Cummings v. Guerrero - Director, TDCJ-CID

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
WACO DIVISION
RICKEY DONNELL CUMMINGS, 	§
§
Petitioner, 	§
§
v. 	§ 	CIVIL NO. W-18-CV-125-ADA
§
ERIC GUERRERO, Director, 	§ 	* DEATH PENALTY CASE *
Texas Department of Criminal Justice, 	§
Correctional Institutions Division, 	§
§
Respondent. 	§
MEMORANDUM OPINION AND ORDER
Petitioner Rickey Donnell Cummings initiated this federal habeas corpus action pursuant
to 28 U.S.C. § 2254 to challenge the constitutionality of his 2012 capital murder conviction and
sentence of death. Currently before the Court is Cummings’s Amended Petition for Writ of Habeas
Corpus (ECF No. 73), as well as Respondent Eric Guerrero’s Amended Answer (ECF No. 79) and
Cummings’s Reply (ECF No. 82) thereto. Having carefully considered the record and pleadings
submitted by both parties, the Court concludes Cummings is not entitled to federal habeas corpus
relief or a certificate of appealability.
I. Background
A. 	The Offense
In June 2011, a McLennan County grand jury indicted Cummings for the March 28, 2011,
murders of Tyus Sneed and Keenan Hubert committed by shooting both victims with a firearm
during the same criminal transaction. 	(ECF No. 19-1 at 9) (Indictment).1 	Cummings’s trial
1 	Pursuant to an order from this Court, Respondent electronically filed a copy of all the relevant state court
records from Cummings’s trial, appellate, and state habeas corpus proceedings. For reference, the Clerk’s Record and
Reporter’s Record from Cummings’s trial are found on the Court’s electronic docket at ECF Nos. 19 through 22 (cited
in parenthesis throughout).
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commenced in October 2012. After hearing testimony and arguments for nine days, a jury found
Cummings guilty of capital murder as charged in the indictment. 	(ECF No. 19-2 at 73-74)
(Judgment). The Texas Court of Criminal Appeals (TCCA) accurately summarized the evidence
presented at Cummings’s trial:
The State’s 	theory 	at 	[Cummings]’s 	November 	2012 	trial 	was 	that
[Cummings] and two co-defendants, Albert Love and [Cummings]’s younger
brother, D’Arvis Cummings, committed the murders in revenge against Keenan
Hubert, whom they believed had killed their friend, Emuel Bowers III.
To support its theory, the State presented evidence that Bowers was shot to
death in April 2010 near an East Waco park. [Cummings], D’Arvis, and Love were
among Bowers’s close friends. [Cummings] and Bowers’s family were intent on
determining who killed Bowers, and they came to believe that Hubert was the
culprit. 	As the first anniversary of Bowers’s murder approached, they were
frustrated that the police had not arrested anyone. 	And, in the period between
Bowers’s murder and the instant offense, [Cummings] and Hubert had various tense
encounters with each other.
On the evening of the instant offense, [Cummings] and Hubert had another
unfriendly encounter. 	Specifically, Hubert, Marion Bible, and Deontrae Majors
were sitting in Majors’s parked car at the Lakewood Villas, an East Waco apartment
complex. They were smoking marijuana and socializing. [Cummings] walked by
the car and “mean mugged” or glared at Hubert. Hubert responded by rapping some
antagonizing song lyrics at [Cummings]. 	After [Cummings] walked away, Tyus
Sneed joined Hubert, Bible, and Majors in the car, and the group continued to
smoke and socialize.
After glaring at Hubert, [Cummings] was in an agitated state. Around this
time, [Cummings] received a text from his girlfriend, asking if he was okay and if
he was getting ready to fight someone. [Cummings] also threatened to “shoot up”
a car that was arriving at the complex, because [Cummings] believed the car had
almost hit him. The car’s passenger, Darnell “Bo” Atkins, was arriving to visit his
girlfriend. 	Bo knew [Cummings] and talked to him. 	They then went to Bo’s
girlfriend’s apartment, where they talked and smoked marijuana. Bo’s teenage son,
Miche’al Atkins, was present and overheard [Cummings] say something about how
[Cummings] was going to shoot someone. Although Miche’al was in another room,
Miche’al was able to hear [Cummings]’s statement because of the “above average”
volume of [Cummings] and Bo’s conversation. After making the comment about
shooting someone, [Cummings] received a telephone call. Miche’al could not hear
[Cummings]’s part of the conversation, but when the call ended, [Cummings] left
the apartment.
At about 11:20 p.m., roughly twenty minutes after [Cummings] left Bo’s
girlfriend’s apartment, assailants riddled Majors’s car with gunfire, shooting out
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the back windows. Hubert and Sneed, who were sitting in the back seat, died at the
scene from multiple gunshot wounds. 	Although they were both wounded, Bible
and Majors escaped through the front passenger side door and fled to a nearby
apartment that Bible shared with various people, including his girlfriend’s aunt,
Nickoll Henry. 	Henry was inside the apartment and went to the front door right
after Bible and Majors burst in. 	Henry saw [Cummings] standing about ten feet
away, trying to unjam a semiautomatic pistol. Henry shut the door, locked it, and
fled deeper inside the apartment until police and emergency medical personnel
arrived.
The shell casings and projectiles recovered from around Majors’s car
indicated that Hubert and Sneed’s assailants probably used an AK–47 or SKS
assault rifle, as well as firearms capable of firing .38–, .40–, and .45–caliber
ammunition. In addition, Henry’s apartment had bullet damage to the exterior wall
and a bullet hole in the wall behind the living room couch. The bullet damage had
not been there before the offense. There was also a .45–caliber cartridge on Henry’s
dining room floor. The cartridge had not been there before the offense.
Minutes after the shooting and less than half a mile away, police officers
made a traffic stop of a car that was traveling away from the scene and which
generally matched the description of a vehicle reportedly involved in the shooting.
D’Arvis Cummings was the car’s driver and sole occupant. 	During that
stop, officers seized a .45–caliber pistol later shown to belong to [Cummings]. A
crime scene unit officer tested D’Arvis’s hands for gunshot residue (GSR),
obtaining a negative result, and photographed various items that were inside the
car. These items included several cell phones, a white t-shirt on the back seat, and
a bottle of hand sanitizer on the backseat’s floorboard.
When investigators arrested [Cummings] on April 1, they recovered a .40–
caliber Ruger pistol from his vehicle, as well as .45–caliber and .38 Special
ammunition, a red sweater, a red hoodie, and hand sanitizer. 	[Cummings] had a
loaded .40–caliber magazine fitting the Ruger in his front pocket. [Cummings]’s
hands tested negative for gunshot residue. 	Ballistic comparisons did not match
either of the seized pistols to the shell casings or projectiles recovered from the
scene or the victims’ bodies. However, the .45–caliber ammunition recovered from
[Cummings]’s car was the same, albeit widely-available, brand as the cartridge
collected from Henry’s dining room.
Although the seized pistols were later ruled out as the murder weapons and
neither [Cummings]’s nor D’Arvis’s hands tested positive for gunshot residue, the
evidence showed that, about forty minutes before the shooting, Robert Sneed (Tyus
Sneed’s father) saw and talked to [Cummings] in one of the Lakewood Villas’s
breezeways. [Cummings] was wearing a black hoodie with the hood raised. Two
unfamiliar men were standing at the end of the breezeway, although Robert did not
know whether the men were with [Cummings].
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Immediately before the shooting, another witness saw three black males2
(one wearing a black top, one wearing a red top, and one wearing a white top)
sneaking across the breezeway and around the corner of a building; the man
wearing red carried a long gun attached to a shoulder strap. 	And Bible testified
that, in a police interview about the shooting, he reported hearing a rumor that
Love’s girlfriend had bought Love an AK–47 rifle. 	Love had also previously
shown Bible various handguns that Love owned, including a .38–caliber pistol and
a .45–caliber pistol. In addition, on the afternoon of the offense, a witness saw a
firearm consistent with an assault rifle lying on the backseat of [Cummings]’s car,
although [Cummings] was not in the car and the witness did not recognize the
driver. 	The witness photographed her cousin posing in the car with the weapon;
this photograph was admitted at trial and published to the jury.
Cell phone records showed that [Cummings] had several communications
with D’Arvis and Love shortly before the shooting occurred and that Love was in
the vicinity of the Lakewood Villas at the time of those communications. Further,
Brittany Snell was a friend of [Cummings]’s who lived at the Lakewood Villas.
Snell testified that, shortly after the shooting, [Cummings] came to her apartment
with Love and asked to use her phone so he could call D’Arvis. Snell’s cell phone
records established that [Cummings] made this call to D’Arvis’s at 11:32 p.m., and
thus that [Cummings] and Love were present at the Lakewood apartments twelve
minutes after the shooting. 	While in Snell’s apartment, [Cummings] used the
bathroom and washed his hands, as did Love. After the shootings, other witnesses
saw [Cummings] in the parking lot dressed in different clothing and watching while
the bodies were removed.
At 1:52 a.m. on March 29, Love called Bowers’s mother and had a two-
minute-and seven-second conversation with her. Love then sent Bowers’s mother
a text message, to which she responded at 1:56 a.m. with, “Love yall too!!!” At
1:57 a.m., Love texted [Cummings], “Tbuck5,” Bowers’s rap name.
The State also presented evidence that, after the offense, [Cummings] tried
to establish an alibi; destroy evidence of his participation, including incriminating
texts on his cell phone; and intimidate witnesses such as Henry from cooperating
with law enforcement. 	As additional proof of [Cummings]’s motive, the State
presented evidence that he and Bowers had not just been friends, but had also been
fellow members of a criminal street gang.
[Cummings] testified in his own defense. He denied having had any role in
the shooting and he also denied having any involvement in an organized gang.
Ex parte Cummings, No. 84,324-01, 2018 WL 1516614, at *1-3 (Tex. Crim. App. 2018).
2 	The record shows that [Cummings] and his co-defendants are black.
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B. 	The Punishment Phase
The punishment phase of Cummings’s trial began November 5, 2012, and lasted three days.
(ECF Nos. 20-16, 21-1, 21-2). During that time, the jury heard testimony from nine prosecution
witnesses and six witnesses presented on behalf of the defense. 	That testimony is briefly
summarized below.
1. 	Evidence Presented by the State
The State’s punishment-phase case consisted of Cummings’s prior criminal behavior,
including a juvenile charge of resisting arrest, several assault offenses, and a conviction for
unlawfully carrying a weapon.
Tarl Llloyd, Jr., a former principal at G.L. Wiley Middle School, testified that Cummings
made an unauthorized visit to the school’s campus in December 2003. (ECF No. 20-16 at 12-15).
Cummings was not currently enrolled at Wiley and was asked to leave. 	Id. 	Although he was
escorted off of campus and told not to return, Cummings later returned. 	Id. 	Former Wiley
instructor Clifford Duevall testified that he again informed Cummings that he needed to leave, but
Cummings refused. 	Id. at 25. 	When Duevall threatened to call the authorities, Cummings
responded, “If I had a gun, you would not be saying that.” Id. at 26. Duevall contacted former
Waco ISD Police Chief Gilbert Miller, who arrived shortly thereafter in a marked vehicle. Id. at
26, 31. Cummings resisted being placed in handcuffs, but was eventually subdued by Miller and
Duevall and placed in the car. 	Id. at 27, 35. 	Cummings was charged with resisting arrest and
criminal trespass as a juvenile. Id. at 37.
In July 2005, Cummings, still a juvenile, assaulted his grandmother’s husband, Choyce
Phillips, after an argument over what to watch on television. Id. at 39-47. Choyce, who is disabled
and wears a brace on his leg, was sent to the hospital with several injuries to his face and pain in
his knee. Id. at 41. According to Detective Joe Williams, who interviewed Choyce and his wife,
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it took both Cummings’s mother and grandmother to separate him from Choyce. 	Id. at 45.
Cummings was charged in a juvenile proceeding with assault on a disabled person and placed on
probation for one year. Id. at 47, 52-53.
Cummings also committed several assaults while attending Waco High School. 	Gerald
Brewer, a former assistant principal in charge of discipline management, testified that Cummings
committed his first assault on a student his freshman year. 	Id. at 58. 	He was suspended from
school for three days and sent to alternative school for forty-five days. Id. at 58, 63. His senior
year, Cummings committed his second assault on a student, again receiving a suspension for three
days and assigned to alternative school for forty-five days. Id. at 58, 64. Upon returning to school,
Cummings committed his third assault on a student—this time with the help of other individuals—
in what was classified as gang activity. Id. at 60-61. Cummings was given the same punishment—
suspended for three days and assigned to alternative school. Id. at 62.
As a senior at Waco High School, Cummings also assaulted sophomore Toylon Clark while
he was waiting for the bus with his girlfriend, Meagan Sanders. Sanders testified that Cummings
approached Clark and, without any provocation, struck Clark in the mouth with his fist. Id. at 78-
79. Cummings was arrested, suspended from school, and ultimately pled guilty to assault. Id. at
82, 87-89.
Lastly, the State presented evidence concerning Cummings’s conviction for unlawfully
carrying a weapon. On November 2, 2008, Jeremy Neagle was working security outside a popular
Waco nightclub when he noticed three men run down the street, enter a car, and speed off. Id. at
91-95. A moment later, Cummings appeared from between two parked cars, pointing a handgun
at the car that just left. Id. at 95. Neagle and another security officer pulled their weapons and
ordered Cummings to drop his. Id. at 96. Cummings did not comply. Instead, he took off running
through the parking lot toward the nightclub, throwing his weapon away somewhere along the
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way. Id. at 96-97. Neagle pursued and eventually apprehended Cummings while his colleague
recovered the handgun. Id. at 98. Waco Police Officer Richard Baldwin ultimately took custody
of Cummings and filed charges against him for unlawfully carrying a weapon on a licensed
premise and for making a terroristic threat. Id. at 106. Cummings later pled guilty to unlawfully
carrying a weapon, a misdemeanor, and received a sentence of seventy-five days in the county jail.
Id. at 109-10.
2. 	Evidence Presented by the Defense
In response, the defense presented several of Cummings’s family members to testify about
Cummings’s background and character. Erma Richards, Cummings’s grandmother, testified that
Cummings is a good kid who knows right from wrong. (ECF No. 21-1 at 10-13). She believed
that Cummings would follow all the rules in prison and would not commit continuing acts of
violence if given a life sentence. 	Id. at 11. 	Cummings’s paternal aunt, Annetta Wilkerson,
described Cummings as a caring, trustworthy person who was always willing to provide guidance
to her two young boys. Id. at 20-21. According to Wilkerson, Cummings was a very giving and
positive person despite the fact that his father had been in prison the majority of Cummings’s life.
Id. at 21-22. 	Cummings’s maternal aunt, Ruby Brown, reiterated that Cummings was a very
respectful, kindhearted person. Id. at 34-42. Cummings helped raise her ten-year-old son, who he
treats as a little brother, and was always available to pick him up from daycare or help with
homework. 	Id. 	Brown also characterized Cummings as a loving father, cousin, brother and
grandson who would “do anything for anybody.” Id. at 40.
Cummings’s older cousin, Jarrett Embry, testified that Cummings made “pretty good”
grades while in school and had not been involved in a gang. Id. at 26-27. All Cummings wanted
to do at the time was “play ball, get the girls, and look fresh.” Id. While recently they have only
spoken by phone or at family reunions, Cummings still appeared to “have his head on straight.”
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Id. at 27. 	Embry believed that Cummings deserved a chance at living and would follow prison
rules if incarcerated for life. Id. at 28.
Brittney Hayes, the mother of Cummings’s son, testified that she dated Cummings while
they were in high school and had a son, Jayvien, together. Id. at 50-51. Cummings was a very
supportive father, working two jobs to afford an apartment and provide for their son. 	Id. 	He
played an active role in Jayvien’s life before she was offered a job in Dallas and moved. Id. at 52-
53. Hayes considers Cummings a “great person” and “great dad” who could still play an important
role in her son’s life. Id. at 54-55.
Finally, the defense presented testimony from Frank AuBuchon, an expert on prison
classification, on the question of Cummings’s potential for future dangerousness. Id. at 96-124.
As a former Chief of Unit Classification for the state prison system, AuBuchon testified about the
custody level and prison security Cummings would be subjected to if given a life sentence. 	Id.
According to AuBuchon, Cummings would serve his entire life sentence in a maximum-security
prison with no less than a “G3” custody level. Id. He would be housed in a two-person cell and
would never be given a job that allowed him to move around the facility or be around female staff.
Based on photographs of Cummings’s tattoos, AuBuchon believed Cummings would be classified
as a gang member but would be allowed to remain in general population as long as he behaved.
Id. at 122-23.
Following this testimony, on November 7, 2012, the jury was instructed on the punishment
special issues and heard closing argument by counsel. 	(ECF No. 21-2 at 7-60). 	After closing
arguments, the jury deliberated and returned its verdict, finding unanimously (1) beyond a
reasonable doubt there was a probability that Cummings would commit criminal acts of violence
that would constitute a continuing threat to society, (2) beyond a reasonable doubt that Cummings
either caused the deaths of Tyus Sneed and Keenan Hubert, intended to kill them, or anticipated
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that a human life would be taken, and (3) taking into consideration all of the evidence, including
the circumstances of the offense, the Cummings’s character, background, and personal moral
culpability, there were insufficient mitigating circumstances to warrant a sentence of life
imprisonment rather than a death sentence. 	Id. at 62-63. 	The trial court accordingly sentenced
Cummings to death. Id. at 66.
C. 	Post-conviction Proceedings
Cummings appealed his conviction and sentence, raising nine points of error in his direct
appeal brief. (ECF No. 23-12).3 In an unpublished opinion issued December 17, 2014, the TCCA
rejected Cummings’s allegations and affirmed his conviction and sentence. Cummings v. State,
No. 76,923, 2014 WL 12713256 (Tex. Crim. App. 2014); (ECF No. 23-5).
While Cummings’s direct appeal was pending, the Office of Capital Writs (OCW) was
appointed to represent Cummings in pursuing state habeas corpus relief.4 (ECF No. 23-19). The
OCW filed a lengthy state habeas application on Cummings’s behalf in the state trial court raising
a total of fourteen multi-faceted claims for relief. (ECF Nos. 24-11, 24-12). Following the State’s
opposition and an evidentiary hearing, the trial court issued findings of fact and conclusions of law
recommending that state habeas corpus relief be denied.5 	(ECF No. 24-22 at 74-119). 	In an
unpublished order dated March 28, 2018, the TCCA declined to adopt the trial court’s findings of
fact and conclusions of law but nonetheless denied Cummings state habeas corpus relief based on
3 	The complete record of Cummings’s direct appeal and initial state habeas proceeding can be found on this
Court’s electronic docket at ECF Nos. 23 through 25 (cited in parenthesis throughout).
4 	The OCW is now known as the Office of Capital and Forensic Writs.
5 	The original judge who presided over Cummings’s trial was forced to recuse after making public statements
disparaging a non-testifying defense expert for overbilling the county. (ECF No. 24-15 at 9-13, 30, 50). A new judge
was appointed and presided over Cummings’s state habeas corpus proceedings. Id. at 38.
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the court’s own independent review of the record. Ex parte Cummings, No. 84,324-01, 2018 WL
1516614 (Tex. Crim. App. 2018) (per curiam); (ECF No. 24-2).
One year following the denial of state habeas relief, Cummings filed his initial federal
habeas corpus petition in this Court raising ten claims for relief supported by eighty-five exhibits.
(ECF Nos. 31, 33). Admittedly, Cummings did not raise the majority of these allegations in his
previous state habeas corpus proceeding despite the exhaustion requirement set forth in the Anti-
Terrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2254(b)(1); Fisher v. Texas,
169 F.3d 295, 302 (5th Cir. 1999). For this reason, this Court granted Cummings’s ensuing motion
for stay and abeyance to allow him to present his new claims to the state court. 	(ECF No. 57).
Cummings returned to state court and filed a subsequent state habeas application raising all ten of
his new claims. 	(ECF No. 71-1).6 	On March 31, 2021, the TCCA dismissed the subsequent
application as an abuse of the writ pursuant to Article 11.071, § 5(a), without considering the
merits of the claims. Ex parte Cummings, No. 84,324-04, 2021 WL 1206447 (Tex. Crim. App.
2021) (per curiam) (unpublished).
Thereafter, Cummings returned to this Court and filed an amended federal habeas corpus
petition (ECF No. 73). 	In the amended petition, Cummings reasserted the same ten allegations
that were raised in his original petition, supported by the same eighty-five exhibits plus an
additional exhibit. (ECF Nos. 73, 75). Respondent filed a lengthy answer to the amended petition
(ECF No. 79) to which Cummings replied (ECF No. 82). The case is now ripe for adjudication.
6 	The record of Cummings’s subsequent state habeas proceeding can be found on this Court’s electronic docket
at ECF No. 71 (cited in parenthesis throughout).
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II. Claims for Relief
As raised in Cummings’s amended federal petition (ECF No. 73), the following ten
allegations are now before the Court:
(1) 	The prosecution unlawfully used post-indictment grand jury proceedings to
intimidate witnesses, prepare for trial, and suppress information necessary
to show the falsity of subsequent trial testimony;
(2) 	The prosecution violated Napue v. Illinois when it culpably elicited false
and 	misleading 	testimony 	from 	Detective 	James 	Owens 	regarding
authorship of inculpatory text messages;
(3) 	The prosecution committed misconduct by repeatedly, deliberately, and
falsely attributing the text messages to Cummings;
(4) 	The prosecution withheld multiple pieces of favorable, material evidence
from the defense in violation of Brady v. Maryland;
(5) 	Trial 	counsel 	were 	ineffective 	for 	failing 	to 	seek 	suppression 	of
Cummings’s mobile phone records under the Fourth Amendment;
(6) 	Trial counsel were ineffective for failing to investigate and present a defense
based on alternative suspects;
(7) 	Trial counsel were ineffective for failing to investigate or contest evidence
of Cummings’s gang membership;
(8) 	The defense team operated under a conflict of interest that deprived
Cummings of his right to effective assistance of counsel;
(9) 	Trial counsel were ineffective for failing to raise and competently argue
viable objections under Batson v. Kentucky; and
(10) 	The trial court erroneously excluded relevant mitigation evidence from the
punishment phase of trial.
III. 	Procedural Default
As listed above, Cummings raises ten separate allegations in his amended federal petition.
Respondent contends that every allegation, with the exception of Claim 10, is procedurally barred
from federal habeas review because they were raised for the first time in Cummings’s subsequent
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state habeas petition which was dismissed under Texas law as an abuse of the writ. 	The Court
agrees that these claims are all procedurally defaulted.
A. 	The Procedural Default Doctrine
Procedural default occurs where a state court clearly and expressly bases its dismissal of a
claim on a state procedural rule, and that state procedural rule provides an independent and
adequate ground for the dismissal. Davila v. Davis, 582 U.S. 521, 527 (2017); Canales v. Stephens,
765 F.3d 551, 562 (5th Cir. 2014) (citing Maples v. Thomas, 565 U.S. 266, 280 (2012)). 	The
“independent” and “adequate” requirements are satisfied where the state court clearly indicates
that its dismissal of a particular claim rests upon a state ground that bars relief, and that bar is
strictly and regularly followed by the state courts. Roberts v. Thaler, 681 F.3d 597, 604 (5th Cir.
2012) (citing Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001)). 	This doctrine ensures that
federal courts give proper respect to state procedural rules. Coleman v. Thompson, 501 U.S. 722,
750-51 (1991).
In this case, the TCCA refused to consider the merits of the first nine allegations listed
above when Cummings raised them in his subsequent state habeas application, dismissing the
application as an abuse of the writ under Article 11.071, § 5(a) of the Texas Code of Criminal
Procedure. Ex parte Cummings, 2021 WL 1206447. That statute, codifying the Texas “abuse of
the writ” doctrine, has repeatedly been held by the Fifth Circuit to constitute an “adequate and
independent” state procedural ground that bars federal habeas review. 	Ford v. Davis, 910 F.3d
232, 237 (5th Cir. 2018) (citation omitted); Canales, 765 F.3d at 566; Rocha v. Thaler, 626 F.3d
815, 832 (5th Cir. 2010). 	Thus, because “the last state court to review [Cummings]’s claims
unambiguously based its denial on a state procedural bar,” each of the claims are now procedurally
defaulted in federal court. 	Mullis v. Lumpkin, 47 F.4th 380, 387-88 (5th Cir. 2022) (quoting
Gonzales v. Davis, 924 F.3d 236, 243 (5th Cir. 2019) (per curiam)).
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Consequently, Cummings is precluded from federal habeas review of these claims unless
he can show cause for the default and resulting prejudice, or demonstrate that the Court’s failure
to consider his claims will result in a “fundamental miscarriage of justice.” Hughes v. Quarterman,
530 F.3d 336, 341 (5th Cir. 2008) (citing Coleman, 501 U.S. at 750-51). Cummings contends he
can establish both exceptions with regard to each of his nine procedurally-defaulted claims.
Specifically, Cummings argues that: (1) the State’s suppression of relevant evidence establishes
cause and prejudice for Claims 1 through 4, (2) ineffective representation by Cummings’s state
habeas counsel establishes cause and prejudice for Claims 5 through 9, and (3) the miscarriage-of-
justice exception applies to each claim, with the exception of Claim 9. The Court will discuss each
of these arguments in turn.
B. 	The Cause-and-Prejudice Exception (Claims 1-4)
Cummings’s first four claims for relief allege that the State committed various forms of
prosecutorial misconduct prior to and during his capital murder trial. Specifically, he accuses the
prosecution of: (1) improperly using grand jury proceedings to intimidate witnesses, prepare for
trial, and suppress information, (2) eliciting false testimony from Detective James Owens
regarding inculpatory text messages, (3) knowingly misattributing these text messages to
Cummings, and (4) withholding multiple pieces of exculpatory evidence.7 Cummings concedes
that each of the claims are procedurally defaulted but argues that the Court may reach the merits
of the allegations because he can establish cause for the default and resulting prejudice.
To show cause, Cummings “must show that some objective factor external to the defense
impeded counsel’s efforts to comply with the [relevant] procedural rule.” United States v. Vargas-
7 	According to Cummings, the State improperly withheld: (1) police interviews that undermine the credibility
of State witness Micha’al Atkins, (2) an interview with a woman named Manuela Garcia that undermines the
credibility of State witness Nickoll Henry, (3) information that shows Cummings did not author the inculpatory text
messages presented at trial, and (4) information that the State’s lead investigator, Detective Steven January, may have
had a relationship with the aunt of one of the victims.
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Soto, 35 F.4th 979, 993 (5th Cir. 2022) (citing Davila, 582 U.S. at 528). “A factor is external to
the defense if it cannot fairly be attributed to the movant.” Id. While the Supreme Court has not
provided “an exhaustive catalog” of what counts as an objective impediment, the Court found that
cause can exist where “interference” by state officials makes it “impracticable” to raise the claim
in state court. Id. (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)); see also Banks v. Dretke,
540 U.S. 668, 691 (2004) (noting “the State’s suppression of the relevant evidence” can be cause).
As to prejudice, Cummings must show that the errors “worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.” Prible v. Lumpkin,
43 F.4th 501, 518 (5th Cir. 2022) (citations omitted). 	The Court need not consider prejudice if
Cummings fails to show cause, and vice versa. Id.
Cummings contends that the State’s suppression of each claim’s factual predicate
constitutes cause to excuse the procedural default. 	(ECF No. 73 at 49-51, 58, 63, and 87-88).
Despite seeking the State’s file prior to filing his initial state habeas application in September 2014,
Cummings maintains that the State did not turn over the relevant files until June 2015, after the
state habeas trial court granted additional discovery. Id. at 49-51. These files allegedly contained
the factual predicate for Claims 1 through 4—namely, an 18-page log compiled by the State’s lead
investigator, Detective Steven January (the “January logs”), and various transcripts of grand jury
proceedings that took place after Cummings was indicted for capital murder but before his trial
began. 	Id. 	According to Cummings, he did not obtain the last of these transcripts until March
2017, a year before his initial state habeas petition was denied. Id. For this reason, Cummings
argues that he was unable to develop and present the claims in his initial state habeas application.
Cummings’s argument is unavailing. 	While the suppression of evidence may, in some
circumstances, provide cause and prejudice to overcome a procedural bar, such is not the case if
the suppressed evidence was discoverable through “reasonable diligence.” Guidry v. Lumpkin, 2
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F.4th 472, 486-87 (5th Cir. 2021) (citations omitted). To show cause, a petitioner “must conduct
a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief
in the first . . . habeas petition.” Prible, 43 F.4th at 514 (citing McCleskey v. Zant, 499 U.S. 467,
493 (1991)). 	In assessing the availability of a claim’s factual basis, “the question is whether
petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a
claim in the first petition and pursue the matter through the habeas process.” Id. at 516 (citations
omitted). If a claim was “reasonably available” at the time of the first petition, a default may not
be excused for cause. Id. at 514 (citing Ford, 910 F.3d at 237).
Despite not being presented with the January log and grand jury transcripts until June 2015,
the factual bases of Cummings’s first four claims for relief were available had Cummings
exercised reasonable diligence. Certainly, Cummings could have obtained a sufficient basis for
both Claims 2 and 3 by the time he filed his initial state habeas application, as both of those claims
stem from the prosecution’s alleged misconduct in attributing inculpatory text messages to
Cummings during the course of his October 2012 trial. 	While one of the grand jury transcripts
(ECF No. 75-6) may have bolstered Cummings’s allegations, his inability to produce this
supporting evidence did not cause his delay in asserting them. 	See Prible, 43 F.4th at 516
(distinguishing the “availability of the factual basis” for claims with “access to evidence supporting
them.”). 	No objective impediment therefore prevented Cummings from raising the allegations
earlier.
Claims 1 and 4 meet a similar fate. Cummings concedes that the factual predicate for these
claims—the grand jury transcripts and the January log—were disclosed on June 12, 2015, two
weeks after his state habeas counsel filed a discovery motion requesting complete access to the
State’s file. (ECF No. 73 at 49-50). This motion, filed well after the filing of Cummings’s initial
state habeas application, was filed after counsel reviewed the State’s original disclosure and
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determined it was likely incomplete. (ECF No. 24-17 at 52-64). This begs the question as to why
counsel did not fully review the State’s original disclosure before filing the initial state habeas
application. Had counsel done so, it is likely the factual predicate of these claims would have been
discovered much earlier. 	Because counsel could have obtained the evidence by exercising
reasonable diligence but failed to do so, there is no “suppression,” and thus no cause to excuse
procedural default of these claims. 	Prible, 43 F.4th at 517 (citing Rector v. Johnson, 120 F.3d
551, 558-59 (5th Cir. 1997) (collecting cases)).
In any event, there was nothing preventing counsel from raising the above claims once the
grand jury transcripts and the January log were obtained from the State in June 2015. Although
his initial application has already been filed, Cummings’s state habeas proceedings remained
pending until the TCCA denied relief in March 2018. Because the operative facts of the allegations
were available to counsel during the course of Cummings’s initial state habeas proceedings, they
could have filed a successive application under Article 11.071, § 5(a) of the Texas Code of
Criminal Procedure and argued that the claims were just recently made available. Indeed, counsel
appeared to consider doing just that at a status conference held in December 2016. (ECF No. 25-
9 at 11). The fact that they ultimately did not pursue one demonstrates a total lack of diligence (or
interest in raising such claims) and precludes finding cause to excuse Cummings’s default. See
Coleman, 501 U.S. at 753 (finding “[a]ttorney ignorance or inadvertence is not ‘cause’ because
the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation,
and the petitioner must bear the risk of attorney error.”); Prible, 43 F.4th at 518 (same).
Lastly, by dismissing Cummings’s subsequent state habeas application as an abuse of the
writ, the TCCA implicitly determined that the factual predicate of the above claims was available
during Cummings’s initial state habeas proceedings. 	Cummings, 2021 WL 1206447. 	This
decision reinforces the Court’s opinion that no objective impediment prevented Cummings from
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raising the allegations much earlier. See Ford, 910 F.3d at 235 (holding that subsequent habeas
dismissal means the TCCA “necessarily found that [the petitioner] knew or reasonably could have
known about the factual basis”). As a result, he cannot establish cause to excuse his procedural
default.
In short, Cummings “possessed, or by reasonable means could have obtained, a sufficient
basis to allege [the first four claims] in the first petition and pursue the matter through the [state]
habeas process.” Prible, 43 F.4th at 519 (citing McCleskey, 499 U.S. at 498). Cummings even
concedes that the factual predicates to his claims were available during the course of his initial
state habeas proceeding by acknowledging that the last of the grand jury transcripts were obtained
in March 2017, over a year before the TCCA ultimately ruled on his application. (ECF No. 73 at
51). 	The TCCA’s dismissal of his subsequent writ only serves to confirm this fact. 	Given the
above reasons, Cummings fails to show cause. And because he has not shown cause, the Court
need not consider whether Cummings can demonstrate prejudice. Prible, 43 F.4th at 514 (citing
Murray, 477 U.S. at 494). Cummings’s default of the above claims therefore bars federal habeas
review of their merits.
C. 	The Martinez Exception (Claims 5-9)
In his fifth through ninth claims for relief, Cummings alleges that he received ineffective
assistance from his trial counsel by counsels’ failure to: (1) suppress Cummings’s mobile phone
records, (2) investigate and present alternative suspects, (3) investigate or contest evidence of
Cummings’s gang membership, (4) operate a defense team without a conflict of interest, and
(5) raise viable Batson objections. Similar to his previous claims, Cummings acknowledges that
these allegations are procedurally defaulted, but argues he can overcome the default under
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Martinez v. Ryan8 and Trevino v. Thaler9 by demonstrating the ineffectiveness of his state habeas
counsel. 	(ECF No. 73 at 97, 109, 138, 151, and 162). 	As discussed below, Cummings fails to
make this showing as well.
1. 	The Martinez Standard
Prior to Martinez, an attorney’s negligence in a postconviction proceeding could not serve
as “cause” to excuse a procedural default. Coleman, 501 U.S. at 755. Martinez and Trevino carved
out a “narrow” exception to the Coleman rule for claims asserting ineffective assistance of trial
counsel (IATC). 	Trevino, 569 U.S. at 422. 	Now, a petitioner may meet the cause element by
showing (1) that habeas counsel provided ineffective assistance during the petitioner’s first state
habeas proceeding, and (2) that the underlying IATC claims are “substantial,” meaning they have
“some merit.” Tong v. Lumpkin, 90 F.4th 857, 865 (5th Cir. 2024); Garza, 738 F.3d at 676.
Once cause has been established, a petitioner must then show “actual prejudice.” Canales,
765 F.3d at 562. 	That is, he must demonstrate “a reasonable probability that he would have been
granted state habeas relief had the evidence been presented in the state habeas proceedings.”
Newbury v. Stephens, 756 F.3d 850, 872 (5th Cir. 2014). “The likelihood of a different result must
be substantial, not just conceivable.” Wessinger v. Vannoy, 864 F.3d 387, 391 (5th Cir. 2017)
(quoting Harrington v. Richter, 562 U.S. 86, 112 (2011)). Again, courts need not consider actual
prejudice if, as in this case, the petitioner fails to show cause. 	Prible, 43 F.4th at 514 (citing
Matchett v. Dretke, 380 F.3d 844, 849 (2004)).
8 	566 U.S. 1 (2012).
9 	569 U.S. 413 (2013).
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2. 	State Habeas Counsel
To excuse the procedural default of his IATC claims, Cummings faults the representation
he received from OCW during his initial state habeas proceeding. 	In the habeas context,
allegations of ineffective assistance are reviewed under the familiar two-prong test requiring a
petitioner to establish both deficient performance and prejudice. 	Strickland v. Washington, 466
U.S. 668, 687-88, 690 (1984). To establish that OCW’s performance was deficient, Cummings
must demonstrate that their representation fell “below an objective standard of reasonableness” in
light of “prevailing professional norms.” 	Bobby v. Van Hook, 558 U.S. 4, 7 (2009) (citing
Strickland, 466 U.S. at 686, 688). 	Judicial scrutiny of counsel’s performance is “highly
deferential,” and must consider “whether counsel’s assistance was reasonable considering all the
circumstances.” 	Hinton v. Alabama, 571 U.S. 263, 273 (2014); Norman v. Stephens, 817 F.3d
226, 233 (5th Cir. 2016).
Here, the record indicates that OCW operated with between four to eight attorneys and two
or three investigators at the time Cumming’s initial state habeas petition was filed in September
2014. (ECF No. 73-4 at 25). Three of these attorneys—Ryan Kent, Janet Gilger-Vanderzanden,
and their supervisor, Brad Levenson—were initially assigned to the case and responsible for
drafting the initial petition, which spanned 180-pages and raised a total of fourteen claims for
relief. 	(ECF Nos. 24-11 at 7-160; 24-12 at 1-37, 73-4 at 14, 20). 	The petition included ten
thorough and well-briefed IATC allegations and was supported by four expert affidavits, fourteen
lay witness affidavits, and seventeen supporting exhibits. (ECF No. 24-13 at 8-9). Later, three
more attorneys—Ashley Steele, Cathryn Crawford, and Benjamin Wolff—joined the team to
either replace outgoing attorneys or assist in the three-day evidentiary hearing that was held in
June 2015. (ECF Nos. 25-4 through 25-6, 73-4 at 14, 19). At the hearing, counsel examined all
three of Cummings’s trial attorneys as well as a linguistics expert, and presented another eighty-
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three exhibits on Cummings’ behalf. 	(ECF Nos. 25-4 through 25-6). 	Counsel also conducted
extensive discovery and obtained access to sealed materials, police and district attorney files, and
grand jury transcripts. 	(ECF No. 24-17 at 133-35, 24-19 at 193-95, 73-4 at 14-16). 	In light of
these extensive efforts, the record does not support Cummings’ assertion that OCW acted below
an objective standard of reasonableness when representing him in state court.
Nevertheless, Cummings asserts that OCW rendered ineffective assistance by not
including the instant IATC allegations (Claims 5 through 9) with his initial state habeas
application. 	To support this contention, he provides declarations from two OCW attorneys—
Steele and Wolff—attesting that there was no “strategic reason” the claims were omitted.10 (ECF
No. 73-4 at 14-22). Rather, the attorneys claim, the omission was likely an oversight caused by
excessive workload, inexperience, insufficient resources, and inadequate supervision. Id. Because
the decision to omit the claims was “non-strategic,” Cummings argues that OCW’s representation
was necessarily unreasonable. He is mistaken.
To start, the Steele and Wolff declarations are not particularly persuasive given that both
attorneys began working for OCW only after the initial state habeas application has been filed.
Neither attorney was present during the investigation and drafting of the initial petition and thus
have little relevant insight into the decision-making process regarding claim development.11
Interestingly, Cummings did not provide a statement from Kent, one of the attorneys who actually
researched and drafted the application. And the only other attorneys whose names appear on the
10 	Cummings also provides a statement from former OCW Director Brad Levenson. (ECF No. 73-4 at 23-27).
Levenson was Director from September 2010 to July 2015, during the time Cummings’ initial application was drafted
and litigated at an evidentiary hearing. Levenson stated his belief that OCW was chronically underfunded and, as a
result, had difficulty attracting and retaining experienced attorneys. Unlike Steele and Wolff, however, he gave no
opinion as to why certain claims were not raised in the initial application.
11 	Steele’s critique that OCW attorneys lacked the experience to spot potential claims is especially shaky given
that she was a recent law school graduate herself at the time she was assigned to Cummings’ case. (ECF No. 73-4 at
14).
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application, 	Gilger-Vanderzanden 	and 	Levenson, 	provide no 	opinion 	whatsoever 	in 	their
respective affidavits on whether there was a reason for omitting the IATC claims. (ECF No. 73-4
at 23-27, 36-43). 	Thus, Cummings’ argument is based solely on exactly the type of second-
guessing and subjective hindsight that Strickland prohibits. 466 U.S. at 689-90 (finding “[i]t is all
too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse
sentence”).
Further, to establish deficient performance under Strickland, Cummings must do more than
simply identify issues or claims that habeas counsel did not raise that are now barred. Id. at 689
(“Even the best criminal defense attorneys would not defend a particular client in the same way.”).
The fact that current federal habeas counsel, with the benefit of hindsight, was able to unearth new
IATC claims that OCW did not is itself unremarkable, and does little to denigrate the substantial
work done by OCW on Cummings’s behalf, much less demonstrate that it was objectively
unreasonable. See Smith v. Murray, 477 U.S. 527, 535 (1986) (“[T]he mere fact that counsel failed
to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing
it, does not constitute cause for a procedural default.”). To prove ineffective assistance, Cummings
must demonstrate that “a particular nonfrivolous issue was clearly stronger than issues that counsel
did present.” Vasquez v. Stephens, 597 F. App’x 775, 780 (5th Cir. 2015) (unpublished) (citing
Smith v. Robbins, 528 U.S. 259, 288 (2000)). Yet Cummings make no attempt to demonstrate that
the IATC claims he now raises for the first time in federal court are clearly stronger than the ten
IATC claims set forth by OCW in his state habeas application.
Instead, citing guidelines from the American Bar Association, Cummings argues OCW
was ineffective because they were obligated “to litigate all issues . . . that [were] arguably
meritorious” in order to preserve them for subsequent review. (ECF No. 82 at 50) (emphasis in
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original).12 	While acknowledging that appellate counsel are encouraged to limit briefing to
stronger claims based on the strict page constraints and closed record of a direct appeal, Cummings
argues that no competent habeas attorney would do so because such considerations “do not
constrain post-conviction pleadings.” Id. In other words, OCW were obligated to raise the new
IATC claims regardless of whether they had a lesser chance of success than the others. Id. (stating
“no competent post-conviction lawyer forfeits one claim because another might have a greater
chance of relief.”).
Cummings reliance on the 2003 ABA Guidelines is misplaced. While such professional
guidelines can be instructive, they are not “inexorable command[s] with which all capital defense
counsel must fully comply” to provide constitutionally effective representation. Van Hook, 558
U.S. at 17 (finding such standards are “only guides to what reasonable means, not its definition.”)
(cleaned up). Moreover, the Fifth Circuit has indicated that, similar to appellate counsel, habeas
counsel possess the discretion to focus on certain issues while foregoing others and are not required
to raise every nonfrivolous claim. Ayestas v. Davis, 933 F.3d 384, 394 (5th Cir. 2019) (finding
habeas counsel may engage in “winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues.”) (citation omitted); Vasquez v. Stephens,
597 F. App’x 775, 780 (5th Cir. 2015) (unpublished) (habeas counsel “need not (and should not)
raise every nonfrivolous claim, but rather may select from among them in order to maximize the
12 	In full, ABA Guideline 10.15.1(C) reads:
Post-conviction counsel should seek to litigate all issues, whether or not previously presented, that
are arguably meritorious under the standards applicable to high quality capital defense
representation, including challenges to any overly restrictive procedural rules. Counsel should make
every professionally appropriate effort to present issues in a manner that will preserve them for
subsequent review.
American Bar Association, American Bar Association Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913, 952 (2003).
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likelihood of success on appeal.”) (citation omitted). Thus, OCW was not deficient simply because
they failed to raise every conceivable nonfrivolous allegation.
Again, to demonstrate that he was denied the effective assistance of counsel during his
initial state habeas proceeding, Cummings must demonstrate that OCW’s representation fell below
an objective standard of reasonableness in light of prevailing professional norms. Van Hook, 558
U.S. at 7; Strickland, 466 U.S. at 686, 688. 	Even considering the 2003 ABA Guidelines,
Cummings fails to make this showing. There is no credible evidence suggesting OCW conducted
less than a reasonable investigation, much less that they failed to make “every professionally
appropriate effort” to present all available “ arguably meritorious” issues. 	ABA Guidelines, 31
Hofstra L. Rev. at 952. 	To the contrary, the record shows that OCW provided “aggressive,
competent, and professional representation.” 	Ayestas, 933 F.3d at 390-91. 	Consequently,
Cummings fails to demonstrate cause to excuse the procedural default of his IATC claims.
3. 	Cummings’s Claims are Insubstantial
Regardless of whether he establishes a valid claim of ineffective state habeas counsel under
Martinez, Cummings still is not entitled to excuse the procedural bar because the underlying
defaulted claims are meritless. 	Again, to overcome a default under Martinez, a petitioner must
also demonstrate that the underlying IATC claim “is a substantial one.” Martinez, 566 U.S. at 14
(citing Miller–El v. Cockrell, 537 U.S. 322 (2003)). “For a claim to be ‘substantial,’ a petitioner
‘must demonstrate that the claim has some merit.’” Reed v. Stephens, 739 F.3d 753, 774 (5th Cir.
2014) (quoting Martinez, 566 U.S. at 14). “Conversely, an ‘insubstantial’ ineffective assistance
claim is one that ‘does not have any merit’ or that is ‘wholly without factual support.’” Id.
As discussed in greater depth below, none of Cummings’s IATC claims meet these criteria.
Consequently, Cummings fails to establish cause under Martinez that would excuse his
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unexhausted IATC claims from being procedurally defaulted and is thus barred from receiving
federal habeas relief on these allegations.
(a) 	The Strickland Standard
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI.
This right “entails that defendants are entitled to be represented by an attorney who meets at least
a minimal standard of competence.” Hinton, 571 U.S. at 272. To establish the merits of an IATC
claim under the Sixth Amendment, a petitioner must satisfy the Strickland test—i.e., that
(1) counsel’s performance was deficient; and (2) that such deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687-88, 690. This standard is both demanding and deferential.
Shinn v. Kayer, 592 U.S. 111, 118 (2020); Strickland, 466 U.S. at 689.
Strickland’s first prong “sets a high bar.” Buck v. Davis, 580 U.S. 100, 118 (2017). “To
demonstrate deficient performance, the defendant must show that, in light of the circumstances as
they appeared at the time of the conduct, ‘counsel’s representation fell below an objective standard
of reasonableness’ as measured by ‘prevailing professional norms.’” Rhoades v. Davis, 852 F.3d
422, 431-32 (5th Cir. 2017) (quoting Strickland, 466 U.S. at 687-88). This requires the Court to
“affirmatively entertain the range of possible reasons counsel may have had for proceeding as they
did.” Cullen v. Pinholster, 563 U.S. 170, 196 (2011) (cleaned up). As such, counsel is “strongly
presumed to have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Burt v. Titlow, 571 U.S. 12, 17 (2013) (quoting Strickland,
466 U.S. at 690).
To satisfy Strickland’s second prong, a petitioner must show “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” 	Adekeye v. Davis, 938 F.3d 678, 682 (5th Cir. 2019) (citation omitted). 	In
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conducting a Strickland’s prejudice analysis, a court must “consider all the relevant evidence that
the jury would have had before it if [trial counsel] had pursued the different path.” 	Wong v.
Belmontes, 558 U.S. 15, 20 (2009) (per curiam). However, the question “is not whether a court
can be certain counsel’s performance had no effect on the outcome or whether it is possible a
reasonable doubt might have been established if counsel [had] acted differently.” 	Richter, 562
U.S. at 111-12 (emphasis added) (citing Wong, 558 U.S. at 27). 	Rather, the “likelihood of a
different result must be substantial, not just conceivable.” Id.
(b) 	Phone Records (Claim 5)
Cummings first contends that his trial counsel rendered ineffective assistance by failing to
seek suppression of his mobile phone records under the Fourth Amendment. 	Prior to trial, the
State obtained records of texts sent to and from Cummings’s mobile phone from his wireless
service provider. (ECF No. 73-3 at 277-78). These records were not obtained through a warrant,
which would require a showing of probable cause, but rather through a court order based on the
judge’s “reasonable belief” that the records were “relevant to a law enforcement inquiry.” Id.13
As explained by Cummings:
Two sets of messages present in the wireless provider records but not on
Cummings’ phone were a central part of the State’s circumstantial case against
Cummings. 	The first set of messages discussed getting rid of bullets, and the
second was a conversation about identifying alibis. 34 RR 70-71, 74-76. The State
used the unlawfully obtained texts at trial to suggest to the jury that Cummings
conspired with other suspects, that he disposed of evidence, and that he sought a
false alibi. 38 RR 75-77.
(ECF No. 73 at 90).
Because the records were obtained without a warrant, Cummings argues there was no
strategic or tactical justification for counsels’ decision not to move for suppression. 	In
13 	Cummings’s actual mobile phone was obtained through a search warrant. (ECF No. 73-3 at 286-303).
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Cummings’s words, “the evidence would have been suppressed had trial counsel simply asked[.]”
(ECF No. 82 at 46).
In order to show that counsel was deficient, Cummings must demonstrate that counsels’
representation “fell below an objective standard of reasonableness.” Padilla v. Kentucky, 559 U.S.
356, 366 (2010) (citing Strickland, 466 U.S. at 688). “The proper measure of attorney performance
remains simply reasonableness under prevailing professional norms.” 	Id. 	In the context of the
Fourth Amendment, counsels’ failure to file a motion to suppress may constitute deficient
performance if the evidence would have been suppressed as a result of the motion. Ward v. Dretke,
420 F.3d 479, 488 (5th Cir. 2005). But judicial scrutiny of counsels’ performance must be highly
deferential, with every effort must be made to eliminate the distorting effects of hindsight.
Strickland, 466 U.S. at 689. 	Cummings therefore bears the burden of proving that the text
messages provided by his wireless service provider would have been suppressed as a result of such
a motion. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
Relying almost exclusively on Love v. State, 543 S.W.3d 835 (Tex. Crim. App. 2016),
Cummings argues that the inculpatory text messages would have been suppressed by the trial court
had counsel asked because they were obtained from his wireless service provider without a
warrant. In Love, the TCCA overturned the conviction of Cummings’s accomplice, Albert Love,
after finding that Love had a reasonable expectation of privacy in the content of text messages
conveyed through a wireless service provider. 543 S.W.3d at 845. Because he had a reasonable
expectation of privacy in the content of the text messages, the court explained, the State was
prohibited from compelling the wireless provider to turn the text messages over without first
obtaining a warrant supported by probable cause. 	Id.
Based on the similarity between his case and Love, Cummings contends that counsels’
failure to seek suppression was unreasonable and strategically indefensible. 	Yet, Love was not
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decided until December 2016, over four years after Cummings’s 2012 capital murder trial began.
Cummings offers no direct case law supporting the proposition that, prior to Love, a defendant
maintained a reasonable expectation of privacy in the content of a text message stored by a wireless
service provider. And Love itself seems to indicate that the law was previously unsettled, asking
whether a defendant “can really maintain a reasonable expectation of privacy” after voluntarily
disclosing the content of a text message “knowing it will be stored in a server somewhere and
subject to potential scrutiny by a third-party interloper?” 543 S.W.3d at 843. Answering in the
affirmative, the TCCA clarified this issue for the first time. Id.
Thus, at the time of Cummings’s trial in October 2012, it was not clearly established that
a valid warrant, supported by probable cause, was needed before the State could obtain mobile
phone records from a wireless service provider. 	Love, 543 S.W.3d at 841 (“Traditionally,
individuals do not maintain a reasonable expectation of privacy in information voluntarily revealed
to third parties.”) (citations omitted); see also Contreras v. State, No. 02-11-00252-CR, 2012 WL
3737714, at *3 (Tex. App.—Fort Worth, Aug. 30, 2012, pet. ref’d) (finding no reasonable
expectation of privacy in text messages located on someone else’s cell phone).
For these reasons, Cummings’s trial counsel cannot reasonably be faulted for failing to
challenge the admissibility of the text-message records obtained from his wireless service provider
based solely on his reasonable expectation of privacy in those records. See United States v. Fields,
565 F.3d 290, 294 (5th Cir. 2009) (repeating that “there is no general duty on the part of defense
counsel to anticipate changes in the law”); see also Miller v. Thaler, 714 F.3d 897, 904 n.6 (5th
Cir. 2013) (counsel is not required to make futile motions or objections); Roberts v. Thaler, 681
F.3d 597, 612 (5th Cir. 2012) (“the failure to lodge futile objections does not qualify as ineffective
assistance”) (quoting Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990)).
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Regardless, even assuming counsel erred by failing to raise an objection, it is unlikely that
this error resulted in prejudice to Cummings due to the substantial amount of evidence aside from
the text messages linking him to the double murder. See Berghuis v. Thompkins, 560 U.S. 370,
390 (2010) (noting the weight of the evidence of guilt in finding alleged deficient performance of
counsel not prejudicial); Pondexter v. Quarterman, 537 F.3d 511, 525 (5th Cir. 2008) (same).
Again, to establish prejudice, Cummings must show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of [his] proceeding would have been different.” Padilla,
559 U.S. at 366 (2010) (citing Strickland, 466 U.S. at 694). In assessing prejudice, this Court must
consider “the totality of the evidence before the judge or jury.” Mejia v. Davis, 906 F.3d 307, 315
(5th Cir. 2018) (quoting Strickland, 466 U.S. at 696) (internal quotation marks omitted).
As discussed in more detail by the TCCA in their initial state habeas opinion, the evidence
against Cummings included: (1) Nickoll Henry’s eyewitness identification of Cummings as one of
the gunmen, (2) Micha’el Atkins’s testimony that he overheard Cummings say that he was going
to shoot someone just prior the murders, (3) Cummings’s antagonistic interactions with one of the
victims (Hubert), including just before the shooting, (4) Cummings’s motive to commit the murder
as retaliation for the murder of his friend, (5) testimony that Cummings was nearby both before
and after the murders, and (6) testimony that Cummings and his accomplices possessed weapons
and ammunition similar to what was used in the double homicide, including an assault rifle seen
in Cummings’s car on the day of the offense. See Background, Section I(A), supra. In light of
this evidence, there is little probability that the results of Cummings’s trial would have been
different had counsel successfully suppressed Cummings’s mobile phone records. See Ramey v.
Lumpkin, 7 F.4th 271, 282-84 (5th Cir. 2021) (holding no prejudice under Strickland where
evidence of the defendant’s guilt was overwhelming). As such, Cummings fails to demonstrate a
substantial IATC claim under Strickland and Martinez.
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(c) 	Alternative Suspects (Claim 6)
Cummings’s next IATC claim alleges that trial counsel rendered ineffective assistance by
failing to adequately investigate and develop a defense based on alternative suspects. 	He bases
this argument on four pieces of evidence that were “delivered to trial counsel on a silver platter”
but not investigated further: (1) an anonymous tip to the Waco Police Department identifying Paul
Hall, Kirby Brown, and Carlos Smith as the shooters, (2) a written statement from Lashonda Moten
that she witnessed the shooting and heard someone say, “come on, Carlos,” once the shooting
stopped, (3) a witness interview statement from Constance Jones, who had dated Carlos Smith,
that her sister had tried to contact her through a male friend after the shooting to warn her about
Smith because she overheard other people, including Nickoll Henry, say that Smith was the
shooter, and (4) a ballistics report showing a potential match between the large caliber rifle used
in the shooting and one used in a prior shooting at the same complex by Kirby Brown weeks
earlier. (ECF No. 73 at 99-110). Cummings faults counsel for failing to further investigate each
piece of evidence, connect them, and present evidence to undermine the State’s case.
Cummings is correct that trial counsel must engage in a reasonable amount of pretrial
investigation. 	Strickland, 466 U.S. at 690-91 (requiring counsel to undertake a reasonable
investigation); Charles v. Stephens, 736 F.3d 380, 389 (5th Cir. 2013) (same). 	“Purportedly
tactical decisions not preceded by reasonable investigations are not sufficiently informed and
thereby not entitled to the ‘deference typically afforded’ to trial counsel’s decisions.” 	Neal v.
Vannoy, 78 F.4th 775, 790 (5th Cir. 2023) (citing Escamilla v. Stephens, 749 F.3d 380, 392-93
(5th Cir. 2014)). To be reasonable, counsel must, at minimum, interview potential witnesses and
make an independent investigation of the facts and circumstances of the case. Kately v. Cain, 704
F.3d 356, 361 (5th Cir. 2013).
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Here, the defense team was clearly aware of the above information because it was found
in their investigator’s files. (ECF Nos. 73-2 at 7, 13-15; 73-4 at 7-9). Perhaps aware that the bulk
of this information was inadmissible, Cummings does not argue that counsel was deficient for
failing to introduce it—rather, he challenges the extent of their investigation and contends that
counsel unreasonably “failed to seize on the inadmissible evidence, follow all leads, and ensure
the development of the evidence into an admissible form.” (ECF No. 82 at 56). But a petitioner
“who alleges a failure to investigate on the part of his counsel must allege with specificity what
the investigation would have revealed and how it would have altered the outcome of the trial.”
Trottie v. Stephens, 720 F.3d 231, 242-43 (5th Cir. 2013) (citing Druery v. Thaler, 647 F.3d 535,
541 (5th Cir. 2011)). Cummings makes no such showing. Instead, he makes only the conclusory
accusation that counsel failed to “follow up” on the anonymous tip, witness statements, and
ballistics report. (ECF No. 73 at 101-04). This is not enough. 	See United States v. Demik, 489
F.3d 644, 646 (5th Cir. 2007) (“[C]onclusory allegations are insufficient to raise cognizable claims
of ineffective assistance of counsel.”) (quoting Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.
2000)).
Moreover, when counsel focus on certain issues to the exclusion of others, there is a “strong
presumption that [they] did so for tactical reasons rather than through sheer neglect.” Yarborough
v. Gentry, 540 U.S. 1, 5-6, 8 (2003) (finding “counsel has wide latitude in deciding how best to
represent a client. . .”); see also Pinholster, 563 U.S. at 196 (indicating a “strong presumption”
that counsel “made all significant decisions in the exercise of reasonable professional judgment.”).
The burden of rebutting this presumption “rests squarely on the defendant,” and “[i]t should go
without saying that the absence of evidence cannot overcome [it].” Dunn v. Reeves, 594 U.S. 731,
739 (2021) (citing Titlow, 571 U.S. at 22-23).
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Again, Cummings has not supplied this Court with any evidence or argument as to what
counsel should have discovered had they investigated further. Nor has he provided any statements
from counsel themselves, despite asserting that counsels’ performance was unreasonable on
several fronts. 	This second omission is significant given the “range of possible reasons
[Cummings’s] counsel may have had for proceeding as they did.” Reeves, 594 U.S. at 740 (citing
Pinholster, 563 U.S. at 196). Counsel may very well have determined that the evidence they had
already 	collected 	regarding 	possible 	alternative 	suspects—which 	itself 	hardly 	indicates
professional 	neglect—was 	unlikely 	to 	lead 	to 	persuasive, 	admissible 	evidence 	had 	they
investigated further. 	But without a chance to testify, counsels’ strategic considerations remain
unknown. 	Thus, absent evidence to the contrary, Cummings cannot overcome the presumption
that counsels’ decision to abstain from further investigating an alternative-suspects theory was the
result of sound trial strategy. See Trottie, 720 F.3d at 243 (holding the failure to present a particular
line of argument is presumed to be the result of strategic choice).
Regardless, even assuming counsels’ investigation was deficient, Cummings fails to
demonstrate that the results of his trial would have been different had counsel further investigated
the alternative-suspects angle. Strickland, 466 U.S. at 694. Cummings’s entire theory is that, had
counsel effectively investigated, they would have uncovered evidence that would have exposed
holes in the State’s case against him and called into question the credibility of certain witnesses.
(ECF No. 73 at 107-08). Thus, at its core, Cummings’s claim is one of uncalled witnesses, as he
would likely need to present any uncovered evidence through witness testimony. See Gregory v.
Thaler, 601 F.3d 347, 351-53 (5th Cir. 2010) (analyzing the investigation claim in light of the fact
that he intended to present evidence through witnesses).
“[C]omplaints of uncalled witnesses are not favored in federal habeas corpus review
because the presentation of testimonial evidence is a matter of trial strategy and because allegations
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of what a witness would have stated are largely speculative.” Nelson v. Davis, 952 F.3d 651, 669
(5th Cir. 2020) (quoting Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) (citations omitted)).
To prevail on such a claim, the petitioner must name the witness, demonstrate the witness was
available to testify, delineate the content of the witness’s proposed testimony, and show the
testimony would have been favorable to the defense. Gregory, 601 F.3d at 352; Day, 566 F.3d at
538. 	A failure to present some evidence from the uncalled witness regarding that witness’s
potential testimony and willingness to testify is usually fatal to an IATC claim. Sayre v. Anderson,
238 F.3d 631, 636 (5th Cir. 2001).
Cummings fails to make this showing. 	In fact, Cummings has not provided a single
affidavit from a potential witness regarding the anonymous tip or the ballistics report, and the two
hearsay affidavits that Cummings does provide—one from Lashonda Moten (ECF No. 73-4 at 7)
and one from Constance Jones’s sister, Alicia Harrison (ECF No. 73-4 at 13)—fail to establish
that either witness was available and willing to testify at trial. As a result, Cummings’s belief that
exculpatory information was available to counsel had they investigated further is tantamount to
sheer speculation that is insufficient to demonstrate that counsel was ineffective. 	Gregory, 601
F.3d at 353 (finding “conclusory statements regarding the content of the uncalled witness[’]s
testimony are insufficient to demonstrate ineffective assistance.”); Harrison v. Quarterman, 496
F.3d 419, 428 (5th Cir. 2007) (reiterating that “complaints of uncalled witnesses are not favored .
. .”) (citation omitted).
Finally, it is unlikely that counsels’ allegedly deficient investigation was prejudicial to
Cummings because the evidence linking Cummings to the double murder, while mostly
circumstantial, was still substantial. 	See Berghuis, 560 U.S. at 390 (noting the weight of the
evidence of guilt in finding alleged deficient performance of counsel not prejudicial); Pondexter,
537 F.3d at 525 (same). As discussed in the previous section, this evidence included: (1) Nickoll
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Henry’s eyewitness identification of Cummings as one of the gunmen, (2) Micha’el Atkins’s
testimony that he overheard Cummings say that he was going to shoot someone just prior the
murders, (3) Cummings’s antagonistic interactions with one of the victims (Hubert), including just
before the shooting, (4) Cummings’s motive to commit the murder as retaliation for the murder of
his friend, (5) testimony that Cummings was nearby both before and after the murders,
(6) testimony that Cummings and his accomplices possessed weapons and ammunition similar to
what was used in the double homicide, including an assault rifle seen in Cummings’s car on the
day of the offense, and (7) evidence Cummings tried to establish an alibi or destroy evidence of
his participation after the offense. See Section III(C)(3)(b), supra.
In light of the strength of the State’s case against Cummings, there is little probability that
the results of his trial would have been different had counsel presented evidence concerning
anonymous tips, rumors, hearsay, and inconclusive ballistics tests. 	Ramey, 7 F.4th at 282-84
(holding 	no 	prejudice 	under 	Strickland 	where 	evidence 	of 	the 	defendant’s 	guilt 	was
overwhelming). Consequently, Cummings fails to demonstrate either that his trial counsel acted
deficiently or that he was prejudiced by this alleged deficiency as required under Strickland.
(d) 	Gang Membership (Claim 7)
In his seventh claim for relief, Cummings asserts that his trial counsel rendered ineffective
assistance by failing to investigate and contest evidence implying that he was a member of the
Bloods criminal street gang. At the guilt-innocence phase of trial, the State presented a significant
amount of evidence of Cummings’s gang membership, including pictures of his numerous gang-
affiliated tattoos, pictures with Cummings and his friends wearing red clothes and using gang-
related hand signs, and text messages from Cummings with a linguistic style indicative of gang
affiliation. Cummings contends that counsel was deficient in preparing for this narrative by failing
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to: (1) investigate and develop information necessary to dispute his gang membership, and
(2) object to the State’s repeated reference to such membership.
Cummings presented similar, if not identical, claims during his initial state habeas corpus
proceeding.14 In response to these allegations, all three of Cummings’s trial attorneys—Russell
Hunt, Sr., Walter Reaves, Jr., and Michelle Tuegel—submitted identical affidavits explaining their
preparation and strategy:
[Cumming]’s third claim is that we were ineffective for failing to present
an expert to rebut the State’s assertion that [Cummings] was affiliated with the
Bloods. Prior to the trial and in preparation for the trial, we consulted with Prison
Expert Frank Aubuchon and gang expert Terry Pelz. 	Aubuchon testified as an
expert, and we chose not to duplicate his testimony with a second expert. 	We
additionally chose to turn the gang allegations around on the State by showing that
using such allegations showed how weak their case was.
[Cumming]’s fourth claim is that we were ineffective for failing to object
to the admission of inflammatory, irrelevant, and highly prejudicial gang evidence.
In preparation for the defense, we prepared evidence to rebut the State’s claim of
gang involvement. 	The State objected to our proposed evidence, and the Trial
Court prohibited us from offering it to the jury. 	Similarly, we did not object to
much of the State’s testimony of such evidence because we believed that the Trial
Court would overrule our objections, and such ruling would bolster the credibility
of the State’s testimony. We then chose to ridicule the proffered evidence during
argument.
(ECF No. 24-17 at 24-35).
Counsel also testified about their defense strategy at an evidentiary hearing before the state
habeas trial court. (ECF Nos. 25-4 through 25-6). In essence, counsel explained their belief that
14 	Presumably to skirt the substantial deference that would be afforded to state court’s adjudication of his state
habeas claims under the AEDPA, Cummings contends that the instant allegation is fundamentally different from the
claims raised in his initial state habeas application. (ECF No. 73 at 131-32). Cummings attempts to distinguish the
claims by noting (1) the instant claim concerns counsels’ alleged failure to investigate, rather than counsels’ failure to
present evidence, and (2) new evidence is used to support the instant claim. Id. The Court is skeptical of this argument,
as additional evidentiary support and minor linguistic changes do not “fundamentally alter” the underlying nature of
an allegation. See Ward v. Stephens, 777 F.3d 250, 258 (5th Cir. 2015) (finding new affidavit in support of IATC
claim did not “place the claims in a significantly different legal posture.”). Nevertheless, out of an abundance of
caution, the Court will accept Cummings’s assertion and will review the instant claim as it has Cummings’s other
IATC claims—to determine whether the claim is substantial under Martinez and Trevino in order to potentially excuse
a procedural default. See Section III(C)(1), supra.
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the State’s reliance on the alleged gang affiliation, as opposed to direct evidence of Cummings’s
involvement in the charged offense, tended to show that the case against him was relatively weak.
Thus, while they attempted (unsuccessfully) to prevent certain evidence from being admitted, they
ultimately chose a strategy based on ridiculing the State’s evidence of gang membership rather
than trying to exclude or rebut it.
Cummings has not shown that counsels’ choice of strategy fell below “an objective
standard of reasonableness.” Rhoades, 852 F.3d at 431-32. Trial counsel have broad discretion
when it comes to deciding how best to proceed strategically. See Ward v. Stephens, 777 F.3d 250,
264 (5th Cir. 2015) (indicating counsel has “wide latitude in deciding how best to represent a
client”) (citing Yarborough, 540 U.S. at 5-6, 8). 	For this reason, “[a] conscious and informed
decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance
of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.”
Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003). 	This makes an attorney’s choice of
defense and his strategy in arguing that defense to a jury “virtually unchallengeable.” Strickland,
466 U.S. at 690.
Counsels’ decision in this case to ridicule the gang evidence in order demonstrate the
relative weakness of the State’s overall case certainly did not “permeate[] the entire trial with
obvious unfairness.” Cotton, 343 F.3d at 752-53. Quite the opposite, given that counsels’ attempt
to admit rebuttal evidence was unsuccessful, along with their belief, based on years of criminal
trial experience, that any objection to the State’s gang evidence was likely to have been overruled,
counsels’ chosen strategy appears imminently reasonable under the circumstances. This Court is
mindful that, on federal habeas review, “Strickland does not allow second guessing of trial strategy
and must be applied with keen awareness that this is an after-the-fact inquiry.” 	Granados v.
Quarterman, 455 F.3d 529, 534 (5th Cir. 2006). In other words, simply because counsels’ strategy
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was not ultimately unsuccessful does not mean their performance was deficient. 	Avila v.
Quarterman, 560 F.3d 299, 314 (5th Cir. 2009).
Interestingly, Cummings does not contend that counsels’ proffered strategy of ridiculing
the State’s gang evidence was itself unreasonable; rather, he argues counsel were deficient in
implementing it by conducting an unreasonably limited investigation into the evidence they
intended to ridicule. 	According to Cummings, counsel made this decision without having
consulted a gang expert or otherwise having sought evidence that Cummings was not a member
of the Bloods street gang. The record does not support this contention.
Cummings is correct that “[p]urportedly tactical decisions not preceded by reasonable
investigations are not sufficiently informed and thereby not entitled to the ‘deference typically
afforded’ to trial counsel’s decisions.” Neal, 78 F.4th at 790 (citing Escamilla, 749 F.3d at 392-
93). 	Counsel must, at a minimum, interview potential witnesses and make an independent
investigation of the facts and circumstances of the case. Kately, 704 F.3d at 361. But counsel is
given wide latitude to determine how best to utilize the limited investigative resources that are
available. 	Richter, 562 U.S. at 107 (“Counsel was entitled to formulate a strategy that was
reasonable at the time and to balance limited resources in accord with effective trial tactics and
strategies.”).
Here, despite Cummings’s assertions to the contrary, the record indicates that counsel
sought the opinion of two different experts prior to trial concerning Cummings’s alleged gang
membership. The first was Frank AuBuchon, a prison expert, who indicated that Cummings would
likely be classified as a gang member in prison based on his tattoos, markings, and the linguistics
used in his text messages.15 (ECF No. 25-6 at 29-30). The second was Terry Pelz, a gang expert,
15 	AuBuchon later testified as such for the defense at the punishment phase of trial. See Background, Section
I(B)(2), supra.
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who agreed with AuBuchon that the above description would be consistent with Cummings being
a member of the Bloods street gang. Id. Counsel ultimately chose not to call Pelz as a witness
because (1) it would not have been helpful at the guilt-innocence phase to call a gang expert to
testify that their client was, in fact, a gang member, and (2) such testimony would have been
redundant at the punishment phase in light of AuBuchon’s testimony. Id.
It was reasonable for counsel to rely on the opinions of the experts they had contacted
instead of continuing to search for a more favorable viewpoint. Murphy v. Davis, 901 F.3d 578,
592 (5th Cir. 2018) (“[C]ounsel should be able to rely on [an expert] to alert counsel to additional
needed information . . .”); Segundo v. Davis, 831 F.3d 345, 352 (5th Cir. 2016) (refusing to find
counsel ineffective for relying on “reasonable expert evaluations” of evidence). While Cummings
now believes, with the benefit of hindsight, that counsel should have sought other expert or lay
witnesses capable of establishing that he was not a gang member, there was no reason for them to
have doubted the conclusions given by the experts they consulted at the time. See Murphy, 901
F.3d at 592 (“Without a red flag . . . it is too much to insist that counsel second-guess [his expert].”).
Furthermore, as discussed in the previous section, complaints of uncalled witnesses are
disfavored as means of establishing an IATC claim, in part because allegations of what a witness
would have testified are largely speculative. Nelson, 952 F.3d at 669. To prevail on such an IATC
claim, a petitioner must name the witness, demonstrate the witness was available to testify,
delineate the content of the witness’s proposed testimony, and show the testimony would have
been favorable to the defense. Gregory, 601 F.3d at 352. The requirements of showing availability
and willingness to testify “[are] not a matter of formalism.” Woodfox v. Cain, 609 F.3d 774, 808
(5th Cir. 2010). A petitioner must present evidence on these points as part of the burden of proving
trial counsel could have found and presented witnesses, including expert witnesses. Id.
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Cummings relies heavily on the affidavit of Charles Rotramel, a Houston-based gang
expert retained by OCW during Cummings’s initial state habeas proceedings to evaluate
Cummings’s possible gang affiliation based on the same factors mentioned by AuBuchon and Pelz.
(ECF No. 73-3 at 259-76). 	After interviewing Cummings and reviewing various records and
transcripts, Rotramel concluded that Cummings was not a member of the Bloods or any other
legitimate street gang. Id. at 267. Rotramel noted there was no evidence to suggest that there were
any organized Bloods gangs in Waco, and opined that Cummings’s tattoos and use of language
were only indicative of “young African-American men [trying] to show their machismo by
adopting symbols of gang membership without actually being gang members themselves.” Id. at
275. However, neither Cummings nor Rotramel offer any evidence that Rotramel was available
and willing to testify at the time of Cummings’s original trial in 2012. See Day, 566 F.3d at 538
(“[T]he petitioner must . . . demonstrate that the witness was available to testify and would have
done so”); Woodfox, 609 F.3d at 808 (experts required to state that they could and would have
testified at original trial even where they otherwise state they would be willing to testify in future
proceedings). Given this complete abdication of the requirements of Gregory, Day, and Woodfox,
Rotramel’s affidavit does little to establish that counsel fell short in their investigation of the gang
issue.16
Cummings assertion that counsel should have identified certain “disinterested” lay
witnesses capable of establishing that he was not a gang member is similarly unpersuasive. 	In
support, Cummings provides affidavits from three proposed witnesses: 	Pastor Richard Thomas
16 	Even if Rotramel was willing and able to testify, it is debatable whether his testimony would have been
“favorable” under the fourth Gregory requirement. 601 F.3d at 352. The gist of Rotramel’s proposed testimony
appears to be that Cummings was only imitating being a Blood gang member but was not actually affiliated with the
gang due, in part, to the fact that no organized Blood gangs exist in Waco. But as noted by Respondent, whether
Cummings was an “official” Blood member or merely mimicking one is a distinction without a difference that likely
would have had little sway with a jury. (ECF No. 79 at 149).
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(knew Cummings and Bowers through his own son), Annetta Wilkerson (Cummings’s aunt), and
Patricia Chisholm-Miller (the local County Commissioner). 	(ECF No. 73-4 at 31-35). 	These
witnesses would have testified generally that Cummings was not in a gang, Waco does not actually
have a gang problem, and the State’s insinuation that people wore red to Emuel Bowers’s funeral
as a “gang thing” was “nonsense.” Id. Such testimony, even if admissible, would not have been
favorable to Cummings because it would have largely been redundant of other trial testimony.17
Thus, like Rotramel, these uncalled witnesses are largely unhelpful in demonstrating that counsels’
investigation was somehow lacking. 	See Trottie, 720 F.3d at 246-47 (finding IATC claim for
failing to call a witness fails if the proposed testimony was cumulative of evidence already in the
record); Skinner, 528 F.3d at 345 n. 11) (same).
In any event, even if counsel fell short in their investigation of Cummings’s alleged gang
affiliation, Cummings has not established that this deficiency ultimately prejudiced his defense
under Strickland. 	Again, to demonstrate prejudice, a petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. The “likelihood of a different result must
be substantial, not just conceivable.” Richter, 562 U.S. at 112.
As discussed in the previous sections, it is unlikely that counsels’ allegedly deficient
investigation was prejudicial to Cummings during the guilt-innocence phase of trial because the
evidence linking him to the double murder, while mostly circumstantial, was still substantial. See
Sections III(C)(3)(b), (c), supra; see also Berghuis, 560 U.S. at 390 (noting the weight of the
17 	See ECF No. 20-7 at 146-47 (testimony from Bowers’s wife that people wore red at his funeral as a show
of respect, not gang-related), 20-8 at 176 (testimony from Deontrae Majors that shirt color and hand signals pointed
out by State do not indicate gang activity), 20-12 at 34-37 (same testimony from Bowers’s mother), 20-12 at 94-95
(testimony from Cummings’s former girlfriend about hand gestures and that, to her knowledge, there were no actual
gangs in Waco), and 21-1 at 26-27 (punishment phase testimony from Cummings’s cousin that Cummings was not
involved in a gang).
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evidence of guilt in finding alleged deficient performance of counsel not prejudicial). 	It is also
unlikely to have affected the punishment phase of trial given the extensive aggravating evidence
presented by the State concerning the brutal nature of the instant offense coupled with evidence of
Cummings’s escalating penchant for violence. See Ramey, 7 F.4th at 282-84 (holding no prejudice
under Strickland where evidence of the defendant’s guilt was overwhelming). 	This includes
evidence that, as a juvenile, Cummings committed several assaults, including one against an
elderly disabled family member, and unlawfully brandished a weapon while outside a local
nightclub. See Background, Section I(B)(1), supra. As a result, any deficiency in counsels’ gang
investigation was rendered harmless by the overall strength of the State’s case at both phases.
In summary, Cummings contends that counsel deficiently implemented their chosen
strategy of ridiculing the State’s inference of gang affiliation by not developing their own evidence
establishing that he was not a Bloods member. 	But “[t]he defense of a criminal case is not an
undertaking in which everything not prohibited is required. 	Nor does it contemplate the
employment of wholly unlimited time and resources.” Smith v. Collins, 977 F.2d 951, 960 (5th
Cir. 1992). Although it is possible, in hindsight, to speculate that counsel could have investigated
more, hired different experts, or presented more witnesses, this Court is “particularly wary of
arguments that essentially come down to a matter of degrees. 	Did counsel investigate enough?
Did counsel present enough mitigating evidence? 	Those questions are even less susceptible to
judicial second-guessing.” 	Skinner v. Quarterman, 576 F.3d 214, 220 (5th Cir. 2009) (quoting
Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir. 2000)) (internal quotation marks omitted).
The objective evidence present in the record demonstrates that counsel chose their strategy
after consulting with both a prison expert and a gang expert. Cummings provides little persuasive
evidence to the contrary, and the evidence he has presented is, for the most part, either unfavorable
or cumulative of the evidence already adduced at trial. Moreover, Cummings’s evidence does not
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come close to outweighing the substantial evidence presented by the State at both the guilt-
innocence and punishment phases of trial. 	He thus fails to demonstrate either deficient
performance or prejudice as required under Strickland, rendering Claim 7 insubstantial.
(e) 	Conflict of Interest (Claim 8)
Cummings’s eighth claim for relief asserts that his defense team operated under a conflict
of interest that materially impaired its representation in violation of his right to effective assistance
of counsel under the Sixth and Fourteenth Amendments. According to Cummings:
The defense team’s chief investigator [Ed McElyea] and its chief expert [Mike
O’Kelly] were working for Cummings, who stood accused of killing [Keenan]
Hubert to avenge Hubert’s supposed murder of [Emuel] Bowers. 	The two were
simultaneously working for Steven Peace, who stood accused of killing Bowers.
Due to the State’s theory of the case against Cummings, defense counsel’s duty of
loyalty to Cummings required that the defense develop evidence that Peace killed
Bowers, and its duty of loyalty to Peace required that the same members of the
defense team develop evidence that Peace did not kill Bowers.
(ECF No. 73 at 139).
Cummings argues that this alleged conflict resulted in tangible damage to his defense, as
the defense team “failed to explore and target the obvious holes in the State’s revenge narrative.”
Id. at 145. As discussed below, this allegation is not substantial enough to establish cause under
the Martinez exception to the procedural default doctrine.18
Typically, in order to prevail on an IATC claim, a defendant must show both that (1) his
trial counsel was deficient, and (2) the deficiency was prejudicial. 	Strickland, 466 U.S. at 687.
Prejudice is presumed, however, in the narrow class of cases where counsel “actively represented
conflicting interests” and that “an actual conflict of interest adversely affected his lawyer’s
18 	As Cummings’s allegation is arguably one regarding conflicts, not ineffective assistance, it is unclear whether
the Martinez exception would even apply in this instance. 	See Trevino, 569 U.S. at 423 (stating that Martinez
exception applied only to claims asserting “ineffective assistance of trial counsel.”). Cummings fails to provide any
case law extending Martinez to encompass conflict-of-interest claims. Nevertheless, the Court need not decide this
issue, as Cummings’s allegation is clearly not “substantial” as required by Martinez and Trevino. Id.
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performance.” Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). A claim under the Cuyler framework
thus sets a “lower threshold” for habeas relief than does Strickland, as it does not require a
defendant to establish how effective representation would have altered the outcome of the
challenged proceeding. Beets v. Scott, 65 F.3d 1258, 1265 (5th Cir. 1995).
Cummings argues that the Cuyler framework should apply to his case because his defense
counsel relied upon an investigator and expert with divided loyalties. True, an “actual conflict”
generally refers to a party “compelled to compromise his or her duty of loyalty or zealous
advocacy.” Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000). But under Cuyler, there is no
actual conflict of interest unless it is defense counsel who “is compelled to compromise his or her
duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent
or competing interests of a former or current client.” United States v. Palacios, 928 F.3d 450, 455
(5th Cir. 2019); Perillo, 205 F.3d at 781. 	In other words, the Cuyler standard applies only to
conflicts of interest created by an attorney representing multiple clients. 	See United States v.
Newell, 315 F.3d 510, 516 (5th Cir. 2002); Beets, 65 F.3d at 1270-72. Because Cummings alleges
a conflict of a different ilk—i.e., one created by a defense team investigator and expert working
on behalf of multiple clients—the standard enunciated in Strickland applies.19 Beets, 65 F.3d at
1272.
Cummings fails to demonstrate that counsel’s performance was deficient under the
Strickland standard. 	Indeed, his argument for deficiency is difficult to follow. 	As the Court
19 	Citing Guy v. Cockrell, 343 F.3d 348 (5th Cir. 2003), Cummings argues that the Fifth Circuit has rejected
this distinction and “straightforwardly applied the Cuyler framework to an investigator conflict.” (ECF No. 82 at 72-
73). This is incorrect. Quite the opposite, the district court in Guy flatly rejected Guy’s argument that Cuyler should
apply, and the Fifth Circuit did not even mention Cuyler in its opinion on direct appeal. 	See Guy v. Johnson,
No. CIV.A.5:00-CV-191-C, 2001 WL 34157813, at *6 (N.D. Tex. 2001) (concluding “Guy’s claim of actual conflict
must be analyzed under Strickland.”); Guy, 343 F.3d at 352-55 (applying Strickland before remanding for further
proceedings).
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understands it, Cummings faults counsel for failing to sufficiently supervise two members of the
defense team who allegedly harbored a conflict that prevented them from developing evidence
pointing to Steven Peace as being responsible for the murder of Emuel Bowers. While Cummings
was not accused of murdering Bowers, such evidence, the argument goes, could have undermined
the State’s theory that Cummings murdered Keenan Hubert in retaliation for the murder of Bowers
by showing that neither the police nor the community considered Hubert responsible for killing
Bowers. By not further investigating Peace, Cummings argues, counsel were unable to undermine
the State’s revenge narrative by either cross-examining numerous witnesses on the subject or
presenting new witnesses on his behalf.
The main problem with Cummings’s convoluted allegation is that it did not matter whether
the police or the community considered Hubert responsible for killing of Bowers—what mattered
is whether Cummings himself believed Hubert was the murderer. Whether or not Peace was the
actual murderer (or at least considered to be by others) was irrelevant. It certainly would not have
created the “cloud of suspicion” over the State’s revenge narrative as Cummings now contends.
(ECF No. 73 at 145).
Cummings also provides no guidance as to what, exactly, the defense team was supposed
to uncover that would have undercut the State’s theory that Cummings was seeking retaliation
against Hubert. 	Citing the fact that Peace was a key suspect in the Bowers murder, Cummings
states the most obvious answer would be law enforcement records relating to the case against
Peace. 	Id. 	But again, such records, which were not provided by Cummings as support for his
federal petition, would be useless in determining Cummings’s subjective state of mind at the time.
Cummings’s assertion that “obvious holes” existed in the State’s revenge narrative is thus
conclusory and speculative. Gregory, 601 F.3d at 353 (finding “conclusory statements regarding
the content of the uncalled witness[’]s testimony are insufficient to demonstrate ineffective
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assistance.”); Demik, 489 F.3d at 646 (“[C]onclusory allegations are insufficient to raise
cognizable claims of ineffective assistance of counsel.”).
While couched in terms of a conflict of interest within the defense team, Cummings’s
complaint effectively boils down to, at most, a disagreement about trial strategy issues. 	In
particular, Cummings faults counsel for failing to call more attention to the fact that Peace was a
suspect in Bowers’s murder, not Hubert. 	But “[m]ere disagreement about strategic litigation
decisions is not a conflict of interest.” United States v. Fields, 483 F.3d 313, 353 (5th Cir. 2007)
(citation omitted). Conflicts of interest occur “when defense counsel places himself in a position
conducive to divided loyalties.” 	United States v. Infante, 404 F.3d 376, 392 (5th Cir. 2005)
(citations omitted); see also Vega v. Johnson, 149 F.3d 354, 360 (5th Cir. 1998) (finding conflicts
of interest exist when counsel “is prevented, by his own self-interest or by his interest in another’s
welfare, from vigorously promoting the welfare of his client.”). If counsel is required to choose
between advancing his client’s interests in a fair trial or advancing other interests, including his
own, to the detriment of his client’s interest, a conflict of interest may exist. 	See Bostick v.
Quarterman, 580 F.3d 303, 307 (5th Cir. 2009) (“A speculative or potential conflict is not enough;
rather, a conflict exists when counsel is compelled to compromise duties of loyalty to his client.”).
Cummings fails to allege any sufficient facts demonstrating a conflict of interest between
himself and counsel. The record does not suggest counsel faced a choice between advancing either
Cummings’s or Peace’s interest, as counsel neither represented Peace nor had any legitimate
reason to further investigate his role in Bowers’s murder. 	Nor does the record suggest that
Cummings’s interest in a fair trial somehow diverged from counsels’ interest, even if they later
differed in opinion as to how best to achieve that goal. As such, Cummings’s conclusory allegation
of a conflict is insufficient for obtaining habeas corpus relief. Perillo, 205 F.3d at 781.
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In any event, Cummings has not shown that he was prejudiced by counsels’ alleged conflict
of interest. Strickland, 466 U.S. at 694. Cummings essentially faults counsel for failing to call
attention to Peace’s alleged involvement in the Bowers murder or neighborhood rumors to that
effect. 	But as Cummings’s acknowledges, the jury was aware that Peace was a suspect in the
Bowers murder. See ECF Nos. 20-7 at 148-49 (Bowers’s wife testifying that Peace had been the
subject of rumors and was arrested for murder), 197, 211 (Detective Alston testify that Peace was
eventually arrested and indicted for murder); 20-12 at 40-41 (Bowers’s mother testifying that she
believed Peace was a suspect in his son’s murder). 	Not that this mattered, as again, the only
pertinent issue was what Cummings believed, not what the neighborhood believed. To that end,
Cummings testified that he never had a problem with Hubert, contradicting the State’s theory that
he murdered Hubert out of revenge. See ECF No. 20-13 at 84 (“We never had any problems with
each other.”).
Despite Cummings’s testimony to the contrary, the jury still heard substantial evidence that
he and Hubert had various tense encounters with each other, including the evening of the instant
offense. See Cummings, 2018 WL 1516614, at *1. They also heard a substantial amount of other
evidence linking Cummings to the instant offense. 	See Sections III(C)(3)(b), (c), supra.
Consequently, it is highly unlikely that the results of Cummings’s trial would have been different
had the jury heard additional testimony that Peace was the main suspect for the Bowers murder,
not Hubert. Strickland, 466 U.S. at 694; see also Berghuis, 560 U.S. at 390 (noting the weight of
the evidence of guilt in finding alleged deficient performance of counsel not prejudicial).
Because he has not shown that counsel were conflicted or that he was prejudiced by any
presumed conflict as a result, Cummings has not demonstrated a substantial claim.
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(f) 	Batson Objections (Claim 9)
In his final IATC claim, Cummings contends that counsel neglected to raise and
competently argue objections based on violations of Batson v. Kentucky, 476 U.S. 79 (1986), the
Supreme Court’s seminal Equal Protection Clause case preventing race from being a factor in the
use of peremptory challenges of prospective jurors during voir dire. Specifically, Cummings faults
counsel for: (1) failing to put forth the necessary factual basis to establish a prima facie case of
discrimination with regards to prospective juror Cindy Cobb, and (2) failing to raise any Batson
objection with regard to the peremptory strike of prospective juror Thressa Thomas. Neither of
these arguments is meritorious.
It is well-settled that “[t]he Constitution forbids striking even a single prospective juror for
a discriminatory purpose.” Ramey v. Lumpkin, 7 F.4th 271, 279 (5th Cir. 2021) (citing Flowers v.
Mississippi, 588 U.S. 284, 303 (2019)). 	In Batson, the Supreme Court established a three-part
burden shifting scheme to address allegations of race-based peremptory strikes. 476 U.S. at 96-
97. 	Under the Batson framework, (1) a defendant must make a prima facie showing that a
prosecutor exercised a peremptory challenge on the basis of race, (2) if he does, the State must
then present a race-neutral explanation for striking the juror in question, and (3) the trial court must
then determine whether the defendant has proved purposeful discrimination. 	Pitchford v. Cain,
126 F.4th 422, 427 (5th Cir. 2025) (citing Miller-El v. Dretke, 545 U.S. 231, 239 (2005)). “[T]he
ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the
opponent of the strike.” Id. (citing Rice v. Collins, 546 U.S. 333, 338 (2006)).
On direct appeal, Cummings raised a free-standing Batson claim alleging that the trial court
erred in overruling his challenge to the State’s use of a peremptory challenge on prospective juror
Cobb. 	In denying the claim, the TCCA adequately summarized the voir dire record regarding
Cobb:
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The record shows that Cummings and the State agreed to challenges for
cause as to certain venire persons, some of whom were African-Americans. 	A
limited number of qualified African-American prospective jurors remained in the
jury pool after the agreed challenges. 	During individual voir dire, the State
questioned Cobb about her response to a questionnaire item that asked whether she
supported the death penalty. Cobb had written that she supported the death penalty
only for certain offenses such as serial killings and acts of terrorism.
After a lengthy voir dire exchange in which Cobb appeared to vacillate in
her responses, the State exercised a peremptory challenge. Cummings objected to
the challenge claiming a Batson violation, and the State requested that Cummings
meet his obligation to show a prima facie case. 	Cummings explained that Cobb
was one of the few African-Americans to be individually questioned and one of the
few African-Americans who remained qualified to sit on the jury. The judge ruled
that Cummings failed to make a prima facie case and denied the Batson challenge.
The State then requested an opportunity to put its race-neutral reasons for the
challenge on the record even though the judge had already overruled the Batson
challenge. The judge allowed the State to make a record, in which the State cited
Cobb’s vacillation on whether she could impose the death penalty for a non-shooter.
Following the individual voir dire of several other jurors, the judge reiterated that
Cummings failed to make a prima facie case regarding Cobb and clarified that this
failure was why he denied the Batson challenge.
Cummings, 2014 WL 12713256.
Cummings now argues that the trial court denied the Batson challenge regarding Cobb
because his trial counsel failed to adequately articulate the factual basis for a prima facie case of
discrimination. 	According to Cummings, had counsel understood the Batson framework, they
would have further argued that: (1) by the time Cobb was questioned, ten jurors had already been
seated, all of whom were white, (2) prior to Cobb, several prospective African-American jurors
had already been excused from the jury by agreement, and (3) by striking Cobb, the State kept the
first qualified prospective African-American juror off of the jury, all but insuring that the jury
remained all white. (ECF No. 73 at 156-57). Had counsel presented these facts, Cummings argues,
they would have established a prima facie case of discrimination and shifted the burden to the State
to provide race-neutral reasons. Id. These facts could also have been used to support a Batson
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challenge to the peremptory strike of Thressa Thomas, the very next prospective juror called during
voir dire. Id. at 160-61.
Under Batson’s first step, a prima facie showing exists when “the facts and circumstances
[give] rise to an inference that the State exercised peremptory challenges on the basis of race.”
Price v. Cain, 560 F.3d 284, 287 (5th Cir. 2009). It is possible for this showing to be made solely
with evidence concerning the prosecutor’s exercise of previous peremptory challenges at the
defendant’s trial. Batson, 476 U.S. at 96. But to establish such a case, the defendant first must
show “that he is a member of a cognizable racial group, and that the prosecutor has exercised
peremptory challenges to remove from the venire members of the defendant’s race.” 	Id.
Ultimately, the proper “yardstick by which to measure the sufficiency of a prima facie case” is
whether “the sum of the proffered facts gives ‘rise to an inference of discriminatory purpose.’”
Johnson v. California, 545 U.S. 162, 168 (2005) (quoting Batson, 476 U.S. at 94).
Here, Cummings’s proffered facts do not give rise to an inference of discriminatory
purpose. There is no pattern of peremptory strikes that may lead to concerns about discrimination.
See Purkett v. Elem, 514 U.S. 765, 770 (1995) ( “[A] pattern of peremptory challenges of black
jurors may establish a prima facie case of discriminatory purpose.”). 	In fact, as Cummings
acknowledges, the State had not used any peremptory strikes on prospective African-American
jurors prior to Cobb and Thomas, as the previous African-American jurors who had been excused
for cause from the jury were excused by agreement from both sides. (ECF No. 73 at 156-57). Nor
do Cummings’s proffered facts offer any indication that Cobb and Thomas were excused on
account of their race other than baldly stating that they were African-American while the other
jurors seated before them were white.
In essence, Cummings is asking this Court to find a prima facie case of discrimination
simply by identifying the racial identity of the stricken prospective jurors (Cobb and Thomas) and
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of those eventually seated on the jury without any evidence of discriminatory motive. But to make
the showing required under Batson’s first step, a defendant must provide “more than the bare fact
that the minority venire-person was struck by peremptory challenge.” Soria v. Johnson, 207 F.3d
232, 239 (5th Cir. 2000) (quoting United States v. Branch, 989 F.2d 752, 755 (5th Cir. 1993)).
“Where the only evidence is that a [minority] prospective juror was struck, a prima facie Batson
claim does not arise.” Branch, 989 F.2d at 755.
Because he offers no persuasive evidence of discriminatory purpose, Cummings’s
argument that counsel was ineffective in failing to raise an adequate Batson challenge collapses.
See United States v. Slape, 44 F.4th 356, 360 (5th Cir. 2022) (finding IATC claim cannot arise
from counsel’s “failure to raise a legally meritless claim”). Like the other IATC claims before it,
Cummings’s Batson allegation is not substantial.
4. 	Lack of Prejudice
Assuming that Cummings has demonstrated that (1) OCW provided ineffective assistance
during his state habeas proceedings, and (2) the underlying IATC claims discussed above are
substantial, he must still show “actual prejudice” in order to overcome procedural default.
Canales, 765 F.3d at 562. To do so he would have to show that, had OCW presented the IATC
claims in his initial state habeas application, “there is a reasonable probability that he would have
been granted state habeas relief.” Newbury, 756 F.3d at 872; see also Mamou v. Davis, 742 F.
App’x 820, 828 (5th Cir. 2018) (unpublished). Cummings “must show that all fairminded jurists
would agree there was prejudice.” Sanchez v. Davis, 936 F.3d 300, 307 n.39 (5th Cir. 2019)
(emphasis in original).
As discussed at length above, Cummings failed to establish that OCW was ineffective in
their representation during Cummings’s initial state habeas proceeding or that his new IATC
claims were substantial. 	Counsel raised fourteen multifaceted and well-briefed allegations
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(including ten IATC claims) in his original state habeas petition that were supported by affidavits
from four expert witnesses and seventeen lay witnesses. With the heavy deference given to OCW’s
strategic choices under Strickland, Cummings has not shown a reasonable probability that the state
habeas court would have granted relief had counsel advanced his unexhausted IATC claims, much
less that the new claims had a better chance of success than the claims actually raised by OCW in
the original state habeas application. 	Accordingly, Cummings has not shown that OCW’s
representation was either deficient or prejudicial enough to overcome the procedural bar of his
unexhausted claims.
D. 	The Miscarriage-of-Justice Exception (Claims 1-8)
Finally, Cummings relies on the doctrine of “fundamental miscarriage of justice” to
overcome the procedural default of his first eight claims.20 This exception is limited to cases where
a petitioner can make a persuasive showing that he is “actually innocent” of the charges against
him. Finley, 243 F.3d at 220 (citing Coleman, 501 U.S. at 750). Such is a difficult obstacle to
traverse, as a convicted defendant “comes before the habeas court with a strong—and in the vast
majority of the cases conclusive—presumption of guilt.” 	Schlup v. Delo, 513 U.S. 298, 326
(1995). As a result, “tenable actual-innocence gateway pleas are rare.” McQuiggin v. Perkins, 569
U.S. 383, 386 (2013); see also Wilkerson v. Cain, 233 F.3d 886, 889 (5th Cir. 2000) (“[A]
substantial showing of actual innocence is extremely rare”).
To make a threshold showing of actual innocence, a petitioner must demonstrate that “no
juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.”
McQuiggin, 569 U.S. at 386 (quoting Schlup, 513 U.S. at 329).21 To do so, he must support his
20 	Cummings does not assert that this exception applies to Claim 9 concerning trial counsels’ alleged failure to
raise viable Batson challenges. (ECF No. 73 at 161-62).
21 	The miscarriage-of-justice doctrine also allows a death-sentenced individual like Cummings to challenge that
sentence by demonstrating with clear and convincing evidence that, “but for a constitutional error, no reasonable juror
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allegations of constitutional error with “new reliable evidence” that was not presented at trial.
Schlup, 513 U.S. at 324. 	Examples of such evidence are “exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence.” 	Fratta v. Davis, 889 F.3d 225,
232 (5th Cir. 2018) (quoting Schlup, 513 U.S. at 324). The habeas court must then decide on the
petitioner’s innocence “in light of all the evidence, including that alleged to have been illegally
admitted . . . and evidence tenably claimed to have been wrongly excluded or to have become
available only after the trial.” Id.
In the instant case, Cummings asserts that a fundamental miscarriage of justice will occur
if the merits of his first eight allegations are not reviewed because “[t]he evidence proffered with
[his] petition negates the State’s case at trial.” (ECF No. 82 at 22). According to Cummings, each
allegation itself, along with the evidence provided to support it, establishes that no reasonable juror
would have voted to convict him had the constitutional error not occurred. (ECF No. 73 at 51, 59,
63, 88, 98, 109, 138, and 152). 	But Cummings provides no evidence or argument that he is
factually innocent of the substantive crime—rather, his argument is essentially that he would not
have been convicted absent the “constitutional taint” of the alleged errors. Id. This is not enough
to show that he is actually innocent of capital murder. Bousley v. U.S., 523 U.S. 614, 623 (1998)
(finding the actual innocence to excuse a procedural default requires “factual innocence,” not
“mere legal insufficiency”); Vargas-Soto, 35 F.4th at 999 (finding “exclusively legal” claim of
would have found the petitioner eligible for the death penalty under the applicable state law.” Busby v. Davis, 925
F.3d 699, 710 (5th Cir. 2019) (quoting Sawyer v. Whitley, 505 U.S. 333, 336 (1992)). In such a scenario, the error in
question “must tend to negate not just the jury’s discretion to impose a death sentence but the petitioner’s very
eligibility for that punishment.” Rocha v. Thaler, 626 F.3d 815, 826 (5th Cir. 2010) (emphasis in original). While
Cummings cites this death-eligibility standard, he makes no argument that his allegations, most of which concern only
the guilt-innocence phase of trial, would affect his eligibility for the death penalty. As such, the Court will focus
solely on Cummings’s alleged innocence of the crime.
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innocence insufficient); McGee v. Lumpkin, No. 22-10188, 2022 WL 18935854, at *1 (5th Cir.
2022) (unpublished) (same).22
Furthermore, as discussed previously in this opinion, the majority of the evidence relied
upon by Cummings to support his claim of innocence is not “new” because it was available upon
reasonable investigation either before or during Cummings’s trial. 	See Section III(B) and (C),
supra. Cummings effectively concedes as much regarding several of his IATC claims when he
argues that counsel was ineffective for failing to (1) object to evidence presented at trial,
(2) investigate an alternate suspect defense, and (3) investigate evidence of his alleged gang
membership. 	This is fatal, as evidence that was “always within the reach of [Cummings’s]
personal knowledge or reasonable investigation” does not qualify as “new” under the Schlup
actual-innocence standard. Hancock v. Davis, 906 F.3d 387, 390 (5th Cir. 2018) (citing Moore v.
Quarterman, 534 F.3d 454, 465 (5th Cir. 2008)).
Regardless, even assuming the evidence presented by Cummings is new and reliable, he
still fails to show he is actually innocent of the charges against him. 	Again, this Court must
consider “all the evidence,” including evidence that is “old and new, incriminating and
exculpatory, without regard to whether it would necessarily be admitted under ‘rules of
admissibility that would govern at trial.’” House v. Bell, 547 U.S. 518, 538 (2006) (quoting Schlup,
513 U.S. at 327-28). Here, Respondent succinctly summarizes the compelling evidence presented
by the State that established Cummings’s guilt:
In its presumptively correct recitation of the facts, the [TCCA] noted: evidence of
a strong motive (retaliation for the Bowers murder); Cummings’s antagonistic
interactions with Hubert (including shortly before the killings); Micha’el Atkins’s
testimony that he overheard Cummings say that he was going to shoot someone;
testimony that Cummings was nearby both before and after the murders; the fact
22 	To conclude otherwise “would mean that actual innocence amounts to little more than what is already
required to show prejudice,” allowing a petitioner to avoid showing cause before a federal court reviewed the merits
of a defaulted claim. Vargas-Soto, 35 F.4th at 999 (quoting Sawyer, 505 U.S. at 345).
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that a witness saw a firearm consistent with an assault rifle lying on the backseat of
Cummings’s car on the afternoon of the offense; Cummings’s communications
between D’Arvis and Love shortly before the shooting; Cummings’s and his
accomplices’ possession of weapons and ammunition similar to what was used to
murder the victims; and Nickoll Henry’s eyewitness identification of Cummings as
one of the gunmen.
(ECF No. 79 at 53-54).
Given the relative strength of the State’s case, the Court finds that Cummings failed to
establish that no reasonable juror would have found him guilty beyond a reasonable doubt had they
considered Cummings’s new evidence. Accordingly, Cummings has not established a miscarriage
of justice, and his first nine allegations (Claims 1-9) are procedurally barred from federal habeas
review.
IV. Merits Analysis
In his lone remaining allegation (Claim 10), Cummings contends that his Eighth and
Fourteenth Amendment rights were violated when the trial court erroneously excluded relevant
mitigating evidence from the punishment phase of trial. 	Specifically, Cummings sought to
introduce the testimony of Amy Nguyen, an expert in “community risk factors,” to discuss “the
socio-economic circumstances and crime rates of the local neighborhoods in which Cummings
had been raised.” (ECF No. 73 at 163-64). The trial court sustained the State’s objection to this
testimony, finding the testimony irrelevant. (ECF No. 21-1 at 83). Citing Eddings v. Oklahoma,
455 U.S. 104 (1982), Cummings asserts that the trial court’s ruling was erroneous because such
evidence was relevant mitigating evidence concerning Cummings’s background and character that
a juror could have relied upon to impose a non-death sentence.
Cummings raised this allegation on direct appeal to the TCCA. 	Cummings, 2014 WL
12713256. While the TCCA assumed without deciding that the proposed testimony was relevant,
the court ultimately determined that the trial court did not abuse its discretion in excluding
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Nguyen’s testimony because Cummings failed to show that she was qualified to testify as an
expert. Id. As discussed below, this determination was neither contrary to, nor an unreasonable
application of, clearly established Supreme Court precedent. Accordingly, federal habeas relief is
unwarranted under the heightened standard of review provided by the AEDPA. 	See 28 U.S.C.
§ 2254.
A. 	Relevant Background
At trial, Cummings proffered Nguyen to discuss certain “community risk factors” and the
“general unhealthiness of the community in which [Cummings] was raised.” (ECF No. 21-1 at
62-63). 	Nguyen’s proposed testimony would identify these risk factors—which include the
number of single-parent homes, poverty rate, median household income, lack of education, and
exposure to violence in his community—and explain how those factors could have influenced
Cummings to commit an act of violence. Id. Nguyen acknowledged that she knew nothing about
Cummings or his actual experience growing up, as she did not conduct any interviews or research
into his social history. Id. at 65-67. Rather, based solely on census data, crime data, and a 1995
study conducted by the Department of Justice, her testimony would focus on the overall health of
the neighborhoods where Cummings had resided. Id. at 63, 71.
The State objected that (1) Nguyen’s testimony was not relevant because she could not tie
any of the risk factors to Cummings in particular, (2) her data required the improper consideration
of race, and (3) Nguyen was not qualified as an expert. Id. at 80-81. The trial court sustained the
State’s objection, explaining that Nguyen’s generalized data had not been individually tailored or
connected to Cummings. Id. at 83. As a result, Nguyen did not testify at the punishment phase of
Cummings’s trial.
On direct appeal, the TCCA assumed without deciding that Nguyen’s testimony was
relevant, but found that she was not qualified to testify as an expert under Rule 702 of the Texas
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Rules of Evidence:
Nguyen testified on voir dire that she has a degree in Physical Science and a Master-
level 	certification 	in 	Geographic 	Information 	Systems. 	However, 	she
acknowledged that she did not hold any social-science degrees such as social work
or anthropology. Nguyen also acknowledged that the basis for her testimony would
be limited to a Department of Justice (DOJ) study and census data. 	She did not
participate in the DOJ study, and there was no evidence that she had ever prepared
any such studies or analyses. Nguyen knew nothing about [Cummings], his family,
his education, his income level, or background aside from the specific addresses at
which he resided from birth to present day. 	[Cummings] failed to show Nguyen
was qualified to testify regarding how “community risk factors” could have
influenced [Cummings] to commit an act of violence.
Cummings, 2014 WL 12713256. Thus, the court concluded that the trial court did not abuse its
discretion in excluding Nguyen’s testimony. Id.
B. 	The TCCA’s Decision Was on the Merits
This Court must apply the AEDPA’s deferential standard of review when reviewing claims
that were “adjudicated on the merits in State court.” 28 U.S.C. § 2254(d). Cummings argues that
§ 2254(d) is inapplicable to his Eddings claim because the TCCA affirmed the trial court’s decision
to exclude Nguyen’s testimony on a state law issue (Rule 702) instead of addressing the merit of
the constitutional issue before it. (ECF Nos. 73 at 163, 167; 82 at 88-91). But for claims, like the
instant allegation, that have been fully and fairly presented to the state court, there’s a rebuttable
presumption that the state court adjudicated the claims on the merits. Lucio v. Lumpkin, 987 F.3d
451, 464 (5th Cir. 2021) (citing Johnson v. Williams, 568 U.S. 289, 298 (2013)). Cummings can
rebut this presumption by offering: (1) evidence the claim was adjudicated using “state-law
procedural principles” that are contrary to a merits determination, or (2) evidence that “leads very
clearly to the conclusion that a federal claim was inadvertently overlooked in state court.” Jimenez
v. Guerrero, 133 F.4th 483, 489 (5th Cir. 2025) (citations omitted). 	He fails to make either
showing.
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To start, Cummings fails to demonstrate that the TCCA’s ruling was based on “state-law
procedural principles” that are contrary to a merits determination. 	Cummings contends that the
TCCA’s ruling was tantamount to a state procedural ruling rather than an adjudication on the
merits because it relied solely on state law. But a state court’s reliance on state law principles to
deny relief on a claim does not necessarily mean the claim was not adjudicated on the merits for
purposes of § 2254(d). 	Quite the opposite, the term “on the merits” simply refers to a
“determination that there exist or do not exist grounds entitling a petitioner to habeas corpus
relief[.]” Gonzalez v. Crosby, 545 U.S. 524, 532, n. 4 (2005) (contrasting such a determination
with a ruling “which precluded a merits determination,” such as one for failure to exhaust or
procedural default).
Here, the TCCA clearly determined that habeas relief on Cummings’s Eddings claim was
unwarranted, not that a merits adjudication itself was precluded. In fact, the state court did not say
it was denying the claim for any reason other than that the claim lacked merit. 	Thus, while
Cummings may disagree with the court’s reasoning, he fails to overcome the presumption that the
claim was adjudicated on the merits.
Similarly, Cummings provides no evidence that “very clearly” shows his Eddings
allegation was “inadvertently overlooked in state court.” 	Jimenez, 133 F.4th at 489. 	To the
contrary, the TCCA opinion clearly sets forth the allegation in the second paragraph of the opinion
before rejecting it. 	See Cummings, 2014 WL 12713256 (“In his first point of error, Cummings
claims that the judge violated his Fifth, Eighth, and Fourteenth Amendments rights under the
United States Constitution during the punishment phase by excluding mitigating evidence relevant
to Cummings’s background.”). 	As there is ample evidence the TCCA was well-aware of the
Eddings allegation, Cummings fails to establish “the exceedingly rare” exception to the
presumption that the claim was adjudicated on the merits. Jimenez, 133 F.4th at 490-91 (finding
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that such a showing “is probably impossible in practice.”). This Court will therefore review the
allegation under the deferential standard set forth by the AEDPA.
C. 	The AEDPA Standard
The AEDPA imposes “a highly deferential standard of review” for federal courts
evaluating state court rulings that “demands that state court decisions be given the benefit of the
doubt.” Hardy v. Cross, 565 U.S. 65, 66 (2011) (per curiam). Under this heightened standard of
review, a federal habeas petitioner may not obtain relief on any claim that was adjudicated on the
merits in a state court proceeding unless the state court’s adjudication resulted in a decision that
was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States” or (2) “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). This intentionally difficult standard stops just short of imposing a complete bar
on federal court relitigation of claims already rejected in state proceedings. Richter, 562 U.S. at
102 (citing Felker v. Turpin, 518 U.S. 651, 664 (1996)).
For purposes of § 2254(d)(1), a state court decision is “contrary to” clearly established
federal law if it “arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law or if it resolves a case differently than the Supreme Court has on a set of materially
‘indistinguishable’ facts.” Senn v. Lumpkin, 116 F.4th 334, 339 (5th Cir. 2024) (citation omitted).
On the other hand, a state court decision is an “unreasonable application of” clearly established
federal law when “no fairminded jurist would agree” with the ruling. Andrew v. White, 604 U.S.
86, 145 S. Ct. 75, 80 (2025) (quoting White v. Woodall, 572 U.S. 415, 419 (2014)). This requires
a petitioner to “show far more than that the state court’s decision was merely wrong or even clear
error.” Shinn v. Kayer, 592 U.S. 111, 118 (2020) (per curiam). Instead, a petitioner must show
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that the state court’s “determination was unreasonable—a substantially higher threshold.” Schriro
v. Landrigan, 550 U.S. 465, 473 (2007) (emphasis added).
A federal habeas court’s inquiry into unreasonableness should always be objective rather
than subjective, with a focus on whether the state court’s application of clearly established federal
law was “objectively unreasonable” and not whether it was incorrect or erroneous. McDaniel v.
Brown, 558 U.S. 120 (2010). Even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable, regardless of whether the federal habeas court would have reached
a different conclusion itself. 	Richter, 562 U.S. at 102. 	So long as “fairminded jurists could
disagree” on the correctness of the state court’s decision, a state court’s determination that a claim
lacks merit precludes federal habeas relief. Woods v. Etherton, 578 U.S. 113, 117 (2016) (finding
federal habeas relief unavailable unless the state court’s ruling “was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.”) (citation omitted).
Lastly, § 2254(d)(2) of the AEDPA affords significant deference to a state court’s ultimate
determination of the facts. 	Brumfield v. Cain, 576 U.S. 305, 313-14 (2015). 	Similar to review
under § 2254(d)(1), state court factual determinations may not be characterized as unreasonable
“merely because the federal habeas court would have reached a different conclusion in the first
instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). “If reasonable minds reviewing the record
might disagree about the finding in question, on habeas review that does not suffice to supersede
the [state] court’s determination.” Id. (citation modified). In other words, a petitioner does not
overcome the § 2254(d)(2) standard unless “every fairminded jurist would agree” that the state
court’s decision was based on an unreasonable determination of the facts. Brown v. Davenport,
596 U.S. 118, 136 (2022).
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D. 	Analysis
Cummings asserts that the trial court’s exclusion of Nguyen’s punishment phase testimony
violated his rights under the Eighth and Fourteenth Amendments. State court evidentiary rulings
will only be overridden when there is error “so extreme that it constituted denial of fundamental
fairness.” Prystash v. Davis, 854 F.3d 830, 840 (5th Cir. 2017) (citation omitted); Bigby v. Dretke,
402 F.3d 551, 563 (5th Cir. 2005). As such, the “sole inquiry” before this Court is not whether the
state trial court properly applied state evidentiary rules, but rather whether the exclusion of the
challenged evidence “violated the Constitution.” Bigby, 402 F.3d at 563. If the evidence exclusion
rendered the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment
provides a basis for relief. Id. But showing such fundamental unfairness is “a high hurdle, even
without AEDPA’s added level of deference.” 	Gonzales v. Thaler, 643 F.3d 425, 430 (5th Cir.
2011) (quotation marks and footnote omitted).23
The Constitution guarantees that a jury will make “an individualized determination on the
basis of the character of the individual and the circumstances of the crime.” Tuilaepa v. California,
512 U.S. 967, 972-73 (1994). To achieve that end, a criminal defendant may present mitigation
evidence relevant to “any aspect of [his] character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less than death.” Eddings, 455 U.S. at
110 (citing Lockett v. Ohio, 438 U.S. 586, 604 (1978)). 	Relevant mitigating evidence is any
evidence “which tends logically to prove or disprove some fact or circumstance which a fact-finder
could reasonably deem to have mitigating value.” Tennard v. Dretke, 542 U.S. 274, 284 (2004)
23 	As discussed previously, this Court is reviewing Cummings’s Eddings claim under the AEDPA’s deferential
standard of review because it was adjudicated on the merits in state court. Nevertheless, out of an abundance of
caution, the Court has also reviewed Cummings’s claim under a de novo standard of review. See Jimenez v. Guerrero,
133 F.4th 483, 488 (5th Cir. 2025) (finding district courts can “deny writs of habeas corpus under § 2254 by engaging
in de novo review when it is unclear whether AEDPA deference applies.”) (citation omitted). 	For the reasons
discussed herein, federal habeas relief is unwarranted regardless of the standard applied.
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(citation omitted). Thus, a state court cannot exclude evidence from the jury’s consideration “if
the sentencer could reasonably find that it warrants a sentence less than death.” Id. at 285. This
is a “low threshold for relevance.” Id.
Citing Eddings and Tennard, Cummings argues that his constitutional rights were violated
because he was prevented from presenting evidence that he came from a disadvantaged
background that a juror could have relied upon to impose a non-death sentence. 	Cummings
believes this evidence would be relevant at punishment because of a “belief, long held by this
society, that defendants who commit criminal acts that are attributable to a disadvantaged
background . . . may be less culpable than defendants who have no such excuse.” (ECF No. 73 at
163) (citing Penry v. Lynaugh, 492 U.S. 302 (1989), abrogated on other grounds by Atkins v.
Virginia, 536 U.S. 304 (2002)). According to Cummings, the trial court’s exclusion of Nguyen’s
testimony violated both Eddings and Tennard because (1) the jury has to be permitted to hear any
relevant mitigating evidence, and (2) the mitigating value of a disadvantaged background was
well-established at the time of his trial. Id. at 166. Cummings, however, overstates the force of
these cases.
To start, neither Lockett, Eddings, nor Tennard “federalize[d] the law of evidence.”
Prystash, 854 F.3d at 840 (citing Barefoot v. Estelle, 697 F.2d 593, 597 (5th Cir. 1983)). True,
the Supreme Court has held that there are “virtually no limits . . . placed on the relevant mitigating
evidence a capital defendant may introduce concerning his own circumstances.” 	Payne v.
Tennessee, 501 U.S. 808, 822 (1991). But despite the expansive definition of relevant mitigating
evidence, trial judges still retain their traditional authority “to exclude, as irrelevant, evidence not
bearing on the defendant’s character, prior record, or the circumstances of his offense.” Rhoades
v. Davis, 914 F.3d 357, 366 (5th Cir. 2019) (citing Lockett, 438 U.S. at 604 n.12); Prystash, 854
F.3d at 840 (reaffirming that a capital defendant’s right to present mitigating evidence is limited
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by state rules of evidence). And questions regarding the admissibility of mitigating evidence are
generally left to the sound discretion of state courts. See Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations
on state-law questions.”); Castillo v. Johnson, 141 F.3d 218, 222 (5th Cir. 1998) (finding “federal
courts do not sit to review the mere admissibility of evidence under state law.”).24
Moreover, the Lockett/Eddings line of cases do not provide Cummings a path to relief
because they deal “with the exclusion of specific types of evidence rather than specific items in
evidence.” Simmons v. Epps, 654 F.3d 526, 544 (5th Cir. 2011) (finding exclusion of mitigating
videotape did not render trial fundamentally unfair). In Lockett, the Supreme Court struck down
Ohio’s death penalty statute because it only permitted the sentencer to consider three mitigating
circumstances. 438 U.S. at 607-08. In Eddings, the Court reversed a death sentence because the
trial judge concluded that the defendant’s violent upbringing and background was not relevant
mitigating evidence. 	455 U.S. at 112-14. 	And in Skipper v. South Carolina, 476 U.S. 1, 4-5
(1986), the Court held that evidence regarding a defendant’s good behavior in prison while
awaiting trial may not be excluded.
Unlike these cases, the trial court in Cummings’s case did not disallow all mitigating
evidence regarding Cummings’s disadvantaged background. Rather, it excluded a specific item
of evidence—Nguyen’s testimony—because the court found her proposed testimony unreliable
and irrelevant. Cummings was therefore not subject to the categorical exclusion of certain types
of mitigating evidence that were at issue in Lockett, Eddings, and Skipper. See Rhoades, 914 F.3d
24 	To the extent that Cummings challenges either the trial court’s or TCCA’s application of Texas evidentiary
rules, such claims are not cognizable in a federal habeas corpus proceeding, as this Court must defer to the state-court
determination of Texas law. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (stating that the Court has repeatedly
held that “federal habeas corpus relief does not lie for errors of state law.”) (citations omitted); Bradshaw v. Richey,
546 U.S. 74, 76 (2005) (holding that “a state court’s interpretation of state law, including one announced on direct
appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”).
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at 366 n.24. In fact, the trial court made no ruling prohibiting Cummings from presenting other
evidence concerning his background. 	Consequently, Cummings’s jury was not precluded from
considering “as a mitigating factor, any aspect of [his] character or record [or] any of the
circumstances of the offense.” Lockett, 438 U.S. at 604-05. Because the exclusion of Nguyen’s
testimony did not render Cummings’s trial fundamentally unfair, federal habeas relief is
unwarranted.
Even assuming the trial court erred in excluding Nguyen’s testimony, Cummings would
still not be entitled to relief because the error was harmless. The Supreme Court has held that the
test for harmless error on federal habeas review is “whether the error ‘had substantial and injurious
effect or influence in determining the jury’s verdict.’” Fry v. Pliler, 551 U.S. 112, 121-22 (2007)
(citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)); see also Davis v. Ayala, 576 U.S. 257,
267-68 (2015) (outlining distinction between “actual prejudice” under Brecht and the requirements
of the AEDPA). 	In other words, to be entitled to federal habeas relief due to a trial error, a
petitioner must show the error actually prejudiced him. Brecht, 507 U.S. at 637.
Cummings fails to make this showing as well. 	While Cummings correctly notes that
evidence of a defendant’s disadvantaged background may sometimes be relevant to punishment
under Penry, Nguyen’s proposed testimony concerning the “general unhealthiness” of the
community in which Cummings was raised “has only a tenuous connection to [his] moral
culpability.” Smith v. Quarterman, 515 F.3d 392, 414 (5th Cir. 2008) (cleaned up). Indeed, the
mere fact that Cummings grew up in a poor, high-crime area has little, if any, relationship to
Cummings’s actual character, and the record contains no evidence attempting to connect the two.
Unless it can be assumed that every individual who grew up in poverty and in a crime-infested
neighborhood has, by that fact alone, a potentially reduced moral culpability, Cummings cannot
demonstrate that he was harmed by the trial court’s preclusion of Nguyen’s generalized testimony.
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Further, even if Nguyen had individually tailored this information to Cummings, testimony
that Cummings’s community may have influenced him to commit an act of violence risks
undercutting other mitigating evidence presented by trial counsel—including the testimonies of
Cummings’s grandmother, paternal aunt and maternal aunt—that Cummings was a kindhearted
person raised by a loving family. See Background, Section I(B)(2), supra. Moreover, the marginal
benefit of such testimony is outweighed by the extensive aggravating evidence presented by the
State concerning the callous nature of the instant offense and Cummings’s previous escalating
penchant for violence. This includes evidence that, as a juvenile, Cummings committed several
assaults, including one against an elderly disabled family member, and unlawfully brandished a
weapon while outside a local nightclub. Id. at Section I(B)(1). As a result, any error in precluding
Nguyen’s testimony was rendered harmless by the overall strength of the State’s case and the
overwhelming evidence of Cummings’s potential for future danger. 	Because it is clear that the
exclusion of Nguyen’s testimony simply had no prejudicial effect on the jury’s ultimate verdict,
relief is denied. Brecht, at 637.
V. Certificate of Appealability
The Court must now determine whether to issue a certificate of appealability (COA). See
Rule 11(a) of the Rules Governing § 2254 Proceedings; Miller-El v. Cockrell, 537 U.S. 322, 335-
36 (2003) (citing 28 U.S.C. § 2253(c)(1)). A district court may deny a COA sua sponte without
requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
But a COA may issue only if a petitioner makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). 	This requires Cummings to show that “jurists of
reason could disagree with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to proceed further.”
Buck v. Davis, 580 U.S. 100, 115 (2017) (citing Miller-El, 537 U.S. at 327).
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The Supreme Court has explained that the showing required under § 2253(c)(2) is
straightforward when a district court has rejected a petitioner’s 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 v. McDaniel, 529 U.S. 473, 484 (2000).
The issue becomes somewhat more complicated when the district court denies relief on procedural
grounds. Id. In that case, the petitioner seeking COA must show both “that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district court was correct in its procedural
ruling.” Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack, 529 U.S. at 484). Whatever
the basis for the denial, however, the Court must bear in mind that, as Cummings faces the death
penalty, “any doubts as to whether a COA should issue must be resolved in [Cummings]’s favor.”
Nelson v. Davis, 952 F.3d 651, 658 (5th Cir. 2020) (quoting Clark v. Thaler, 673 F.3d 410, 425
(5th Cir. 2012)).
In this case, Cummings has not made a “substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Nor could reasonable jurists debate the denial of federal habeas
corpus relief on either substantive or procedural grounds, or find that the issues presented are
adequate to deserve encouragement to proceed further. Miller-El, 537 U.S. at 327 (citing Slack,
529 U.S. at 484). Accordingly, Cummings is not entitled to a COA.
VI. Conclusion and Order
The Court has thoroughly reviewed the extensive record and pleadings submitted by both
parties in this case. 	The record indicates Cummings was well-represented in state court during
both his direct appeal and initial state habeas corpus proceeding by competent counsel who raised
numerous well-researched claims for relief on his behalf, albeit unsuccessfully. Yet, for reasons
unclear, Cummings chose not to bring forth any of those allegations, save one, in his amended
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federal petition. Instead, armed with perhaps more attorneys and resources than he was afforded
at his actual trial, Cummings chose a different strategy—to start anew with entirely different claims
for relief that he admits are procedurally defaulted.
After careful consideration of the record and pleadings before it, the Court concludes that
the majority of Cummings’s allegations (Claims 1 through 9) are indeed procedurally barred from
federal habeas review. 	Cummings has not shown cause and prejudice to excuse the procedural
default, or demonstrated that the Court’s failure to consider the claims will result in a “fundamental
miscarriage of justice.” 	Consequently, the Court is precluded from reviewing the merits of
Cummings’s first nine claims for relief.
Concerning Cummings’s lone viable allegation (Claim 10), Cummings has failed to
establish that the state court’s rejection of the allegation on the merits during his direct appeal was
either (1) contrary to, or involved an unreasonable application of, clearly established federal law,
as determined by the Supreme Court of the United States, or (2) based on an unreasonable
determination of the facts in light of the evidence presented in Cummings’s state trial and appellate
proceedings. Alternatively, even when evaluated under a de novo standard of review, the claim
does not warrant federal habeas relief because it wholly lacks merit. 	As a result, Cummings’s
amended federal habeas corpus petition does not warrant relief.
Accordingly, based on the foregoing reasons, IT IS HEREBY ORDERED that:
1. Federal habeas corpus relief is DENIED and Petitioner Rickey Donnell Cummings’s
Amended 	Petition 	for 	Writ 	of 	Habeas 	Corpus 	(ECF 	No. 	73) 	is 	DISMISSED 	WITH
PREJUDICE;
2. No Certificate of Appealability shall issue in this case; and
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3. All other remaining motions, if any, are DENIED, and this case is now CLOSED.
It is so ORDERED.
SIGNED this the 5th day of January, 2026.
ALAN D. ALBRIGHT
UNITED STATES DISTRICT JUDGE
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