Dowthitt v. Johnson

Revised November 21, 2000
IN THE UNITED STATES COURT OF APPEALS 1
FOR THE FIFTH CIRCUIT 2
____________________ 3
No. 00-20159 4
____________________ 5
DENNIS THURL DOWTHITT 6
Petitioner - Appellant 7
v. 8
GARY L. JOHNSON, DIRECTOR, 9
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 10
INSTITUTIONAL DIVISION 11
Respondent - Appellee 12
_________________________________________________________________ 13
Appeal from the United States District Court 14
for the Southern District of Texas 15
_________________________________________________________________ 16
October 16, 2000 17
Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit 18
Judges. 19
KING, Chief Judge: 20
Texas death row inmate Dennis Thurl Dowthitt appeals from 21
the district court’s denial of habeas corpus relief. In order to 22
obtain review of his claims, Dowthitt seeks a certificate of 23
appealability (COA) from this court, pursuant to 28 U.S.C. 24
§ 2253(c)(2). We deny Dowthitt’s request for a COA. 25

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1 The evidence indicated that Dowthitt cut Gracie’s throat
once before and once after the sexual assault. Gracie was still
alive during the assault.
2 Delton pled guilty to the murder of Tiffany Purnhagen.
Pursuant to a plea agreement, he was sentenced to 45 years and
testified against his father at trial. In addition, the second
murder charge for Gracie’s death was dropped.
2
I. FACTUAL AND PROCEDURAL BACKGROUND 26
At Dowthitt’s trial, the State presented evidence that 27
Dowthitt and his son, Delton Dowthitt (“Delton”), age 16, picked 28
up Gracie and Tiffany Purnhagen, ages 16 and 9, respectively, on 29
June 13, 1990 in a bowling alley parking lot. According to 30
Delton’s testimony at Dowthitt’s trial, Dowthitt sexually 31
assaulted Gracie with a beer bottle and cut her throat with a 32
knife.1 Meanwhile, Delton strangled Tiffany with a rope.2
33
Following a jury trial, Dowthitt was convicted of the murder 34
of Gracie Purnhagen committed in the course of aggravated sexual 35
assault. On October 9, 1992, based on the jury’s answers, 36
Dowthitt was sentenced to death for capital murder. The Texas 37
Court of Criminal Appeals affirmed his conviction and sentence on 38
June 26, 1996. See Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. 39
App. 1996). 40
On August 18, 1997, Dowthitt filed a state petition for 41
habeas relief. The state district court, on March 6, 1998, 42
entered findings of fact and conclusions of law and recommended 43
that habeas relief be denied. The Court of Criminal Appeals, 44
adopting most of the findings and conclusions, denied Dowthitt 45

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3
habeas relief. See Ex Parte Dowthitt, No. 37,557 (Tex. Crim. 46
App. Sept. 16, 1998). On April 19, 1999, the United States 47
Supreme Court denied Dowthitt’s petition for a writ of 48
certiorari. See Dowthitt v. Texas, 119 S. Ct. 1466 (1999). 49
After obtaining appointment of counsel and a stay of 50
execution, Dowthitt filed his petition for habeas corpus relief 51
in federal district court on December 30, 1998. In response to 52
Dowthitt’s amended petition on February 12, 1999, the State moved 53
for summary judgment. The district court, on January 7, 2000, 54
held an evidentiary hearing on Dowthitt’s actual innocence claim. 55
On January 27, 2000, the district court filed a detailed and 56
careful Memorandum and Order and entered a final judgment, 57
denying Dowthitt habeas relief on all claims, dismissing his case 58
with prejudice, and denying Dowthitt’s request for a COA. After 59
the district court denied his Rule 59(e) motion, Dowthitt timely 60
appealed to this court, requesting a COA and reversal of the 61
district court’s judgment denying habeas relief. 62
II. DISCUSSION 63
Because Dowthitt’s petition for federal habeas relief was 64
filed after April 24, 1997, this appeal is governed by the Anti- 65
Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. 66
L. No. 104-132, 100 Stat. 1214. See Molo v. Johnson, 207 F.3d 67
773, 775 (5th Cir. 2000) (“Petitioners whose convictions became 68

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4
final before the effective date of the AEDPA were given a grace 69
period of one year to file their federal habeas petitions, 70
rendering them timely if filed by April 24, 1997.”). Under 71
AEDPA, a petitioner must first obtain a COA in order for an 72
appellate court to review a district court’s denial of habeas 73
relief. See 28 U.S.C. § 2253(c)(1)(A). 74
28 U.S.C. § 2253(c)(2) mandates that a COA will not issue 75
unless the petitioner makes “a substantial showing of the denial 76
of a constitutional right.” This standard “includes showing that 77
reasonable jurists could debate whether (or, for that matter, 78
agree that) the petition should have been resolved in a different 79
manner or that the issues presented were adequate to deserve 80
encouragement to proceed further.” Slack v. McDaniel, 120 S. Ct. 81
1595, 1603-04 (2000) (internal quotations and citations omitted); 82
see also Hill v. Johnson, 210 F.3d 481, 484 (5th Cir. 2000). 83
The formulation of the COA test is dependent upon whether 84
the district court dismisses the petitioner’s claim on 85
constitutional or procedural grounds. If the district court 86
rejects the constitutional claims on the merits, the petitioner 87
“must demonstrate that reasonable jurists would find the district 88
court’s assessment of the constitutional claims debatable or 89
wrong.” Slack, 120 S. Ct. at 1604. On the other hand, 90
[w]hen the district court denies a habeas petition on 91
procedural grounds without reaching the prisoner’s 92
underlying constitutional claim, a COA should issue 93
when the prisoner shows, at least, that jurists of 94
reason would find it debatable whether the petition 95

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5
states a valid claim of a denial of a constitutional 96
right and that jurists of reason would find it 97
debatable whether the district court was correct in its 98
procedural ruling. 99
Id. (emphasis added); see also Hernandez v. Johnson, 213 F.3d 100
243, 248 (5th Cir. 2000). 101
Furthermore, “the determination of whether a COA should 102
issue must be made by viewing the petitioner’s arguments through 103
the lens of the deferential scheme laid out in 28 U.S.C. 104
§ 2254(d).” Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 105
2000). We give deference to a state court decision for “any 106
claim that was adjudicated on the merits in State court 107
proceedings” unless the decision was either “contrary to, or 108
involved an unreasonable application of, clearly established 109
Federal law, as determined by the Supreme Court of the United 110
States,” 28 U.S.C. § 2254(d)(1), or the decision “was based on an 111
unreasonable determination of the facts in light of the evidence 112
presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2). 113
The “contrary to” requirement “refers to the holdings, as 114
opposed to the dicta, of . . . [the Supreme Court’s] decisions as 115
of the time of the relevant state-court decision.” (Terry) 116
Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000). The inquiry 117
into whether the decision was based on an “unreasonable 118
determination of the facts” constrains a federal court in its 119
habeas review due to the deference it must accord the state 120
court. See id. 121

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3 Dowthitt states in his opening brief that he does not
appeal all of the issues decided by the district court; he also
states that he does not appeal all of the sub-issues within the
issues he does appeal. As such, he preserves only the briefed
issues for this appeal. See 28 U.S.C. § 2253(c)(3) (“certificate
of appealability . . . shall indicate which specific issue or
issues” are the basis for relief); see also Trevino v. Johnson,
168 F.3d 173, 181 n.3 (5th Cir. 1999) (stating that issues not
briefed on appeal are deemed waived).
6
Under the “contrary to” clause, a federal habeas court 122
may grant the writ if the state court arrives at a 123
conclusion opposite to that reached by . . . [the 124
Supreme Court] on a question of law or if the state 125
court decides a case differently than . . . [the 126
Supreme Court] has on a set of materially 127
indistinguishable facts. Under the “unreasonable 128
application” clause, a federal habeas court may grant 129
the writ if the state court identifies the correct 130
governing legal principle from . . . [the Supreme 131
Court’s] decisions but unreasonably applies that 132
principle to the facts of the prisoner’s case. 133
Id. 134
Section 2254(d)(2) speaks to factual determinations made by 135
the state courts. See 28 U.S.C. § 2254(e)(1). While we presume 136
such determinations to be correct, the petitioner can rebut this 137
presumption by clear and convincing evidence. See id. Absent an 138
unreasonable determination in light of the record, we will give 139
deference to the state court’s fact findings. See id. 140
§ 2254(d)(2). 141
Dowthitt seeks a COA from this court on the following 142
issues3: (1) actual innocence, (2) ineffective assistance of 143
counsel, (3) admission of DNA evidence without a factual 144
predicate, (4) State misconduct, (5) failure to instruct the jury 145

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4 “This rule is grounded in the principle that federal
habeas courts sit to ensure that individuals are not imprisoned
in violation of the Constitution — not to correct errors of
fact.” Id.
7
on lesser-included offenses, and (6) the district court’s limited 146
evidentiary hearing. 147
A. Actual Innocence 148
“Claims of actual innocence based on newly discovered 149
evidence have never been held to state a ground for federal 150
habeas relief absent an independent constitutional violation 151
occurring in the underlying state criminal proceeding.” Herrera 152
v. Collins, 506 U.S. 390, 400 (1993).4 Rather, a claim of actual 153
innocence is “a gateway through which a habeas petitioner must 154
pass to have his otherwise barred constitutional claim considered 155
on the merits.” Id. at 404. In order for Dowthitt to obtain 156
relief on this claim, “the evidence must establish substantial 157
doubt about his guilt to justify the conclusion that his 158
execution would be a miscarriage of justice unless his conviction 159
was the product of a fair trial.” Schlup v. Delo, 513 U.S. 298, 160
316 (1995) (emphasis added). 161
The Herrera Court did assume, arguendo, “that in a capital 162
case a truly persuasive demonstration of ‘actual innocence’ made 163
after trial would . . . warrant habeas relief if there were no 164
state avenue open to process such a claim.” 506 U.S. at 417. 165
However, this circuit has rejected this theory. See Graham v. 166

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5 See section II.C, infra, which discusses a procedurally
barred claim.
6 In his reply brief, Dowthitt also simply lists other
arguments in support of his actual innocence claim, such as
Delton’s prior violent conduct and the lack of physical evidence.
However, because he did not address these sub-issues in his
opening brief, we will not consider them. See Pyles v. Johnson,
136 F.3d 986, 996 n.9 (5th Cir. 1998) (“An appellant abandons all
issues not raised and argued in his initial brief on appeal.”
(internal quotations and citation omitted)); see also Trevino v.
Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999) (stating that
inadequately argued issues are considered waived).
8
Johnson, 168 F.3d 762, 788 (5th Cir. 1999), cert. denied, 120 S. 167
Ct. 1830 (2000). 168
Thus, Dowthitt must first raise substantial doubt about his 169
guilt, which would then cause us to examine any barred 170
constitutional claims.5 Dowthitt’s main argument in support of 171
his innocence is that his son Delton confessed to killing 172
Gracie.6 Dowthitt bases this claim on the following: a signed 173
declaration by his nephew Billy Sherman Dowthitt that Delton told 174
him that “Delton killed his girlfriend”; an unsigned affidavit of 175
David Tipps, a former prison inmate in Delton’s prison block, 176
stating that Delton claimed to have killed both girls; a signed 177
affidavit by Joseph Ward, a defense investigator, who states he 178
drew up the affidavit that Tipps later refused to sign out of 179
fear for himself; a signed affidavit of James Dowthitt, 180
Dowthitt’s brother, that his son Billy told him that Delton said 181
he had killed both girls; and Dowthitt’s own written proffer of 182
innocence. 183

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9
Not finding it necessary to conduct an evidentiary hearing, 184
the state habeas court rendered its decision based upon the 185
record. The court found that Delton “did not recant his trial 186
testimony” that Dowthitt killed Gracie and that Billy “never 187
stated that Delton . . . said he killed both girls.” 188
The federal district court did, however, hold an evidentiary 189
hearing on Dowthitt’s actual innocence claim. Delton again 190
testified in this evidentiary hearing that his father killed 191
Gracie and that he never told Billy otherwise. The court held 192
Dowthitt’s other proffered statements inadmissible hearsay and 193
found that even if Billy’s statement were to be considered, they 194
failed to provide any convincing account of the events. 195
Determining, in addition, that the state findings were not 196
unreasonable, the district court held that Dowthitt’s claim of 197
actual innocence fell far short of the threshold set by the 198
Supreme Court in Herrera. 199
We conclude that Dowthitt has not raised “substantial doubt” 200
as to his guilt. Dowthitt’s newly discovered evidence consists 201
solely of affidavits, and these affidavits are “particularly 202
suspect . . . because they consist of hearsay.” Herrera, 506 203
U.S. at 417. What Delton allegedly told others is hearsay and 204
does not fall under any exception to the hearsay rule. Cf. FED. 205
R. EVID. 804(b)(3) (statement against interest exception requires 206
that the declarant be unavailable, and in this case, Delton, far 207
from being unavailable, testified at trial and at the district 208

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10
court’s evidentiary hearing). Not only do Dowthitt’s proffers 209
consist of hearsay (some with multiple levels), one is also 210
unsigned. As such, this evidence is not nearly strong enough to 211
raise a substantial doubt about Dowthitt’s guilt. Cf. Schlup, 212
513 U.S. at 331 (finding that the “sworn testimony of several 213
eyewitnesses that . . . [the petitioner] was not involved in the 214
crime” raised a sufficient issue that required an evidentiary 215
hearing). 216
In addition, even if we were to consider Billy’s hearsay 217
affidavit, we agree with the State that it does not possess 218
sufficient “indicia of reliability” due to its inconsistency with 219
the physical evidence. The physical evidence established that 220
Gracie (who was considered Delton’s girlfriend) died from knife 221
wounds to her throat after being sexually assaulted, while her 222
younger sister Tiffany was strangled. Billy, however, states 223
that Delton said he strangled his girlfriend, while Dowthitt 224
sexually assaulted and stabbed the “little girl.” As this does 225
not comport with the physical evidence, Billy’s statements do not 226
provide us with a convincing account of the events. 227
Furthermore, what Dowthitt puts forth is actually not “newly 228
discovered” evidence. He presented the substance of the 229
affidavits at his trial. In particular, as the state habeas 230
court found, “Delton’s first confession, in which he stated that 231
he killed both girls, was admitted in evidence.” Delton was 232
cross-examined as to his plea agreement and his prior 233

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7 During the State’s rehabilitation of Delton’s testimony,
Delton’s attorney testified as to a prior consistent statement:
that, prior to the plea agreement, Delton had told him that his
father killed Gracie. The state court, on direct appeal, found
that the admission of the attorney’s testimony was not erroneous.
11
inconsistent confession.7 Thus, the jury had the opportunity to 234
take into account both versions of the murders and determine 235
which was more credible. The jury, with the ability to listen to 236
live testimony, was in a better position to judge the credibility 237
of the witnesses and the accounts of the events; absent a lack of 238
support in the record, we will not second guess their 239
determination. See United States v. Ramos-Garcia, 184 F.3d 463, 240
466 (5th Cir. 1999) (stating that the jury evidently did not 241
believe the alternative explanation of the events and that the 242
court would “‘not second guess the jury in its choice’”); United 243
States v. Kaufman, 858 F.2d 994, 1004 (5th Cir. 1988) (finding 244
that it was a “serious mistake . . . to second-guess judgments 245
that . . . [were made] firsthand”). 246
We find that Dowthitt’s proffered evidence establishing his 247
actual innocence fails to raise a substantial doubt as to his 248
guilt. 249
B. Ineffective Assistance of Counsel 250
Dowthitt must make a substantial showing of a denial of his 251
Sixth Amendment right to counsel to obtain a COA. His 252
ineffective assistance of counsel claim meets the threshold 253

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12
question under AEDPA, § 2254(d)(1), that the rule of law be 254
clearly established at the time of the state court conviction in 255
1992. This is so because the merits of an ineffective assistance 256
of counsel claim are governed by the well-established rule of 257
Strickland v. Washington, 466 U.S. 668 (1984). Dowthitt must 258
establish both prongs of the Strickland test in order to prevail. 259
First, he “must show that counsel’s performance was deficient.” 260
Id. at 687. Second, he “must show that the deficient performance 261
prejudiced . . . [his] defense.” Id. 262
Deficient performance is established by showing “that 263
counsel’s representation fell below an objective standard of 264
reasonableness.” Id. at 688; Hernandez v. Johnson, 213 F.3d 243, 265
249 (5th Cir. 2000). Moreover, as the Supreme Court has 266
counseled, a “fair assessment of attorney performance requires 267
that every effort be made to eliminate the distorting effects of 268
hindsight . . . and to evaluate the conduct from counsel’s 269
perspective at the time.” Strickland, 466 U.S. at 689. Thus, 270
our scrutiny of counsel’s performance is highly deferential. See 271
id. We must be particularly wary of “argument[s] [that] 272
essentially come[] down to a matter of degrees. Did counsel 273
investigate enough? Did counsel present enough mitigating 274
evidence? Those questions are even less susceptible to judicial 275
second-guessing.” Kitchens v. Johnson, 190 F.3d 698, 703 (5th 276
Cir. 1999). 277

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13
Prejudice ensues when “there is a reasonable probability 278
that, but for the counsel’s unprofessional errors, the result of 279
the proceedings would have been different.” Clark v. Johnson, 280
--- F.3d ----, 2000 WL 1285270, *7 (5th Cir. 2000) (internal 281
quotations omitted) (quoting Strickland, 466 U.S. at 694). “A 282
reasonable probability is a probability sufficient to undermine 283
confidence in the outcome.” Strickland, 466 U.S. at 694. 284
In his ineffective assistance of counsel claim, Dowthitt 285
raises several sub-issues concerning his mitigation defense, 286
investigation, and closing arguments. We will examine each of 287
his claims in turn. 288
1. Failure to Present a Mitigation Defense 289
Based on Mental Illness 290
Dowthitt argues that trial counsel failed to present a 291
mitigation defense based on mental illness. In support of this 292
argument, Dowthitt points to several aspects of his life and 293
trial. He states that his habeas counsel located records 294
indicating he suffered from mental illness that were not 295
discovered by trial counsel. A 1964 re-admission form from 296
Austin State Hospital shows that a young Dowthitt was diagnosed 297
as having a “schizophrenic reaction” of a “chronic paranoid type” 298
and was committed temporarily. The admission history also states 299
that when Dowthitt was hospitalized due to an automobile accident 300
in August 1962, a test “showed slight brain damage.” In 301
addition, Dowthitt points to Sergeant Walter Blakeslee’s 302

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14
statement of July 14, 1964 recommending that Dowthitt be 303
discharged from the Air Force. Blakeslee stated “it was evident 304
to . . . [him] that Airman Dowthitt was suffering from some 305
mental deficiency.” 306
Dowthitt also relies heavily on declarations from Dr. Paula 307
Lundberg-Love and Dr. Faye E. Sultan, mental health experts hired 308
by habeas counsel. Lundberg-Love stated that her “clinical 309
impression was that . . . [Dowthitt] was not sadistic or 310
sociopathic.” She further wrote that Dowthitt’s “profile was 311
consistent with paranoid and schizophrenic features” and that he 312
suffers from depression. Sultan stated in her affidavit that the 313
interrogation videotapes showed Dowthitt’s “severe mental 314
problems” and that the trial mental health expert’s “examination 315
was cursory.” She also wrote that Dowthitt “functions quite 316
peacefully and successfully within the prison environment,” 317
rebutting the predictions made at trial about his potential for 318
future dangerousness. 319
Dowthitt argues that trial counsel’s affidavits provide 320
further support for their deficient performance with regard to 321
his mitigation defense. He states that, by their own words, 322
trial counsel did not investigate mental health defenses because 323
they “had no knowledge that Defendant suffered brain damage,” and 324
“he appeared sane and competent at all times.” Dowthitt further 325
quotes trial counsel’s affidavit: “During our many interviews 326
Defendant never appeared to be suffering from any mental problems 327

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15
other than being upset and unhappy about his circumstances.” 328
Dowthitt asserts that such impressions on the part of trial 329
counsel were not reasonable because he was on anti-depressants 330
during that time, because his video-taped interrogation exposes 331
his unstable state of mind, and because the Lundberg-Love and 332
Sultan declarations confirm his mental illness. 333
Citing to Goss v. State, the State responds that Texas 334
caselaw has discounted mitigation evidence not relevant to the 335
crime or future dangerousness. 826 S.W.2d 162, 165 (Tex. Crim 336
App. 1992), cert. denied, 509 U.S. 922 (1993). The State further 337
argues that, even in the face of Dowthitt’s repeated denials of 338
any mental problems, trial counsel retained a psychiatrist to 339
examine Dowthitt. The State also points out that Dowthitt 340
received funds for neuropsychological expert assistance during 341
the state habeas corpus proceedings, but that no evidence from 342
that expert’s testing has ever been presented. 343
As for the reports of Lundberg-Love and Sultan, the State 344
asserts that they are precluded from consideration because they 345
were not presented to the state courts. Further, the State 346
claims that Dowthitt has not established cause and prejudice for 347
his failure to develop this evidence below. Finally, citing to 348
the district court’s findings, the State argues that even if the 349
reports were considered, they are insufficient because Lundberg- 350
Love and Sultan appeared to have formed their impressions from 351
speaking with Dowthitt’s habeas counsel. 352

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8 The state habeas court also found trial counsel’s
affidavits, explaining that Dowthitt did not appear to be
suffering from mental problems, to be credible.
16
In reply, Dowthitt argues that under the Supreme Court’s 353
decision in (Terry) Williams v. Taylor, the “nexus” requirement 354
for mitigation evidence is erroneous. He further states that 355
although the State continuously refers to “brain damage,” he is 356
contesting trial counsel’s failure with regard to “mental 357
illness.” And, Dowthitt asserts that the Lundberg-Love and 358
Sultan reports are not barred from consideration because he has 359
established “cause” via the denial of funding to obtain experts 360
by the state habeas courts. 361
As for Dowthitt’s brain damage claim, the state habeas court 362
found that Dowthitt was competent to stand trial, that no 363
neuropsychological expert had found that Dowthitt suffered from 364
brain damage, and that Dowthitt exhibited no signs of brain 365
damage. These findings8 are not unreasonable in light of the 366
record, and Dowthitt has not presented clear and convincing 367
evidence rebutting their presumption of correctness. Moreover, 368
Dowthitt concedes these findings in his reply brief by abandoning 369
his initial reliance, in part, on brain damage. He states that 370
“mental illness . . . is the mitigation evidence upon which . . . 371
[he] bases his ineffectiveness claims.” 372
As for the evidence indicating “mental illness” (the Austin 373
State Hospital and the Air Force records), we are bound by the 374

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9 The state habeas court also found that Dowthitt was not
medicated during trial with any anti-depressant or other mind-
altering medication.
10 We note that Dowthitt steadfastly denied to his trial
counsel that he had any mental problems. See Strickland, 466
U.S. at 691 (“The reasonableness of counsel’s actions may be
determined or substantially influenced by the defendant’s own
statements or actions.”). Still, trial counsel did retain a
psychiatrist, Dr. Fred Fason, to examine Dowthitt; the Sixth
Amendment does not require counsel to continue searching until
they find an expert willing to provide more beneficial testimony
on their behalf.
17
state habeas court’s findings that these records included 375
“information which could have hurt . . . [Dowthitt’s] case.”9
376
Such information included, among other data, the following: that 377
Dowthitt attempted to rape his eight-year old niece, that he had 378
allegedly molested the same girl when she was five, that he had 379
an immature personality (as opposed to psychotic tendencies), and 380
that he “showed a temper and insisted on having his own way.” In 381
light of these details, the state habeas court’s findings are 382
clearly supported by the record. See 28 U.S.C. § 2254(d)(2). 383
Thus, even assuming arguendo that trial counsel were 384
deficient in failing to discover these medical records,10
385
Dowthitt was not prejudiced in his defense. See Buxton v. 386
Lynaugh, 879 F.2d 140, 142 (5th Cir. 1989) (“Strickland allows 387
the habeas court to look at either prong first; if either one is 388
found dispositive, it is not necessary to address the other.”). 389
There is no “reasonable probability” that the outcome would have 390
been different because the evidence was double edged in nature. 391

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11 Section 2254(e) deals with when a petitioner is entitled
to an evidentiary hearing in federal district court even though
he has failed to develop the factual bases of his claims in state
habeas proceedings.
12 Section 2254(b)(1)(A) states, in part, that “a writ of
habeas corpus . . . shall not be granted unless it appears that
the Applicant has exhausted the remedies available in the courts
of the State.”
18
As such, trial counsel’s actions in not discovering and 392
presenting the records to the jury to bring out indications of 393
mental illness do not create a “probability sufficient to 394
undermine confidence in the outcome.” Strickland, 466 U.S. at 395
694. 396
The state habeas court did not make additional findings 397
dealing with Dowthitt’s asserted mental illness because Dowthitt 398
did not present any other evidence to that court. The Lundberg- 399
Love and Sultan affidavits were introduced for the first time to 400
the district court on federal habeas review. Thus, we must 401
initially answer the threshold question of whether we are 402
precluded from considering these affidavits. Although both the 403
State and Dowthitt argue this issue as one of “factual 404
development” under § 2254(d) and (e),11 it is more accurately 405
analyzed under the “exhaustion” rubric of § 2254(b).12
406
“We have held that a habeas petitioner fails to exhaust 407
state remedies when he presents material additional evidentiary 408
support to the federal court that was not presented to the state 409
court.” Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996) 410

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19
(emphasis added); see also Young v. Lynaugh, 821 F.2d 1133, 1139 411
(5th Cir. 1987), abrogation on other grounds recognized by 412
Hendrix v. Lynaugh, 888 F.2d 336 (5th Cir. 1989); Brown v. 413
Estelle, 701 F.2d 494, 495-96 (5th Cir. 1983). Furthermore, “we 414
are unwilling to . . . accommodate new factual allegations in 415
support of a previously asserted legal theory, even though these 416
factual allegations came into existence after the state habeas 417
relief had been denied.” Joyner v. King, 786 F.2d 1317, 1320 418
(5th Cir. 1986) (emphasis added). 419
Thus, we must first determine whether this claim is before 420
us “in a significantly different and stronger evidentiary posture 421
than it was before the state courts.” Joyner, 786 F.2d at 1320. 422
We find that Dowthitt does not allege “new facts” via the 423
affidavits of the two experts because “all crucial factual 424
allegations were before the state courts at the time they ruled 425
on the merits” of Dowthitt’s habeas petition. See Young, 821 426
F.2d at 1139; cf. Graham, 94 F.3d at 969 (finding no exhaustion 427
in the case because petitioner did present significant new facts 428
in his federal petition). Dowthitt had presented to the state 429
habeas court his assertions of mental illness of the 430
schizophrenic, paranoid type. The Lundberg-Love and Sultan 431
affidavits add little to those claims. 432
While we find that consideration of these affidavits is not 433
precluded, we do not find them to demonstrate a substantial 434
showing of the denial of the Sixth Amendment right to counsel. 435

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13 For example, Sultan states that Dowthitt “spent much of
the interrogation hooked up to a polygraph machine, looking
terrified and confused.” However, she does not list the
interrogation videotapes among the materials that she reviewed.
14 Lundberg-Love also noted that she would have testified
regarding the consequences of his mental illness.
15 We pause briefly to address the parties’ arguments
regarding the “nexus” requirement for a mitigation defense. So
far as the State is asserting that mitigating evidence “not
connected to the crime or future dangerousness” cannot be
20
Even if trial counsel had obtained this information, Dowthitt 436
fails to demonstrate that such information would have altered the 437
jury’s judgment. Sultan’s affidavit is based on her review of a 438
portion of the paper record, and she did not personally interview 439
Dowthitt. We also agree with the district court’s assessment 440
that “much of Dr. Sultan’s initial declaration is based on her 441
discussions with habeas counsel rather than on independent 442
analysis” because her statements put forth information that she 443
could not have known otherwise.13
444
Lundberg-Love’s affidavit also presents similar problems. 445
She stated that she could have testified to Dowthitt’s mental 446
trauma “that he was experiencing as a result of witnessing Delton 447
sexually assault Gracie after he had cut her throat and killed 448
her sister prior to . . . [Dowthitt’s] arrival back at the murder 449
scene.”14 As the jury had decided not to believe Dowthitt’s 450
claims, this version of the murders would not be credited during 451
sentencing. Therefore, even assuming arguendo that trial 452
counsel’s performance was deficient,15 Dowthitt fails to make a 453

-- 20 of 52 --

considered, it is not consistent with the Supreme Court’s most
recent statement on this issue: “Mitigating evidence unrelated
to dangerousness may alter the jury’s selection of penalty, even
if it does not undermine or rebut the prosecution’s death-
eligibility case.” (Terry) Williams v. Taylor, 120 S. Ct. 1495,
1516 (2000). While the jury can take into account the “totality
of available mitigation evidence,” id. at 1515, “a tactical
decision not to present character evidence during the penalty
phase of a capital murder trial because it would open the door
for incidents of prior misconduct . . . [is] not unsound.”
Barrientes, 221 F.3d at 774.
21
substantial showing of prejudice on this Strickland claim as he 454
does not demonstrate a sufficient probability that the alleged 455
errors of trial counsel undermined confidence in the outcome. 456
See, e.g., Boyd v. Johnson, 167 F.3d 907, 910 (5th Cir.), cert. 457
denied, 527 U.S. 1055 (1999) (“The potential negative impact of 458
the retardation evidence, in addition to the cold-blooded nature 459
of the murder and . . . [defendant’s] other violent conduct, 460
persuades us that the outcome of the sentencing would not have 461
been different if counsel would have investigated further.”). 462
2. Failure to Competently Prepare and Use Dr. Fason 463
Dowthitt next asserts constitutional error with regard to 464
trial counsel’s inadequate development of Dr. Fred Fason’s 465
testimony. Counsel retained Dr. Fason, a psychiatrist, to 466
examine Dowthitt on several issues regarding Dowthitt’s mental 467
state. Dowthitt argues that trial counsel did not competently 468
prepare Dr. Fason and did not call Dr. Fason as a witness during 469
trial. 470

-- 21 of 52 --

16 Dowthitt also refers to jailhouse records that would
indicate the time spent in the particular interview. He contends
that the State has not released them. However, he does not
develop this argument further and, as such, has not adequately
briefed this issue for our consideration. See Trevino v.
Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999) (stating that
inadequately argued issues are considered waived).
22
The state habeas court noted the integrity of trial counsel 471
and found their affidavits to be credible. In their affidavits, 472
trial counsel stated that Dr. Fason had a “lengthy interview” 473
with Dowthitt and “spent many hours reviewing various tapes and 474
discussing this case” with counsel. Dowthitt, in turn, points to 475
Dr. Fason’s May 13, 1992 notes and states that they “indicate a 476
very short jailhouse interview.” He further asserts that he 477
“remembers” the interview being “exceedingly short.” Dowthitt 478
does not explain how the notes “indicate” the length of the 479
interview. Dowthitt’s personal beliefs, although they may be 480
genuine, do not present clear and convincing evidence that would 481
rebut the state court’s findings.16
482
Dowthitt also asserts that trial counsel did not request Dr. 483
Fason to conduct an evaluation for mitigation purposes. The 484
State responds, however, that a letter in trial counsel’s files 485
reveals that just such an evaluation was requested. Dowthitt has 486
failed to raise a substantial issue that trial counsel was not 487
reasonable in pursuing a mitigation defense. 488
In addition, Dowthitt contests trial counsel’s decision not 489
to call Dr. Fason to testify on Dowthitt’s behalf at trial. He 490

-- 22 of 52 --

17 In addition, trial counsel’s affidavit, found credible
by the state habeas court, states that Dr. Fason reported to them
personally that he believed that Dowthitt was a very dangerous
individual.
18 Dowthitt vehemently contests the beneficial impact of
Quijano’s testimony on cross-examination. However, given the
damage that could have been caused by Dr. Fason’s testimony and
that some of Dr. Quijano’s statements could have been considered
in Dowthitt’s favor by the jury, trial counsel’s decision was the
result of strategic considerations, one which will not be second-
guessed on federal habeas appeal.
In addition, Dowthitt notes that another capital case has
recently been reversed due to Dr. Quijano’s improper testimony.
However, that does not automatically mandate a finding of error
in this case.
23
claims that Dr. Fason’s report would have demonstrated that he 491
was not dangerous. This assertion fails to meet the deficient 492
performance prong of Strickland. Although Dr. Fason’s report 493
contains some information relating to mitigating factors, 494
statements detrimental to Dowthitt are also included that clearly 495
indicate his unwillingness to testify in Dowthitt’s favor. Thus, 496
trial counsel’s decision not to put a witness on the stand who 497
himself is not entirely favorable toward Dowthitt, and 498
furthermore, who would have to respond with more damaging 499
information during the State’s cross-examination, is not 500
objectively unreasonable.17 Trial counsel also elicited 501
favorable information during cross-examination of the State’s 502
expert witness, Dr. Walter Quijano.18 This further supports the 503
conclusion that the trial counsel’s decision not to put Dr. Fason 504
on the stand was a matter of trial strategy. See Strickland, 466 505
U.S. at 699. 506

-- 23 of 52 --

24
Dowthitt also argues that trial counsel should have found 507
another expert who would be willing to testify to Dowthitt’s lack 508
of future dangerousness based on his mental condition. As the 509
district court noted, even in the face of Dowthitt’s steadfast 510
denial of any mental problems, trial counsel, “in an abundance of 511
caution,” retained a psychiatrist. Thus, the state habeas court 512
finding that trial counsel were “relentless” in their pursuit of 513
Dowthitt’s defense is not unreasonable. We also find that 514
“[t]rial counsel performed appropriately, recognizing the 515
possible issues regarding . . . [the defendant’s] mental 516
capacity, recognizing the need for expert assistance in exploring 517
these issues,” and employing a defense expert. White v. Johnson, 518
153 F.3d 197, 207 (5th Cir. 1998) (emphasis added). Under the 519
circumstances, trial counsel was not deficient by not canvassing 520
the field to find a more favorable defense expert. 521
Dowthitt has failed to make a substantial showing on this 522
ineffective assistance counsel claim. We find that reasonable 523
jurists would not debate the propriety of granting a COA on this 524
issue. 525
3. Failure to Present Dowthitt’s Mercy-Evoking Background as 526
Mitigation Through Family Members 527
Dowthitt claims that trial counsel committed constitutional 528
error by not presenting mitigation evidence via family members 529
during the punishment phase of the trial. He argues that the 530
following family members’ affidavits demonstrate that they would 531

-- 24 of 52 --

19 We note that the state habeas court found that Dowthitt
failed to obtain affidavits of his family members and did not
show that they could not be obtained without court order. We
agree with the district court’s assessment that Dowthitt was not
justified in not presenting those affidavits to the state habeas
court. However, this impacts the need for a federal evidentiary
25
have testified to Dowthitt’s abusive upbringing, his mental 532
difficulties, and his loving relationship with some of his 533
children: Darlene Glover, Dowthitt’s sister; Stacey Dowthitt, 534
Dowthitt’s step-son; and Danna Taft, Dowthitt’s wife. 535
As an initial matter, the State argues that consideration of 536
these affidavits is barred on federal habeas appeal because they 537
were not presented to the state courts. The State bases this 538
argument on § 2254(d) and (e). As we explained in section 539
II.B.1, this issue is more appropriately analyzed under the 540
§ 2254(b) exhaustion framework. Thus, if the case is in a 541
significantly stronger evidentiary framework before the federal 542
habeas court than it was before the state habeas court, the 543
exhaustion requirement has not been satisfied. See section 544
II.B.1, supra. Dowthitt replies that the substance of these 545
affidavits was presented to the state courts through the 546
affidavits of the state habeas investigator detailing his 547
interviews with these family members. We agree with Dowthitt 548
that no “new facts” are presented to us and that the state habeas 549
court had the critical facts before it. See Young, 821 F.2d at 550
1139. Thus, the exhaustion requirement of § 2254(b) has been 551
satisfied.19
552

-- 25 of 52 --

hearing under § 2254(e) and is not relevant to the exhaustion
determination under § 2254(b). See, infra, section II.F.
20 We also note that in their affidavit, found credible by
the state habeas court, trial counsel stated they “discussed the
case in detail” with Dowthitt.
21 The state habeas court found that they did speak with
Stacey Dowthitt.
26
The state habeas court found that Dowthitt “did not want any 553
of his family testifying on his behalf.” Counsel will not be 554
deemed ineffective for following their client’s wishes, so long 555
as the client made an informed decision. See Autry v. McKaskle, 556
727 F.2d 358, 361 (5th Cir. 1984) (“By no measure can . . . [the 557
defendant] block his lawyer’s efforts and later claim the 558
resulting performance was constitutionally deficient.”). 559
Dowthitt contests the state habeas court’s finding by arguing 560
that he did not understand the import of mitigating evidence (and 561
trial counsel did not even discuss it with him). We agree with 562
the district court that Dowthitt’s personal belief (in a proffer 563
submitted at the January 7, 2000 hearing) does not present clear 564
and convincing evidence to rebut the state court’s finding.20
565
In addition, trial counsel, in an affidavit found to be 566
credible by the state habeas court, stated that they “attempted 567
to talk to anyone” who would cooperate21 and that many potential 568
witnesses did not want to become involved. Thus, trial counsel 569
attempted to delve into Dowthitt’s background, but were hindered 570
by external forces. Unlike trial counsel in (Terry) Williams v. 571

-- 26 of 52 --

27
Taylor, 120 S. Ct. 1495 (2000), counsel’s actions here would be 572
characterized as reasonable trial strategy because they attempted 573
to investigate Dowthitt’s background and were thwarted by 574
uncooperative potential witnesses. 575
Trial counsel further stated in their affidavit that some 576
people who did speak with them had knowledge of factors 577
detrimental to Dowthitt. We have held that the “failure to 578
present . . . evidence would not constitute ‘deficient’ 579
performance within the meaning of Strickland if . . . [counsel] 580
could have concluded, for tactical reasons, that attempting to 581
present such evidence would be unwise.” Williams v. Cain, 125 582
F.3d 269, 278 (5th Cir. 1997); cf. (Terry) Williams, 120 S. Ct. 583
at 1497-98 (finding that counsel’s tactical decision to focus on 584
defendant’s voluntary confession, without undertaking any sort of 585
investigation into defendant’s background, was not justifiable 586
trial strategy). 587
Thus, Dowthitt has not made a substantial showing that the 588
actions of his trial counsel were objectively unreasonable. As 589
he fails to demonstrate sufficient evidence to meet the deficient 590
performance prong of the Strickland test, he has not shown that 591
the issue is debatable among reasonable jurists. We therefore 592
deny Dowthitt’s request for a COA based on this ineffective 593
assistance of counsel claim. 594
4. Failure to Investigate for the Guilt/Innocence Phase and the 595
Punishment Phase 596

-- 27 of 52 --

22 The State also asserts that Dowthitt has failed to
present any exculpatory DNA evidence, despite court funding for
further testing. Dowthitt responds that there was no residue
left upon which to conduct such testing, “even at trial.” We
question how Dowthitt can make this statement and yet fault trial
counsel for allegedly not having their own DNA tests performed.
23 The state habeas court also found specifically that
counsel hired a qualified fingerprint expert, who confirmed the
State’s findings.
28
Dowthitt argues that trial counsel did not adequately 597
conduct their own investigation. In this regard, he makes the 598
following contentions: trial counsel did not interview any 599
significant State witnesses, “deferring” instead to the State’s 600
version of the events without performing independent analysis; 601
they did not discover that Darla Dowthitt’s own trial had been 602
repeatedly reset and did not inform the jury about her pending 603
felony case for indecency with a child; they failed to adequately 604
impeach Delton by not presenting his prior misconduct; and they 605
did not follow through on their own DNA testing. 606
The state habeas court found that, based on the credible 607
affidavits of trial counsel, “trial counsel extensively reviewed 608
the State’s file and evidence collected in this case.” Trial 609
counsel also stated in their affidavit that they hired DNA,22
610
fingerprinting,23 and psychiatric experts. The record 611
illustrates that these experts made findings in line with the 612
State’s evidence. We find that trial counsel did not blindly bow 613
to the State’s evidence and attempted to dispute it. That they 614

-- 28 of 52 --

29
were not successful in their attempts does not render their 615
performance deficient. 616
The state habeas court also found that “trial counsel 617
investigated Delton’s background.” This finding is reasonable in 618
light of the record. Trial counsel knew about Delton’s prior 619
misconduct and actually attempted to admit evidence of this 620
during trial. The trial court, however, excluded them (after a 621
hearing on the issue) as violating Texas Rule of Criminal 622
Evidence 609(b). Dowthitt’s only response to this is that the 623
Texas rules of evidence should be found offensive to the 624
Constitution because they unfairly and arbitrarily prejudiced his 625
defense. 626
However, the very case that Dowthitt cites for support 627
recognizes that the fundamental fairness concept works to 628
discredit evidentiary rules in very limited circumstances. See 629
Fuller v. State, 829 S.W.2d 191, 207-08 (Tex. Crim. App. 1992). 630
The Fuller court emphasized that the Constitution does not easily 631
undo the rules of evidence: 632
Every rule of evidence works a hardship on some 633
litigants part of the time, and it is easy to 634
sympathize with the frustration of any party whose most 635
promising strategy turns out to be objectionable under 636
the law. But we are not at liberty to relieve every 637
such disappointment with an ad hoc suspension of the 638
Rules. 639
Id. at 207. The Fuller court noted that “the report Appellant 640
sought to introduce in this case is precisely the sort of thing 641
which the hearsay rule, in spite of its many exceptions, is still 642

-- 29 of 52 --

24 We note that the State points out that trial counsel did
elicit some evidence of past misconduct from Quijano and Delton.
30
specifically designed to exclude.” Id. at 208. Similarly, in 643
this case, Dowthitt sought to introduce evidence that went to the 644
heart of the rules of evidence against using prior misconduct to 645
show conformity with the alleged conduct.24 This is not the sort 646
of instance that demands the use of the Constitution to disregard 647
fundamental evidentiary rules. 648
We also find that trial counsel’s performance was not 649
deficient with regard to discovering Darla Dowthitt’s felony 650
indictment for indecency with a child. Trial counsel requested 651
and received a discovery order for the criminal record of all 652
State witnesses. Dowthitt falls far short of demonstrating 653
deficient performance in this regard. 654
Dowthitt has not made a substantial showing of ineffective 655
assistance of counsel due to inadequate investigation. As such, 656
he is not entitled to a COA on this claim. 657
5. Inadequate Closing Arguments at the Guilt/Innocence 658
Phase and the Penalty Phase 659
Dowthitt argues that trial counsel’s closing arguments were 660
inadequate because they undermined their own case by 661
misrepresenting facts and making unjustifiable concessions. He 662
focuses primarily on counsel’s comments regarding the DNA 663
results. Trial counsel stated in closing argument, in relevant 664
part: 665

-- 30 of 52 --

25 The DNA testing also revealed that Dowthitt and Delton
were part of the ninety-five percent excluded as possible
contributors.
31
The blood, all right. There’s been testimony there’s 666
some blood on the bottle . . . . We get down here to 667
Picture 75 and 76 and we get a spot on the bottom that 668
we know was blood because they scraped that spot off 669
and they sent it in and the DNA people said 95 probably 670
Gracie’s blood. But that’s on the bottom and that’s a 671
little tiny bit and does that mean that the bottle sat 672
down in or rolled around or came near or got on a piece 673
of bloody clothing or in some other matter connected 674
with the blood? We assume that 95 percent is close 675
enough that it is Gracie’s blood. It doesn’t tell us 676
how it got there. 677
State Trial Transcript, Vol. XXXIV at 1270-71 (emphasis added). 678
Dowthitt contends it was a plain misstatement to convey that 679
there was a ninety-five percent probability the blood was 680
Gracie’s because the DNA test merely revealed that ninety-five 681
percent of the population was excluded, with Gracie being among 682
the five percent possible contributors of the blood.25 Dowthitt 683
further points to his expert’s testimony on habeas that if the 684
jury had been informed of the significant number of people who 685
share that genetic profile, the jury would have more accurately 686
assessed the evidence. 687
The state habeas court found that “trial counsel were 688
zealous advocates for . . . [Dowthitt’s] defense during closing 689
argument.” Dowthitt falls far short of producing clear and 690
convincing evidence to rebut the presumption of correctness we 691
afford this finding under AEDPA. While counsel’s 692
characterization of the test results were not entirely on point, 693

-- 31 of 52 --

26 Pursuant to Section 37.071(b) of the Texas Code of
Criminal Procedure, the jury had to answer two special issues
during the punishment phase. Special Issue No. 1 dealt with
deliberateness: “[w]hether the conduct of the defendant that
caused the death of the deceased was committed deliberately and
with reasonable expectation that the death of the deceased or
32
the closing arguments as a whole were thorough and effective. 694
The record demonstrates that trial counsel drove home the point 695
that the DNA evidence did not tie Dowthitt to the crime — that 696
the blood could have gotten on the bottle in any number of other 697
ways. We find without reservation that trial counsel’s 698
performance was sufficient in this regard. 699
Dowhtitt also argues that trial counsel was deficient during 700
the closing arguments for the penalty phase. Dowthitt faults 701
trial counsel for statements that Dowthitt suffered from a 702
“disease” that resulted in his acting in a “frenzy, like the 703
feeding of a shark or something.” Dowthitt also asserts that 704
trial counsel “‘argued’ against Mr. Dowthitt being a future 705
danger by positing that his only victims in prison would be 706
‘effeminate men.’” 707
Dowthitt cannot manufacture deficient performance by 708
selectively extracting phrases from trial counsel’s closing 709
argument and mischaracterizing them. While we would not endorse 710
every aspect of trial counsel’s statements, nevertheless, taken 711
in full context, those statements for the most part were 712
beneficial because they went toward demonstrating that Dowthitt’s 713
actions were not deliberate26 and that he did not present a 714

-- 32 of 52 --

another would result.”
27 Special Issue No. 2 dealt with future dangerousness:
“[w]hether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing
threat to society.”
33
continuing danger.27 Furthermore, we note we have held that 715
counsel’s acknowledgment of aspects of the case can be a proper 716
“effort to bolster credibility with the jury.” Kitchens v. 717
Johnson, 190 F.3d 698, 704 (5th Cir. 1999). We will not second 718
guess such strategic decisions under the teaching of Strickland. 719
Dowthitt’s assertions regarding trial counsel’s closing 720
arguments fail to demonstrate substantial doubt on his Sixth 721
Amendment right. As such, he is not entitled to a COA on this 722
ineffective assistance of counsel claim. 723
In sum, the state habeas court found “trial counsel were 724
relentless in the defense of their client in the face of a very 725
bad set of facts.” In addition, the court found that Dowthitt 726
failed “to show that the outcome of his trial would have been 727
different but for the alleged instances of ineffective assistance 728
of counsel.” Dowthitt has not presented clear and convincing 729
evidence to rebut the presumption of correctness we afford to 730
state court findings under AEDPA. Furthermore, our review also 731
reveals that the state court was not unreasonable in its finding 732
in light of the record. We therefore find that Dowthitt has not 733
demonstrated a substantial showing of the denial of his 734

-- 33 of 52 --

28 During the trial’s guilt/innocence phase, the State
presented expert testimony regarding DNA testing performed on
“blood scrapings” taken from a beer bottle discovered in
Dowthitt’s auto shop. The expert testified that DQ alpha typing
was done on the sample due to its small size. The State’s
evidence indicated that although “typing” was far less
determinative than DNA “fingerprinting,” it permitted a
conclusion that Gracie was within the five percent of the
population not excluded as contributors of the blood.
34
constitutional right to counsel, and we deny his application for 735
a COA on this claim. 736
C. Admission of DNA Evidence Without a Factual Predicate 737
Dowthitt argues that he was denied due process of law under 738
the Fourteenth Amendment when DNA evidence28 was admitted at 739
trial without a proper factual predicate. Pointing to the lack 740
of a prior hearing to determine the admissibility of the DNA 741
evidence, Dowthitt asserts that his constitutional rights were 742
violated. The state habeas court found that Dowthitt “failed to 743
object to the trial court’s failure to hold a hearing on the 744
reliability of the DNA evidence and waived any error.” 745
In all cases in which a state prisoner has defaulted 746
his federal claims in state court pursuant to an 747
independent and adequate state procedural rule, federal 748
habeas review of the claims is barred unless the 749
prisoner can demonstrate cause for the default and 750
actual prejudice as a result of the alleged violation 751
of federal law, or demonstrate that failure to consider 752
the claims will result in a fundamental miscarriage of 753
justice. 754
Coleman v. Thompson, 501 U.S. 722, 750 (1991). The state 755
procedural rule at issue in this instance is adequate because it 756

-- 34 of 52 --

35
has been “strictly or regularly followed.” Amos v. Scott, 61 757
F.3d 333, 339 (5th Cir. 1995). “This Circuit has held that the 758
Texas contemporaneous objection rule is strictly or regularly 759
applied evenhandedly to the vast majority of similar claims, and 760
is therefore an adequate procedural bar.” Corwin v. Johnson, 150 761
F.3d 467, 473 (5th Cir. 1998). 762
As for the cause-and-prejudice exception, cause is 763
demonstrated by establishing that some objective external factor 764
“‘impeded counsel’s efforts to comply with the State’s procedural 765
rule.’” Meanes v. Johnson, 138 F.3d 1007, 1011 (5th Cir. 1999) 766
(quoting Coleman). Dowthitt maintains that cause existed for his 767
default. The failure to object he contends, is the result of 768
trial counsel’s ineffectiveness. “[C]ounsel’s ineffectiveness 769
will constitute cause only if it is an independent constitutional 770
violation.” Coleman, 501 U.S. at 755; see also Ellis v. Lynaugh, 771
883 F.2d 363, 367 (5th Cir. 1989) (citing Murray v. Carrier, 477 772
U.S. 478, 488 (1986)). Dowthitt puts forth two arguments to 773
establish that counsel’s ineffective assistance was of 774
constitutional dimension: (1) counsel’s failure to request the 775
hearing and (2) counsel’s concession that the blood from the 776
bottle was conclusively Gracie’s. 777
First, Dowthitt does not provide further detail (beyond his 778
assertion) as to why the failure to object rose to the level of a 779
Sixth Amendment violation. Because this issue is inadequately 780
briefed, we do not consider it on appeal. See Trevino, 168 F.3d 781

-- 35 of 52 --

29 We also note that the state habeas court found, “[i]n
the alternative, the State proved the reliability of the DNA
evidence during the trial and there was no due process
violation.”
36
at 181 n.3. Furthermore, we have previously held that a mere 782
allegation “that . . . [trial counsel] provided ineffective 783
assistance of counsel in failing to so object[]” is not 784
sufficient to establish constitutionally prohibited conduct. 785
Washington v. Estelle, 648 F.2d 276, 278 (5th Cir. 1981) (stating 786
that it is “not for federal courts to speculate as to possibly 787
[sic] reasons for failure to object.” (internal quotations and 788
citation omitted)). Dowthitt’s second argument for cause also 789
fails because we found in section II.B.5 that trial counsel’s 790
statements regarding DNA evidence did not rise to the level of 791
constitutional error. 792
Dowthitt also cannot rely on the “fundamental miscarriage of 793
justice” exception to the procedural bar because he did not 794
demonstrate substantial doubt as to his actual innocence. See 795
section II.A, supra; see also Fearance v. Scott, 56 F.3d 633, 637 796
(5th Cir.), cert. denied, 515 U.S. 1153 (1995) (rejecting the 797
defendant’s attempt to expand the “narrow scope” of the 798
fundamental miscarriage of justice exception). 799
Thus, we find that Dowthitt’s claim regarding the admission 800
of DNA evidence is procedurally barred from federal habeas 801
review.29 We deny Dowthitt’s request for a COA on this claim 802

-- 36 of 52 --

30 As we find that the first prong of the Slack COA inquiry
for procedural claims has not been met, we do not need to address
the second prong.
31 As an initial matter, we note that the state habeas
court found Dowthitt did not adequately brief his state
misconduct claims and thus did not properly present them for
review. This indicates a lack of exhaustion on Dowthitt’s part
because he did not “fairly apprise the . . . state of the federal
rights which were allegedly violated.” Deters v. Collins, 985
F.2d 789, 795 (5th Cir. 1993). However, as the state habeas
court did not explicitly find that Dowthitt waived his misconduct
claims and went on to make findings regarding those claims, we
find that the state court had a “fair opportunity to pass upon
the claim[s].” Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir.
1999) (internal quotatios and citation omitted).
37
because he does not demonstrate that reasonable jurists would 803
find it debatable that the procedural ruling was correct.30
804
D. State Misconduct 805
Dowthitt argues that state misconduct violated his right to 806
due process and a fair trial. In this regard, he makes the 807
following claims: intimidation of potential defense witness David 808
Tipps, breach in the chain of custody of the blood sample, 809
misrepresentation of the DNA evidence to the jury, failure to 810
disclose a felony indictment of State witness Darla Dowthitt, 811
and mischaracterization of Dowthitt’s interrogation statement 812
that he “was there the whole time.” We will address each of 813
these arguments in turn.31
814
1. Intimidation of Potential Defense Witness 815

-- 37 of 52 --

38
Dowthitt first asserts that David Tipps, Delton’s jailmate, 816
would have testified that Delton claimed he killed both girls; 817
however, after a visit from two State investigators, Tipps 818
refused to testify. Dowthitt submits the affidavit of Joseph 819
Ward, his state habeas investigator, in support of the claim that 820
the State agents intimidated Tipps into not testifying. Ward 821
states in his affidavit that Tipps would not sign an affidavit 822
out of fear for himself. 823
We must first decide whether this claim was “adjudicated on 824
the merits in State court proceedings.” 28 U.S.C. § 2254(d). 825
The state trial court held a hearing outside the presence of the 826
jury on this issue, and Dowthitt contested the trial court’s 827
ruling on direct appeal. See Dowthitt v. State, 931 S.W.2d 244, 828
267 (Tex. Crim. App. 1996). However, Dowthitt did not raise this 829
issue in his state habeas proceeding, but did do so in his brief 830
to the federal district habeas court. 831
“When faced with a silent or ambiguous state habeas 832
decision, the federal court should ‘look through’ to the last 833
clear state decision on the matter.” Jackson v. Johnson, 194 834
F.3d 641, 651 (5th Cir. 1999). Although the state habeas 835
decision is silent on this particular misconduct claim, the Texas 836
Court of Criminal Appeals, on direct appeal, unambiguously dealt 837
with the issue. “Having determined that the issue was 838
adjudicated on the merits in state courts, we owe deference to 839

-- 38 of 52 --

39
their disposition of the claim under § 2554.” Barrientes, 221 840
F.3d at 780. 841
The Court of Criminal Appeals determined that Tipps’s fears 842
of being a “snitch,” rather than a fear of prosecution, motivated 843
his decision not to testify in Dowthitt’s defense. It based this 844
holding, in part, on Tipps’s continued defiance even in the face 845
of the trial court holding him in contempt. We conclude that 846
reasonable jurists could not debate whether the decision of the 847
Court of Criminal Appeals was “contrary to, or involved an 848
unreasonable application of, clearly established . . . [Supreme 849
Court] law.” 28 U.S.C. § 2254(d)(1). As such, reasonable 850
jurists could not “debate whether (or, for that matter, agree 851
that) the petition should have been resolved in a different 852
manner.” Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000). We 853
find that Dowthitt is not entitled to a COA on this state 854
misconduct claim. 855
2. Breach in the Chain of Custody of the Blood Sample 856
Dowthitt claims that the blood from which the DNA was 857
extracted originally came from a knife, and not a beer bottle, as 858
presented at trial. In support, he offers the photograph of an 859
evidence label that has the typewritten words “scrapings from 860
lock blade knife” crossed out and replaced with the handwritten 861
words “from bottle.” Dowthitt argues that the State thus 862

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40
presented false testimony, violating his Fourteenth Amendment 863
rights. 864
The state habeas court made several findings in this regard, 865
including: “no blood scrapings other than those from a beer 866
bottle recovered from [Dowthitt’s] shop were submitted for 867
testing[]”; “‘scrapings from lock blade knife’ [on evidence 868
label] was in error[]”; “only scrapings from a bottle, and not a 869
knife, were submitted for DNA testing.” 870
These findings are not unreasonable “in light of the 871
evidence presented in the State court proceeding.” 28 U.S.C. 872
§ 2254(d)(2). Given the high deference we accord to state court 873
determinations, we find that reasonable jurists would not debate 874
whether it should be have been resolved in a different manner, 875
and as such, we deny to issue a COA on this claim. 876
3. Misrepresentation of DNA Evidence to the Jury 877
Dowthitt argues that the State misrepresented the 878
conclusiveness of the DNA evidence to the jury during closing 879
arguments. He contests the following statement: “You know it is 880
Gracie’s blood on that beer bottle.” 881
First, we need to consider if this claim was adjudicated on 882
the merits during state proceedings for § 2254(d) deference 883
purposes. Dowthitt failed to object to this statement during 884
trial and did not raise it on direct appeal. He did argue the 885
issue during state habeas proceedings, but the state habeas court 886

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41
made no findings in this regard. Therefore, we must examine the 887
following factors to determine whether an adjudication on the 888
merits occurred: 889
(1) what the state courts have done in similar cases; 890
(2) whether the history of the case suggests that the 891
state court was aware of any ground for not 892
adjudicating the case on the merits; and (3) whether 893
the state courts’ opinions suggest reliance upon 894
procedural grounds rather than a determination on the 895
merits. 896
Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). 897
As for the first factor, Texas courts have consistently held 898
that unless the prosecutor’s comments were “clearly calculated to 899
inflame the minds of the jurors and is of such character as to 900
suggest the impossibility of withdrawing the impression 901
produced,” the failure to object timely waives any error. Van 902
Zandt v. State, 932 S.W.2d 88, 93 n.1 (Tex. App. — El Paso 1996, 903
pet. ref’d). We find that the prosecutor’s argument in this case 904
does not fall within the exception to the failure to make a 905
contemporaneous objection. As Dowthitt did not object at trial, 906
the first factor points toward an adjudication on the merits. 907
Similarly, the history of the case also favors adjudication 908
on the merits. Rather than arguing the contemporaneous objection 909
rule, the State addressed this claim on the merits the first time 910
it was raised, in federal habeas proceedings. As for the third 911
factor, we have previously held that under Texas law, “a denial 912
of relief by the Court of Criminal Appeals serves as a denial of 913
relief on the merits.” Miller v. Johnson, 200 F.3d 274, 281 (5th 914

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42
Cir. 2000). Thus, the state court’s denial of habeas relief does 915
not indicate a procedural adjudication. 916
We find that an “adjudication on the merits” under § 2254(d) 917
occurred with regard to this state misconduct claim. Therefore, 918
we conduct a deferential review, as mandated by AEDPA. We next 919
proceed to analyze whether Dowthitt made a substantial showing of 920
the denial of his due process and fair trial rights. 921
In habeas corpus proceedings, we review allegedly improper 922
prosecutorial statements under a strict standard. “The 923
statements must render the trial fundamentally unfair.” 924
Barrientes, 221 F.3d at 753. “[I]t is not enough that the 925
prosecutors’ remarks were undesirable or even universally 926
condemned. The relevant question is whether the prosecutors’ 927
comments so infected the trial with unfairness as to make the 928
resulting conviction a denial of due process.” Darden v. 929
Wainwright, 477 U.S. 168, 181 (1986) (internal quotations and 930
citations omitted). 931
We have held that “[i]n the context of closing argument, 932
. . . [the prosecutor is not] prohibited from reciting to the 933
jury those inferences and conclusions she wishes the jury to draw 934
from the evidence so long as those inferences are grounded upon 935
evidence.” United States v. Munoz, 150 F.3d 401, 414-15 (5th 936
Cir. 1998), cert. denied, 525 U.S. 1112 (1999) (internal 937
quotations omitted). In this case, the prosecutor’s statement is 938

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32 The State presented the DNA results and the testimony of
experts explaining those results during trial.
43
a reasonable one, requesting the jury to draw a desired 939
conclusion based upon the evidence.32
940
As such, we find that the state court denial of Dowthitt’s 941
claims reasonable under the standards set forth by § 2254(d). 942
Dowthitt does not demonstrate a substantial showing of the denial 943
of his due process rights and, therefore, is not entitled to a 944
COA in this regard. 945
4. Failure to Disclose Felony Indictment of State Witness 946
Dowthitt argues that the State failed to disclose that Darla 947
Dowthitt, Dowthitt’s daughter, was under felony indictment 948
(indecency with a child) when she testified for the prosecution 949
at the guilt/innocence phase of the trial. Pointing to the fact 950
that Darla’s own trial date was reset several times, Dowthitt 951
claims that an oral agreement had been struck between the State 952
and Darla. Thus, the nondisclosure violated the Supreme Court’s 953
mandate in Brady v. Maryland, 373 U.S. 83 (1963). The State 954
responds that no deal was struck for Darla’s testimony, and as 955
such, Dowthitt has no viable Brady claim. 956
The suppression of evidence material to guilt or punishment 957
violates a defendant’s fundamental due process rights. See id. 958
at 87. The Court has “since held that the duty to disclose such 959
evidence is applicable even though there has been no request by 960
the accused, and that the duty encompasses impeachment evidence 961

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44
as well as exculpatory evidence.” Strickler v. Greene, 527 U.S. 962
263, 280 (1999) (citations omitted). Such evidence is material 963
“if there is a reasonable probability that, had the evidence been 964
disclosed to the defense, the result of the proceeding would have 965
been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995) 966
(internal quotations and citations omitted). 967
“To prevail on a Brady claim, the defendant must [thus] 968
demonstrate that (1) the prosecution suppressed evidence; (2) the 969
evidence was favorable to him; and (3) the evidence was ‘material 970
either to guilt or punishment.’” Vega v. Johnson, 149 F.3d 354, 971
363 (5th Cir. 1998), cert. denied., 525 U.S. 1119 (1999). In 972
this case, there is no dispute that the indictment existed and 973
the prosecution did not reveal it to the defense. This evidence 974
arguably would have been favorable to Dowthitt’s case. 975
While the first two prongs of the test have been satisfied 976
here, Dowthitt fails on the third prong — materiality. “The 977
existence of an indictment, as opposed to a conviction, is not 978
generally admissible to impeach.” Id. (citing as example 979
Michelson v. United States, 335 U.S. 469, 482 (1948)). “Under 980
Texas law, the existence of the indictment becomes admissible 981
only if the witness, on direct examination, misrepresents himself 982
as having no trouble with the law . . . . The only other 983
exception, for witnesses whose testimony might be affected by the 984
indictment . . . [is a] relationship between [the] prosecution 985

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33 Testifying at the punishment phase, Darla unequivocally
stated that no deal existed, that she did not believe a deal
existed, and that she would not make a deal because she was “not
guilty.” The prosecutor filed an affidavit during state habeas
proceedings also affirming that no deal was made with Darla to
procure her testimony. In response, Dowthitt states that Darla
eventually received a lenient sentence for a plea and early
release from probation. This information, by itself, is not
sufficient to overcome the above evidence to the contrary (as any
number of factors could have accounted for the eventual
disposition of her case).
45
and [the witness’s] case.” Id. (internal quotations and citation 986
omitted). 987
First, Darla made no such misrepresentations, and thus the 988
first exception would not have applied. Dowthitt also cannot 989
rely on the second exception. The state habeas court found that 990
the “prosecutors did not offer Darla a deal for her testimony and 991
did not reset her case to avoid a felony conviction for 992
impeachment purposes.” We presume this finding to be correct 993
under § 2254(e)(1). Dowthitt has not clearly and convincingly 994
refuted the evidence in the record supporting the state court’s 995
determination that no suppression of evidence occurred because no 996
deal even existed.33
997
We find that Dowthitt fails to demonstrate the requisite 998
“reasonable probability” that the outcome would have been 999
different. Thus, he does not make a substantial showing of the 1000
denial of a constitutional right and is not entitled to a COA on 1001
this claim. 1002
5. Mischaracterization of Dowthitt’s Interrogation Statement 1003

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34 The interrogation went, in relevant part, as follows:
Mr. Dowthitt: Man, I didn’t do nothing.
Hidalgo: But you were there, not soon after it
happened, weren’t you? You weren’t far
away.
Hendricks: He was there the whole time.
Hidalgo: And you know what’s bothering you?
Mr. Dowthitt: I was there the whole time.
46
Detective Hidalgo testified during the guilt/innocence phase 1004
that Dowthitt stated during the interrogation, “I was there the 1005
whole time.”34 Dowthitt asserts that this statement was 1006
misrepresented as a admission of being present at the scene. He 1007
claims that the video of the interrogation demonstrates that 1008
Dowthitt was actually indicating disbelief by repeating the 1009
statement. 1010
As we have done in Part II.D.2 and II.D.3, supra, we must 1011
first determine whether an adjudication on the merits occurred in 1012
state courts. With no statement from the habeas court directly 1013
on point, we are directed to look through to the last clear state 1014
decision on the issue. See Jackson v. Johnson, 194 F.3d 641, 651 1015
(5th Cir. 1999). On direct appeal, the Texas Court of Criminal 1016
Appeals found that Dowthitt’s “admission to being present during 1017
the murders occurred around 1:00 a.m.” Dowthitt v. State, 931 1018
S.W.2d 244, 253 (Tex. Crim. App. 1996). Thus, we find that this 1019
issue was adjudicated on the merits in state proceedings, and we 1020
examine the result with the deference demanded by AEDPA. See 28 1021
U.S.C. § 2254(d). 1022

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35 Both the state court and the district court below
reviewed the videotapes and disagreed with Dowthitt’s
characterization of the statement.
36 We note that the state habeas court found Dowthitt “did
not object to the absence of a lesser-included instruction.”
However, the court did not explicitly find that, as a matter of
law, Dowthitt waived any error (which the court did with regard
to the admission of DNA evidence). This, combined with the fact
finding that Dowthitt was not guilty of the lesser-included
offense, indicates that the state habeas court made its decision
on the merits. We therefore do not find a procedural bar to this
claim. Furthermore, “[h]aving determined that the issue was
adjudicated on the merits in state courts, we owe deference to
their disposition of the claim under § 2254.” Barrientes v.
Johnson, 221 F.3d 741, 780 (5th Cir. 2000).
47
Beyond his assertions that he did not make an admission, 1023
Dowthitt does not demonstrate that the state court’s adjudication 1024
was unreasonable in light of the record.35 Thus, reasonable 1025
jurists would not “debate whether . . . the petition should have 1026
been resolved in a different manner.” Slack v. McDaniel, 120 S. 1027
Ct. 1595, 1603-04 (2000). Accordingly, we deny Dowthitt a COA on 1028
this claim. 1029
E. Instruction on Lesser-Included Offenses 1030
Dowthitt argues that the trial court erred in failing to 1031
instruct the jury on lesser-included offenses of murder, felony 1032
murder or aggravated sexual assault, thus violating his rights 1033
under the Fifth, Sixth, Eighth, and Fourteenth Amendments.36 He 1034
asserts that evidence existed that would support convictions on 1035
the lesser crimes, as opposed to capital murder: the beer bottle 1036
with Gracie’s blood indicated sexual assault, but not murder; the 1037

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37 A state trial court may not, under Beck v. Alabama, 447
U.S. 625 (1980), refuse a lesser-included offense instruction “if
the jury could rationally acquit on the capital crime and convict
for the noncapital crime.” Cordova v. Lynaugh, 838 F.2d 764, 767
(5th Cir.), cert. denied, 486 U.S. 1061 (1988).
48
knife alleged to be the murder weapon was not connected to the 1038
sexual assault; and the jury knew that Delton confessed to 1039
killing both girls in his first confession. The State responds 1040
that one cannot base an argument for a lesser-included offense on 1041
the jury disbelieving portions of the State’s case. In reply, 1042
Dowthitt maintains, given that no relevant physical evidence 1043
actually connected him to the murder, the jury had before it 1044
multiple scenarios, which lead to different crimes. 1045
We do not agree because Dowthitt fails to make a substantial 1046
showing that his case met the requirements that would necessitate 1047
instructions on lesser-included offenses.37 Contrary to 1048
Dowthitt’s assertions, “[i]t is not enough that the jury may 1049
disbelieve crucial evidence pertaining to the greater offense. 1050
Rather, there must be some evidence directly germane to a 1051
lesser-included offense for the factfinder to consider before an 1052
instruction on a lesser-included offense is warranted.” Jones v. 1053
Johnson, 171 F.3d 270, 274 (5th Cir. 1999; see also Banda v. 1054
State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994) (“The credibility 1055
of the evidence and whether it conflicts with other evidence or 1056
is controverted may not be considered in determining whether an 1057
instruction on a lesser-included offense should be given.”). 1058

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49
As such, Dowthitt has not presented clear and convincing 1059
evidence to rebut the state habeas court’s finding that “there 1060
was no evidence showing that [Dowthitt] was guilty [only] of the 1061
lesser offenses of rape and murder.” Dowthitt thus fails to 1062
demonstrate that reasonable jurists would debate the propriety of 1063
not granting an instruction for lesser-included offenses. With 1064
no substantial showing on this claim, Dowthitt does not meet the 1065
requirement for a COA. 1066
F. District Court’s Evidentiary Hearing 1067
Dowthitt asserts that the district court erred in providing 1068
only a limited evidentiary hearing on his actual innocence claim 1069
and in not holding a hearing on his other claims. He argues that 1070
the lack of factual development below was not due to his actions 1071
or lack thereof. Dowthitt faults particularly the state habeas 1072
court judge’s actions. He states that the judge who presided 1073
over his state district court habeas proceedings, had recused 1074
himself from trial because one of the trial counsel was his own 1075
attorney in a divorce proceeding. The judge, however, did not 1076
recuse himself from the habeas proceedings, refused to conduct an 1077
evidentiary hearing on the habeas claims, and accepted verbatim 1078
the prosecution’s proposed findings. 1079
Section 2254(e)(2) guides our determination of whether these 1080
requested evidentiary hearings were appropriate in this case. 1081
“If an applicant had failed to develop the factual basis of a 1082

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50
claim in State court proceedings,” the federal court may hold an 1083
evidentiary hearing if: 1084
(A) the claim relies on 1085
(i) a new rule of constitutional law, made 1086
retroactive to cases on collateral review by the 1087
Supreme Court, that was previously unavailable; or 1088
(ii) a factual predicate that could not have been 1089
previously discovered through the exercise of due 1090
diligence; and 1091
(B) the facts underlying the claim would be sufficient 1092
to establish by clear and convincing evidence that but 1093
for the constitutional error, no reasonable factfinder 1094
would have found the applicant guilty of the underlying 1095
offense. 1096
28 U.S.C. § 2254(e)(2). 1097
“Under the opening clause of § 2254(e)(2), a failure to 1098
develop the factual basis of a claim is not established unless 1099
there is a lack of diligence, or some greater fault, attributable 1100
to the prisoner or the prisoner’s counsel.” (Michael) Williams 1101
v. Taylor, 120 S. Ct. 1479, 1488 (2000). Furthermore, the 1102
(Michael) Williams Court associated the “failure to develop” 1103
standard with the cause inquiry for procedural default. See id. 1104
at 1494. 1105
Dowthitt argues that he exercised due diligence because he 1106
requested evidentiary hearings in state habeas proceedings, and 1107
those requests were denied. Thus, he asserts that his failure to 1108
develop his habeas claims are excused under § 2254(e)(2). We do 1109
not agree. Mere requests for evidentiary hearings will not 1110
suffice; the petitioner must be diligent in pursuing the factual 1111
development of his claim. As the state habeas court found, 1112

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38 Even if Dowthitt had met the § 2254(e)(2) standard, he
would still have to clear another hurdle to obtain a COA. “After
the [§ 2254(e)] standard is met, the district court’s denial is
reviewed for abuse of discretion.” Clark v. Johnson, --- F.3d
----, 2000 WL 1285270, *9 (5th Cir. 2000). When the district
court has “‘sufficient facts before it to make an informed
decision on the merits of [the habeas petitioner’s] claim,’ it
does not abuse its discretion in failing to conduct an
evidentiary hearing.” Barrientes, 221 F.3d at 770; see also
United States v. Fishel, 747 F.2d 271, 273 (5th Cir. 1984)
(“Where, as here, allegations contained in a habeas petition are
either contradicted by the record or supported by conclusory
factual assertions incapable of being tested in an evidentiary
hearing, no hearing is required.”). Given that the district
51
Dowthitt did not present affidavits from family members and did 1113
not show that they “could not be obtained absent an order for 1114
discovery or a hearing.” In response, Dowthitt now argues that 1115
his “proffers” of what would be presented at a hearing 1116
constituted due diligence. We do not find his argument 1117
persuasive. Given that the family members were willing to 1118
testify at a hearing, Dowthitt could have easily obtained their 1119
affidavits. A reasonable person in Dowthitt’s place would have 1120
at least done as much. Dowthitt’s arguments that lack of funding 1121
prevented the development of his claims are also without merit. 1122
Obtaining affidavits from family members is not cost prohibitive. 1123
Thus, Dowthitt has not rebutted the state habeas finding in this 1124
regard. 1125
We find that Dowthitt has not made a substantial showing of 1126
meeting the requirements set forth in § 2254(e)(2) that would 1127
entitle him to a federal habeas evidentiary hearing. As such, he 1128
is not entitled to a COA on this claim.38
1129

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court analyzed whether Dowthitt received a “full and fair
hearing” in the state courts, found that Judge Alworth’s conduct
was proper, and wrote a thorough opinion taking into account all
credible evidence, reasonable jurists would not disagree that the
district court acted well within its discretion.
52
III. CONCLUSION 1130
For the foregoing reasons, we DENY Dowthitt’s request for a 1131
COA on all of his claims and VACATE the stay of execution. 1132

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