experts to rebut the State’s plainly false inference that Stites’s death and
    intercourse with Reed coincided,” and contradict the State’s anal rape theory.
    He draws attention to the fact that his trial jury clearly was concerned about
    the sperm found in Stites’s body, as evidenced by the fact that during its
    deliberations the jury asked questions about the sperm’s presence, condition,
    and durability. Reed relies on affidavits by Dr. Bayardo, Dr. Riddick, and
    criminal laboratory director Ronald Singer. The State argues that Reed can
    show neither deficiency nor prejudice as relating to trial counsel’s failure to
    submit evidence of the kind included in the affidavits. This is because his trial
    counsel actually retained a court-qualified expert in criminalistics and DNA
    analysis—Dr. Johnson. Moreover, the State contends that any evidence in the
    affidavits of Dr. Bayardo, Dr. Riddick, and Singer is cumulative, and does not
    alter the fact that Reed’s sperm was found in Stites’s body.
    The CCA did not consider this claim because it was not raised in Reed’s
    initial state habeas petition. The district court concluded that the claim was
    procedurally barred and that our Ibarra decision foreclosed the possibility of
    his speedy-trial claim, . . . the district court’s error in dismissing that claim as procedurally
    barred was harmless, and remand is unnecessary.”); cf. Wright v. Quarterman, 
    470 F.3d 581
    ,
    591 (5th Cir. 2006) (declining to determine whether petitioner established actual innocence
    where merits of underlying claim were not debatable); Nelson v. Cockrell, 77 F. App’x 209,
    216 (5th Cir. 2003) (granting COA with respect to ineffective assistance claim, but not
    remanding case because district court did not err in denying habeas relief because state
    courts’ application of clearly established federal law was not objectively unreasonable),
    vacated on other grounds by Nelson v. Dretke, 
    542 U.S. 934
    (2004). Under these
    circumstances, we cannot grant a COA. See Jimenez v. Quarterman, 
    555 U.S. 113
    , 118 n.3
    (2009) (COA should issue on district court’s denial of habeas relief on procedural grounds
    only where jurists of reason would debate both the procedural ruling and that petition stated
    valid claim of denial of a constitutional right). As a practical matter, we also observe that
    although the district court did not review Reed’s ineffective assistance claims under
    Martinez, the district court did review Reed’s assertions of actual innocence, which included
    much of the evidence Reed relies on to show that his counsel acted deficiently.
    27
    Case: 13-70009     Document: 00512496780     Page: 28   Date Filed: 01/10/2014
    No. 13-70009
    review under Martinez. Although, as discussed, the district court’s procedural
    decision is debatable following Trevino, we conclude that Reed’s claim that trial
    counsel was ineffective for not adequately refuting the state’s forensic proof is
    not debatable, and thus does not require issuance of a COA.
    Considering the first Strickland prong, Reed admits that his DNA expert
    Dr. Johnson testified at trial that sperm could survive longer than twenty-four
    hours, and only protests trial counsel’s reliance on Dr. Johnson because of her
    purported lack of credentials and first-hand criminal experience. Contrary to
    Reed’s apparent belief, his trial counsel’s representation does not fall below an
    “objective standard of reasonableness” merely because the retained expert is
    not the best or most knowledgeable in her field. 
    Strickland, 466 U.S. at 688
    .
    This is not a case of counsel failing to retain an expert or retaining an expert
    who could not address the issues disputed at trial. See Cox v. Cockrell, 62 F.
    App’x 557, 
    2003 WL 1202920
    , at *6 (5th Cir. 2003) (unpublished table decision)
    (counsel not deficient for calling expert who performed poorly, but because
    expert could not testify as to disputed issue). Comparing the affidavits Reed
    presents and the testimony of Dr. Johnson demonstrates that the crux of
    Reed’s argument—that sperm could remain intact for longer than twenty-four
    hours and that therefore the presence of Reed’s sperm could have been the
    product of a consensual sexual encounter between Reed and Stites—was
    presented at trial.
    Reed’s contention that his case is similar to State v. Fitzpatrick, 
    118 So. 3d
    737 (Fla. 2013), is unpersuasive. Fitzpatrick was a case in which sperm
    evidence linked the defendant to the murder victim, and the key question was
    how long the sperm had been present in the victim. 
    Id. at 748–49.
    The Florida
    Supreme Court affirmed the lower court’s decision to grant defendant a new
    trial based on counsel’s deficient performance. 
    Id. at 741.
    The court found that
    “[t]he record repeatedly demonstrates that counsel did not adequately prepare
    28
    Case: 13-70009      Document: 00512496780         Page: 29    Date Filed: 01/10/2014
    No. 13-70009
    himself to present an intelligent or knowledgeable defense with respect to the
    most important issue of [defendant’s] trial: the timing of the alleged sexual
    encounter between [him] and [the victim].” 
    Id. at 754.
    Most glaringly, “counsel
    failed to retain any forensic or medical experts,” and failed to challenge the
    State’s experts or the physical evidence. 
    Id. at 754–55.
          Unlike trial counsel in Fitzpatrick, Reed’s defense team scrutinized the
    DNA evidence and the State’s experts. Reed’s assertion that a COA should
    issue because his “trial counsel failed to prepare for, or rebut through cross-
    examination or contradict by affirmative expert testimony, the State’s
    misleading forensics” ignores that Dr. Johnson testified as a DNA expert for
    the defense and provided testimony on the very issue Reed now challenges.
    It also is not debatable that Reed fails to state a valid constitutional
    claim based on Strickland’s second prong—prejudice. Just as the affidavits do
    not establish Reed’s actual innocence they also do not make it “reasonably
    likely” that the result of Reed’s trial would have been different. 
    12 Harrington v
    . Richter, 
    131 S. Ct. 770
    , 792 (2011) (“[T]he difference between Strickland’s
    prejudice standard and a more-probable-than-not standard is slight and
    matters ‘only in the rarest case.’” (citation omitted)). The addition of Singer’s
    affidavit to that of Dr. Bayardo’s and Dr. Riddick’s does nothing to change this
    outcome.
    In his affidavit, Singer challenges the nature of the substance (which
    appeared to be saliva) found on Stites’s brassiere and breasts, and the DNA
    evidence recovered from that substance.             Specifically, Singer states that
    amylase testing of the type performed on the substance “cannot be relied upon
    12  Likewise, we are unmoved by Reed’s reliance on an email by Clement agreeing that
    sperm can remain intact longer than 24 hours, and Blakely’s refusal to comment further on
    this case. This evidence is untimely and does not lend Reed any support beyond that already
    provided by the affidavits of Dr. Bayardo and Dr. Riddick.
    29
    Case: 13-70009       Document: 00512496780         Page: 30     Date Filed: 01/10/2014
    No. 13-70009
    to identify a specific body fluid such as saliva with accuracy.” Singer further
    states that “there is no evidence [that the crime scene examiner] changed
    gloves between the taking of evidentiary samples,” and thus “it is probable that
    [she] contaminated Ms. Stites’ brassiere and breasts with trace evidence. . . .
    after having probed Ms. Stites’ genital area with her fingers and taking swabs
    and tape lists from Ms. Stites’ pubic area.”
    We note that Singer’s affidavit merely recounts deficiencies in how the
    crime scene was secured and then infers, without further support, that the
    examiner did not change gloves while inspecting Stites’s body. But Singer
    himself states that “[t]he videotape of the crime scene . . . was poorly done,”
    and “does not completely record the activities at the crime scene.” A review of
    the video also reveals no unbroken sequence in which the examiner collected
    evidence from Stites’s genital area and then touched Stites’s chest. Reed also
    nowhere suggests that the presence of his sperm inside Stites was the result
    of improper crime scene investigation. Given this, there is nothing to support
    the contention that the alleged incompetence by police personnel at the crime
    scene prejudiced Reed. 13
    We conclude that Reed has failed to present a debatable ineffective-
    assistance-of-trial claim as to his trial counsels’ handling of the State’s forensic
    evidence.
    13Reed also argues that effective trial counsel would have used the video recording of
    the crime scene to show that evidence was contaminated, destroyed, and overlooked. This
    argument fails for the same reasons detailed above. Further, we reject Reed’s suggestion
    that, but for the police’s incompetence, other evidence might have been uncovered. “Such
    speculation does not show prejudice.” Paz v. Scott, 
    68 F.3d 471
    , 
    1995 WL 581882
    , at *2 (5th
    Cir. 1995) (unpublished table decision).
    30
    Case: 13-70009      Document: 00512496780     Page: 31   Date Filed: 01/10/2014
    No. 13-70009
    2.    Trial counsel’s failure to present witnesses substantiating Stites’s
    and Reed’s alleged relationship
    Reed next argues that trial counsel should have presented additional
    witnesses who could testify as to his relationship with Stites. In support, he
    lists the affidavits of multiple witnesses who purportedly knew about the
    alleged relationship. In response, the State argues that the decision not to call
    the various witnesses Reed identifies was “a quintessential strategic decision
    that cannot be undone through the benefit of hindsight.” It further argues that
    any prejudice resulting from trial counsel’s failure to present these witnesses
    was speculative.
    The CCA did not address the witnesses Reed points to in the context of
    his ineffective-assistance-of-trial-counsel claim because Reed did not include
    that claim in his initial habeas petition. However, as we have 
    noted supra
    , in
    considering whether Reed’s ineffective assistance claim should be considered
    because he met Article 11.071 § 5(a)(2)’s actual-innocence standard, the CCA
    concluded that the evidence as to all the “witnesses who affirmed a relationship
    between Reed and [Stites]” was “unreliable.” 
    Reed, 271 S.W.3d at 747
    . The
    district court refused to consider the merits of this claim, finding it
    procedurally barred.
    Although, as discussed, the district court’s procedural ruling is
    debatable, Reed’s failure to actually discuss any of the affidavits he identifies,
    much less show how he was prejudiced by their omission at trial, means that
    he has failed to state a reasonably debatable claim under Strickland. We
    further note that, to the extent the CCA also made a credibility determination
    as to the witnesses Reed identifies, we defer to that factual finding unless Reed
    presents clear and convincing evidence to the contrary.           See 28 U.S.C.
    § 2254(e)(1). Having not done so, Reed’s request for a COA on this claim is
    denied. See 
    Harrington, 131 S. Ct. at 792
    .
    31
    Case: 13-70009         Document: 00512496780        Page: 32     Date Filed: 01/10/2014
    No. 13-70009
    3.       Trial counsel’s failure to present evidence of Fennell’s abuses
    against women and minorities
    In the last of his ineffective-assistance-of-trial-counsel claims, Reed
    contends that trial counsel was deficient for not conducting a proper pretrial
    investigation. Such an investigation, Reed asserts, would have revealed that
    Fennell was a jealous, abusive, and racist individual, 14 against whom civil
    lawsuits alleging violence and racism had been filed. The State asks that we
    find this argument waived for inadequate briefing.
    The CCA found this claim barred under its abuse-of-the-writ doctrine.
    The district court denied relief, holding that the claim was procedurally barred.
    As before, although the procedural part of the district court’s ruling is
    debatable, Reed’s failure to adequately brief his claim means that he has failed
    to state a debatable claim of the denial of a constitutional right.
    We agree with the State that Reed has waived his request for a COA.
    Instead of fully briefing this issue, Reed instead relies on his federal habeas
    petition to fill in the gaps of his argument. We previously have declined to
    grant a COA in similar circumstances. See McGowen v. Thaler, 
    675 F.3d 482
    ,
    497 (5th Cir. 2012) (“We have held that a COA applicant waives claims by
    directing the appellate court to briefing before the district court to support his
    request for a COA. [Petitioner’s] reference to his habeas petition therefore does
    not preserve his claims.” (footnote omitted)). As the State correctly argues,
    waiver is especially appropriate where, as here, the admissibility of much of
    the evidence Reed refers to is questionable, and Reed provides no defense of its
    admissibility. See Clark v. Thaler, 
    673 F.3d 410
    , 429 (5th Cir. 2012) (failure to
    assert meritless objection is not grounds for deficient performance); Thompson
    14   Reed is African-American. Fennell is Caucasian, as was Stites.
    32
    Case: 13-70009      Document: 00512496780        Page: 33     Date Filed: 01/10/2014
    No. 13-70009
    v. Thaler, 432 F. App’x 376, 379 (5th Cir. 2011). His request for a COA on this
    claim is denied.
    C.     Ineffective Assistance of Appellate Counsel
    Reed identifies three challenges that his appellate counsel should have
    raised on direct appeal: (1) a jury instruction that allowed jurors to consider
    “good conduct time” against the forty years Reed would serve if sentenced to
    life in prison; (2) the jury not being instructed that a lack of unanimity on
    special issues during the penalty phase would result in a life sentence; and (3)
    the denial of a continuance motion to give Reed’s trial counsel additional time
    to prepare. 15 Reed argues that his appellate counsel’s failure to raise these
    issues rendered his appellate counsel’s representation constitutionally
    deficient under Evitts v. Lucey, 
    469 U.S. 387
    (1985). The State argues that
    Reed’s      ineffective-assistance-of-appellate-counsel        claim    is   waived     for
    inadequate briefing.       Alternatively, the State contends that the claim is
    procedurally defaulted.
    Reed detailed his ineffective-assistance-of-appellate-counsel claims in
    his third state habeas petition. The CCA dismissed these claims as abuses of
    the writ. The magistrate judge accordingly recommended that the claim be
    found procedurally defaulted.          The district court adopted the magistrate
    judge’s recommendation.
    Reed does not appear to challenge the district court’s procedural ruling
    other than through his assertion of actual innocence under Schlup, which, as
    we have discussed, is unavailing. For the same reasons, the district court’s
    denial of habeas relief is not debatable. 16
    15 Reed also argues that appellate counsel was deficient for failing to challenge the
    exclusion of a witness’s statement relating to Lawhon confessing to Stites’s murder. This
    claim is discussed infra in connection with Reed’s conflict-of-interest claim.
    16 To the extent Reed suggests that his ineffective-assistance-of-appellate-counsel
    claims also should be considered under Martinez, we decline to do so. See In re Sepulvado,
    33
    Case: 13-70009        Document: 00512496780          Page: 34     Date Filed: 01/10/2014
    No. 13-70009
    Even if we looked beyond the district court’s non-debatable procedural
    ruling to inquire into whether Reed has stated a valid claim of the denial of a
    constitutional right, we would find that Reed’s claims would fare no better.
    Reed’s “good conduct time” instruction argument fails because the relevant
    statutory provision—Article 37.071 § 2(e)(2)(B) (court shall “charge the jury
    that a defendant sentenced to confinement for life without parole . . . is
    ineligible for release . . . on parole”)—does not appear to have come into effect
    until after Reed’s trial. See 1999 Tex. Sess. Law Serv. Ch. 140, § 1 (S.B. 39)
    (amending Tex. Code Crim. Proc. Ann. art. 37.071).                    Additionally, Reed’s
    argument fails to show how Reed suffered harm as a result of the jury
    instruction. See Ross v. State, 
    133 S.W.3d 618
    , 623 (Tex. Crim. App. 2004)
    (dispositive issue is “whether the jury was so misled or whether there is a
    reasonable likelihood that the jury applied the misleading parole charge in a
    way that prevented it from considering that a life-sentenced appellant would
    not be eligible for parole for forty years”).
    Reed’s second argument, that the jury should have been informed that a
    lack of unanimity during the penalty phase would result in a life sentence, is
    a challenge to Texas’s so-called “12-10 Rule.” 17 Arguments similar to Reed’s
    
    707 F.3d 550
    , 554 & n.8 (5th Cir. 2013); see also Hodges v. Colson, 
    727 F.3d 517
    , 531 (6th Cir.
    2013) (“Under Martinez’s unambiguous holding our previous understanding of Coleman in
    this regard is still the law—ineffective assistance of post-conviction counsel cannot supply
    cause for procedural default of a claim of ineffective assistance of appellate counsel.”); Banks
    v. Workman, 
    692 F.3d 1133
    , 1148 (10th Cir. 2012); Dansby v. Norris, 
    682 F.3d 711
    , 728–29
    (8th Cir. 2012), vacated sub nom. Dansby v. Hobbs, 
    133 S. Ct. 2767
    (2013). But see Ha Van
    Nguyen v. Curry, 
    736 F.3d 1287
    , 1296 (9th Cir. 2013) (holding that Martinez extends to Sixth
    Amendment ineffective-assistance-of-appellate-counsel claims).
    17 Under Texas law, a life sentence will be imposed if at least ten jurors agree that
    there is not “a probability that the defendant would commit criminal acts of violence that
    would constitute a continuing threat to society.” Tex. Code Crim. Proc. Ann. art. 37.071
    § 2(b)(1). If the jurors unanimously agree that there is such a probability, they must then
    determine whether “taking into consideration all of the evidence, including the circumstances
    34
    Case: 13-70009       Document: 00512496780          Page: 35     Date Filed: 01/10/2014
    No. 13-70009
    repeatedly have been rejected by this court and Texas courts, most recently in
    Parr v. Thaler, 481 F. App’x 872, 878–79 (5th Cir. 2012). See, e.g., Druery v.
    Thaler, 
    647 F.3d 535
    , 542–45 (5th Cir. 2011); Greer v. Thaler, 380 F. App’x 373,
    389 (5th Cir. 2010); Gonzales v. State, 
    353 S.W.3d 826
    , 837 (Tex. Crim. App.
    2011). Reed presents no grounds to revisit those decisions.
    Reed’s third argument is equally unavailing.                He contends that his
    appellate counsel should have challenged the trial court’s denial of Reed’s
    continuance motion, and more broadly argues that his trial attorneys devoted
    too little time to preparing his defense. “There are no mechanical tests for
    deciding when a denial of a continuance is so arbitrary as to violate due
    process. The answer must be found in the circumstances present in every
    case . . . .” Hall v. Thaler, 504 F. App’x 269, 283 (5th Cir. 2012) (quoting Ungar
    v. Sarafite, 
    376 U.S. 575
    , 589 (1964)).
    The district court adopted the magistrate judge’s recommendation to
    deny relief on this claim. The magistrate judge observed that “although Reed
    makes general allegations in his pleadings before this Court that having
    sufficient time is essential to preparing a defense to a capital case, he does not
    demonstrate with any specificity how his counsel was unprepared to move
    forward with trial in his case in March 1998.” Likewise in his brief to this
    court, Reed provides little explanation, and we therefore find it waived. See
    
    McGowen, 675 F.3d at 497
    . A brief review of the attorney billing records
    of the offense, the defendant’s character and background, and the personal moral culpability
    of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant
    that a sentence of life imprisonment without parole rather than a death sentence be
    imposed.” 
    Id. § 2(e)(1).
    If jurors unanimously agree that there are not such mitigating
    circumstances, the defendant is sentenced to death. 
    Id. § 2(g).
    If ten jurors agree that there
    are requisite mitigating circumstances, the defendant is sentenced to life imprisonment. 
    Id. In the
    event jurors cannot agree on answers to either special issue, the court imposes a life
    sentence. 
    Id. 35 Case:
    13-70009   Document: 00512496780       Page: 36   Date Filed: 01/10/2014
    No. 13-70009
    identified by the State also dispels any concerns that Reed’s defense team did
    not spend enough time preparing for trial.
    Upon review of Reed’s ineffective-assistance-of-appellate-counsel claims,
    we conclude that even if the district court’s finding of procedural default is
    debatable, Reed’s underlying constitutional claims are not.
    D.     Appellate Counsel’s Conflict of Interest
    Reed seeks a COA on his Sixth Amendment claim that his appellate
    counsel suffered from an actual conflict of interest because, while his appellate
    counsel represented him on direct appeal, his appellate counsel also
    represented Lawhon (who boasted of killing Stites) in a separate state habeas
    proceeding.    Because of that dual-representation, Reed posits that his
    appellate counsel did not appeal the trial court’s exclusion of certain testimony
    concerning Lawhon’s confession. The State points out that Reed’s argument
    has changed from that which was presented in state court, and that we should
    not now consider Reed’s claim other than how it was presented there. The
    State adds that Reed’s conflict-of-interest claim lacks merit as evidenced by
    the fact that Reed can offer no supporting caselaw granting habeas relief in
    similar circumstances.
    Reed raised his conflict-of-interest claim in his first state habeas
    petition, where he asserted prejudice resulting from the fact that his appellate
    counsel would not testify about conversations he had with Lawhon that might
    inculpate Lawhon in Stites’s murder. The CCA rejected this argument. In
    district court, Reed argued that his appellate counsel’s dual representation had
    an adverse effect because it resulted in appellate counsel not objecting to the
    exclusion of certain evidence of Lawhon’s alleged confession. The district court
    correctly observed that this was not the argument Reed raised in state court,
    and declined to consider it.
    36
    Case: 13-70009      Document: 00512496780         Page: 37    Date Filed: 01/10/2014
    No. 13-70009
    We agree with the district court and conclude that reasonable jurists
    would not disagree with that court’s disposal of the claim. Reed’s claim, albeit
    not procedurally barred on the basis of an independent and adequate state
    procedural rule, is unexhausted. 18 See Kittelson v. Dretke, 
    426 F.3d 306
    , 315–
    16 (5th Cir. 2005). Section 2254(b)(1) requires that a petitioner first exhaust
    his state court remedies before proceeding in federal court. See 28 U.S.C.
    § 2254(b)(1)(A).     AEDPA’s exhaustion requirement is “not satisfied if the
    petitioner presents new legal theories or factual claims in his federal habeas
    petition.” Anderson v. Johnson, 
    338 F.3d 382
    , 386 (5th Cir. 2003).
    Even if Reed’s conflict-of-interest claim were considered on the merits, it
    would not be entitled to habeas relief. See 28 U.S.C. § 2254(b)(2) (habeas relief
    may be denied on the merits, notwithstanding petitioner’s failure to exhaust
    state court remedies); cf. Miller v. Dretke, 
    431 F.3d 241
    , 245 (5th Cir. 2005)
    (“Because we hold [petitioner] is not entitled to habeas relief on the Brady-
    claim, we need not decide whether the district court erred in considering it.”).
    The jury heard evidence that Lawhon bragged about killing Stites, so any
    additional testimony to that effect would be cumulative. Reed’s description of
    the circumstances leading to the witnesses at issue not testifying is also
    misleading. It was not the case, as Reed asserts, that “[t]he Trial Court refused
    to allow [the two witnesses] to testify.”           Instead, although they initially
    expressed their willingness to testify, after consulting with a court-appointed
    attorney, both witnesses decided to exercise their rights under the Fifth
    Amendment and not testify.           Reed’s suggestion that the trial court acted
    improperly in ensuring that the witnesses were advised by counsel and fully
    understood their constitutional rights is baseless.
    18 We reject Reed’s suggestion that his failure to present this argument should be
    excused under Trevino because of deficient state habeas counsel. See 
    Sepulvado, 707 F.3d at 554
    –55 & n.8.
    37
    Case: 13-70009       Document: 00512496780          Page: 38     Date Filed: 01/10/2014
    No. 13-70009
    E.     Brady
    Reed seeks a COA with respect to the district court’s denial of his Brady
    claims. Reed contends that the State suppressed: (1) DNA evidence of the beer
    cans found at the murder scene; (2) witness testimony that Stites and Fennell
    were arguing the morning of the murder; (3) testimony by a witness who
    allegedly remembered Fennell threatening to kill Stites with a belt;
    (4) statements by two witnesses who claimed to have seen Stites driving
    around with one or two men the morning of the murder; (5) an affidavit by
    Fennell’s former girlfriend; (6) evidence of lawsuits filed against Fennell and
    the Giddings Police Department; (7) a letter by Fennell to the Giddings city
    manager; and (8) evidence of criminal corruption by the Bastrop county
    sheriff. 19
    To establish a Brady violation as to any of these claims, Reed had to
    prove that (1) the prosecution actually suppressed the statements, (2) the
    statements were favorable to him, and (3) the statements were material. See
    
    Kyles, 514 U.S. at 434
    ; 
    Brady, 373 U.S. at 87
    ; see also Trottie v. Stephens, 
    720 F.3d 231
    , 251 (5th Cir. 2013). A petitioner’s Brady claim fails if the suppressed
    evidence was discoverable through reasonable due diligence. See United States
    v. Brown, 
    650 F.3d 581
    , 588 (5th Cir. 2011), cert. denied, 
    132 S. Ct. 1969
    (2012).
    Suppressed evidence is material if “there is a reasonable probability that, had
    the evidence been disclosed to the defense, the result of the proceeding would
    have been different. A ‘reasonable probability’ is a probability sufficient to
    undermine confidence in the outcome.” United States v. Bagley, 
    473 U.S. 667
    ,
    682 (1985); see United States v. Sipe, 
    388 F.3d 471
    , 485 (5th Cir. 2004).
    19 Reed also argues that pursuant to Kyles v. Whitley, 
    514 U.S. 419
    , 436 (1995), we
    should collectively review the suppressed evidence together with whatever prejudice Reed
    suffered as a result of his ineffective assistance of counsel. We find that none of Reed’s Brady
    claims, procedurally barred or otherwise, individually or collectively, are worthy of further
    consideration under AEDPA’s standard as correctly applied by the district court.
    38
    Case: 13-70009      Document: 00512496780         Page: 39    Date Filed: 01/10/2014
    No. 13-70009
    Although we address Reed’s request for a COA as to each of his Brady
    claims below, we note that many of them are procedurally defaulted because
    Reed has failed to establish actual innocence under Schlup and does not
    separately argue that he has shown cause and prejudice to excuse procedural
    default as to any particular Brady claim. 20
    1.     Beer-can-DNA evidence
    Reed contends that the State suppressed a letter containing a DNA
    report that revealed a mixture of profiles from which Stites, Officer Hall, and
    Officer Selmala (the officer who investigated Fennell’s pickup truck) could not
    be excluded. He argues that “[i]t is uncontested that the State’s DNA report is
    exculpatory because it suggests that two officers (one closely associated with
    Fennell) were with Stites, drinking beer at the crime scene.”                 The State
    maintains that this claim is procedurally barred, and that Reed cannot show
    cause and prejudice to excuse the default. It further submits that even if the
    claim were considered on its merits, Reed cannot show prejudice because, at
    trial, Reed had access to the same DNA evidence and his DNA expert initially
    reached the same conclusion before conducting more refined Polymarker
    testing, which excluded Stites and the two police officers.
    The CCA dismissed Reed’s Brady claim as an abuse of the writ. But
    although dismissing the claim, the CCA did consider the beer-can-DNA
    evidence, together with other evidence, in the context of Reed’s actual
    innocence claim. It found that “[a]lthough this new evidence may indeed
    arouse a healthy suspicion that Fennell had some involvement in Stacey’s
    death, [the court was] not convinced that Reed ha[d] shown by a preponderance
    20  We decline Reed’s suggestion that his procedurally defaulted claims may be
    considered under Martinez. Reed has insufficiently briefed this issue, and we consider this
    argument waived. We note that at least one other court has found this argument
    unpersuasive. See Hunton v. Sinclair, 
    732 F.3d 1124
    , 1126–27 (9th Cir. 2013) (rejecting
    petitioner’s attempt to excuse procedurally defaulted Brady claim under Martinez).
    39
    Case: 13-70009    Document: 00512496780      Page: 40   Date Filed: 01/10/2014
    No. 13-70009
    of the evidence that no reasonable juror, confronted with this evidence, would
    have found him guilty beyond a reasonable doubt.”
    The magistrate judge, giving Reed the benefit of the doubt,
    recommended that the district court conclude that Reed had shown cause for
    the late filing of this Brady claim because it was unclear whether his defense
    team actually had received the State’s DNA report. But the magistrate judge
    also recommended that the district court find that Reed had not made a
    sufficient showing as to prejudice because Reed’s DNA expert, Dr. Johnson,
    initially reached the same result as the prosecution—that Reed was not a
    donor, but that Stites, Officer Hall, and Officer Selmala could not be excluded.
    The district court adopted the magistrate judge’s report and recommendation.
    Reed does not argue that the district court properly found this claim
    procedurally defaulted.     Instead, he only argues that his claim should be
    considered because he has satisfied his burden under Schlup or Martinez, or
    alternatively, that he has shown cause for not filing this Brady claim in his
    initial habeas petition and resulting prejudice. We already have concluded
    that a COA should not issue as to Reed’s Schlup actual innocence claim, see
    our 
    discussion supra
    , and that he has insufficiently briefed his contention that
    Martinez should apply to his Brady claims. See In re 
    Sepulvado, 707 F.3d at 554
    & n.8; cf. 
    Hunton, 732 F.3d at 1126
    –27.
    Turning to whether Reed has sufficiently shown cause and default such
    that the district court’s procedural ruling is debatable, we note that, as an
    initial matter, it is unclear whether the State actually suppressed the report.
    The attorney responsible for handling the DNA evidence on Reed’s defense
    team simply could not recall whether the DNA report had been received. The
    fact that four copies of the report were made, only one of which was
    unaccounted for, suggests that it was.     That aside, there are many other
    problems with this claim.
    40
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    No. 13-70009
    Most importantly, Reed cannot show that he was prejudiced by the
    State’s DNA report given that Reed’s own DNA expert, Dr. Johnson, reached
    the same result—namely, that Reed was not a donor, but that Stites, Officer
    Hall, and Officer Selmala could not be excluded from the beer-can DNA. See
    Holly v. Collins, 
    9 F.3d 103
    , 
    1993 WL 481732
    , at *4 (5th Cir. 1993)
    (unpublished table decision) (“Awareness of the information purportedly
    suppressed neutralizes any . . . impropriety for purposes of a Brady claim
    implicating evidence of that information.”).      Dr. Johnson subsequently
    conducted Polymarker testing, which excluded all three individuals. The State
    declined to conduct further DNA testing in light of Dr. Johnson’s more refined
    results.
    Reed’s Brady claim therefore does not arise out of the purported
    suppression of the State’s DNA evidence, but out of his own expert
    subsequently conducting additional testing that reached a contrary conclusion,
    which the State then adopted. In an apparent effort to strengthen the State’s
    and Dr. Johnson’s original DNA results (which could not exclude Stites, Officer
    Hall, and Officer Selmala), Reed points to testimony by Dr. Arthur Eisenberg.
    Dr. Eisenberg opines that the beer can contained DNA from as many as four
    individuals, one of whom probably was female. Although Stites, Fennell, and
    Officer Selmala were excluded, Dr. Eisenberg could not exclude Officer Hall as
    a contributor from the beer-can-DNA evidence. Importantly, Dr. Eisenberg’s
    review of the beer-can-DNA evidence is completely divorced in time from
    Reed’s trial. To prevail under Brady, Reed must show that the purported
    suppression of the State’s DNA report at trial materially affected the trial’s
    outcome, not that years later another DNA expert would opine that Officer
    Hall could not be excluded from the DNA mixture. See Lawrence v. Lensing,
    
    42 F.3d 255
    , 257 (5th Cir. 1994) (“Brady claims involve ‘the discovery, after
    41
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    No. 13-70009
    trial of information which had been known to the prosecution but unknown to
    the defense.’” (citation omitted)).
    Reasonable jurists thus would not debate the district court’s procedural
    ruling denying habeas relief on this Brady claim.
    2.    Martha Barnett’s testimony
    Reed argues that the district court effectively abdicated its duty under
    AEDPA to review his claim by failing to credit the testimony of Martha
    Barnett. In her affidavit, Barnett attests to seeing Stites and a man she later
    recognized as Fennell together in a loud confrontation between approximately
    5:00 and 5:30 a.m. on the day of the murder. Barnett testified that the two
    were gesturing “like there was some kind of conflict.” Reed contends that a
    review of the relevant evidence shows that Barnett’s testimony should not have
    been discounted. The State counters that Reed has not overcome the state
    habeas court’s credibility determination.
    Reed included his Brady claim relating to Barnett’s testimony in his
    third state habeas petition. The CCA concluded that Reed’s claim satisfied the
    requirements of Article 11.071 § 5(a), and remanded it to the state trial court
    for a live evidentiary hearing. The state trial court entered findings of fact and
    conclusions of law finding Barnett not credible for multiple reasons. These
    included that Barnett failed to satisfactorily explain why she did not report her
    sighting until over a year and a half after the murder; the disclosure occurred
    shortly after Fennell arrested her for driving under the influence; and Barnett
    claimed to have recognized Fennell from a newspaper article, despite the fact
    that no newspaper carried such a photograph. The trial court also found
    Barnett not credible because she changed the time she reported seeing Stites
    and Fennell from between 5:00 to 5:30 a.m. in her affidavit to approximately
    4:45 a.m. during the evidentiary hearing.        Additionally, Barnett’s alleged
    sighting did not comport with Stites’s usual schedule of reporting for work by
    42
    Case: 13-70009     Document: 00512496780       Page: 43   Date Filed: 01/10/2014
    No. 13-70009
    3:30 a.m., nor the fact that Stites evidently was on her way to work when she
    was murdered. Fennell’s truck, which Stites drove to work, also was found at
    5:23 a.m., by which time Stites had already been killed. Lastly, Stites’s mother
    woke Fennell at 6:45 a.m.
    The CCA similarly found Barnett’s testimony unreliable.            Although
    finding parts of the trial court’s findings inconsistent with the record and
    “somewhat misleading,” it concluded that they were “largely supported by the
    record.” It determined that Reed had failed to show that the State was in
    possession of the information regarding Barnett prior to or during trial.
    Central to this determination was the chain of events by which Barnett first
    informed her attorney, Steven Keng, about seeing Stites and Fennell, and by
    which Keng then informed the Bastrop district attorney. After reviewing all
    the evidence of who told what when, the CCA upheld the state trial court’s
    credibility finding that Keng did not inform the Bastrop district attorney until
    after Reed’s trial. Discussing whether Reed had met his burden of showing
    actual innocence, the CCA also found the information provided by Barnett
    “unreliable” and “not credible.”
    The district court adopted the magistrate judge’s recommendation that
    there was “nothing inconsistent with established federal law in the CCA’s
    reasoning,” and that Reed also had not “succeeded in demonstrating by clear
    and convincing evidence that any of the trial court’s or CCA’s findings of fact
    were unreasonable in light of the record before them.”
    The district court appropriately deferred to the state habeas court’s
    credibility determination under 28 U.S.C. § 2254(e)(1).        Reed attempts to
    overcome § 2254(e)(1)’s presumption of correctness by again arguing that
    Barnett disclosed her statements to Keng, who then passed them on to the
    Bastrop district attorney. It was the Bastrop district attorney, Reed alleges,
    who failed to disclose the statements to the defense team. According to Reed,
    43
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    No. 13-70009
    the Bastrop district attorney “had professional and financial motives to deny
    his misconduct,” because “a prosecutor’s failure to disclose exculpatory
    evidence can lead to professional discipline or even criminal liability,” and “[a]t
    the time of the habeas hearing, [the district attorney] had a pending lawsuit
    against [a newspaper] for defamation arising from the paper’s coverage of the
    Reed case.” Assuming Reed is correct and the State suppressed Barnett’s
    statement, Reed still cannot show prejudice because the CCA’s determination
    that Barnett was not a credible witness is supported by unrebutted evidence.
    Reed points out that Fennell was not called by the state trial court to dispute
    Barnett’s testimony, and that the only motive Barnett had for implicating
    Fennell was his arrest of her for driving while intoxicated.           But Reed’s
    arguments implicate exactly the type of credibility determination we, as a
    federal court, leave to the state court that was on-hand to observe the witnesses
    at issue. The district court’s conclusion that the CCA’s decision was not based
    on an unreasonable determination of the facts thus is not debatable, nor is its
    determination that Reed has failed to present clear and convincing evidence
    that the CCA’s credibility determination was erroneous.
    3.    Mary Blackwell’s testimony
    Reed claims that the State suppressed a statement by Mary Blackwell.
    Blackwell’s affidavit states that in 1995, during a police academy training
    class, she overheard Fennell say to another attendee that if he ever discovered
    Stites (his then-girlfriend) cheating on him he would strangle her. Blackwell
    states that she then told Fennell that he would be caught because he would
    leave fingerprints, to which Fennell responded that he would use a belt.
    Blackwell also recalled Fennell yelling at Stites. The State responds that the
    prosecution indisputably did not learn of Blackwell’s statement, if at all, until
    after Reed’s trial, and thus Brady should not apply. Additionally, the State
    points out that Reed’s defense team had as much access to the evidence as the
    44
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    No. 13-70009
    prosecution because one of Reed’s state habeas investigators was told about
    Blackwell’s statement. Finally, the State asks that the panel defer to the
    CCA’s determination that Blackwell’s statement was unreliable and not
    credible.
    Reed included his claim that the State suppressed Blackwell’s statement
    in his third state habeas petition. As with Reed’s Brady claim relating to
    Barnett’s testimony, the CCA remanded this claim to the state trial court to
    conduct a live evidentiary hearing. The state trial court found Blackwell not
    credible.   The trial court based its determination on the fact that other
    testimony showed Fennell was emotionally upset after Stites’s death; the
    attendee to whom Fennell allegedly made the remarks had no recollection of
    them, and no other attendee heard the alleged statements; Blackwell failed to
    report information relevant to the homicide investigation despite being a peace
    officer; Blackwell originally described Fennell as joking; and Blackwell claimed
    to be entirely unaware of the circumstances of Stites’s death despite attending
    Stites’s funeral, living in the area, and knowing Fennell. The CCA adopted the
    trial court’s findings. It specifically held that “although we question whether
    Fennell’s statement to Blackwell falls within Brady’s ambit because it was not
    alleged to have been disclosed until after Reed’s trial and therefore may be
    more properly characterized as newly discovered evidence, we will
    nevertheless defer to the trial judge’s credibility determinations and
    factfindings because our independent review of the record establishes that they
    are supported by the record.” (footnote omitted).
    The magistrate judge determined that “the Texas courts’ conclusions on
    this claim are consistent with established federal law, and are based on a
    reasonable determination of the facts in light of the record,” and accordingly
    recommended that the district court defer to those findings. The district court
    held that there was insufficient evidence “to rebut the presumption of
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    No. 13-70009
    correctness of the state court’s credibility determination,” and denied habeas
    relief.
    “As a federal habeas court, ‘we must defer to the factual findings in the
    state court proceedings’ and ‘respect the ability of the fact-finder to evaluate
    the credibility of the witnesses.’” Jackson v. Miss. Dep’t of Corr., 359 F. App’x
    499, 502 (5th Cir. 2010) (citation omitted). Reed fails to offer any reason why
    the state court’s credibility determination as to Blackwell is erroneous.
    Instead, Reed argues that the district court failed to consider “the State’s
    pattern of suppressing exculpatory evidence” and that the assistant district
    attorney who allegedly learned of Blackwell’s statements had a motive “to deny
    misconduct and thereby avoid professional or even criminal liability.” As with
    Barnett’s testimony, Reed’s argument does not strike at the CCA’s underlying
    credibility determination, to which the district court correctly deferred.
    Reasonable jurists thus would not find the district court’s assessment of Reed’s
    Brady claim as it relates to Blackwell’s testimony debatable or wrong.
    4.    Brenda and Jennifer Praters’ statements
    Reed argues that the State suppressed the written statements of Brenda
    and Jennifer Prater. The statements separately describe the Praters seeing
    Stites the day of the murder. Jennifer stated that she saw two people inside a
    car behind her house early that morning. She described the person in the
    driver’s seat as “dark complected, but not black” (possibly of “middle eastern
    descent”), and the person in the passenger seat as a “pale complected” woman
    with “big hair.”      Jennifer asserts she was able to get a good look at the
    individuals because the car’s interior light was on. She was certain that Reed
    was not the man in the car. She subsequently recognized the woman as Stites,
    after seeing Stites’s picture in a newspaper.        When confronted by police,
    however, Jennifer lied and told police she “didn’t know anything about” seeing
    a car the day of the murder.
    46
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    No. 13-70009
    Brenda stated that early on April 23, 1996, she saw a car go past her
    house twice. She saw three individuals in the car, the interior lights of which
    were on—a driver of darker complexion, but not black (possibly “Mexican”); a
    woman in the passenger seat with light complexion and “big dark hair”; and a
    white male in the back seat.     Like Jennifer, Brenda claims later to have
    recognized the woman in the passenger seat as Stites from a newspaper article.
    When police came to speak with her, Brenda related what she saw.
    The State argues that Reed’s Brady claim is procedurally defaulted. It
    further points out that there was no evidence, other than the Praters’
    statements, that any police officers actually talked with Brenda and Jennifer
    Prater. The only notes in the State’s possession that possibly related to the
    statements referred to a “Mary Fisher,” and were available to Reed. Finally,
    the State asserts that even if the statements are taken at face value, they are
    not material under Brady.
    Reed’s Brady claim relating to Brenda and Jennifer Prater was included
    in his third state habeas petition. The CCA dismissed the claim as an abuse
    of the writ. The CCA subsequently discussed the Praters’ statements in the
    context of its actual innocence discussion. The CCA questioned the Praters’
    credibility because they did not come forward with their information until
    September 2002. Jennifer’s credibility was suspect because her husband failed
    to corroborate her account.    The CCA further observed that the Praters’
    statements had “no continuity with any of the other new evidence offered by
    Reed and [did] not fit within the chronicle of events that the trial evidence
    support[ed].” Finding that Reed had failed to establish his actual innocence,
    the CCA refused to consider the merits of Reed’s Brady claim as to the Praters’
    statements.
    The district court concluded that the CCA’s credibility determination
    “was unreasonable in light of other record evidence,” because Brenda reported
    47
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    No. 13-70009
    her sighting to the police and because there was no basis for requiring an
    additional affidavit from Jennifer’s husband to find her account credible.
    Having determined that Reed established cause, the district court assumed
    actual prejudice to excuse the default. But it proceeded to find that Reed’s
    Brady claim failed on the merits. The court reasoned that “[t]here is nothing
    linking the eyewitness testimony by the Praters to Fennell, and the inferences
    Reed urges the court to draw from the Praters’ statements are far too
    speculative to have a meaningful impact on a reasonable juror’s assessment of
    the evidence.”
    We find that the district court’s ultimate conclusion to deny habeas relief
    as to Reed’s Brady claim is not debatable. Although the district court found
    that Reed could show cause to excuse procedural default, and assumed
    resulting prejudice, it appears to us that Reed cannot meet this burden.
    Considering Jennifer’s statement first, Reed has failed to show cause. The
    CCA found her credibility suspect because she did not come forward with the
    information until several years after Stites’s murder.        This is sufficient
    evidence on which to defer to the CCA’s credibility determination under 28
    U.S.C. § 2254(e)(1). Jennifer did not approach authorities with the information
    she held. She also admitted lying to the police because she “knew that being a
    witness in a criminal investigation would be a hassle.” Reed has not disputed
    these facts. We thus defer to the CCA’s credibility determination as to Jennifer
    and conclude that there was no cause to excuse default because the State did
    not suppress the statement.      We also find that Reed had failed to show
    prejudice as to the alleged suppression of Jennifer’s statement for the same
    reason we find no prejudice resulting from the purported suppression of
    Brenda’s statement.
    As to Brenda’s statement, we agree with the district court that Reed has
    shown cause for excusing default because Brenda testified to having spoken
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    No. 13-70009
    with police authorities two days after the incident. Reed has not, however,
    shown actual prejudice, rendering the district court’s final disposition of the
    claim non-debatable. Although Brenda states that she saw Stites with two
    other men, Reed provides no explanation for who these individuals were.
    Instead, Reed asserts that the Praters’ accounts “fit” with Barnett’s testimony
    because they “likely observed Stites earlier than Barnett did.” As he puts it,
    “[i]f Stites was with other men just prior to her murder, that comports with the
    Fennell-Stites confrontation witnessed by Barnett and provides motive for
    Fennell to strangle Stites.” Reed’s argument fails partly because we defer to
    the CCA’s finding that Barnett’s testimony is not credible.        Additionally,
    Brenda’s statement is not exculpatory. To the extent there was enough time
    for an individual to sexually assault Stites after she was seen by the Praters,
    a reasonable juror could just as easily believe that Reed, and not Fennell,
    committed the deed. The district court’s conclusion that “[i]n light of the other
    evidence inculpatory of Reed and the lack of credible evidence that Reed had
    consensual sex with Stites before her death, the Praters’ statements . . . do not
    undermine confidence in the verdict” is not debatable.
    5.    Pamela Duncan’s affidavit
    Reed contends that Fennell’s former girlfriend, Pamela Duncan,
    reported Fennell’s abusive behavior to authorities. According to Duncan’s
    affidavit, Fennell was “extremely possessive and jealous,” an abusive partner,
    and hostile toward African-Americans. Reed asserts a Brady violation on the
    basis of the State’s suppression of Duncan’s statement. The State argues that
    this claim is procedurally defaulted.
    Reed presented his suppression-of-evidence claim concerning Duncan in
    his fourth state habeas petition. The CCA dismissed the claim as an abuse of
    the writ, but also considered the substance of Duncan’s affidavit as part of its
    Schlup analysis. The CCA concluded that this evidence did not undermine the
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    No. 13-70009
    jury’s verdict.     The district court accepted the magistrate judge’s
    recommendation that this claim be found procedurally defaulted.
    The district court’s treatment of this Brady claim is not debatable. Reed
    does not discuss how Duncan’s affidavit would have been material at trial, and
    thus he does not show prejudice to excuse the default. Likewise, there are
    substantial questions as to whether Duncan’s account actually was
    suppressed.     The affidavit does not make clear which authorities she
    approached concerning Fennell’s behavior, and there is no other record of her
    doing so.   It thus appears that Duncan’s statements would have been as
    accessible to Reed as they were to the prosecution. See Kutzner v. Cockrell, 
    303 F.3d 333
    , 336 (5th Cir. 2002) (“Brady does not obligate the State to furnish a
    defendant with exculpatory evidence that is fully available to the defendant
    through the exercise of reasonable diligence.”). As we have already concluded
    that Reed cannot show actual innocence under Schlup, Reed’s failure to
    establish cause for defaulting this claim and resulting prejudice renders the
    district court’s denial of habeas relief as to this Brady claim not debatable.
    6.      Lawsuits against Fennell and the Giddings Police Department
    Reed complains that the State suppressed evidence of two lawsuits filed
    against Fennell and the Giddings Police Department, which alleged violence
    and lawlessness, including against minorities.        The State contends that
    information relating to the suits was contained in public documents accessible
    to Reed.
    Reed included this Brady claim in his third state habeas petition. The
    CCA dismissed it as an abuse of the writ. The district court found the claim
    procedurally defaulted.
    We find the district court’s procedural ruling is not debatable. We agree
    with the State that the fact that lawsuits had been filed against Fennell and
    the Giddings Police Department was public information Reed could have
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    No. 13-70009
    discovered through reasonable diligence. See 
    id. Additionally, Reed
    spends no
    time discussing the substance of his claim, and thus he has not shown that he
    suffered prejudice as a result of it being held procedurally barred.
    7.     Fennell’s letter to the Giddings city manager
    The record contains a letter Fennell wrote to the Giddings city manager
    in which he states that “[Officer] Hall made several comments during the
    murder investigation of my fiancé[e]. I have learned to forgive and forget.”
    Reed characterizes this statement as inculpating Fennell in Stites’s murder
    because Fennell also described Officer Hall as being someone who would “burn
    anyone” to get a position. Reed states that the State suppressed Fennell’s
    letter. The State responds that the claim is procedurally defaulted, Reed has
    not proven the substance of Officer Hall’s comments, and the letter was not
    written until after trial.
    Reed’s Brady claim as it relates to Fennell’s letter appeared in his fifth
    state habeas petition. The CCA dismissed the claim as an abuse of the writ.
    The district court accordingly found the claim procedurally defaulted.
    Other than his assertion of actual innocence, Reed presents no reasons
    why the district court should have considered his procedurally defaulted Brady
    claim on the merits. In any event, a brief review of the letter confirms that
    Reed’s theory is wholly speculative, precluding habeas relief under Brady. See
    
    Moore, 534 F.3d at 462
    –63 (“highly speculative theory” insufficient to satisfy
    Brady’s materiality requirement). There is no cause to debate the district
    court’s procedural dismissal of this claim.
    8.     Corruption in the Bastrop Sheriff’s Department
    Reed argues that “[t]he State’s failure to disclose the known corruption
    within the Bastrop County Sheriff Department deprived Reed of powerful
    evidence impeaching the credibility of the investigation.” The corruption Reed
    refers to is the indictment of a former Bastrop county sheriff for several
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    No. 13-70009
    offenses regarding the improper sale of county property and the wrongful use
    of labor inmate for personal benefit. The State dismisses Reed’s Brady claim
    as entirely failing to demonstrate how the former sheriff’s offenses were
    favorable to Reed’s defense, how this evidence was suppressed, or why it was
    material.
    Reed included his claim that the State suppressed evidence of criminal
    misconduct by the former Bastrop county sheriff in his fifth state habeas
    petition. The CCA dismissed the claim as an abuse of the writ. The district
    court found the claim procedurally defaulted, and further found that even if
    Reed were able to establish cause and prejudice to overcome the state
    procedural default, his claim would fail on the merits.
    Reed’s discussion of this Brady claim is limited to asserting that the
    State’s failure to disclose the information deprived him of powerful evidence to
    impeach the credibility of the investigation. As the State observes, however,
    Reed has not shown that this information could have been used to impeach
    anyone who actually participated in the investigation. We thus conclude that
    the district court’s procedural ruling is not debatable.
    F.     Eighth and Fourteenth Amendment violations
    Reed alleges that his rights under the Eighth and Fourteenth
    Amendment were violated when the jury was allowed to consider extraneous
    criminal allegations relating to a sexual assault committed in 1987, of which
    he was acquitted. In Reed’s view, the State was allowed during the penalty
    phase of trial to effectively retry the 1987 case and make closing remarks
    “designed to inflame and elicit fears in the jury.” The State counters that
    Reed’s argument is unsupported by any Supreme Court precedent, and would
    run against our own circuit precedent.
    Reed raised this claim on direct appeal and in his first state habeas
    petition. It was denied on the merits in both proceedings. The district court
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    adopted the magistrate judge’s recommendation that Reed’s constitutional
    claim be denied based on Supreme Court and circuit precedent. We likewise
    deny a COA as to this claim.
    In Harris v. Cockrell, 
    313 F.3d 238
    , 245–46 (5th Cir. 2002), this court
    addressed the question of whether a defendant’s right to fair sentencing is
    compromised “by the introduction of evidence concerning a crime for which he
    had been indicted but acquitted.” The Harris court expressly found that “[t]he
    introduction of evidence of extraneous offenses of which the defendant has been
    acquitted is consistent with due process,” because “[a]lthough due process
    requires the application of collateral estoppel, that doctrine does not preclude
    [the State] from relitigating an issue when it is presented in a subsequent
    action governed by a lower standard of proof.” 
    Id. at 246
    (quoting Dowling v.
    United States, 
    493 U.S. 342
    , 349 (1990)) (internal quotation marks omitted).
    The Harris court further reasoned that, “[b]ecause ‘extraneous offenses offered
    at the punishment phase of a capital trial need not be proven beyond a
    reasonable doubt,’ the relevant standard of proof necessarily was lower than
    that at [the defendant’s] criminal trial.” 
    Id. (citation omitted).
    “Collateral
    estoppel therefore did not preclude the introduction of evidence pertaining to
    these charges . . . .” 
    Id. Harris is
    dispositive of Reed’s claim, and we conclude that the district
    court’s decision to deny habeas relief on this claim is not debatable.
    IV. Conclusion
    For the reasons discussed, we DENY a COA as to all of Reed’s claims.
    53