Willie Trottie v. William Stephens, Director ( 2013 )


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  •      Case: 11-70028   Document: 00512274025     Page: 1   Date Filed: 06/14/2013
    
    
    
    
            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit
    
                                                                     FILED
                                                                    June 14, 2013
    
                                     No. 11-70028                   Lyle W. Cayce
                                                                         Clerk
    
    
    
    WILLIE TYRONE TROTTIE,
    
                                               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 Southern District of Texas
    
    
    Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
    JENNIFER WALKER ELROD, Circuit Judge:
          In 1993, a Texas jury sentenced Willie Tyrone Trottie to death for the
    murders of Barbara and Titus Canada. Trottie filed a federal habeas petition
    pursuant to 28 U.S.C. § 2254, asserting Strickland ineffective-assistance-of-
    counsel claims, Brady suppression-of-evidence claims, and prosecutorial-
    misconduct claims. After careful review, the district court denied the petition.
    Trottie now seeks a certificate of appealability (“COA”) pursuant to 28 U.S.C.
    § 2253(c)(2). For the reasons that follow, we deny Trottie’s COA application.
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                                FACTUAL BACKGROUND
           Trottie and Barbara Canada met and began dating in about 1989. Shortly
    thereafter, the two moved in together and had a child. In September 1992, the
    couple separated and Barbara moved in with her family.
           Trottie’s behavior towards Barbara became increasingly violent following
    their 1992 separation. According to state witnesses that testified at Trottie’s
    trial, Trottie warned Barbara that he would kill her if she did not return to him
    and repeated the threat several times in the months after she moved out.
    Barbara’s close friend testified that Trottie called Barbara “constantly” at home
    and at work, begging her to come back to him. Trottie hit Barbara, bumped
    Barbara’s car with his own while it was traveling at sixty to sixty-five miles per
    hour, and once kidnaped her, releasing her only after she promised to reunite
    with him.
           Barbara obtained a protective order against Trottie in March 1993.
    Nevertheless, state witnesses testified that Trottie telephoned Barbara in April
    and told her that she had until May 1, 1993 to return to him, or else he would
    kill her. On May 3, 1993, Trottie called Barbara again and told her that “he
    wasn’t going to wait around anymore” and again threatened to kill her. One
    witness testified that Trottie also threatened Barbara’s brother Titus Canada
    because, according to Trottie, he had gotten “in the way.”
           Trottie arrived at the Canada residence at approximately 11:00 p.m. on
    the night of May 3, 1993, armed with a semiautomatic 9mm pistol.1 At the time,
    
    
           1
            Trottie had visited Barbara’s house earlier that day, armed with a shotgun. Barbara’s
    brother Titus confronted Trottie with a .380 pistol, at which point Trottie departed. Before
    he returned at 11:00 p.m., Trottie called Barbara’s home and said that he “wanted” Barbara
    and her brother.
    
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    there were five children under the age of seven in the house, along with
    numerous other family members. According to state witnesses, Trottie opened
    fire immediately, wounding Barbara’s mother, sister, and brother. Barbara’s
    brother returned fire with a .380 caliber pistol and shot Trottie numerous times.
    Though wounded, Trottie cornered Barbara in a bedroom and, while she lay on
    the ground, shot her eleven times, saying “Bitch, I told you I was going to kill
    you.” Trottie then returned to the area where Barbara’s brother was lying
    wounded and, in the view of at least two small children, fired two shots into the
    back of Barbara’s brother’s head, killing him. Trottie left the Canada home and
    was arrested a short time later in the emergency room of a nearby hospital.
                          PROCEDURAL BACKGROUND
          The state charged Trottie with the capital murders of Barbara and Titus
    Canada, and the case went to trial in 1993. The state presented the above-
    described witness testimony at the guilt/innocence phase of the trial, as well as
    photographic evidence, testimony by a crime scene investigator, a medical
    examiner, and a weapons expert. Trottie did not testify, and his counsel did not
    make a self-defense argument. Rather, Trottie’s counsel sought conviction for
    a lesser-included offense. After hearing the evidence, the jury found Trottie
    guilty of capital murder.
          The case proceeded to the punishment phase. The district court
    summarized the testimony presented:
                During the penalty phase, the State presented evidence that
          in 1988, Trottie pled guilty in Louisiana to theft of property valued
          at less than $100. In July 1990, he was arrested in Texas for
          unlawfully carrying a weapon. He pled guilty to that crime, as well.
          In September 1990, Trottie was convicted of theft in Texas and
          placed on probation. He violated a condition of the probation in
          February 1993. In October 1992, Trottie shot out the tires on
    
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          Barbara Canada’s car. . . .
                 Van Curry testified that he worked with Trottie for six years
          through the Young Professionals of Houston program. Trottie got
          work as a security guard through the organization and, in exchange,
          did volunteer work for the organization. Curry testified that
          Trottie worked with children through the program and they had a
          good experience. Trottie had a positive attitude and Curry was
          impressed with Trottie’s leadership.
                 Trottie’s mother and sister testified about Trottie’s childhood.
          They testified that Trottie’s parents stopped living together when
          Trottie was five years old. At first, the children lived with their
          mother. Shortly after the parents separated, Trottie’s mother took
          the four youngest children to a motel where their father lived and
          told the children to wait for their father on a motel room doorstep.
          The oldest of the four children was nine years old. Trottie, the
          second oldest, was eight. After waiting for about 10 minutes, the
          children went to a grocery store because they were hungry. Store
          employees caught them stealing food, but then gave the food to
          them. The police eventually picked the children up and they were
          placed in foster care. Trottie ran away from his foster homes
          several times to try to find his mother or grandmother. The defense
          also established that Trottie had no disciplinary problems in jail.
                 Lynn Clark, Trottie’s probation officer, testified that Trottie
          brought his nephew to see Clark because Trottie was concerned that
          the nephew was becoming involved with drugs. Trottie wanted
          Clark to tell his nephew about the criminal justice system, and help
          him get help for his drug use.
                 Dr. Priscilla Ray testified that Trottie needed therapy and
          medication for depression and issues with abandonment. She also
          observed that Trottie might have strong reactions to rejection or
          abandonment by women because of his experiences in childhood.
          She opined that Trottie’s abandonment by his mother may have
          played a part in his violent reaction to Barbara’s rejection. During
          interviews, Trottie was remorseful. Dr. Ray also testified that she
          did not feel threatened by Trottie, and opined that he could become
          a productive member of society with treatment for depression.
    Trottie v. Thaler, No. 4:09-CV-0435, 
    2011 WL 4591975
    , *1–2 (S.D. Tex. Sept. 30,
    
    
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    2011). Based on this evidence, the jury found that there was a probability that
    Trottie would commit future acts of criminal violence constituting a continuing
    threat to society, and that the mitigating evidence was insufficient to warrant
    a life sentence. Accordingly, the trial court sentenced Trottie to death.
          The Texas Court of Criminal Appeals affirmed Trottie’s conviction and
    sentence. Trottie v. State, No. 71,693 (Tex. Crim. App. Sept. 20, 1995). Trottie
    filed a petition for writ of habeas corpus in the state court in 1997. In 2008, the
    trial court submitted findings of fact and conclusions of law recommending a
    denial of habeas relief, which the Texas Court of Criminal Appeals adopted in
    2009. Ex Parte Trottie, No. 70,302-01 (Tex. Crim. App. Feb. 11, 2009). Trottie
    then sought federal habeas relief, which the district court denied in 2011. See
    Trottie, 
    2011 WL 4591975
    , at *1, 20. Trottie now seeks a COA.
                                STANDARD OF REVIEW
          The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
    governs Trottie’s habeas petition. Under AEDPA, a state court prisoner must
    obtain a certificate of appealability (“COA”) before he can appeal a federal
    district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). A COA is
    warranted upon a “substantial showing of the denial of a constitutional right.”
    Id. § 2253(c)(2). A petitioner satisfies this standard if “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); see Miller-El v. Cockrell,
    
    537 U.S. 322
    , 327 (2003).2 The issue is “the debatability of the underlying
    constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at
    
          2
             In order to obtain a COA when the district court has denied relief on procedural
    grounds, a petitioner must show both a debatable claim on the merits and that the district
    court’s procedural ruling is debatable. See Slack, 529 U.S. at 484–85.
    
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    342. “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.
    at 336. In cases involving the death penalty, “any doubts as to whether a COA
    should issue must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson,
    
    213 F.3d 243
    , 248 (5th Cir. 2000) (citation omitted).
           We evaluate the debatability of Trottie’s constitutional claims under
    AEDPA’s highly deferential standard, which “demands that state-court decisions
    be given the benefit of the doubt.” Renico v. Lett, 
    130 S. Ct. 1855
    , 1862 (2010)
    (citations and internal quotation marks omitted). Under AEDPA, a federal court
    may not grant habeas relief unless the petitioner has first exhausted state
    remedies with respect to the claim at issue. 28 U.S.C. § 2254(b). To prevail, a
    habeas petitioner must prove that the constitutional adjudication by the state
    court “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,” 28 U.S.C. § 2254(d)(1), or “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,” § 2254(d)(2).3                     Clearly
    
    
           3
             AEDPA’s deferential standard applies only to claims that have been “adjudicated on
    the merits in State court.” 28 U.S.C. § 2254(d); see Johnson v. Williams, 
    133 S. Ct. 1088
    , 1094
    (2013). As the Supreme Court recently explained in Williams, when a state court has
    addressed some, but not all, of a defendant’s federal claims, a federal habeas court must
    presume “that the state court adjudicated the [unaddressed] claim on the merits in the
    absence of any indication or state-law procedural principles to the contrary.” 133 S. Ct. at
    1094 (citing Harrington v. Richter, 
    131 S. Ct. 770
    , 784–85 (2011)). This presumption may be
    rebutted, however, “either by the habeas petitioner (for the purpose of showing that the claim
    should be considered by the federal court de novo) or by the State (for the purpose of showing
    that the federal claim should be regarded as procedurally defaulted).” Id. at 1096 (citation
    omitted). The presumption is a “strong one,” as “it is not the uniform practice of busy state
    courts to discuss separately every single claim to which a defendant makes even a passing
    reference.” Id. at 1094.
    
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    established federal law is comprised of “the holdings, as opposed to the dicta, of
    [the Supreme] Court’s decisions as of the time of the relevant state-court
    decision.” Williams v. Taylor, 
    529 U.S. 362
    , 412 (2000). A state-court decision
    is contrary to clearly established federal law when it “arrives at a conclusion
    opposite to that reached by [the Supreme Court] on a question of law or if the
    state court decides a case differently than [the Supreme Court] has on a set of
    materially indistinguishable facts.” Id. at 413. A state-court decision fails the
    “unreasonable application” prong if it “identifies the correct governing legal rule
    from [the Supreme Court’s] cases but unreasonably applies it to the facts of the
    particular state prisoner’s case,” id. at 407, or when it “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.
          That a federal habeas court would reach a different conclusion is not
    enough, standing alone, to merit relief under AEDPA’s high standard. See id.
    at 411. As the Supreme Court recently reiterated, “even a strong case for relief
    does not mean the state court’s contrary conclusion was unreasonable.” Richter,
    131 S. Ct. at 786. We defer to the state trial court’s factual findings, Moody v.
    Quarterman, 
    476 F.3d 260
    , 267–68 (5th Cir. 2007), and consider only the record
    that was before the state court, Cullen v. Pinholster, 
    131 S. Ct. 1388
    , 1398
    (2011). We review only the ultimate legal determination by the state court—not
    every link in its reasoning. Neal v. Puckett, 
    286 F.3d 230
    , 246 (5th Cir. 2002) (en
    banc); see Catalan v. Cockrell, 
    315 F.3d 491
    , 493 (5th Cir. 2002). In reviewing
    a state court habeas decision reached without explanation, “a federal court must
    ‘determine what arguments or theories . . . could have supported the state court’s
    
    
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    decision,’ and then ask ‘whether it is possible fairminded jurists could disagree
    that those arguments or theories are inconsistent with the holding in a prior
    decision’ of the Supreme Court.” Williams v. Thaler, 
    684 F.3d 597
    , 603 (5th Cir.
    2012) (quoting Richter, 131 S. Ct. at 786).
                                     DISCUSSION
          Trottie asserts three theories of habeas relief: (1) ineffective assistance of
    counsel, (2) Brady violations, and (3) prosecutorial misconduct. The district
    court’s well-reasoned conclusions on these three theories are not debatable, and
    we conclude that a COA should not issue. We address each theory in turn.
    I.    Ineffective Assistance of Counsel
          Trottie’s ineffective assistance of counsel claims are subject to the
    standard set forth in Strickland v. Washington:
          First, the defendant must show that counsel’s performance was
          deficient . . . . Second, the defendant must show that the deficient
          performance prejudiced the defense. This requires showing that
          counsel’s errors were so serious as to deprive the defendant of a fair
          trial, a trial whose result is reliable. 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.
    
    466 U.S. 668
    , 687 (1984). To establish deficient performance, “the defendant
    must show that counsel’s representation fell below an objective standard of
    reasonableness.” Id. at 688. In evaluating deficiency, we apply a “strong
    presumption that counsel’s conduct falls within the wide range of reasonable
    professional assistance.” Id. at 689. Strickland’s second prong “focuses on the
    result of counsel’s deficient performance: ‘When a defendant challenges a death
    sentence . . . , the question is whether there is a reasonable probability that,
    absent the errors, the sentencer . . . would have concluded that the balance of
    
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    aggravating and mitigating circumstances did not warrant death.’” Roberts v.
    Thaler, 
    681 F.3d 597
    , 610 (5th Cir. 2012), cert. denied, 
    133 S. Ct. 529
     (2012)
    (quoting Strickland, 466 U.S. at 695). A reasonable probability is “a probability
    sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
    Prejudice exists when the likelihood of a different result is “substantial, not just
    conceivable.” Richter, 131 S. Ct. at 791–92.
           When an ineffective-assistance-of-counsel claim is subject to AEDPA, “the
    pivotal question is whether the state court’s application of the Strickland
    standard was unreasonable.” Id. at 785. The Supreme Court has explained:
           This is different from asking whether defense counsel’s performance
           fell below Strickland’s standard. Were that the inquiry, the
           analysis would be no different than if, for example, this Court were
           adjudicating a Strickland claim on direct review of a criminal
           conviction in a United States district court. Under AEDPA, though,
           it is a necessary premise that the two questions are different. For
           purposes of § 2254(d)(1), “an unreasonable application of federal law
           is different from an incorrect application of federal law.” Williams,
           [529 U.S.] at 410. A state court must be granted a deference and
           latitude that are not in operation when the case involves review
           under the Strickland standard itself.
    Id. Thus, while “[s]urmounting Strickland’s high bar is never an easy task,”
    “establishing that a state court’s application of Strickland was unreasonable
    under § 2254(d) is all the more difficult.” Id. at 788 (citations omitted). Both the
    Strickland standard and the AEDPA standard are “highly deferential” and
    “when the two apply in tandem, review is ‘doubly’ so.” Id. (citations omitted).
           With this precedent in mind, we first turn to what Trottie calls the “heart”
    of his ineffective-assistance claim: trial counsel’s alleged failure to investigate
    and present additional witnesses at the guilt/innocence and punishment phases
    of his trial.
    
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    A.     Failure to Investigate and Present Additional Witnesses4
           Particularly in the context of a capital case, defense counsel has the
    obligation to conduct a “reasonably substantial, independent investigation.”
    Neal, 239 F.3d at 688 (quoting Baldwin v. Maggio, 
    704 F.2d 1325
    , 1332–33 (5th
    Cir. 1983)). The Supreme Court has explained the governing standard:
           Strategic choices made after thorough investigation of law and facts
           relevant to plausible options are virtually unchallengeable; and
           strategic choices made after less than complete investigation are
           reasonable precisely to the extent that reasonable professional
           judgments support the limitations on investigation. In other words,
           counsel has a duty to make reasonable investigations or to make a
           reasonable decision that makes particular investigations
           unnecessary. In any ineffectiveness case, a particular decision not
           to investigate must be directly assessed for reasonableness in all the
           circumstances, applying a heavy measure of deference to counsel’s
           judgments.
    Strickland, 466 U.S. at 690–91; see also Williams v. Taylor, 
    529 U.S. 362
     (2000);
    Wiggins v. Smith, 
    539 U.S. 510
     (2003); Rompilla v. Beard, 
    545 U.S. 374
     (2005).
    There are no “strict rules” for counsel’s conduct beyond “the general requirement
    of reasonableness.” Pinholster, 131 S. Ct. at 1406–07. “An attorney need not
    pursue an investigation that would be fruitless, much less one that might be
    harmful to the defense.” Richter, 131 S. Ct. at 789–90 (citing Strickland, 466
    
    
           4
             The district court approached each factual basis of Trottie’s ineffective-assistance-of-
    counsel claim separately; for example, it afforded independent consideration to: whether
    Trottie’s counsel met with him only twice, the timing and nature of Trottie’s counsel’s
    investigation of potential witnesses, Trottie’s counsel’s failure to present certain witnesses at
    the guilt/innocence phase of trial, and Trottie’s counsel’s failure to present additional
    mitigation witnesses. Trottie complains that this approach “splinter[s]” his habeas claim “out
    of existence.” Without expressing any opinion on the validity of his argument, we address
    most of the factual allegations at issue in the course of a single analysis. Ultimately, whether
    considered together or separately, none of the bases for Trottie’s ineffective-assistance-of-
    counsel claim is sufficient to support habeas relief.
    
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    U.S. at 691).     Trial counsel is “entitled to formulate a strategy that was
    reasonable at the time and to balance limited resources in accord with effective
    trial tactics and strategies.” Id. at 789. Moreover, “a defendant who alleges a
    failure to investigate on the part of his counsel must allege with specificity what
    the investigation would have revealed and how it would have altered the
    outcome of the trial.” Druery v. Thaler, 
    647 F.3d 535
    , 541 (5th Cir. 2011), cert.
    denied, 
    132 S. Ct. 1550
     (2012) (quoting Nelson v. Hargett, 
    989 F.2d 847
    , 850 (5th
    Cir. 1993)).
          Upon a reasonable investigation, defense counsel also has an obligation to
    make reasonable strategic decisions regarding which witnesses and evidence he
    will present. Cf. Strickland, 466 U.S. at 690–91. “[T]he failure to present a
    particular line of argument or evidence is presumed to have been the result of
    strategic choice.” Taylor v. Maggio, 
    727 F.2d 341
    , 347 (5th Cir. 1984). As we
    have held, “a tactical decision not to pursue and present potential mitigating
    evidence on the grounds that it is double-edged in nature is objectively
    reasonable, and therefore does not amount to deficient performance.” Rector v.
    Johnson, 
    120 F.3d 551
    , 564 (5th Cir. 1997).
          Trottie bases his primary ineffective-assistance-of-counsel claim on his
    trial counsel’s failure to both investigate and present additional witnesses. We
    address these issues in tandem below, as they depend on a nearly identical
    analysis here.
          1.       Deficiency
          In his state-court petition, Trottie argued that his trial counsel “ignored”
    “obvious and available” defenses—most importantly, self-defense—and failed to
    present “important, competent, and available evidence” of mitigation. This is,
    Trottie now emphasizes, a function of his trial counsel’s inadequate investigation
    
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    of the case and preparation for trial. According to an affidavit that Trottie
    submitted to the state court, he met with Connie Williams, his lead counsel, only
    twice before the day of trial, for less than an hour total. Trottie met with a
    private investigator obtained by his counsel, but contends that “very little was
    discussed.” And Trottie says that, although he provided Williams with the
    names of numerous potential witnesses, Williams failed to contact and interview
    them. The witnesses that Williams did contact and ultimately call to testify, he
    allegedly failed to prepare. An affidavit by Trottie’s sister, submitted to the
    state court, indicates that she “did not know what [she] would be testifying to or
    what phase of the trial [she] would be needed for.” It further states: “I wanted
    to offer more relevant information on behalf of my brother as [far] as mitigation,
    and his character . . . However, I wasn’t asked about these topics.”
          Williams tells a different story. His affidavit, also submitted in the course
    of the state habeas proceeding, indicates that he: “prepared and filed pre-trial
    motions; interviewed witnesses; obtained discovery from the State; reviewed the
    State’s file; researched the applicable law concerning Trottie’s case; and, talked
    with Trottie numerous times about the offense, the pending trial, and potential
    defense witnesses.” Williams hired a private investigator, who purportedly
    interviewed Trottie’s parents and thirteen other potential witnesses, and a
    psychiatrist, who testified on Trottie’s behalf after performing a psychological
    examination.
          Ultimately, the scope of Williams’s investigation and preparation for trial
    boils down to a credibility dispute, one the state court resolved against Trottie.
    It found Williams’s affidavit “credible,” and relied on it extensively in rejecting
    Trottie’s habeas claim.    The state court credited Williams with numerous
    strategic decisions, including the decision not to call certain witnesses and not
    
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    to present a self-defense argument.5 We must defer to the state court’s factual
    findings, and deny relief “if there is any reasonable argument that counsel
    satisfied Strickland’s deferential standard.” Richter, 131 S. Ct. at 788 (emphasis
    added). As the district court noted, there is sufficient record evidence here to
    support the state court’s conclusion that Williams’s investigation and
    preparation for trial was not deficient.6 Because reasonable jurists would not
    debate the district court’s view, a COA is not warranted.
    
    
    
           5
               Williams explained his view of the case in an affidavit submitted to the state court:
    
           I did not consider this a case of self-defense. It was hard for me to argue self-
           defense when the State had evidence that Trottie harassed Barbara Canada to
           the point that she felt compelled to obtain a protective order; that Trottie told
           Barbara Canada and her family members and/or friends that he would kill
           Barbara Canada if she did not return to him by a certain date; and, that, on the
           night of the offense, Trottie forced his way into the Canada residence, dressed
           in black, and carrying a .9mm pistol. Instead, I opted to concentrate on arguing
           that Trottie should be convicted of a lesser offense of murder or voluntary
           manslaughter.
           6
             In addition to rejecting Trottie’s failure-to-investigate claim on the merits, the district
    court also held that it was unexhausted. We disagree. As counsel for the state acknowledged
    at oral argument, the proposed findings of fact and conclusions of law that Trottie submitted
    to the state court dedicated three pages to the standard governing such claims. Trottie
    specifically asserted that “counsel’s failure to interview possible mitigation witnesses, failure
    to prepare those witnesses to testify at trial at the punishment stage, and failure to call those
    witnesses at the punishment stage of the trial could form the basis for an ineffective assistance
    of counsel claim now within the framework of the Strickland standard.” Thus, we conclude
    that the failure-to-investigate claim was “fairly presented” to the state court. Ries v.
    Quarterman, 
    522 F.3d 517
    , 523 (5th Cir. 2008) (“To satisfy the exhaustion requirement, the
    petitioner must fairly present the substance of his federal habeas claim to the highest state
    court,” but “[t]he habeas applicant need not spell out each syllable of the claim before the state
    court to satisfy the exhaustion requirement.” (citations omitted)). Because there remains no
    debate regarding the district court’s conclusion on the merits, however, this exhaustion issue
    is not COA-worthy. A habeas petition “may be denied on the merits, notwithstanding the
    failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C.
    § 2254(b)(2).
    
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                                              No. 11-70028
    
           2.      Prejudice
           Even if Williams’s failure to investigate and present the additional
    witnesses had been deficient, the state court determined that Trottie could not
    show prejudice: the purportedly missing testimony was either insufficiently
    described, cumulative, or strategically omitted by Trottie’s counsel. Because we
    conclude that there is no debate that the state court’s decision was reasonable,
    a COA is not warranted for this additional reason.7
           Trottie submitted seven affidavits in the course of his state habeas
    proceeding: four alongside his initial petition in 1997 and three alongside his
    proposed findings of fact and conclusions of law in 2008. The 1997 affidavits
    consisted of testimony by: Jim L. Peacock, Trottie’s attorney at the time8; Theotis
    Holmes and Tonya Baul, potential character witnesses who were subpoenaed but
    never testified; and George Uthe, a private investigator with information
    
    
           7
              Trottie asserts that the state habeas court applied the wrong standard of review
    (specifically, preponderance-of-the-evidence rather than reasonable probability) to the
    prejudice prong of his ineffective-assistance claim, such that de novo review is appropriate.
    Careful review of the state court’s findings of fact and conclusions of law, however, suggests
    otherwise. The state court specifically cited Strickland as the governing standard. While the
    state court indicated that Trottie must prove deficiency by a preponderance of the evidence,
    it did not expressly apply that standard to the prejudice prong. Thus, Trottie fails to
    demonstrate that the standard applied by the state court was contrary to, or an unreasonable
    application of, established federal law. See Holland v. Jackson, 
    542 U.S. 649
    , 655 (2004)
    (concluding that a state court’s use of the term “probable” in describing the petitioner’s burden
    under Strickland, as opposed to the correct standard of “a reasonable probability,” did not
    render the decision “contrary to” federal law where the state court previously recited the
    correct Strickland standard (citing Woodford v. Visciotti, 
    537 U.S. 19
    , 23–24 (2002))).
           8
              Peacock’s affidavit relates largely to Trottie’s counsel’s alleged failure to advise Trottie
    of his right to testify; in general terms, it states Trottie’s contention that his “trial counsel did
    not present several available witnesses during the punishment phase of his trial and that
    there were others of whom his trial counsel was aware, that should have been called to
    testify.” The affidavit names only Holmes, Baul, and Espree as potential witnesses, and offers
    no information regarding the substance of the missing testimony.
    
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                                             No. 11-70028
    
    regarding statements by Patrice Espree, another potential witness who was
    subpoenaed but never testified. The affidavits of Holmes, Baul, and Uthe all
    included similar language indicating that the potential witness possessed
    information regarding whether Trottie was a continuing threat to society,
    Trottie’s emotional and mental state at the time of the incident (which
    “impair[ed] his ability to rationally handle the situation”), and the “events
    leading up to Mr. Trottie’s arrival at Barbara Canada’s home on May 3, 1993[,]
    which would have shown the immense strain on the relationship between Mr.
    Trottie and the decedents at the time . . . .” The 2008 affidavits consisted of
    testimony by: Trottie himself regarding what he would have said had he been
    called to the stand9 and a list of uncalled witnesses with relevant information10;
    Trottie’s father, who wished to testify regarding his son’s relationship with
    Barbara and good character; and Trottie’s sister, who testified but wanted to
    
           9
             Although Trottie raised the claim in state court, Trottie no longer seeks habeas relief
    based on his counsel’s failure to call him as a witness. We note that the state court expressly
    found Williams’s testimony that he “thoroughly discussed [Trottie’s] right to testify during the
    instant capital murder trial,” and “advised the applicant that he had the final choice on
    whether he would testify at trial” to be credible. We have held that “when the record is simply
    that the defendant knew of his right to testify and wanted to do so but counsel was opposed,
    defendant acquiesced in his lawyer’s advice, and therefore the only inquiry is whether that
    advice was sound trial strategy.” United States v. Mullins, 
    315 F.3d 449
    , 453–54 (5th Cir.
    2002). Here, the state rightly points out that, had Trottie taken the stand, “he would have
    been cross-examined at length and forced to explain, among other issues, why he stalked and
    threatened to kill Barbara; why he set a deadline for her to come back to him; why he informed
    his probation officer he wanted to kill Barbara; why he stormed into Barbara’s home with a
    weapon and shot her over and over again; why he shot Titus in the back of the head; and why
    he appeared to be ‘flip’ and ‘casual’ following the crime.”
           10
               At oral argument, Trottie’s counsel argued that the state habeas court failed to
    consider Trottie’s affidavit. But Trottie submitted his affidavit to the state habeas court before
    it reached its findings of fact and conclusions of law and nothing in the record suggests that
    the state habeas court ignored it. To the contrary, the state habeas court specifically
    referenced Trottie’s affidavit in rejecting his ineffective-assistance claim based on his counsel’s
    failure to call him as a witness.
    
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    offer additional testimony regarding her brother’s childhood, relationship with
    Barbara, and good character.
           The state court found each of these affidavits “unpersuasive.” In reaching
    its conclusion, the state court explained that: (1) the affidavits offered
    insufficient detail regarding the specific testimony that would have been elicited
    at trial; (2) Trottie failed to show that they were not cumulative of testimony
    already elicited at trial; and (3) the potential witnesses could not testify
    regarding the instant offense or the applicant’s potential defenses because they
    were not present at the time of the incident.11 In addition, the state court
    specifically noted that defense counsel made the strategic decision not to call
    certain witnesses, namely Holmes, Baul, and Espree, based on his assessment
    that their testimony would not benefit the defense. On this basis, the state court
    reasonably rejected Trottie’s ineffective-assistance claim.
           Trottie contends that two specific categories of evidence would have made
    a difference in his case. First, with respect to the guilt/innocence phase of the
    trial, Trottie argues that Williams failed to present evidence that would have
    undermined the jury’s conclusion that he premeditated the murders of Barbara
    and her brother. For example, Trottie argues that many of the above-listed
    witnesses would have testified that he and Barbara had an ongoing romantic
    relationship, and that they continued to communicate even after Barbara
    obtained a protective order against Trottie.12 Trottie further argues that the
    
    
           11
             The state court characterized Uthe’s affidavit regarding Espee’s potential testimony
    as hearsay and, therefore, unpersuasive and suspect.
           12
             In addition to rejecting this factual basis for Trottie’s claim on the merits, the district
    court held that it was unexhausted. But Trottie presented some evidence to the state court
    in support of this factual claim. For example, his own affidavit indicated that, if called,
    
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                                           No. 11-70028
    
    testimony would have established that Barbara’s brother shot at him first, which
    supports a theory of self-defense.
           With regard to Trottie’s relationship with Barbara, the district court
    summarized the state court’s findings as follows:
                  The state habeas court found that counsel elicited testimony
           on cross-examination of several of the State’s witnesses regarding
           Trottie’s relationship with Barbara, his emotional and mental status
           at the time of the offense, and the events leading up to the murders.
           Specifically, Latrale Lott testified that Barbara met Trottie “a
           couple of times” after obtaining a protective order against him.
           Tyshan Baisey also testified that Barbara saw Trottie several times
           after obtaining the protective order.
                  In closing argument, counsel pointed to evidence that Trottie
           begged Barbara to stay with him, and emphasized the evidence that
           Barbara continued to see him even after obtaining the protective
           order. Thus, the witnesses that Trottie now claims counsel should
           have called would have been cumulative of evidence in the record.
           “[A]ny ineffective assistance claim must falter where the evidence
           to be discovered is so similar and cumulative that failure to find and
           present it would not prejudice the result.” Skinner v. Quarterman,
           
    528 F.3d 336
    , 345 n.11 (5th Cir. 2008).
    Trottie, 
    2011 WL 4591975
    , at *11 (internal citations omitted).13
    
    Patrice Espree would have testified that “she witnessed the victim visiting me at my residence
    only days before the alleged crime. She could have proven that Barbara Canada was not
    afraid of me and that we maintained an ongoing romantic relationship.” He further stated,
    “[t]he other witnesses, whose names and contact information I provided to Mr. Williams,
    would have corroborated that Barbara Canada and I were still in an ongoing relationship after
    the protective order was imposed and days before the incident occurred.” Thus, reviewing only
    the affidavits presented to the state court, we conclude that Trottie exhausted this factual
    allegation. Again, however, because there remains no debate regarding the district court’s
    conclusion on the merits, the scope of Trottie’s exhaustion is not a COA-worthy issue.
           13
             At oral argument, Trottie’s counsel stressed that the record evidence was insufficient
    to demonstrate the romantic nature of Barbara’s meetings with Trottie. According to counsel,
    the evidence made it appear as if Barbara saw Trottie only out of fear, when in reality the two
    maintained a voluntary, ongoing, romantic relationship. While the evidence may not have
    
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                                             No. 11-70028
    
           Likewise, with respect to whether Barbara’s brother, not Trottie, fired the
    first shot, the district court stated:
                  On cross-examination of one of the investigating police
           officers, counsel elicited testimony that two bullets found in the door
           frame inside the house were fired from straight ahead, and that this
           was consistent with someone within the house shooting at a person
           entering through the door. In closing argument, defense counsel
           specifically argued that Titus shot first and that Trottie merely
           returned fire. None of this changes the evidence that Trottie
           threatened to kill Barbara, entered her house while armed, and
           murdered Barbara and Titus. The evidence is clear that, even if
           Trottie’s first shots were fired at Titus in self-defense, he then
           chased Barbara into another room and shot her 11 times before
           returning to fire the fatal shots at Titus. This evidence does not
           help Trottie.
    Id. at *14.14 Thus, the district court determined that the “witnesses that Trottie
    now claims counsel should have called [at the guilt/innocence phase of the trial]
    would have been cumulative of the evidence in the record.” Our review of the
    record confirms that reasonable jurists would not debate this conclusion.
           Second, Trottie argues that his counsel should have investigated and
    
    
    been crystal clear regarding the nature of Barbara’s post-protective-order meetings with
    Trottie, there was at least enough evidence in the record for the jury to infer that the contact
    was, at times, consensual. As Trottie’s counsel argued in closing: “[w]e know that Barbara . . .
    chose to not follow that protective order”; “she came to him on many occasions”; “[Trottie] was
    almost invited to [disobey the protective order] by the frequent contact that you heard the
    witnesses testify to.” But even assuming that counsel’s gloss on the record is true, it is unclear
    how the existence of some continued romantic contact would, in reasonable probability, have
    undermined the outcome of Trottie’s trial, especially in light of Trottie’s repeated threats and,
    ultimately, brutal attack on Barbara.
           14
              In evaluating Trottie’s claim, the state court also noted that Trottie’s counsel elicited
    testimony on cross examination that: Trottie fired shots in the air when he first entered the
    Canada residence, that Trottie was shot six times, that Trottie may have appeared “cool and
    laid back” during the offense because he was “in shock from his wounds,” and that Barbara
    hit Trottie with a stick before he shot her.
    
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                                            No. 11-70028
    
    presented additional mitigation evidence at the punishment phase of the trial.
    Specifically, Trottie asserts that numerous witnesses would have testified to the
    “horrors that [he] experienced as a child.”               Trottie’s state habeas filings,
    however, offer no detail regarding the purportedly missing testimony. Although
    Trottie attempted to address this problem in his federal habeas petition, filing
    new affidavits from several relatives, Pinholster forecloses our review of that
    evidence. See Pinholster, 131 S. Ct. at 1398.15
           We note that Trottie’s counsel did present some evidence regarding
    Trottie’s difficult childhood at the sentencing phase of the trial. This testimony
    included a description of Trottie’s abandonment at a motel doorstep, placement
    in foster care, abuse while in foster care, and repeated attempts to run away to
    find his mother or grandmother.16 In addition, the psychiatrist that examined
    
           15
              Trottie’s federal habeas petition includes a number of exhibits that Trottie did not
    tender to the state court. Trottie argues that, despite Pinholster’s holding that we are to
    review only the record before the state court, we should consider the new evidence here. See
    id. None of Trottie’s arguments persuade us to depart from Pinholster’s clear limitation on our
    evidentiary review. Moreover, in light of Pinholster, we reject Trottie’s argument that he is
    entitled to a hearing to develop further evidence. Although we discuss the new evidence
    Trottie presented in certain portions of the opinion below, we do so only in the course of
    evaluating the district court’s alternative holdings that the new evidence is insufficient to
    support habeas relief on the merits.
           16
              The district court noted that the affidavits filed in the federal habeas petition—which
    discuss Trottie’s purported physical abuse and mistreatment by his mother—contradict
    Trottie’s own statements to the psychiatrist who testified on his behalf. It explained:
           The psychiatrist noted that Trottie spoke of abandonment by his mother, but
           denied suffering any physical abuse, contrary to the statements in the affidavits
           by his relatives. [Trottie] acknowledged receiving some corporal punishment as
           a child, but stated that he deserved it and did not characterize it as abusive.
           “[W]hen a defendant has given counsel reason to believe that pursuing certain
           investigations would be fruitless . . . , counsel’s failure to pursue those
           investigations may not later be challenged as unreasonable.” Strickland, 466
           U.S. at 691. In this case, counsel presented evidence of Trottie’s abandonment
           by his mother, but Trottie specifically denied that he suffered physical abuse at
    
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                                         No. 11-70028
    
    Trottie prior to trial testified that Trottie’s abandonment by his mother may
    have played a part in his violent reaction to Barbara’s rejection. She said: “I
    think the issue of his abandonment and rejection by a woman in his very early
    life, his mother, predisposed him to be sensitized to that issue such that he
    might do well in situations where that wasn’t a factor but he may react very
    strongly to times of being rejected, abandoned again . . . .” Thus, although the
    jury may not have had all of the facts that Trottie now wishes it had, Trottie’s
    counsel did offer meaningful information regarding Trottie’s childhood and how
    it may have impacted Trottie’s decisions on the day of the incident.
           In short, the district court concluded that Trottie was not entitled to
    habeas relief based on Williams’s purported failure to investigate and present
    additional witnesses. Having reviewed the affidavits and trial court record, and
    considering the deference owed to the state court, there is no debate that the
    state court’s decision was reasonable. Thus, a COA is not warranted with regard
    to this claim.
    B.     Additional Grounds for Trottie’s Ineffective-Assistance Claims
           1.    Failure to Provide Guidance in Psychological Evaluations
           In his federal habeas petition, Trottie asserts that his counsel failed to
    provide him with any guidance regarding his competency and sanity evaluations;
    according to Trottie, “[c]ounsel’s deficiency in this regard was disastrous . . . the
    State used Trottie’s statements to develop its preemptive counter-theory of
    planning and premeditation.” Trottie, however, failed to raise this issue in the
    state habeas proceedings. Thus, we agree with the district court that this
    
           her hands. Counsel therefore had no reason to pursue any investigation into
           physical abuse, and was not deficient for failing to do so.
    Trottie, 
    2011 WL 4591975
    , at *11.
    
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                                         No. 11-70028
    
    factual basis for Trottie’s ineffective-assistance claim is unexhausted and
    procedurally defaulted. Moreover, even if Trottie had exhausted the claim, the
    district court concluded that Trottie could not show prejudice, as “[n]othing in
    the record supports Trottie’s speculative claim that statements he made during
    the evaluations led to the State’s theory of the case.” Trottie, 
    2011 WL 4591975
    ,
    at *10. Because reasonable jurists would not debate the district court’s decision
    on either ground, a COA is not warranted on this issue.
          2.     Failure to Rebut Extraneous Offense Evidence
          The state relied on evidence of two prior uncharged offenses to
    demonstrate Trottie’s future dangerousness. Specifically, it presented evidence
    that Trottie: (1) was involved in a shootout with another man in 1990 and (2)
    pulled a gun on a man named Frederick Rusk, the father of Barbara’s daughter,
    while in front of the Canada house. Trottie’s state habeas affidavit is silent with
    respect to the second incident, and it is therefore unexhausted and procedurally
    defaulted.17 Regarding the alleged “shootout,” Trottie’s state habeas petition
    focused on his counsel’s failure to properly object to this evidence, not his failure
    to rebut it. The state habeas court ultimately rejected this argument, noting
    that the objection would have been properly overruled if made. In addition, the
    affidavit that Trottie submitted to the state court in 2008 indicated that, had he
    testified, he would have explained that “it was not evidence of a violent nature
    or a previous violent criminal act on [his] behalf.” Because the state court
    reasonably concluded that Williams’s failure to call Trottie to the stand was
    neither deficient nor prejudicial, as discussed in footnote 9 above, this proposed
    
    
    
          17
             Although the new affidavits that Trottie submitted to the federal district court
    address this incident, we do not consider them pursuant to Pinholster. 131 S. Ct. at 1398.
    
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                                       No. 11-70028
    
    evidence does not merit habeas relief. Thus, there is no debate that the state
    court’s decision was reasonable.
          We note that Trottie submitted new affidavits with his federal habeas
    claim, which include information regarding both of the extraneous offenses. The
    district court concluded that the affidavits were unexhausted and foreclosed
    from review by Pinholster. Trottie, 
    2011 WL 4591975
    , at *6–7. We agree. In
    addition, the district court determined that the affidavits failed to show
    prejudice on the merits:
          While some of this evidence might have been favorable to Trottie, it
          is not enough to establish Strickland prejudice. The record
          established the extremely violent nature of Trottie’s murder of
          Barbara and Titus, as well as a fairly extensive criminal record
          including several gun-related offenses. . . . Even if Trottie could
          have established that he shot only in response to other people firing
          first, there was ample evidence of past violence and ongoing
          disregard for the law. Under these circumstances, it is not
          reasonably probable that the outcome would have been different had
          the new evidence been presented to the jury.
    Id. at *13. Because the district court’s conclusions are not debatable, a COA is
    not warranted.
          3.    Failure to Address Inconsistencies in the State’s Evidence
          Trottie’s federal habeas petition asserts that Trottie’s counsel should have
    addressed several alleged inconsistencies in the State’s case, primarily related
    to the details of the crime. These details include the placement of shattered
    glass at the front door of the Canada residence, the range from which Trottie
    shot Barbara’s brother, and the number of shots that Trottie fired at Barbara’s
    brother. Although Trottie’s state petition asserted that Trottie’s counsel should
    have retained ballistics and blood spatter experts to testify regarding some of
    these issues, Trottie did not articulate specific inconsistences in the trial
    
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                                              No. 11-70028
    
    testimony until he filed his federal habeas petition. Thus, the district court’s
    conclusion that these arguments are unexhausted and barred by Pinholster is
    not debatable. See Trottie, 
    2011 WL 4591975
    , at *6–7. Moreover, the district
    court carefully and correctly explained why Trottie’s new evidence is insufficient
    to warrant habeas relief. Id. at *13–14. In short, it concluded that there is no
    reasonable probability that the rebuttal evidence would have affected the
    outcome of Trottie’s trial. Id. Reasonable jurists would not disagree with the
    district court on either ground.
           4.      Failure to Address Trottie’s Wardrobe
           Trottie also contends that his counsel should have rebutted evidence that
    he wore an all-black outfit to the Canada residence, from which the state implied
    that he premeditated the murders of Barbara and her brother. In his state
    habeas proceeding, Trottie asserted that—had his counsel called him to
    testify—he would have said that he wore black not because he planned to harm
    anyone, but because he “virtually always” dressed that way. This claim fails on
    both Strickland prongs: (1) Trottie cannot, and does not seek to, demonstrate
    deficiency in his counsel’s failure to call him to testify, see supra footnote 9, and
    (2) the state presented evidence that Trottie also wore a ski mask, which greatly
    undermines Trottie’s ability to show prejudice. The district court’s rejection of
    this factual basis is not debatable.18
    
    
           18
               Now, in the federal proceeding, Trottie offers a somewhat different explanation for
    his clothing: that he arrived at the Canada residence after a shift as a security guard, where
    he was required to wear black. This ground is unexhausted and outside the scope of the state
    court evidence. See Pinholster, 131 S. Ct. at 1398. Moreover, as the district court noted: “A
    police officer testified that Trottie’s clothes consisted of a black shirt, black jeans, black tennis
    shoes, white socks, and a black belt. The fact that Trottie wore jeans, tennis shoes, and, most
    significantly, a ski mask, undercuts his claim that this was a uniform.” Further, “[e]ven if his
    clothing was his work uniform, this does not mean that he did not make a conscious decision
    
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                                         No. 11-70028
    
    C.     The Impact of the Texas Capital Murder Statute
           Throughout his COA application—and particularly with respect to his
    Strickland claims—Trottie argues that the state and district courts
    misunderstood the Texas capital murder statute,                   Texas Penal Code
    § 19.03(a)(6)(A) (1993). At the time of Trottie’s trial, the statute provided that
    a person committed a capital offense if he (a) intentionally or knowingly (b)
    caused the deaths of (c) two or more individuals (d) during a single criminal
    transaction. See Trottie v. State, No. 71,693 (Tex. Crim. App. Sept. 20, 1995).
           Trottie contends that the proposed witness testimony would have cast
    reasonable doubt on whether he intended to murder both Barbara and her
    brother following planning and premeditation.             According to Trottie, “the
    uncalled witness testimony, considered together with inconsistencies among
    witness testimony and forensic evidence at trial, contravenes the State’s theory
    of planning and premeditation.” Rather, “it establishes the ongoing, romantic
    nature of Barbara’s relationship with Trottie and serves to confirm the alternate
    theory that Barbara’s brother fired the first shot rather than Trottie.” This
    amounts to either a sufficiency- of-the-evidence argument or an actual innocence
    claim, neither of which Trottie clearly articulates. In any event, the state
    appellate court rejected this argument in the course of Trottie’s direct appeal.
    Id. at 3–4. It stated:
           Utilizing the required standard of review, we conclude that a jury
           could rationally find beyond a reasonable doubt that [Trottie]
           intentionally or knowingly killed his victims based on (1) his threats
           to kill, (2) the deadly manner in which he handled his gun at the
           time of the offense, (3) the short distance from which he fired his
    
    
    to wear dark clothing when he went to Barbara’s house.” Trottie, 
    2011 WL 4591975
    , at *13.
    As with Trottie’s first explanation, the district court’s conclusion is not debatable.
    
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                                           No. 11-70028
    
            gun, (4) the nature of the wounds he inflicted, (5) the number of
            wounds he inflicted, and (6) his flight from the scene.
    Id. The state appellate court further concluded that the evidence “did not raise
    the possibility that [Trottie] killed his victims out of sudden passion arising from
    adequate cause.” Id. at 4. With this reasonable conclusion in mind, Trottie’s
    argument regarding the Texas capital murder statute is unavailing.
            To summarize, the district court carefully considered every factual and
    legal basis for Trottie’s ineffective-assistance claim, and determined that it
    either (1) was unexhausted and procedurally defaulted, (2) was reasonably
    rejected by the state court, or (3) failed on the merits.19 Because reasonable
    jurists would not debate the district court’s conclusions, we will not grant a COA
    on any of Trottie’s Strickland claims.
    II.     Alleged Brady Violations
            In addition to his ineffective-assistance-of-counsel claims, Trottie contends
    that the State suppressed favorable statements it obtained in investigating
    Trottie’s case. To establish a Brady violation, Trottie must prove that (1) the
    prosecution actually suppressed the statements, (2) the statements were
    favorable to Trottie, and (3) the statements were material. United States v.
    Brown, 
    650 F.3d 581
    , 587–88 (5th Cir. 2011), cert. denied, 
    132 S. Ct. 1969
     (2012)
    (citations omitted). Suppression exists only where a defendant did not—and
    could not—know about the essential facts that would enable him to take
    
    
    
            19
              Trottie’s federal habeas petition also asserted an ineffective-assistance claim based
    on his counsel’s failure to challenge certain jurors who were predisposed toward returning a
    death sentence. Trottie does not pursue this claim on appeal, and we deem it waived. See
    Hughes v. Johnson, 
    191 F.3d 607
    , 613 (5th Cir. 1999) (“Issues not raised in the brief filed in
    support of [the petitioner’s] COA application are waived.” (citing Moawad v. Anderson, 
    143 F.3d 942
    , 945 n.1 (5th Cir.1998))).
    
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                                           No. 11-70028
    
    advantage of the evidence. Id. at 588 (citations omitted). Thus, a defendant
    cannot succeed on a Brady claim if he could have discovered the evidence
    through reasonable due diligence. Id. (citations omitted). Materiality exists if
    there is “‘a reasonable probability that, had the evidence been disclosed to the
    defense, the result of the proceeding would have been different.’” Id. (quoting
    United States v. Bagley, 
    473 U.S. 667
    , 682 (1985)). As with the prejudice
    standard that governs ineffective-assistance-of-counsel claims, the “likelihood
    of a different result must be substantial, not just conceivable.” Id. (quoting
    Richter, 131 S. Ct. at 792). A “reasonable probability” is less than “‘more likely
    than not,’” but the difference “is slight and matters ‘only in the rarest case.’” Id.
           Trottie claims that the state prosecutor violated Brady when he failed to
    disclose Trottie’s former probation officer’s statement that Barbara “probably did
    mess with [Trottie’s] head a little.”20 As the district court noted, Trottie raised
    this claim for the first time in his federal habeas petition. According to Trottie,
    this is because he first learned about this evidence when the Houston County
    District Attorney’s Office turned over its work product in the course of his
    federal habeas proceeding.
           The district court rejected Trottie’s Brady claim on two grounds. First, it
    held that Trottie failed to demonstrate suppression: “Trottie makes no showing
    that appellate or state habeas counsel ever sought the State’s file. There is
    therefore no reason to believe that this information was not readily available to
    Trottie throughout his legal proceedings, no evidence of suppression, and no
    cause for his procedural default.” Trottie, 
    2011 WL 4591975
    , at *15. We agree.
    
           20
             Trottie raised additional grounds for his Brady claim in his federal habeas petition,
    but does not pursue them in his application for COA. Thus, they are waived. See Hughes, 191
    at 613.
    
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                                      No. 11-70028
    
    In fact, a November 15, 1993 note in the prosecutor’s file states: “Connie
    Williams & Elizabeth spent several afternoons looking at the file. Kate Dolan
    also always had the file open to the defense.” Likewise, Williams’s affidavit,
    submitted to the state habeas court, indicates that he “obtained discovery from
    the State” and “reviewed the State’s file.” Although Trottie speculates that the
    note at issue was not contained within the file when Williams reviewed it, he
    offers no evidence on this point. Thus, Trottie cannot meet his burden to show
    suppression. See United States v. Edwards, 
    442 F.3d 258
    , 267 n.9 (5th Cir.
    2006) (explaining that the party alleging a Brady violation bears the burden of
    establishing all three prongs of the Brady test (citation omitted)); see also
    Medellin v. Dretke, 
    371 F.3d 270
    , 281 (5th Cir. 2004) (declining to issue a COA
    regarding a Brady claim that depended upon a “substantial degree of
    speculation”); Hughes, 191 F.3d at 629–30 (holding that speculation of
    suppression is insufficient to establish a Brady claim).
          Even assuming that the State failed to disclose the note, the district court
    rightly concluded that Trottie could not show materiality, stating that “[o]ther
    witnesses testified about Trottie’s relationship with Barbara” and calling the
    purportedly suppressed evidence “at best, cumulative.” See Trottie, 
    2011 WL 4591975
    , at *16. This conclusion is not debatable, especially in light of defense
    counsel’s closing arguments at the guilt/innocence phase of Trottie’s trial.
    Williams emphasized that Barbara willingly continued her relationship with
    Trottie, even after obtaining a protective order against him: “[w]e know that
    Barbara . . . chose to not follow that protective order”; “she came to him on many
    occasions”; “[Trottie] was almost invited to [disobey the protective order] by the
    frequent contact that you heard the witnesses testify to.” Thus, whether or not
    
    
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                                             No. 11-70028
    
    the State disclosed the note, there is no reasonable dispute that the
    defense—and the jury—knew about Trottie’s back-and-forth relationship with
    Barbara. There is no debate that Trottie fails to demonstrate a reasonable
    probability that, had the statement been disclosed to the defense, the result of
    the proceeding would have been different. Accordingly, Trottie is not entitled to
    a COA regarding his Brady claim.21
    III.     Prosecutorial Misconduct
             Finally, Trottie argues that the state prosecutor’s misconduct—
    specifically, his repeated reference to certain tape recordings after they were
    excluded from evidence—infected his trial.22                   We analyze prosecutorial-
    misconduct claims in two steps. United States v. Ebron, 
    683 F.3d 105
    , 140 (5th
    Cir. 2012) (citation omitted). First, we evaluate whether the prosecutor made
    an improper remark. United States v. Fields, 
    483 F.3d 313
    , 358 (5th Cir. 2007)
    (citation omitted). If so, then we determine whether the defendant suffered
    prejudice. Id. (citation omitted). “The prejudice step of the inquiry sets a high
    bar: ‘Improper prosecutorial comments constitute reversible error only where the
    defendant’s right to a fair trial is substantially affected.’” Ebron, 683 F.3d at 140
    
    
             21
              Trottie seeks a stay pending exhaustion of his Brady claim. Because we find that
    reasonable jurists would not disagree with the district court’s rejection of Trottie’s Brady claim
    on the merits, Trottie’s request fails. Under Section 2254(b)(2), a habeas petition “may be
    denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies
    available in the courts of the State.” See Miller v. Dretke, 
    431 F.3d 241
    , 245 (5th Cir. 2005)
    (“As noted, under § 2254(b)(2) we can deny (but not grant) [petitioner’s] non-exhausted claim.
    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.”).
             22
               Trottie raised additional grounds for his prosecutorial-misconduct claim in his
    federal habeas petition, but does not press them here. Accordingly, we deem those grounds
    waived. Hughes, 191 F.3d at 613. Moreover, because reasonable jurists would not debate the
    district court’s disposition of those grounds, a COA is not warranted in any event.
    
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                                      No. 11-70028
    
    (quoting United States v. Holmes, 
    406 F.3d 337
    , 355–56 (5th Cir. 2005)). Thus,
    a criminal conviction should not be “lightly overturned on the basis of a
    prosecutor’s comments standing alone.” Id. Rather, “the determinative question
    is whether the prosecutor’s remarks cast serious doubt on the correctness of the
    jury’s verdict.” Id. In deciding whether serious doubt infects the verdict, we look
    to three factors: “(1) the magnitude of the prejudicial effect of the prosecutor’s
    remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the
    strength of the evidence supporting the conviction.” Id. (quoting United States
    v. Mares, 
    402 F.3d 511
    , 515 (5th Cir. 2005)) (internal quotation marks omitted).
    We generally review occurrences of prosecutorial misconduct individually, but
    there “may be instances where improper statements, which are not individually
    prejudicial enough to require reversal, could cumulate to affect the defendant’s
    substantial rights.” Fields, 483 F.3d at 358 (quoting United States v. Wicker, 
    933 F.2d 284
    , 292 (5th Cir. 1991)). Such instances, however, “are rare.” Id. (quoting
    Wicker, 933 F.2d at 292). “To warrant a new trial, prosecutorial misconduct
    must be ‘so pronounced and persistent that it permeates the entire atmosphere
    of the trial.’” United States v. Jimenez, 
    509 F.3d 682
    , 691–92 (5th Cir. 2007)
    (quoting United States v. Wyly, 
    193 F.3d 289
    , 299 (5th Cir. 1999)).
          Because this case is subject to AEDPA, our prosecutorial-misconduct
    analysis is subject not only to the “high bar” discussed above, but also to the
    deference that we afford to the state habeas court’s decision. Cf. Richter, 131
    S. Ct. at 786–87. Trottie is not entitled to habeas relief unless the state court’s
    decision was contrary to, or an unreasonable application of, clearly established
    federal law. See 28 U.S.C. § 2254(b). Thus, we ask not whether the state court
    reached the correct decision, but rather a reasonable one. Richter, 131 S. Ct. at
    
    
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                                      No. 11-70028
    
    785 (explaining that “an unreasonable application of federal law is different from
    an incorrect application of federal law” (citation omitted)).
          At issue here is the state’s reference to certain tape-recordings that the
    trial court deemed inadmissible. The recordings captured phone conversations
    between Trottie and Barbara, in which Trottie purportedly threatened her. The
    trial court held a hearing outside of the presence of the jury to determine the
    admissibility of the tape recordings and, at the conclusion of the hearing,
    sustained Trottie’s objection. Later, in the presence of the jury, the state again
    attempted to introduce the tapes. Defense counsel objected, stating: “It’s my
    understanding the Court already ruled on the tapes.” After some discussion at
    the bench, the trial court advised the prosecutor to “stay away” from the subject
    of the tapes and “go on to something else.”        Very shortly thereafter, the
    prosecutor asked the same witness yet another question about the tapes (“[w]as
    any of that stuff tape recorded?”). Trottie’s defense counsel objected and moved
    for a mistrial. The court denied the motion for a mistrial, but instructed the jury
    to “disregard the last question and do not consider it for any purpose
    whatsoever.”
          The jury sent two notes regarding the tapes in the course of its
    guilt/innocence deliberations. The first note sought numerous pieces of evidence,
    much of which had been admitted into evidence, including “pictures, tapes, [and
    an] autopsy report.” In an itemized list, the jury specifically requested “cassette
    tapes.”   The jury’s second note sought exclusively the “tape recordings of
    threats,” along with a tape recorder. The court responded: “not in evidence.”
    Trottie relies on these notes to illustrate the importance of the cassette tapes in
    the minds of the jurors.
          Despite the court’s response to the jurors’ second note, the prosecutor
    
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                                       No. 11-70028
    
    mentioned the tapes again during the punishment phase of the trial. The
    following exchange occurred during cross-examination of the psychiatrist that
    testified on Trottie’s behalf:
          Q:                         Did Mr. Williams have you listen to the
                                     tape-recordings of conversations between
                                     —
          MR. WILLIAMS:              Object to that. It is totally not for the
                                     jurors’ consideration and is not in evidence.
          THE COURT:                 Overruled.
          BY MR. SUTTON:
          Q:                         Did Mr. Williams allow you to listen to
                                     tape-recordings between – conversations
                                     between Mr. Trottie and Barbara Canada?
          A:                         No.
          Q:                         Did he ever mention those recordings to
                                     you?
          A:                         I believe he mentioned that there were
                                     recordings but I didn’t know of what.
          Q:                         Would it surprise you that we had hours of
                                     tape-recordings of conversations between
                                     the defendant and –
          MR. WILLIAMS:              Objection, Judge, referring to something
                                     not in evidence, how long it is. Ask the jury
                                     to disregard.
          THE COURT:                 Sustained. The jury will disregard.
    The court denied defense counsel’s request for a mistrial.
          Recognizing a litigant’s duty to afford great respect to a trial court’s
    evidentiary rulings—especially when speaking in front of a jury—we assume,
    arguendo, that the prosecutor’s statements were improper. Thus, we turn to the
    second prong of the prosecutorial-misconduct inquiry: whether the statements
    substantially affected Trottie’s right to a fair trial. The district court concluded
    that they did not:
          While the prosecutor clearly referred to, and questioned witnesses
    
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                                          No. 11-70028
    
           about, tapes ruled inadmissible, this conduct does not amount to a
           due process violation. The point of the tapes presumably was to
           establish that Trottie had threatened Barbara. Defense counsel
           quickly objected to the improper questioning, and the trial court
           gave a curative instruction. Moreover, as discussed above, there
           was ample evidence that Trottie did threaten Barbara, repeatedly,
           and that the murders resulted from Trottie following through on his
           threats. In light of this evidence and the trial court’s instructions,
           the prosecutorial misconduct did not affect Trottie’s substantial
           rights. Accordingly, he is not entitled to relief.
    See Trottie, 
    2011 WL 4591975
    , at *17.23 This conclusion is not debatable. Trottie
    offers no more than speculation that the court’s curative instructions and its
    response to the jury note were insufficient to neutralize the prosecutor’s
    statements.     Moreover, as the district court noted, the evidence that was
    admitted established—over and over again—that Trottie threatened Barbara’s
    life. Indeed, one witness’s testimony included a long exchange regarding the
    tapes, to which defense counsel did not object. The testimony included the
    following:
           Q:     Tell the jury about the tapings.
           A:     On the date of the killings, he called and said that she had
                  enough time and that he wasn’t going to wait around anymore
                  and that he was going to kill her.
           Q:     Were some of those conversations recorded on cassette tapes?
           A:     Yes.
           ...
           Q:     From what you listened to on the phone, what you heard
                  when he was actually talking and then what you later heard
                  on cassette tapes, was there any difference between what you
                  heard Mr. Trottie saying on the phone to what was recorded
                  on the tapes?
    
    
           23
              The district court concluded that Trottie exhausted this claim, and we agree. See
    Trottie, 
    2011 WL 4591975
    , at *16.
    
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                                      No. 11-70028
    
          A:     No.
    Thus, much of the purported content of the tape recordings was cumulative of
    the evidence already in the record. Accordingly, reasonable jurists would not
    debate the reasonableness of the state habeas court’s decision, and a COA is not
    warranted.
                                    CONCLUSION
          For the reasons stated above, we conclude that reasonable jurists would
    not debate the district court’s conclusions regarding any of Trottie’s Strickland,
    Brady, and prosecutorial-misconduct claims, and Trottie therefore makes no
    substantial showing of the denial of a constitutional right. Accordingly, we
    DENY Trottie’s COA application.
    
    
    
    
                                           33