During the guilt-innocence phase, the defense strategy was to highlight evidence of other parties' involvement in the offense, and to emphasize the State's burden of proof. The prosecution did not request a jury instruction on the law of parties. Thus, the jury was required to find that Gonzales intentionally caused the death of both victims by stabbing them. During closing argument, defense counsel argued that the evidence strongly suggested that other suspects were involved, and that there was no direct evidence that Gonzales murdered both victims. Defense counsel repeatedly reminded the jury that Gonzales could not be held responsible for an accomplice's criminal conduct. Nevertheless, during his final closing argument, the prosecutor argued, without objection, that Gonzales was guilty of capital murder even if he killed only one of the victims and aided and abetted someone else in the killing of the other victim. During deliberations, the jury asked the following question: "we need clarification on capital murder versus murder verdict. If Mr. Gonzales murdered one individual only, then does his association make him guilty of both." The trial judge responded by referring the jury to the charge.

The jury found Gonzales guilty of capital murder. Following the punishment phase, the jury answered the special issue on future dangerousness affirmatively and answered the special issue on mitigation negatively; thus, Gonzales was sentenced to death. The Texas Court of Criminal Appeals affirmed the conviction on direct appeal in June 1998. Gonzales v. State, No. 72,317 (unpublished). Gonzales's state habeas application was denied by the trial court and the Texas Court of Criminal Appeals. Ex Parte Michael Dean Gonzales, No. 72,317, Writ No. D-23,370.

Gonzales filed his federal habeas petition in January 2000, raising six claims for relief: (1) the prosecutor denied him due process by concealing the exculpatory negative result of a luminol test for blood; (2) he was denied effective assistance of counsel on direct appeal because his attorney did not appeal the denial of his motion for new trial; (3) he was denied effective assistance of counsel at the guilt and punishment phases of his trial (nine sub-claims); (4) his unwarned confession to Kenimer violated his Fifth Amendment right against self-incrimination; (5) he was denied due process because the prosecutor knowingly failed to correct Kenimer's false testimony that he spontaneously confessed to him; and (6) the prosecutor denied him due process by knowingly allowing a police officer to give the jury the false impression that his teardrop tattoos meant that he had killed two people.

Gonzales filed a supplemental petition in August, 2000, asserting that the State's psychological expert witness testified, unconstitutionally, that race is an indicator of future dangerousness. The State conceded that this claim is valid and entitled Gonzales to a new sentencing hearing. The district court so ordered, and neither party has appealed its ruling on this point.

In March 2001, the district court held a two-day evidentiary hearing on the Brady and ineffective assistance claims. The district court denied relief in a carefully written opinion and denied Gonzales's request for a certificate of appealability ("COA").

II. DISCUSSION

This court granted a COA for Gonzales's claims that:

(1) the prosecutor withheld exculpatory evidence in violation of the Due Process Clause by concealing the negative result of a luminol test;

(2) trial counsel rendered ineffective assistance by failing to refute a police officer's testimony that the two teardrops tattooed on Gonzales's face represented the number of people he had killed; and

(3) trial counsel rendered ineffective assistance by failing timely to object to a police officer's testimony that Gonzales's mother hid knives from Gonzales because she feared that he was going to kill her and his family.

This court denied a COA for Gonzales's procedurally barred claims and his cumulative ineffective assistance of counsel claim. See Gonzales v. Dretke, No. 03-50021 (5th Cir. Feb.7, 2005).

A. Standards of Review

Gonzales is not entitled to federal habeas relief on these claims unless the state court's adjudication of the claims

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). A decision is "contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States . . . if the state court arrives at a conclusion opposite to that reached by th[e] Court on a question of law or if the state court decides a case differently than th[e] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). A decision "involve[s] an unreasonable application of [ ] clearly established Federal law, as determined by the Supreme Court of the United States . . . if the state court identifies the correct governing legal principle from th[e] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. at 1523. The inquiry into reasonableness is objective rather than subjective, and the court is not authorized to grant relief simply because the court concludes in its independent judgment that the state court decision applied clearly established federal law erroneously or incorrectly. Instead, habeas relief may be granted only if the state court's decision is both incorrect and objectively unreasonable. Id. at 409-11, 120 S.Ct. at 1521-22. A state court's findings of fact are presumed to be correct unless the petitioner rebuts the presumption by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

Federal law concerning the disclosure of exculpatory evidence is clearly established: The prosecution must disclose to the defense evidence that is favorable and material to the defendant's guilt or punishment. United States v. Bagley, 473 U.S. 667, 674-75, 105 S.Ct. 3375, 3379, 87 L.Ed.2d 481 (1985); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). To establish a Brady violation, a defendant must show: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999).

The law governing ineffective assistance claims also is well-established: To succeed on these claims, Gonzales must show that his counsel's performance was deficient and that he was actually prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Whether counsel's performance was deficient is determined by examining whether the challenged representation fell below an objective standard of reasonableness. Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir.1999). The court's "scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. "[C]ounsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. at 2066.

The test for prejudice under Brady and Strickland is the same: Gonzales must establish that there is a reasonable probability that, if the evidence had been disclosed, and/or if counsel had not performed deficiently, the result of the proceeding would have been different. A reasonable probability of a different result is shown when the suppressed evidence or counsel's mistakes undermine confidence in the outcome of the trial. Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1565-66, 131 L.Ed.2d 490 (1995); Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

The issue before this court is not whether Gonzales made the required showing under Brady and Strickland. Instead, under AEDPA, the issue is whether the state court's decision — that Gonzales did not make the required showing — was contrary to, or an unreasonable application of, that clearly established federal law. See Busby v. Dretke, 359 F.3d 708, 717 (5th Cir.2004).

B. Merits

1. Disclosure of the Luminol Test

Gonzales argues first that the state court unreasonably applied clearly-established federal law when it decided that the prosecutor did not unconstitutionally withhold exculpatory evidence by concealing from the defense that the luminol test was negative.

When Gonzales was taken into custody for questioning sixteen to eighteen hours after the murders, police officers Lambert and Thomas conducted a luminol test on Gonzales's hands, arms, and shoes. Luminol becomes fluorescent when it comes into contact with any traces of blood. The only area that appeared fluorescent was at the crook of Gonzales's arm, where blood had been drawn shortly before the test. Lambert's report characterized the test result as "inconclusive."

Defense counsel were aware of the report describing the luminol test as "inconclusive." When, after trial, they learned that the result was actually negative, they sought a new trial, arguing that the prosecution's deception violated Gonzales's due process rights.

At the hearing on the motion for new trial, the prosecutor conceded that the perpetrator probably would have become bloodstained if he had inflicted all of the stab wounds that the victims sustained. Detective Thomas testified that, on the day of the test, he orally informed Detective Robertson that the result was negative. Robertson did not recall receiving that information from Thomas and did not mention it in his report.

Lambert and Thomas testified that they did not ask Gonzales whether he had washed his hands and arms in the sixteen hours before the test because they did not think it could have affected the result. Gonzales appeared well-groomed and clean at the time of the test. Thomas believed that it would have been "very difficult" for Gonzales to have completely removed all of the blood from his skin before the luminol test. Lambert testified that luminol can reveal invisible traces of blood on a surface that appears to be clean. Both officers agreed that "negative" would have been more accurate than "inconclusive" to describe the test result.

Detective Robertson believed, in contrast, that Gonzales could have washed all of the blood from his skin in the interval between the murders and the luminol test. Wilson Young, a serologist with the Texas Department of Public Safety, testified that Gonzales could have successfully removed all invisible traces of blood from his skin during the time between the murders and the luminol test. He admitted that he did not know whether it was more difficult to remove invisible traces of blood from human skin than from other surfaces, because he had no training or experience using luminol on skin.

The trial court denied the motion for new trial. Gonzales raised the issue in his state habeas application. The state court recommended that relief be denied, stating that there was no necessity for a fact finding hearing as there was ample evidence in the record for the court to rule on the relief sought, and that this claim was fully litigated in the hearing on Gonzales's motion for a new trial. The Texas Court of Criminal Appeals accepted that recommendation.

The state court's decision to deny relief is not unreasonable, even when considered in the light of new evidence presented at the federal evidentiary hearing,5 as the test result was not concealed. Gonzales was present during the test and saw the result. Even assuming that he did not understand the implications of the test, his attorneys had access to an open file that contained Lambert's report describing the test result as "inconclusive." Although defense counsel chose not to investigate further because of Lambert's conclusion, they acknowledged that "inconclusive" could cut either way. Had counsel asked Gonzales what had happened during the test, his response would have alerted counsel to the possibility that the evidence could be exculpatory. In short, defense counsel knew of information that would have enabled them to discover the actual test result if they had questioned Gonzales or the police officers who administered the test.