In this death penalty case, petitioner-appellant Joseph Ray Ries, a Texas state *521 prisoner, appeals the district court’s denial of Ms petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court conviction for capital murder and his sentence of death.
Ries raises four issues. First, Ries argues that the district court erred in determining that two of his Sixth Amendment claims for ineffective assistance of counsel were not exhausted and thus procedurally barred. Second, he argues that his attorneys at trial were ineffective in their presentation of mitigation evidence during the penalty phase of his trial. Third, Ries argues that his trial attorneys were ineffective for failing to object to several statements in the prosecutor’s closing argument. Finally, he argues that his appellate counsel was ineffective for failing tо raise on appeal a claim that the district court erred in redacting statements of remorse from a video-taped confession by Ries.
For the following reasons, we AFFIRM the judgment of the district court.
I
Ries was convicted of capital murder in Texas state court for intentionally causing the death of Robert Ratliff by shooting him in the course of a burglary. Texas Penal Code § 19.03(a)(2). The Texas Court of Criminal Appeals summarized the evidence supporting Ries’s conviction as follows:
The evidence showed that [Ries] first met Robert Ratliff, the victim, in the fall of 1998. They formed a friendship, and at some point, [Ries] moved in to live with Ratliff. However, there was later a dispute about missing property, and [Ries] was evicted from Ratliffs house. On February 18, 1999, [Ries] and several associates stole a pickup truck from Ratliffs residence. [Ries] and Christopher White drove to San Antonio in thе truck, but because the pickup did not get good gas mileage, they decided to return to the Ratliff residence and take a Lincoln Continental. They arrived at Ratliffs place on the evening of February 21st, but neither Ratliff nor his Lincoln Continental was present. [Ries] and White broke into the house and took some items, including two .22 rifles. Later that evening, they drove the pickup into a pond, so that the truck was completely submerged. Hiding behind a barn, they watched Ratliff come home and waited until the lights in the house were turned off (approximately thirty minutes later).
[Ries] and White then entered the house. [Ries] sneaked into Ratliffs bedroom and took the victim’s wallet and car keys. Before exiting the room, [Ries] shot Ratliff in the back as he slept in bed. The victim then awoke, and [Ries] shot him in the neck. Hearing the noise, White entered the room and asked what had happened. [Ries] sеnt White out of the room and fired one last, fatal shot behind the victim’s ear. [Ries] and White then took the Lincoln Continental and drove away.
Ries v. State, No. 73, 737, at 2-3 (Tex.Crim.App. June 12, 2002). Following the penalty phase of the trial, based on the jury’s answers to the Texas special sentencing issues, the trial court sentenced Ries to death.
The Court of Criminal Appeals affirmed Ries’s conviction and sentence on direct appeal. Ries did not seek certiorari review. Subsequently, Ries filed a state post-conviction application for a writ of habeas corpus, which the Court of Criminal Appeals denied. Ries filed this petition for federal habeas relief, which the district court denied.
See Ries v. Quarterman,
No. 1-04-CV-367,
II
“In a habeas corpus appeal, we review thе district court’s findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court’s decision as the district court.”
Thompson v. Cain,
Because Ries filed his federal habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the district court’s federal habeas review was governed. by AEDPA. Under AEDPA, habeas relief is not available to a state prisoner
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(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). “Under AEDPA, our duty is to determine whether the state court’s determination was contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court at the time that [Ries’s] conviction became final” in 2002.
1
Nelson v. Quarterman,
A state court decision is contrary to clearly established Supreme Court precedent if: (1) “the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” or (2) “the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result differеnt from [Supreme Court] precedent.”
Williams,
A state court’s incorrect application of clearly established Supreme Court precedent is not enough to warrant federal habeas relief; such an application must also be unreasonable.
Id.
at 410-12,
*523 III
Ries first argues that the district court erred in dismissing two of his claims for failure to exhaust. In his state habeas petition, Ries claimed that his trial сounsel provided ineffective assistance under the Sixth Amendment for failing to “effectively marshal” and to “present” mitigating evidence during the penalty phase of his trial. In his federal habeas petition, Ries asserted the broad claim that trial counsel failed adequately to present the defense’s case on mitigation of punishment. Ries subdivided this broad claim into three distinct claims, each focusing on a particular phase of his state trial: (1) trial counsel was ineffective in failing to voir dire the jury panel on mitigating evidence; (2) trial counsel was ineffective in the presentation of mitigating evidence during the penalty phase of the trial; and (3) trial counsel was ineffective in arguing the case for mitigation in closing, following the penalty phase of the trial.
The district court concluded that only Ries’s second sub-claim, that trial counsel was ineffective in the presentation of mitigation evidence during the penalty phase of the trial, was fairly presented to the state courts. The district court determined that Ries’s first and third sub-claims were not fairly presented to the state courts and, as a result, were unex-hausted and procedurally barred. Ries argues that his state claim necessarily invited scrutiny of all aspects of counsel’s trial performance with respect to mitigation and thus the district court erred in concluding that his first and third claims were unexhausted.
Pursuant to 28 U.S.C. § 2254(b)(1)(A), “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State.” See
Moore v. Quarterman,
To satisfy the exhaustion requirement, the petitioner must fairly present the substance of his federal habeas claim to the highest state court.
Vasquez v. Hillery,
Failure to exhaust generally is a procedural bar to federal habeas review, but the bar may be excused if the petitioner “can demonstrate cause for the default
*524
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,
The question here is whether Ries’s state habeas claim — that trial counsel was ineffective for failing to “effectively marshal” and to “present” mitigating evidence — fairly presented to the state courts the substance of his federal habeas claims that trial counsel was ineffective for failing tо introduce the case for mitigation at voir dire and for failing to adequately argue the case for mitigation in closing. Ries attempts to construe his vague state habe-as claim as a broad challenge to trial counsel’s treatment of the mitigation defense at trial, from start (voir dire) to finish (closing).
The district court rejected Ries’s effort to construe his state claim so broadly. Despite the broad language used in Ries’s state habeas application, the district court concluded that the ineffectiveness challenge based on mitigation that Ries presented to the state courts was focused and specific: that his attorneys should have questioned witnesses more extensively and elicited more detailed testimony on the various exhibits admitted into evidence, which related to Ries’s abusive and deprived upbringing. Because the district court concluded that Ries’s state habeas claim focused on the actual introduction of mitigating evidence through documentary evidence and witness testimony, the district court reasoned that Ries’s federal habeas claims predicated on counsel’s alleged deficient handling of the mitigation defense at other stages of the trial, voir dire and closing, were not fairly presented to the state courts. We agree with the district court.
Ries’s ineffectiveness claim in state court focused on the introduction of mitigating evidence. Specifically, his application provided:
Defense counsel clearly were aware of the potentially mitigating evidence in the State’s exhibits, yet counsel did nothing to effectively marshal this evidence or subpoena witnesses from Applicant’s past ...
* * *
Here, in the instant case, while counsels’ [sic] performance may have bеen satisfactory in the guilt stage of the trial, the grievous error of counsel’s failure to provide any mitigation evidence at the punishment stage in light of the clear availability of such evidence falls below a reasonableness standard, and thereby violated Strickland’s first prong.
As [the evidence that was admitted] was presented to the jury, it was a big fat file of extensive records ... presumptively indicating life-long recidivism, an incorrigible refusal to conform, and early indications of continuing danger .... Applicant would show that the global failure of counsel to present any mitigating evidence clearly undermines this verdict, and warrants reversal. 2
*525 The Texas Court of Criminal Appeals, when presented with Ries’s state habeas application, initially denied all of his claims for relief, with one exception: Ries’s claim that “he was denied effective assistance of counsel because his trial attorneys failed to present any mitigation evidence at the punishment phase of his trial.” Ex Parte Ries, No. 57,892-01, at 2 (Tex.Crim.App. Mar. 3, 2004). The Court of Criminal Appeals remanded with instructions:
There is nothing in the habeas corpus record to indicate why counsel chose not to present mitigation evidence. Therefore, this cause is remanded to the trial court so that the habeas corpus record can be supplemented with an affidavit from counsel explaining why they chose not to present mitigation evidence at the punishment phase of Appellant’s trial.
Id. Counsel subsequently provided that affidavit, explaining all of the evidence of mitigation that was presented throughout the entire course of the trial, at both the guilt-innocence and the penalty phases of the trial. After receiving that affidavit, the Court of Criminаl Appeals denied Ries’s ineffective assistance claim based on mitigation, stating: “We have reviewed the affidavit and find that Applicant has failed to show that counsel were ineffective.” Ex Parte Ries, 57-892-01, at 2 (Tex.Crim.App. May 19, 2004).
Ries did not fairly present to the state courts the substance of his claim that trial counsel was ineffective in failing to explore the issue of mitigation during
voir dire.
Ries’s state habeas application does not mention the issue of trial counsel’s failure to discuss mitigation during
voir dire;
rather, the state application focuses specifically on the penalty phase of the trial. Also instructive, the Court of Criminal Appeals did not consider or address this
voir dire
issue. The
presentation
of mitigating
evidence,
the critical act on which Ries based his state habeas claim of ineffective assistance of counsel, is not something that Texas courts would likely permit during
voir dire. See, e.g., Cadoree v. State,
While a closer question, Ries also failed to exhaust his claim that trial counsel was ineffective in arguing the case for mitigation in closing argument. Ries framed his state claim as a challenge to trial counsel’s introduction of exhibits and testimony on mitigation at the penalty phase of the trial. Indeed, the claim is specifically addressed to counsel’s alleged failure to provide any mitigating evidence, a point on which the Court of Criminal Appeals remanded the case, and the point to which trial counsel’s affidavit responds. Regardless, Ries’s state habeas application does not mention any specific deficiencies with respect to trial counsel’s closing argument; as such, nothing about Ries’s state claim would have placed the state courts on notice that Ries was asserting a specific claim based on trial counsel’s closing argument.
*526 Moreover, while the issue of ineffective assistance was explored during a state writ hearing, nothing in the transcript of that state hearing indicates that trial counsel’s treatment of mitigation in сlosing argument was at issue. 3 Instead, the transcript indicates that the ineffectiveness claim related to mitigation focused on trial counsel’s introduction of exhibits and testimony, not trial counsel’s closing argument. Ries did not fairly present to the state courts his claim that trial counsel ineffectively argued mitigation in closing. As such, the district court correctly concluded that this claim was unexhausted and procedurally barred. 4
In sum, the district court properly dismissed Ries’s challenge to trial counsel’s use of mitigation at voir dire and discussion of mitigation in closing argument as unexhausted and procedurally barred. 5
IV
Turning to the merits, Ries’s federal habeas petition consists of several claims of ineffective assistance of counsel. These claims are governed by the familiar framework of
Strickland v. Washington,
A
As discussed above, Ries claims that trial counsel was ineffective in presenting the defense’s case for mitigation. He presents this claim as several sub-claims, only one of which is exhausted: trial counsel was ineffective in the presentation of mitigating evidence during the punishment phase of his trial. This claim refers to the manner and means in which Ries’s trial counsel introduced witness testimony and documentary evidenсe on mitigation during the punishment phase of the trial. We first consider this claim.
Ries claims that his trial counsel was ineffective in presenting mitigating evidence at the penalty phase of his trial. To clarify the scope of this claim, Ries does not argue that his trial counsel failed to investigate and discover mitigating evidence that was essential to Ries’s case on punishment. Ries also does not argue that trial counsel failed to “present” mitigating evidence in the sense that specific, material mitigating evidence was never placed before the jury. On the contrary, Ries constructs this claim of ineffective assistance based entirely on exhibits that were actually admitted into evidence and available for the jury’s review, including voluminous records from the Texas Child Protective Services (“CPS”), which were admitted into evidence by agreement of thе parties. Ries argues that trial counsel used these exhibits ineptly, failing to construct a compelling case for mitigation based on a graphic description of Ries’s abuse-filled social history. Ries essentially argues that his counsel could have performed better. Ries also argues that trial counsel’s decision to admit the large stack of CPS records and to highlight or ignore specific aspects of that record were not strategic choices to which this court owes any special deference.
However, in an affidavit submitted by Ries’s trial counsel to the Court of Criminal Appeals, trial counsel summarized the mitigation evidence presented during the guilt-innocence phase and penalty phase of the trial and stated the belief that the exhibits and witness testimony “gave sufficient evidence to show mitigating factors.” As stated in the affidavit, thе record contains testimony about factors that could be considered mitigating, including Ries’s history of abandonment, neglect, physical and sexual abuse, various adoptions, repeated placements in foster homes or State facilities, his high intelligence, and his college enrollment.
In
Strickland,
the Supreme Court explained that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.”
Ries challenges whether the decision to admit the stack of CPS records allegedly without careful consideration of the contents of each exhibit сonstitutes a strategic *528 choice. He offers alternative ways, and in his view better ways, in which his case could have been presented in an apparent effort to show that counsel’s failure to make better use of the records can only be attributed to counsel’s ignorance of the record’s contents, not strategy.
However, trial counsel offered testimony on this issue at a state writ hearing, testimony that undercuts Ries’s allegation that trial counsel’s decision to admit the voluminous CPS records was not a strategic choice. At the state writ hearing, trial counsel testified that one reason for admitting the entire stack of CPS records was to impress upon the jury, through the sheer weight and volume of the records, Ries’s extensive history as a ward of the State. Trial counsel further stated that the witnesses he called were able to sufficiently convey thаt aspect of mitigating evidence the defense sought foremost to highlight for the jury: Ries’s troubled childhood. Calling additional witnesses, trial counsel admitted, might have been counterproductive, resulting in the introduction of evidence harmful to the defense’s case. Trial counsel further stated that admitting the entire stack of records was a “gamble,” whereby they “took the good with the bad.”
In light of this testimony, together with the affidavit submitted by Ries’s trial counsel, Ries has failed to overcome the strong presumption that his counsel’s alleged deficiency, admitting the entire stack of CPS records without developing certain exhibits, falls within the wide range of reasonable professional assistance. Indeed, based on the testimony, it appears that the admission of the records, and the emphasis placed on the individual exhibits, was — despite Ries’s argument to the contrary — a strаtegic choice, which under
Strickland
renders the choice “virtually unchallengeable.”
See Taylor v. Maggio,
Ries nonetheless attempts to fit this case within the facts of
Williams v. Taylor,
Unlike
Wiggins
and
Williams,
the failure to investigate relevant social history is not at issue here. The claim here boils down to a disagreement with the manner and style in which trial counsel elected to present mitigating evidence, a choice which appears to have been strategic.
See, e.g., Coble,
Again, Ries suggests that counsel’s decision not to elicit testimony highlighting certain parts of the CPS records was not a strategic choice. Ries argues that the only explanation for trial counsel’s failure was that trial counsel did not know what was actually contained within the records. Yet, to support his allegation that trial counsel essentially ignored aspects of the CPS record, Ries offers only his view on better methods for presenting the evidence to the jury. We agree with Ries and the district сourt that trial counsel might have done more to highlight particular portions of Ries’s social history in an effort to elicit more sympathy from the jury based on Ries’s past. However, on this record, Ries has failed to overcome the strong presumption that counsel’s alleged deficiency falls within the wide range of reasonable professional assistance. As such, we cannot conclude that the state court’s resolution of this claim was objectively unreasonable.
As discussed above, Ries’s claim that his trial counsel was ineffective in arguing the case for mitigation during closing argument is unexhausted and procedurally barred. But even assuming that claim were exhausted, it nonetheless fails. As the Supreme Court explained in Yarborough v. Gentry:
[C]ounsel has wide latitude in deciding how best to represent a client, and deference to counsel’s tactical decisions in his сlosing presentation is particularly important because of the broad range of legitimate defense strategy at that stage .... Judicial review of a defense attorney’s summation is therefore highly deferential — and doubly deferential when it is conducted through the lens of federal habeas.
The closing argument was a bit unusual in that defense counsel delivered the closing by speaking directly to Ries. While the closing was hardly a model of excellence, it did highlight potentially mitigating evidence, touching at various points on, among other things, Ries’s background of physical and sexual abuse and history of abandonment. The central theme of the argument, however, appears to have been one of acceptance of responsibility. While Ries may now wish that his trial counsel had presented a different closing argument, “[Ries’s] desire to have a specific defense theory presented does not amount to ineffective assistance on federal habeas review.”
Coble,
B
Ries next argues that his trial counsel was ineffective for failing to object to two statements during the prosecutor’s closing argument, specifically, the prosecutor’s rebuttal.
First, addressing Ries directly, the prosecutor stated:
I have never asked a jury, Joey, to do something that I can’t do myself. And on the evidence in this case I can release the poison. You know it and you deserve to die. That’s why we’re here.
Shortly thereafter, the prosecutor opined:
Why do we have the death penalty? I know some of you on the jury have thought about the death penalty and why, we as a country and we as a state, believe it’s important. I can tell you why I think it is. I believe that when you take a human life, that if you as a society and you as a group of people, do *530 not value the life long enough to take a murderer’s life, then you are not going to last very long.
Ries argues that these statements were objectionable under both state and federal law and that his trial counsel was thus ineffective for failing to object. In order to show that counsel was deficient for failing to object under the first prong of
Strickland,
the objection must have merit.
Turner. v. Quarterman,
First, Ries relies on the Supreme Court’s decision in
United States v. Young,
We also cannot conclude that trial counsel was ineffective for failing to object under Texas state law. With respect to the prosecutor’s first statement, express
*531
ing his personal opinion that Ries “deserve[d] to die,” the district court conсluded that this statement was invited by the closing argument of defense counsel, and therefore, had counsel objected, the objection would have been overruled as invited error.
8
See, e.g., Hannah v. State,
As to the prosecutor’s second statement (“Why do we have the death penalty?”), the state court determined under state law that the statement was proper as a plea for law enforcement. “[I]n our role as a federal habeas court, we cannot review the correctness of the state habeas court’s interpretation of state law.”
Young v. Dretke,
We neither condone nor condemn the prosecutor’s comments, and we take no position on whether those comments would be proper as a matter of federal trial practice. However, we conclude that the state court’s determination that Ries failed to establish ineffective assistance based on trial counsel’s failure to object to the prosecutor’s comments was not objectively unreasonable.
C
Finally, Ries argues that his appellate counsel was ineffective for failing to challenge on appeal the trial court’s exclusion of evidence of Ries’s remorse.
The
Strickland
analysis also applies to claims of ineffective assistance of appellate counsel.
Amador v. Quarterman,
Ries argues, in essence, that appellate counsel failed to raise a slam dunk issue on appeal — an issue that was properly preserved, plainly meritorious, and would have resulted in a reversal of his sentence. We reject Ries’s argument because we disagree that the issue was properly preserved.
During the guilt-innocence phase of Ries’s trial, the State sought to introduce a video-taped confession by Ries, in which the State redacted the apology portion of his confession (that part containing Ries’s expression of remorse) and several references to extraneous offenses. Defense counsel objected to redaction of the apology portion, but the trial court overruled the objection, concluding that it was a self-serving hearsay statement. Ries does not argue in his opening brief that the redaction of the apology portion was improper for guilt-innocence purposes. 9
Instead, Ries argues that the redaction was improper because the apology portion of the tape constituted highly relevant and reliable mitigating evidence that should not have been excluded on the basis of a state hearsay rule.
See Green v. Georgia,
At no point, however, did Ries ever object to the redaction on the grounds that the district court impermissibly excluded relevant mitigating evidence at the penalty phase of the trial. Ries also never objected to the prosecutor’s statements regarding lack of remorse and never sought to introduce the apology portion during the penalty phase of his trial as mitigating evidence or to rebut the prosecutor’s statement regarding lack of remorse. As the State points out, Ries conflates the trial court’s guilt-innocence-redaction ruling with his argument that the redaction ruling was improper for purposes of the penalty phase of the trial because it excluded relevant mitigating evidence. Although Ries preserved an objection to the guilt-innocence redactiоn ruling, he failed to present to the trial court his argument that the redaction violated his right to present mitigating evidence and thus did not clearly preserve any penalty-phase objection for appeal. 10
*533 Because any challenge to the trial court’s guilt-innocence ruling regarding the redacted apology portion of the confession was of dubious merit, and because the penalty-phase objection was not clearly preserved, we cannot conclude that the state’s rejection of Ries’s ineffective assistance of appellate counsel claim for failing to raise this issue on appeal was objectively unreasonable.
V
For these reasons, we AFFIRM the district court’s denial of Ries’s petition for a writ of habeas corpus.
Notes
. A state conviction becomes final when the time for direct review has expired, regardless of when the state court issues its mandate.
See Flores v. Quarterman,
. As the parties note, as the district court noted, and as we note here, parts of the state habeas application appear to have been taken from another case because certain factual assertions in the state claim, which have been excised from this quotation, do not fit the facts of Ries’s case. We agree with the district court that such lapses of state post-conviction counsel are unfortunate in light of the fact that a habeas petitioner cannot raise thе ineffectiveness of state post-conviction counsel to avoid any resultant procedural bar.
See Martinez,
v.
Johnson,
. The transcript of the state writ hearing was not included in the record considered by the district court. This court granted the State's unopposed motion to supplement the record on appeal to include this transcript, which according to the State, was missing from the record that the district court received from the Texas Court of Criminal Appeals.
. This case is distinguishable from
Vela v. Estelle,
Ries also relies on
Smith v. Dretke,
. Ries argues that this procedural default should be excused based on the deficient performance of his state habeas counsel. However, he acknowledges that the ineffective assistance of state habeas counsel cannot provide cause to excuse a procedural default.
See Elizalde v. Dretke,
. Although
Wiggins
was decided after Ries’s conviction became final,
Wiggins
applies to the state court's resolution of Ries’s claims because
Wiggins
did not announce "new” law, but merely applied
Strickland. Coble v. Quarterman,
. There is a line of federal authority addressing federal due process challenges to statements made during a prosecutor's summation.
See Darden v. Wainwright,
In this case, however, the petitioner has not invoked this line of authority or argued that the prosecutor's comments were so egregious as to violate due process. Regardless, while the prosecutor's statements may have been dramatic, we cannot conclude that the statements so infected the trial with unfairness as to make the resulting conviction a denial of due process, particularly where, as we explain below, the prosecutor’s comments were to some extent invited by defense counsel's summation.
See Darden,
. The state court never expressly ruled on this statement; nonetheless, the district court deemed the claim exhausted and addressed it on the merits, аs do we.
. Ries does, however, seem to challenge the guilt-innocence phase ruling in his reply brief, arguing that the redacted apology portion of the video also included a statement that Ries had no intention of killing his victim. Because Ries raises this argument for the first time in his reply brief, we consider it waived.
See United States v. Fields,
. Ries failed to allege any ineffective assistance of counsel claim based on trial coun *533 sel’s failure to object during the penalty phase of the trial to the redaction of the apology portion of the confession.