Texas death row inmate Dennis Thurl Dowthitt appeals from the district court’s denial of habeas corpus relief. In order to obtain review of his claims, Dowthitt seeks a certificate of appealability (COA) from this court, pursuant to 28 U.S.C. § 2253(c)(2). We deny Dowthitt’s request for a COA.
L FACTUAL AND PROCEDURAL BACKGROUND
At Dowthitt’s trial, the State presented evidence that Dowthitt and his son, Delton Dowthitt (“Delton”), age 16, picked up Gracie and Tiffany Purnhagen, ages 16 and 9, respectively, on June 13, 1990 in a bowling alley parking lot. According to Delton’s testimony at Dowthitt’s trial, Dowthitt sexually assaulted Gracie with a beer bottle and cut her throat with a knife. 1 Meanwhile, Delton strangled Tiffany with a rope. 2
Following a jury trial, Dowthitt was convicted of the murder of Gracie Purnhagen committed in the course of aggravated sexual assault. On October 9, 1992, based on the jury’s answers, Dowthitt was sentenced to death for capital murder. The Texas Court of Criminal Appeals affirmed his conviction and sentence on June 26, 1996.
See Dowthitt v. State,
On August 18, 1997, Dowthitt filed a state petition for habeas relief. The state district court, on March 6, 1998, entered findings of fact and conclusions of law and recommended that habeas relief be denied. The Court of Criminal Appeals, adopting most of the findings and conclusions, denied Dowthitt habeas relief.
See Ex Parte Dowthitt,
No. 37, 557 (Tex.Crim.App. Sept. 16, 1998). On April 19, 1999, the United States Supreme Court denied Dowthitt’s petition for a writ of certiorari.
See Dowthitt v. Texas,
After obtaining appointment of counsel and a stay of execution, Dowthitt filed his petition for habeas cоrpus relief in federal district court on December 30, 1998. In response to Dowthitt’s amended petition on February 12, 1999, the State moved for summary judgment. The district court, on January 7, 2000, held an evidentiary hearing on Dowthitt’s actual innocence claim. On January 27, 2000, the district court filed a detailed and careful Memorandum and Order and entered a final judgment, denying Dowthitt habeas relief on all claims, dismissing his case with prejudice, and denying Dowthitt’s request for a COA. After .the district court denied his Rule 59(e) motion, Dowthitt timely appealed to this court, requesting a COA and reversal *740 of the district court’s judgment denying habeas relief.
II. DISCUSSION
Because Dowthitt’s petition for federal habeas relief was filed after April 24, 1997, this appeal is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 100 Stat. 1214.
See Molo v. Johnson,
28 U.S.C. § 2253(c)(2) mandates that a COA will not issue unless the petitioner makes “a substantial showing of the denial of a constitutional right.” This standard “includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel,
The formulation of the COA test is dependent upon whether the district court dismisses the petitioner’s claim on constitutional or procedural grounds. If the district court rejects the constitutional claims on the merits, the petitioner “must demonstrate that reasonable jurists' would find the district court’s assessment of the constitutional claims debatable or wrong.”
Slack,
[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of a denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.
Id.
(emphasis added);
see also Hernandez v. Johnson,
Furthermore, “the determination of whether a COA should issue must be made by viewing the petitioner’s arguments through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d).”
Barrientes v. Johnson,
The “contrary to” requirement “refers to the holdings, as opposed to the dicta, of ... [the Supreme Court’s] decisions as of the time of the relevant state-court decision.”
(Terry) Williams v. Taylor,
Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by ... [the Supreme Court] on a question of law or if the state court decides a case differently than ... [the Supreme Court] has on a *741 set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from ... [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.
Id.
Section 2254(d)(2) speaks to factual determinations made by the state courts. See 28 U.S.C. § 2254(e)(1). While we presume such determinations to be correct, the petitioner can rebut this presumption by clear and convincing evidence. See id. Absent an unreasonable determination in light of the record, we will give dеference to the state court’s fact findings. See id. § 2254(d)(2).
Dowthitt seeks a COA from this court on the following issues 3 : (1) actual innocence, (2) ineffective assistance of counsel, (3) admission of DNA evidence without a factual predicate, (4) State misconduct, (5) failure to instruct the jury on lesser-included offenses, and (6) the district court’s limited evidentiary hearing.
A. Actual Innocence
“Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.”
Herrera v. Collins,
The
Herrera
Court did assume,
arguen-do,
“that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would ... warrant habeas relief if there were no state avenue open to process such a claim.”
Thus, Dowthitt must first raise substantial doubt about his guilt, which would then cause us to examine any barred constitutional claims. 5 Dowthitt’s main argument in support of his innocence is thаt his son Delton confessed to killing Grade. 6 Dowthitt bases this claim on the *742 following: a signed declaration by his nephew Billy Sherman Dowthitt that Del-ton told him that “Delton killed his girlfriend”; an unsigned affidavit of David Tipps, a former prison inmate in Delton’s prison block, stating that Delton claimed to have killed both girls; a signed affidavit by Joseph Ward, a defense investigator, who states he drew up the affidavit that Tipps later refused to sign out of fear for himself; a signed affidavit of James Dow-thitt, Dowthitt’s brother, that his son Billy told him that Delton said he had killed both girls; and Dowthitt’s own written proffer of innocence.
Not finding it necessary to conduct an evidentiary hearing, the state habeas court rendered its decision based upon the record. The court found that Delton “did not recant his trial testimony” that Dowthitt killed Gracie and that Billy “never stated that Delton ... said he killed both girls.”
The federal district court did, however, hold an evidentiary hearing on Dowthitt’s actual innocence claim. Delton again testified in this evidentiary hearing that his father killed Gracie and that he never told Billy otherwise. The court held Dowthitt’s other proffered statements inadmissible hearsay and found that even if Billy’s statement were to be considered, they failed to provide any convincing account of the events. Determining, in addition, that the state findings were not unreasonable, the district court held that Dowthitt’s claim of actual innocence fell far short of the threshold set by the Supreme Court in Herrera.
We concludе that Dowthitt has not raised “substantial doubt” as to his guilt. Dowthitt’s newly discovered evidence consists solely of affidavits, and these affidavits are “particularly suspect ... because they consist of hearsay.”
Herrera,
In addition, even if we were to consider Billy’s hearsay affidavit, we agree with the State that it does not possess sufficient “indicia of reliability” due to its inconsistency with the physical evidence. The physical evidence established that Gracie (who was considered Delton’s girlfriend) died from knife wounds to her throat after being sexually assaulted, while her younger sister Tiffany was strangled. Billy, however, states that Delton said he strangled his girlfriend, while Dowthitt sexually assaulted and stabbed the “little girl.” As this does not comport with the physical evidence, Billy’s statements do not provide us with a convincing account of the events.
Furthermore, what Dowthitt puts forth is actually not “newly discovered” evidence. He presented the substance of the affidavits at his trial. In particular, as the state habeas court found, “Delton’s first confession, in which he stated that he killed both girls, was admitted in evidence.” Delton was cross-examined as to his plea agreement and his prior inconsistent confession.
7
Thus, the jury had the opportunity to take into account both versions of the murders and determine which
*743
was more credible. The jury, with the ability to listen to live testimony, was in a better position to judge the credibility of the witnesses and the accounts of the events; absent a lack of support in the record, we will not second guess their determination. -See
United States v. Ramos-Garcia,
We find that Dowthitt’s proffered evidence establishing his actual innocence fails to raise a substantial doubt as to his guilt.
B. ' Ineffective Assistance of Counsel
Dowthitt must make a substantial showing of a denial of his Sixth Amendment right to counsel to obtain a COA. His ineffective assistance of counsel claim meets the threshold question under AED-PA, § 2254(d)(1), that the rule of law be clearly established at the time of the state court conviction in 1992. This is so because the merits of an ineffective assistance of counsel claim are governed by the well-established rule of
Strickland v. Washington,
Deficient performance is established by showing “that counsel’s representation fell below an objective standard of reasonableness.”
Id.
at 688,
Prejudice ensues when “there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceedings would have been different.”
Clark v. Johnson,
In his ineffective assistance of counsel claim, Dowthitt raises several sub-issues concerning his mitigatiоn defense, investigation, and closing arguments. We will examine each of his claims in turn.
1. Failure to Present a Mitigation Defense Based on Mental Illness
Dowthitt argues that trial counsel failed to present a mitigation defense based on mental illness. In support of this argument, Dowthitt points to several aspects of his life and trial. He states that his habe-as counsel located records indicating he suffered from mental illness that were not discovered by trial counsel. A 1964 readmission form from Austin State Hospital shows that a young Dowthitt was diagnosed as having a “schizophrenic reaction” of a “chronic paranoid type” and was committed temporarily. The admission history also states that when Dowthitt was hospitalized due to an automobile accident *744 in August 1962, a test “showed slight brain damage.” In addition, Dowthitt points to Sergeant Walter Blakeslee’s statement of July 14, 1964 recommending that Dowthitt be discharged from the Air Force. Blak-eslee stated “it was evident to ... [him] that Airman Dowthitt was suffering from some mental deficiency.”
Dowthitt also relies heavily on declarations from Dr. Paula Lundberg-Love and Dr. Faye E. Sultan, mental health experts hired by habeas counsel. Lundberg-Love stated that her “clinical impression was that ... [Dowthitt] was not sadistic or soeiopathic.” She further wrote that Dow-thitt’s “profile was consistent with paranoid and schizophrenic features” and that he suffers from depression. Sultan stated in her affidavit that the interrogation videotapes showed Dowthitt’s “severe mental problems” and that the trial mental health expert’s “examination was cursory.” She also wrote that Dowthitt “functions quite peacefully and successfully within the prison environment,” rebutting the predictions made at trial about his potential for future dangerousness.
Dowthitt argues that trial counsel’s affidavits provide further support for their deficient performance with regard to his mitigation defense. He states that, by their own words, trial counsel did not investigate mental health defenses because they “had no knowledge that Defendant suffered brain damage,” and “he appeared sane and competent at all times.” Dow-thitt further quotes trial counsel’s affidavit: “During our many interviews Defendant never appeared to be suffering from any mental problems other than being upset and unhappy about his circumstances.” Dowthitt asserts that such impressions on the part of trial counsel were not reasonable because he was on anti-depressants during that time, because his video-taped interrogation exposes his unstable state of mind, and because the Lundberg-Love and Sultan declarations confirm his mental illness.
Citing to
Goss v. State,
the State responds that Texas caselaw has discounted mitigation evidence not relevant to the crime or future dangerousness.
As for the reports of Lundberg-Love and Sultan, the State asserts that they are precluded from consideration because they were not presented to the state courts. Further, the State claims that Dowthitt has not established cause and prejudice for his failure to develop this evidence below. Finally, citing to the district court’s findings, the State argues that even if the reports were considered, they are insufficient because Lundberg-Love and Sultan appeared to have formed their impressions from speaking with Dowthitt’s habeas counsel. •
In reply, Dowthitt argues that under the Supreme Court’s decision in (Terry) Williams v. Taylor, the “nexus” requirement for mitigation evidence is erroneous. He further states that although the State continuously refers to “brain damage,” he is contesting trial counsel’s failure with regard to “mental illness.” And, Dowthitt asserts that the Lundberg-Love and Sultan reports are not barred from consideration because he has established “cause” via the denial of funding to obtain experts by the state habeas courts.
As for Dowthitt’s brain damage claim, the state habeas court found that Dowthitt was competent to stand trial, that no neuropsychological expert had found that Dowthitt suffered from brain damage, and that Dowthitt exhibited no signs of *745 brain damage. These findings 8 are not unreasonable in light of the record, and Dowthitt has not presented clear and convincing evidence rebutting their presumption of correctness. Moreover, Dowthitt concedes these findings in his reply brief by abandoning his initial reliance, in part, on brain damage. He states that “mental illness ... is the mitigation evidence upon which ... [he] bases his ineffectiveness claims.”
As for the evidence indicating “mental illness” (the Austin State Hospital and the Air Force records), we are bound by the state habeas court’s findings that these records included “information which could have hurt ... [Dowthitt’s] case.” 9 Such information included, among other data, the following: that Dowthitt attempted to rape his eight-year old niece, that he had allegedly molested the same girl when she was five, that he had an immature personality (as opposed to psychotic tendencies), and that he “showed a temper and insisted on having his own way.” In light of these details, the state habeas court’s findings are clearly supported by the record. See 28 U.S.C. § 2254(d)(2).
Thus, even assuming
arguendo
that trial counsel were deficient in failing to discover these medical records,
10
Dowthitt was not prejudiced in his defense.
See Buxton v. Lynaugh,
The state habeas court did not make additional findings dealing with Dowthitt’s asserted mental illness because Dowthitt did not present any other evidence to that court. The Lundberg-Love and Sultan affidavits were introduced for the first time to the district court on federal habeas review. Thus, we must initially answer the threshold question of whether we are precluded from considering these affidavits. Although both the State and Dow-thitt argue this issue as one of “factual development” under § 2254(d) and (e), 11 it is more accurately analyzed under the “exhaustion” rubric of § 2254(b). 12
“We have held that a habeas petitioner fails to exhaust state remedies when he presents
material
additional evidentiary support to the federal court that was not presented to the state court.”
Graham v. Johnson,
Thus, we must first determine whether this claim is before us “in a significantly different and stronger, evidentiary posture than it was before the state courts.”
Joyner,
While we find that consideration of these affidavits is not precluded, we do not find them to demonstrate a substantial showing of the denial of the Sixth Amendment right to counsel. Even if trial counsel had obtained this information, Dowthitt fails to demonstrate that such information would have altered the jury’s judgment. Sultan’s affidavit is based on her review of a portion of the paper record, and she did not personally interview Dowthitt. We also agree with the district court’s assessment that “much of Dr. Sultan’s initial declaration is based on her discussions with habeas counsel rather than on independent analysis” because her statements put forth information that she could not have known otherwise. 13
Lundberg-Love’s affidavit also presents similar problems. She stаted that she could have testified to Dowthitt’s mental trauma “that he was experiencing as a result of witnessing Delton sexually assault Gracie after he had cut her throat and killed her sister prior to ... [Dow-thitt’s] arrival back at the murder scene.”
14
As the jury had decided not to believe Dowthitt’s claims, this version of the murders would not be credited during sentencing. Therefore, even assuming
ar-guendo
that trial counsel’s performance was deficient,
15
Dowthitt fails to make a substantial showing of prejudice on this
Strickland
claim as he does not demonstrate a sufficient probability that the alleged errors of trial counsel undermined confidence in the outcome.
See, e.g., Boyd v. Johnson,
2. Failure to Competently Prepare ■ and Use Dr. Fason
Dowthitt next asserts constitutional error with regard to trial counsel’s inadequate development of Dr. Fred Fason’s testimony. Counsel retained Dr. Fason, a psychiatrist, to examine Dowthitt on several issues regarding Dowthitt’s mental state. Dowthitt argues that trial counsel did not competently prepare Dr. Fason and did not call Dr. Fason as a witness during trial.
The state habeas court noted the integrity of trial counsel and found their affidavits to be credible. In their affidavits, trial counsel stated that Dr. Fason had a “lengthy interview” with Dowthitt and “spent mаny hours reviewing various tapes and discussing this case”, with counsel. Dowthitt, in turn, points to Dr. Fason’s May 13, 1992 notes and states that they “indicate a very short jailhouse interview.” He further asserts that he “remembers” the interview being “exceedingly short.” Dowthitt does not explain how the notes “indicate” the length of the interview.. Dowthitt’s personal beliefs, although they may be genuine, do not present clear and convincing evidence that would rebut the state court’s findings. 16
Dowthitt also asserts that trial counsel did not request Dr. Fason to conduct an evaluation for mitigation purposes. The State responds, however, that a letter in trial counsel’s files reveals that just such an evaluation was requested. Dowthitt has failed to raise a substantial issue that trial counsel was not reasonable in pursuing a mitigation defense.
In addition, Dowthitt contests trial counsel’s decision not to call Dr. Fason to testify on Dowthitt’s behalf at trial. He claims that Dr. Fason’s report would have demonstrated that he was not dangerous. This assertion fails to meet the deficient performance prong of
Strickland.
Although Dr. Fason’s report contains some information relating to mitigating factors, statements detrimental to Dowthitt are also included that clearly indicate his unwillingness to testify in Dowthitt’s favor. Thus, trial counsel’s decision not to put a witness on the stand who himself is not entirely favorable toward Dowthitt, and furthermore, who would have to respond with more damaging information during the State’s cross-examination, is not objectively unreasonable.
17
Trial counsel also elicited favorable information during cross-examination of the State’s expert witness, Dr. Walter Quijano.
18
This further supports the conclusion that the trial counsel’s decision not to put Dr. Fason on the stand was a matter of trial strategy.
See Strickland,
Dowthitt also argues that trial counsel should have found another expert who would be willing to testify to Dow-
*748
thitt’s lack of future dangerousness based on his mental condition. As the district court noted, even in the face of Dowthitt’s steadfast denial of any mental problems, trial counsel, “in an abundance of caution,” retained a psychiatrist. Thus, the state habeas court finding that trial counsel were “relentless” in their pursuit of Dow-thitt’s defense is not unreasonable. We also find that “[tjrial counsel performed appropriately, recognizing the
possible
issues regarding ... [the defendant’s] mental capacity, recognizing the need for expert assistance in exploring these issues,” and employing a defense expert.
White v. Johnson,
Dowthitt has failed to make a substantial showing on this ineffective assistance counsel claim. We find that reasonable jurists would not debate the propriety of granting a COA on this issue.
S. Failure to Present Dowthitt’s Mercy-Evoking Background as Mitigation Through Family Membеrs
Dowthitt claims that trial counsel committed constitutional error by not presenting mitigation evidence via family members during the punishment phase of the trial. He argues that the following family members’ affidavits demonstrate that they would have testified to Dowthitt’s abusive upbringing, his mental difficulties, and his loving relationship with some of his children: Darlene Glover, Dowthitt’s sister; Stacey Dowthitt, Dowthitt’s step-son; and Danna Taft, Dowthitt’s wife.
As an initial matter, the State argues that consideration of these affidavits is barred on federal habeas appeal because they were not presented to the state courts. The State bases this argument on § 2254(d) and (e). As we explained in section II.B.l, this issue is more appropriately analyzed under the § 2254(b) exhaustion framework. Thus, if the case is in a significantly stronger evidentiary framework before the federal habeas court than it was before the state habeas court, the exhaustion requirement has not been satisfied.
See
section II.B.l,
supra.
Dowthitt replies that the substance of these affidavits was presented to the state courts through the affidavits of the state habeas investigator detailing his interviews with these family members. We agree with Dowthitt that no “new facts” are presented to us and that the state habeas court had the critical facts before it.
See Young,
The state habeas court found that Dowthitt “did not want any of his family testifying.on his behalf.” Counsel will not be deеmed ineffective for following their client’s wishes, so long as the client made an informed decision.
See Autry v. McKaskle,
*749
In addition, trial counsel, in an affidavit found to be credible by the state habeas court, stated that they “attempted to talk to anyone” who would cooperate
21
and that many potential witnesses did not want to become involved. Thus, trial counsel attempted to delve into Dowthitt’s background, but were hindered by external forces. Unlike trial counsel in
(Terry) Williams v. Taylor,
Trial counsel further stated in their affidavit that some people who did speak with them had knowledge of factors detrimental to Dowthitt. We have held that the “failure to present ... evidence would not constitute ‘deficient’ performance within thе meaning of
Strickland
if ... [counsel] could have concluded, for tactical reasons, that attempting to present such evidence would be unwise.”
Williams v. Cain,
Thus, Dowthitt has not made a substantial showing that the actions of his trial counsel were objectively unreasonable. As he fails to demonstrate sufficient evidence to meet the deficient performance prong of the Strickland test, he has not shown that the issue is debatable among reasonable jurists. We therefore deny Dowthitt’s request for a COA based on this ineffective assistance of counsel claim.
4. Failure to Investigate for the Guilt/Innocence Phase and the Punishment Phase
Dowthitt argues that trial counsel did not adequately conduct their own investigation. In this regard, he makes the following contentions: trial counsel did not interview any significant State witnesses, “deferring” instead to the State’s version of the events without performing independent analysis; they did not discover that Darla Dowthitt’s own trial had been repeatedly reset and did not inform the jury about her pending felony case for indecency with a child; they failed to adequately impeach Delton by not presenting his prior misconduct; and they did not follow through on their own DNA testing.
The state habeas court found that, based on thе credible affidavits of trial counsel, “trial counsel extensively reviewed the State’s file and evidence collected in this case.” Trial counsel also stated in their affidavit that they hired DNA, 22 fingerprinting, 23 and psychiatric experts. The record illustrates that these experts made findings in line with the State’s evidence. We find that trial counsel did not blindly bow to the State’s evidence and attempted to dispute it. That they were not successful in their attempts does not render their performance deficient.
The state habeas court also found that “trial counsel investigated Delton’s background.” This finding is reasonable in light of the record. Trial counsel knew about Delton’s prior misconduct and actually attempted to admit evidence of this *750 during trial. The trial court, however, excluded them (after a hearing on the issue) as violating Texas Rule of Evidence 609(b). Dowthitt’s only response to this is that the Texas rules of evidence should be found offensive to the Constitution because they unfairly and arbitrarily prejudiced his defense.
However, the very case that Dowthitt cites for support recognizes that the fundamental fairness concept works to discredit evidentiary rules in very limited circumstances.
See Fuller v. State,
Every rule of evidence works a hardship on some litigants part of the time, and it is easy to sympathize with the frustration of any party whose most promising strategy turns out to be objectionable under the law. But we are not at liberty to relieve every such disappointment with an ad hoc suspension of the Rules.
Id. at 207. The Fuller court noted that “the report Appellant sought to introduce in this ease is precisely the sort of thing which the hearsay rule, in spite of its many exceptions, is still specifically designed to exclude.” Id. at 208. Similarly, in this case, Dowthitt sought to introduce evidence that went to the heart of the rules of evidence against using prior misconduct to show conformity with the alleged conduct. 24 This is not the sort of instance that demands the use of the Constitution to disregard fundamental evidentiary rules.
We also find that trial counsel’s performance was not deficient with regard to discovering Darla Dowthitt’s felony indictment for indecency with a child. Trial counsel requested and received a discovery order for the criminal record of all State witnesses. Dowthitt falls far short of demonstrating deficient performance in this regard.
Dowthitt has not made a substantial showing of ineffective assistance of counsel due to inadequate investigation. As such, he is not entitled to a COA on this claim.
5. Inadequate Closing Arguments at the Guilt/Innocence Phase and the Penalty Phase
Dowthitt argues that trial counsel’s closing arguments were inadequate because they undermined their own case by misrepresenting facts and making unjustifiable concessions. He focuses primarily on counsel’s comments regarding the DNA results. Trial counsel stated in closing argument, in relevant part:
The blood, all right. There’s been testimony there’s some blood on the bottle.... We get down here to Picture 75 and 76 and we get a spot on the bottom that we know was blood because they scraped that spot off and they sent it in and the DNA people said 95 probably Grade’s blood. But that’s on the bottom and that’s a little tiny bit and does that mean that the bottle sat down in or rolled around or came near or got on a piece of bloody clothing or in some other matter connected with the blood? We assume that 95 percent is close enough that it is Grade’s blood. It doesn’t tell us how it got there.
State Trial Transcript, Vol. XXXIV at 1270-71 (emphasis added). Dowthitt contends it was a plain misstatement to convey that there was a ninety-five percent probability the blood was Gracie’s because the DNA test merely revealed that ninety-five percent of the population was excluded, with Gracie being among the five percent possible contributors of the blood. 25 Dowthitt further points to his expert’s testimony on habeas that if the jury had been *751 informed of the significant number of people who share that genetic profile, the jury would have more accurately assessed the evidence.
The state habeas court found that “trial counsel were zealous advocates for ... [Dowthitt’s] defense during closing argument.” Dowthitt falls far short of producing clear and convincing evidence to rebut the presumption of correctness we afford this finding under AEDPA. While counsel’s characterization of the test results were not entirely on point, the closing arguments as a whole were thorough and effective. The record demonstrates that trial counsel drove home the point that the DNA evidence did not tie Dowthitt to the crime—that the blood could have gotten on the bottle in any number of other ways. We find without reservation that trial counsel’s performance was sufficient in this regard.
Dowthitt also argues that trial counsel was deficient during the closing arguments for the penalty phase. Dow-thitt faults trial counsel for statements that Dowthitt suffered from a “disease” that resulted in his acting in a “frenzy, like the feeding of a shark or something.” Dowthitt also asserts that trial counsel “ ‘argued’ against Mr. Dowthitt being a future danger by positing that his only victims in prison would be ‘effeminate men.’ ”
Dowthitt cannot manufacture deficient performance by selectively extracting phrases from trial counsel’s closing argument and mischaracterizing them. "While we would not endorse every aspect of trial counsel’s statements, nevertheless, taken in full context, those statements for the most part were beneficial because they went toward demonstrating that Dow-thitt’s actions were not deliberate
26
and that he did not present a continuing danger.
27
Furthermore, we note we have held that counsel’s acknowledgment of aspects of the case can be a proper “effort to bolster credibility with the jury.”
Kitchens v. Johnson,
Dowthitt’s assertions regarding trial counsel’s closing arguments fail to demonstrate substantial doubt on his Sixth Amendment right. As such, he is not entitled to a COA on this ineffective assistance of counsel claim.
In sum, the state habeas court found “trial counsel were relentless in the defense of their client in the face of a very bad set of facts.” In addition, the court found that Dowthitt failed “to show that the outcome of his trial would have been different but for the alleged instances of ineffective assistance of counsel.” Dow-thitt has not presented clear and convincing evidence to rebut the presumption of correctness we afford to state court findings under AEDPA. Furthermore, our review also reveals that the state court was not unreasonable in its finding in light of the record. We therefore find that Dowthitt has not demonstrated a substantial showing of the denial of his constitutional right to counsel, and we deny his application for a COA on this claim.
C. Admission of DNA Evidence Without a Factual Predicate
Dowthitt argues that he was denied due process of law under the Four *752 teenth Amendment when DNA evidence 28 was admitted at trial without a proper factual predicate. Pointing to the lack of a prior hearing to determine the admissibility of the DNA evidence, Dowthitt asserts that his constitutional rights were violated. The state habeas court found that Dow-thitt “failed to object to the trial court’s failure to hold a hearing on the reliability of the DNA evidence and waived any error.”
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson,
As for the cause-and-prejudice exception, cause is demonstrated by establishing that some objective external factor “ ‘impeded counsel’s efforts to comply with the State’s procedural rule.’ ”
Meanes v. Johnson,
First, Dowthitt does not provide further detail (beyond his assertion) as to why the failure to object rose to the level of a Sixth Amendment violation. Because this issue is inadequately briefed, we do not consider it on appeal.
See Trevino,
Dowthitt also cannot rely on the “fundamental miscarriage of justice” exception to the procedural bar because he did not demonstrate substantial doubt as to his actual innocence.
See
section II.A,
supra; see'also Fearance v. Scott,
Thus, we find that -Dowthitt’s claim regarding the admission of DNA evidence is procedurally barred from federal habeas review. 29 We deny Dowthitt’s request for a COA on this claim because he does not demonstrate that reasonable jurists would find it debatable that the procedural ruling was correct. 30
D. State Misconduct
Dowthitt argues that state misconduct violated his right to due process and a fair trial. In this regard, he makes the following claims: intimidation of potential defense witness David Tipps, breach in the chain of custody of the blood sample, misrepresentation of the DNA evidence to the jury, failure to disclose a felony indictment of State witness Darla Dowthitt, and mischaracterization of Dowthitt’s interrogation statement that he “was there the whole time.” We will address each of these arguments in turn. 31
1. Intimidation of Potential Defense Witness
Dowthitt first asserts that David Tipps, Delton’s jailmate, would have testified that Delton claimed he killed both girls; however, after a visit from two State investigators, Tipps refused to testify. Dowthitt submits the affidavit of Joseph Ward, his state habeas investigator, in support of the claim that the State agents intimidated Tipps into not testifying. Ward states in his affidavit that Tipps would not sign an affidavit out of fear for himself.
We must first decide whether this claim was “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). The state trial court held a hearing outside the presence of the jury on this issue, and Dowthitt contested the trial court’s ruling on direct appeal.
See Dowthitt v. State,
“When faced with a silent or ambiguous state habeas decision, the federal court should ‘look through’ to the last clear state decision on the matter.”
Jackson v. Johnson,
The Court of Criminal Appeals determined that Tipps’s fears of being a “snitch,” rather than a fear of prosecution, motivated his decision not to testify in Dowthitt’s defense. It based this holding, in part, on Tipps’s continued defiance even in the face of the trial court holding him in contempt. We conclude that reasonable jurists could not debate whether the decision of the Court of Criminal Appeals was
*754
“contrary to, or involved an unreasonable application of, clearly established ... [Supreme Court] law.” 28 U.S.C. § 2254(d)(1). As such, reasonable jurists could not “debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.”
Slack v. McDaniel,
2. Breach in the Chain of Custody of the Blood Sample
Dowthitt claims that the blood from which the DNA was extracted originally came from а knife, and not a beer bottle, as presented at trial. In support, he offers the photograph of an evidence label that has the typewritten words “scrapings from lock blade knife” crossed out and replaced with the handwritten words “from bottle.” Dowthitt argues that the State thus presented false testimony, violating his Fourteenth Amendment rights.
The state habeas court made several findings in this regard, including: “no blood scrapings other than those from a beer bottle recovered from [Dowthitt’s] shop were submitted for testing[ ]”; “ ‘scrapings from lock blade knife’ [on evidence label] was in error[ ]”; “only scrapings from a bottle, and not a knife, were submitted for DNA testing.”
These findings are not unreasonable “in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Given the high deference we accord to state court determinations, we find that reasonable jurists would not debate whether it should be have been resolved in a different manner, and as such, we deny to issue a COA on this claim.
S. Misrepresentation of DNA Evidence to the Jury
Dowthitt argues that the State misrepresented the conclusiveness of the DNA evidence to the jury during closing arguments. He contests the following statement: “You know it is Gracie’s blood on that beer bottle.”
First, we need to consider if this claim was adjudicated on the merits during state proceedings for § 2254(d) deference purposes. Dowthitt failed to object to this statement during trial and did not raise it on direct appeal. He did argue the issue during state habeas proceedings, but the state habeas court made no findings in this regard. Therefore, we must examine the following factors to determine whether an adjudication on the merits occurred:
(1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state courts’ opinions suggest reliance upon procedural grounds rather than a determination on the merits.
Green v. Johnson,
As for the first factor, Texas courts have consistently held that unless the prosecutor’s comments were “clearly calculated to inflame the minds of the jurors and is of such character as to suggest the impossibility of withdrawing the impression produced,” the failure to object timely waives any error.
Van Zandt v. State,
Similarly, the history of the case also •favors adjudication on the merits. Rather than arguing the contemporaneous objection rule, the State addressed this claim on the merits the first time it was raised, in federal habeas proceedings. As for the
*755
third factor, we have previously held that under Texas law, “a denial of relief by the Court of Criminal Appeals serves as a denial of relief on the merits.”
Miller v. Johnson,
We find that an “adjudication on the merits” under § 2254(d) occurred with regard to this state misconduct claim. Therefore, we conduct a deferential review, as mandated by AEDPA. We next proceed to analyze whether Dowthitt made a substantial showing of the denial of his due process and fair trial rights.
In habeas corpus proceedings, we review allegedly improper prosecutorial statements under a strict standard. “The statements must render the trial fundamentally unfair.”
Barrientes,
We have held that “[i]n the context of closing argument, ... [the prosecutor is not] prohibited from reciting to the jury those inferences and conclusions she wishes the jury to draw from the evidence so long as those inferences are grounded upon evidence.”
United States v. Munoz,
As such, we find that the state court denial of Dowthitt’s claims reasonable under the standards set forth by § 2254(d). Dowthitt does not demonstrate a substantial showing of the denial of his due process rights and, therefore, is not entitled to a COA in this regard.
A Failure to Disclose Felony Indictment of State Witness
Dowthitt argues that the State failed to disclose that Darla Dowthitt, Dowthitt’s daughter, was under felony indictment (indecency with a child) when she testified for the prosecution at the guilt/innocence phase of the trial. Pointing to the fact that Darla’s own trial date was reset several times, Dowthitt claims that an oral agreement had been struck between the State and Darla. Thus, the nondisclosure violated the Supreme Court’s mandate in
Brady v. Maryland,
The suppression of evidence material to guilt or punishment violates a defendant’s fundamental due process rights.
See id.
at 87,
*756
“To prevail on a
Brady
claim, the defendant must [thus] demonstrate that (1) the рrosecution suppressed evidence; (2) the evidence was favorable to him; and (3) the evidence was ‘material either to guilt or punishment.’ ”
Vega v. Johnson,
While the first two prongs of the test have been satisfied here, Dowthitt fails on the third prong—materiality. “The existence of an indictment, as opposed to a conviction, is not generally admissible to impeach.”
Id.
(citing as example
Michelson v. United States,
First, Darla made no such misrepresentations, and thus the first exception would not have applied. Dowthitt also cannot rely on the second exception. The state habeas court found that the “prosecutors did not offer Darla a deal for her testimony and did not reset her case to avoid a felony conviction for impeachment purposes.” We presume this finding to be correct under § 2254(e)(1). Dowthitt has not clearly and convincingly refuted the evidence in the record supporting the state cоurt’s determination that no suppression of evidence occurred because no deal even existed. 33
We find that Dowthitt fails to demonstrate the requisite “reasonable probability” that the outcome would have been different. Thus, he does not make a substantial showing of the denial of a constitutional right and is not entitled to a COA on this claim.
5. Mischaracterization of Dowthitt’s Interrogation Statement
Detective Hidalgo testified during the guilt/innocence phase that Dowthitt stated during the interrogation, “I was there the whole time.” 34 Dowthitt asserts that this statement was misrepresented as a admission of being present at the scene. He claims that the video of the interrogation demonstrates that Dowthitt was actually indicating disbelief by repeating the statement.
As we have done in Part II.D.2 and II.D.3,
supra,
we must first determine whether an adjudication on the merits occurred in state courts. With no statement from the habeas court directly on point, we are directed to look through to the last clear state decision on the issue.
See Jackson v. Johnson,
Beyond his assertions that he did not make an admission, Dowthitt does not demonstrate that the state court’s adjudication was unreаsonable in light of the record.
35
Thus, reasonable jurists would not “debate whether ... the petition should have been resolved in a different manner.”
Slack v. McDaniel,
E. Instruction on Lesser-included Offenses
Dowthitt argues that the trial court erred in failing to instruct the jury on lesser-included offenses of murder, felony murder or aggravated sexual assault, thus violating his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. 36 He asserts that evidence existed that would support convictions on the lesser crimes, as opposed to capital murder: the beer bottle with Grade’s blood indicated sexual assault, but not murder; the knife alleged to be the murder weapon was not connected to the sexual assault; and the jury knew that Delton confessed to killing both girls in his first confession. The State responds that one cannot base an argument for a lesser-included offense on the jury disbelieving portions of the State’s ease. In reply, Dowthitt maintains, given that no relevant physical evidence actually connected him to the murder, the jury had before it multiple scenarios, which lead to different crimes.
We do not agree because Dowthitt fails to make a substantial showing that his case met the requirements that would necessitate instructions on lesser-included offenses.
37
Contrary to Dowthitt’s assertions, “[i]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Rather, there must be some evidence directly germane to a lesser-included offense for the factfinder to consider before an instruction on a lesser-included offense is warranted.”
Jones v. Johnson,
As such, Dowthitt has not presented clear and convincing evidence to rebut the state habeas court’s finding that “there was no evidence showing that [Dowthitt] was guilty [only] of the lesser offenses of rape and murder.” Dowthitt thus fails to demonstrate that reasonable *758 jurists would debate the propriety of not granting an instruction for lesser-included offenses. With no substantial showing on this claim, Dowthitt does not meet the requirement for a COA.
F. District Court’s Evidentiary Hearing
Dowthitt asserts that the district court erred in providing only a limited evidentiary hearing on his actual innocence claim and in not holding a hearing on his other claims. He argues that the lack of factual development below was not due to his actions or lack thereof. Dowthitt faults particularly the state habeas court judge’s actions. He states that the judge who presided over his state district court habeas proceedings, had recused himself from trial because one of the trial counsel was his own attorney in a divorce proceeding. The judge, however, did not recuse himself from the habeas proceedings, refused to conduct an evidеntiary hearing on the habeas claims, and accepted verbatim the prosecution’s proposed findings.
Section 2254(e)(2) guides our determination of whether these requested evidentia-ry hearings were appropriate in this case. “If an applicant had failed to develop the factual basis of a claim in State court proceedings,” the federal court may hold an evidentiary hearing if:
(A) the claim relies on
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable factfin-der would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
“Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.”
(Michael) Williams v. Taylor,
Dowthitt argues that he exercised due diligence because he requested evidentiary hearings in state habeаs proceedings, and those requests were denied. Thus, he asserts that his failure to develop his habeas claims are excused under § 2254(e)(2). We do not agree. Mere requests for evi-dentiary hearings will not suffice; the petitioner must be diligent in pursuing the factual development of his claim. As the state habeas court found, Dowthitt did not present affidavits from family members and did not show that they “could not be obtained absent an order for discovery or a hearing.” In response, Dowthitt now argues that his “proffers” of what would be presented at a hearing constituted due diligence. We do not find his argument persuasive. Given that the family members were willing to testify at a hearing, Dowthitt could have easily obtained their affidavits. A reasonable person in Dow-thitt’s place would have at least done as much. Dowthitt’s arguments that lack of funding prevented the development of his claims are also without merit. Obtaining affidavits from family members is not cost prohibitive. Thus, Dowthitt has not rebutted the state habeas finding in this regard.
We find that Dowthitt has not made a substantial showing of meeting the requirements set forth in § 2254(e)(2) that would entitle him to a federal habeas evidentiary hearing. As such, he is not entitled to a COA on this claim. 38
*759 III. CONCLUSION
For the foregoing reasons, we DENY Dowthitt’s request for a COA on all of his claims and VACATE the stay of execution.
Notes
. The evidence indicated that Dowthitt cut Gracie's throat once before and once after the sexual assault. Gracie was still alive during the assault.
. 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.
. 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,
. "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.
. See section II.C, infra, which discusses a procedurally barred claim.
. 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,
. 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.
. 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.
. The state habeas court also found that Dow-thitt was not medicated during trial with any anti-depressant or other mind-altering medication.
. We note that Dowthitt steadfastly denied to his trial counsel that he had any mental problems.
See Strickland,
. 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.
. 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 availаble in the courts of the State.”
. 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.
. Lundberg-Love also noted that she would have testified regarding the consequences of his mental illness.
. 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 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,
. 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,
. 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.
.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.
. 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 hearing under § 2254(e) and is not relevant to the exhaustion determination under § 2254(b). See, infra, section II.F.
. We also note that in their affidavit, found credible by the state habeas court, trial coun *749 sel stated they “discussed the case in detail" with Dowthitt.
. The state habeas court found that they did speak with Stacey Dowthitt.
. 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 Dow-thitt can make, this statement and yet fault trial counsel for allegedly not having their own DNA tests performed.
.The state habeas court also found specifically that counsel hired a qualified fingerprint expert, who confirmed the State's findings.
. We note that the State points out that trial counsel did elicit some evidence of past misconduct from Quijano and Delton.
. The DNA testing also revealed that Dow-thitt and Delton were part of the ninety-five percent excluded as possible contributors.
. 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: "[wjhether 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 another would result."
. Special Issue No. 2 dealt with future dangerоusness: "[wjhether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”
. 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 lo its small size. The Stale'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.
. 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."
. 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.
. 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 Dow-thitt's part because he did not "fairly apprise the ... state of the federal rights which were allegedly violated.”
Deters v. Collins,
. The State presented the DNA results and the testimony of experts explaining those re-suits during trial.
. 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).
. 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.
. Both the state court and the district court below reviewed the videotapes and disagreed with Dowthilt's characterization of the statement.
. 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 regаrd 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,
.A state trial court may not, under
Beck v. Alabama,
. 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
*759
court's denial is reviewed for abuse of discretion.”
Clark v. Johnson,