Antonio BARRIENTES, Petitioner-Appellee-Cross-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant-Cross-Appellee, 221 F.3d 741

KING, Chief Judge: In this habeas case, the district court granted relief on six claims related to the penalty phase of Petitioner Antonio Bar-rientes’s capital murder trial and vacated Barrientes’s death sentence. The court denied all other claims and an application for a certificate of probable cause. Respondent Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, appeals from that portion of the district court’s order granting relief, and Petitioner applies for a certificate of probable cause to appeal ten claims upon which relief was denied.

With regard to the Director’s appeal, we reverse the district court as to one claim, vacate that portion of the district court’s order granting relief on the remaining five claims, and remand for an evidentiary hearing. Treating Petitioner’s application for a certificate of probable cause as an application for a certificate of appealability, we deny his application. I.

FACTUAL BACKGROUND In 1985, Petitioner Antonio Barrientes and a co-defendant, David Gonzales, were convicted of the capital murder of Jose Arredondo, who, while working as a clerk at the Fina-Jamco convenience store in Brownsville, Texas, was shot in the head four times. Arredondo was found in the cooler of the store by a relative of the store’s owner. ■ Felix Sanchez, who had known Bar-rientes for twenty-five years, testified during the guilt/innocence phase of the trial that he walked into the store on the afternoon of the murder to purchase gas. He did not see a clerk, so he banged his hand on the counter.

Barrientes popped up from behind the counter and Sanchez asked him when he had started working there. Barrientes responded, “Be quiet. I’m in the middle of a robbery.” Sanchez told Barrientes that he wanted no part of it, turned, and began walking toward the door. He heard Barrientes say that he, Barrientes, had to “shoot the son-of-a-bitch.” As Sanchez was opening the front door, he saw Barrientes pushing a dark-haired individual from the stockroom into the cooler; he then heard two shots. Sanchez got in his car and began to drive away.

Remembering that his gas gauge was on empty, he made a U-turn and drove to another gas station across the street from the Fina-Jamco store. While there, he noticed a few people enter and leave the Fina-Jamco store. He then noticed Barrientes leaving with a cardboard box and watched him until he disappeared into an alley next to the store. Sanchez got in his car and began driving home. On his way, he saw Barrientes get into the passenger seat of Gonzales’s car. Gonzales was at the wheel.

Sanchez testified that he returned to his mother’s house, where he was living at the time, and that he saw Gonzales’s car in the alley behind the house. Barrientes and Gonzales were in a neighbor’s yard watching Sanchez until the neighbor called them away. Sanchez then left to take his mother to an appointment at a hospital in Galveston, an eight or nine hour drive from Brownsville. Along the way, he told his mother what he had seen, and she convinced him to tell the police. Later that night, he flagged down a highway patrolman and gave a videotaped statement at a police station about five hours from Brownsville.

He gave another statement several weeks later. On cross-examination, Barrientes’s counsel and Gonzales’s counsel attacked discrepancies between Sanchez’s earlier statements and his testimony. Sanchez explained that he had been tired, confused, and nervous during his previous statements. Gonzales’s counsel also attacked Sanchez’s unwillingness to speak with the defense prior to the trial.

Two other witnesses testified that they went into the Fina-Jamco store on the afternoon of the murder and that Bar-rientes was working behind the counter, did not know how to operate the cash register, and appeared under the influence of drugs. Another State witness, David Meza, testified that while in county jail on a DWI charge, Barrientes confessed the murder to him on two separate occasions. The prosecutor elicited testimony that because of overcrowding Meza was on a floor of the jail reserved for murderers.

On cross-examination, Barrientes’s counsel inquired how the confession was brought to the attention of authorities, and Meza responded that he had only repeated the story to a friend of his, a man whom Barrientes had once shot in the leg. The defense presented only two witnesses. The first was an employee from the county jail who testified that Meza’s booking card showed that he was assigned to a floor separate from the floor where suspected murderers were housed.

On cross-examination, the witness admitted that, due to overcrowding, Meza could have been switched to a different floor from that noted on his booking card, and that his booking card might not have been changed to reflect the switch. The second witness was Barrientes. He admitted to being in the Fina-Jamco store on the day of the murder, but explained that he had gone there to buy beer and had discovered Felix Sanchez in the store holding a cardboard box with beer, cigarettes, and a money bag in it. Sanchez left and Barrientes stayed behind at Sanchez’s request to open the cash register and steal money from it.

While attempting to do this, two customers came in and he waited on them. During the penalty phase of the trial, several police officers testified in

summary fashion that the defendants’ reputations in the community for being peaceful and law-abiding citizens were bad. Two witnesses, including an investigator for the district attorney’s office, Joe Garza, testified that during the trial, Barrientes threatened to “take care” of Felix Sanchez. Garza further testified that he had arrested Bar-rientes for capital murder in 1979, that the case was still pending, and that a witness in the case had disappeared (the “1979 Unadjudicated Murder”). During closing, the prosecutor commented on the 1979 Unadjudicated Murder as follows: Well, you heard Mr.

Garza get up and testify that he arrested Barrientes back in ’79 for another capital murder but that the witness disappeared in that. I’ll leave that to your thoughts. Another capital murder in 1979. Here we are again with another capital murder. What’s next? A witness disappeared. I wonder where the witness is. I wonder. He knows. He knows where the witness is as he sits there right now. He knows. He knows. ... You tell me what justice is. We’ve got one capital murder in 1979 where the witness disappeared. God knows where the witness is in that case. He may be in a cooler somewhere, although not in a store.

He may be somewhere where no one would ever find him. State Record Yol. IX, at 41. The prosecutor continued during surrebuttal: Mr. Davidson talked to you about the only witness [to the 1979 Unadjudicated Murder], that I’d like you to believe he’s dead and buried. Since he brought it up he probably is dead and buried. Probably is. Innuendo? He was arrested for capital murder and the witness is gone. I’m not going to yell and scream about that. You believe what you want to about that. That’s up to you. You saw what he’s done. You saw what he did to Joe Arredondo. What’s he going to do to Felix Sanchez?

What’s he going to do to Felix Sanchez, the one who identified him? He was so high on heroin that he didn’t know enough to go ahead and kill Felix Sanchez. Thank God he was high on heroin, otherwise Sanchez would probably be dead now. He would be another witness that would be dead, and then I guess at that point the State would have some more innuendo, as Mr. Davidson says, because we’d not have the witness. Id. at 53. After the penalty phase concluded, Barrientes was sentenced to death and Gonzales was sentenced to life in prison. II.

PROCEDURAL BACKGROUND Barrientes appealed from his conviction, and the Texas Court of Criminal Appeals affirmed. See Barrientes v. State, 752 S.W.2d 524 (Tex.Crim.App.1987). His subsequent petition for writ of certiorari was denied by the United States Supreme Court. See Barrientes v. Texas, 487 U.S. 1241, 108 S.Ct. 2915, 101 L.Ed.2d 947 (1988). Barrientes filed a state post-conviction petition for a writ of habeas corpus in August 1988 (the “First State Petition”).

The petition raised a multitude of claims, including prosecutorial misconduct, ineffective assistance of counsel, insufficient evidence at the penalty phase of the trial, improper jury consideration of facts not presented at trial, and various attacks on the Texas capital sentencing statute. The Court of Criminal Appeals stayed his execution and ordered an evidentiary hearing on the ineffective assistance of counsel claims. The evidentiary hearing was held before, the same state district judge who had presided at Barrientes’s capital murder trial.

After entering findings of fact and conclusions of law, the state district court recommended denial of relief. In early 1989, the Texas Court of Criminal Appeals denied relief on all grounds, with two judges dissenting. See Ex parte Barrientes, No. 19,007-01, order at 2 (Tex.Ct.Crim.App. Feb. 1,1989). On March 8, 1989, Barrientes filed his first federal petition for habeas corpus in the United States District Court for the Southern District of Texas. The claims raised in this petition were substantially the same as the claims raised in his First State Petition.

The petition was amended in April 1992 (the “Amended First Federal Petition”), based upon evidence obtained by Barrientes’s habeas counsel. The Amended First Federal Petition contained additional factual allegations regarding the 1979 Unadjudicated Murder, allegations that Meza’s testimony was coerced, and allegations that Sanchez’s mother and wife would have, if called to testify, contradicted his testimony. Attached to the petition were an affidavit from Sanchez’s mother and copies of the contents of the Cameron County Sheriffs Office’s file on the 1979 Unadjudicated Murder (the “Sheriffs File” or the “File”).

Because the Sheriffs File sits at the center of the principal dispute in this case, a description of its salient inculpatory and exculpatory contents is warranted. The File contains evidence that on April 6, 1979, just outside the city of Brownsville, Ronnie Vance was found dead in the backseat of a purple Honda Civic belonging to Jack Fields. He was found with one gunshot wound and one shotgun wound to the face and head. Jack Fields rented part of his residence to a man named Castro Bob. Castro Bob had been allowing Vance to stay there for free.

Fields reported that a significant sum of cash and a .357 Magnum Smith and Wesson handgun were missing from his property. The File contains an affidavit of Investigator George Gavito, who reported that on April 11 he received a call from and then met with a man named Larry Rowin. Rowin told Gavito that he was picked up by Vance and a man named Emilio Gonzales (“Big-E”) on April 5 and that Vance explained to Rowin that he, Vance, was going to purchase forty pounds of marijuana. Vance showed Rowin a large wad of cash and a handgun.

Big-E was carrying a shotgun, which he explained was a prop to convince police or the border patrol that the men were hunting should they be pulled over. The three men drove to a river levee, and Vance told Rowin to wait there. Rowin waited, and about ten minutes later he heard a shotgun blast and then a car driving off. He got scared and ran. Rowin believed that Big-E murdered Vance and that the murder was set up in advance.

Gavito’s affidavit also states that Rowin “left town in a hurry after the news of the arrest of Emilio Gonzales [Big-E], Jesus Flores and Tony Barrientes came out.” A lookout bulletin was run for law enforcement agencies describing Rowin as a material witness in a capital murder, and a grand jury subpoena was sworn out for Rowin. A copy of both the lookout bulletin and the grand jury subpoena are included in the File. The File also contains an affidavit of Investigator Garza dated April 12.

The affidavit indicates that a reliable, confidential informant reported that Barrientes told the informant that Vance met with Barrientes, Flores, and Big-E that night at the levee to purchase a controlled substance, and that in the course of the sale one of the three shot Vance with a small handgun and then with a shotgun. Also included in the File is the affidavit of Barrientes himself dated April 14, 1979. Barrientes avers that Vance spent several days looking for forty pounds of marijuana to purchase.

Vance was to ship the marijuana to a dealer in Houston, but he was looking for a good price so that he could mark the marijuana up before moving it along. A number of people, including Bar-rientes, Big-E, and Vance spent most of the day for several days hanging out at the home of Jesus Flores (“Chucho”). During that time, Big-E picked a fight with several people, including Vance. During the arguments, Big-E made it clear that he was carrying a firearm. On April 5, the day Vance was murdered, Vance spent most of the day at Chucho’s house but left about 5:00 PM with Castro Bob.

Vance showed back up at Chucho’s house alone at about 7:00 PM driving a purple Honda. Vance showed Barrientes over $2,000 in cash and a .357 Magnum. Barrientes told Vance that Barrientes’s dealer could not deliver the forty pounds of marijuana until 11:00 PM. Vance was worried that he could not get the marijuana on the last bus bound for Houston, so he asked Big-E if he could get forty pounds immediately. Big-E responded that he could, and he and Vance left. Barrientes never saw Vance again, and he learned from reading the Sunday paper that Vance had been murdered.

The File also contains records indicating that Barrientes, Big-E, and Flores were arrested and held without bond. Additionally, a copy of the Cameron County Prisoner’s Jail Record on Barrientes is included. In his petition, Barrientes alleges that this record indicates that he was eventually released without any bond having to be posted. The quality of the copy before us is too poor to confirm his allegation. The File also contains a warrant issued on April 13 to search Big-E’s home for a .357 Magnum.

Also included in the File is a polygraph report indicating that on April 25, Barrientes passed a polygraph examination and that he “emphatically denie[d] any knowledge of/and or participation in the shooting of Ronald Roger Vance.” The report also states, “[f]or Case Details, see Polygraph Subject # 1, Emilio Gonzalez.” No other polygraph reports are included in the File. Finally, appended to the Amended First Federal Petition was an affidavit of Anthony P.

Calisi, the prosecutor in Barrientes’s capital murder trial, stating that, at the time of Barrientes’s trial, he was unaware of the existence of any information regarding the 1979 Unadjudicated Murder that was exculpatory in nature. The affidavit further states that if Barrientes was not involved in the 1979 Unadjudicated Murder, and if the State, at the time of Bar-rientes’s capital murder trial, was aware of Barrientes’s lack of involvement, “then [Calisi’s] inclusion and reference [in closing argument] to the culpability of Mr. Bar-rientes for the 1979 murder was improper.” Affidavit of Anthony P.

Calisi, subscribed and sworn on Feb. 14, 1992, at 2. Calisi stated that, “[although [he could not] state with any certainty whether omitting such argument would have changed the jury verdict, [he felt] confident the inclusion of such argument seriously impacted the jury and it’s [sic] decision.” Id. Because the Amended First Federal Petition contained additional information that had never been presented to the state courts, Respondent Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division (the “State”), moved to dismiss the petition for failure to exhaust state remedies.

Based on the evidence presented in the petition, and without the benefit of an evidentiary hearing, the district court was “of the opinion that no writ of habeas corpus for release from confinement should [have] issue[d] for Mr. Barrientes but that his sentence of death should [have] be[en] vacated.” Barrientes v. Collins, No. B-89-044, order at 1 (S.D.Tex. Aug. 28, 1995) [hereinafter “1995 Order”]. Nonetheless, the district court granted the State’s motion and dismissed the petition without prejudice for failure to exhaust state remedies.

It also entered findings of fact and conclusions of law in support of its opinion, for the state courts’ benefit and its own, “should this matter not be disposed of at the State level.” Id. In November of 1995, the district court denied Barrientes’s Application for Certificate of Probable Cause, as did we in an unpublished opinion. See Barrientes v. Johnson, No. 95-40880, 96 F.3d 1441 (5th Cir. Aug.20,1996) (unpublished).

Barrientes returned to state court and filed a second state post-conviction writ (the “Second State Petition”), which was, in all relevant respects, identical to his Amended First Federal Petition. His Second State Petition was dismissed as an abuse of the writ. Then, in November 1997, Barrientes filed a second federal petition (the “Second Federal Petition”), which was, in all relevant respects, identical to his Amended First Federal Petition and his Second State Petition. The State answered and moved for

summary judgment alleging, inter alia, that claims asserted by Barrientes relying on evidence and factual allegations not presented in his First State Petition were procedurally barred. The district court entered a brief order on February 27, 1998 (the “1998 Order”) that adopted the findings of fact and conclusions of law detailed in its 1995 Order and stated an additional ground for relief. The court consequently vacated Barrientes’s death sentence and denied a writ of habeas corpus for release from confinement. The State filed a motion to reconsider the 1998 Order, and Barrientes filed a motion to alter or amend the judgment under Rule 59(

e) of the Federal Rules of Civil Procedure. Both motions were denied. The State timely appeals the court’s 1998 Order and its denial of the motion to reconsider. Barrientes applied for a certificate of probable cause (“CPC”) in the district court to appeal certain claims on which habeas relief was denied, which application the district court treated as an application for a certificate of appealability (“COA”) under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA” or the “Act”) and denied. He now applies for a CPC in this court. III. THE STATE’S APPEAL A.

Standard of Review In reviewing a grant of habeas relief, we examine factual findings for clear error and issues of law de novo. See Bledsue v. Johnson, 188 F.3d 250, 254 (5th Cir.1999). When examining mixed questions of law and fact, we also utilize a de novo standard by independently applying the law to the facts found by the district court, as long as the district court’s factual determinations are not clearly erroneous. See id. B. Does AEDPA Apply ? The first question we must address is whether AEDPA applies to Barrientes’s Second Federal Petition.

Barrientes argues that AEDPA does not apply to his petition and attempts to distinguish this case from Graham v. Johnson, 168 F.3d 762 (5th Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 1830, 146 L.Ed.2d 774 (2000). In Graham, the petitioner’s third federal habeas petition, which was filed before the effective date of AEDPA, was dismissed for failure to exhaust state remedies. The petitioner’s fourth federal habeas petition, which was filed after the effective date of AEDPA, was, we decided, governed by AEDPA. See id. at 788.

Because Graham’s first federal habeas petition was adjudicated on the merits, his fourth petition was “second or successive” within the meaning of the Act, 28 U.S.C. § 2244(b). See id. at 773-74. Barrientes argues that his case is distinguishable from Graham. One purpose of AEDPA, Barrientes asserts, was to curb abuse of the federal writ, and such abuse does not exist in his case where the petition at issue does not follow another federal petition that was adjudicated on the merits. The petition at issue in Graham was potentially abusive.

Therefore, his argument concludes, the rule adopted in Graham should not apply to this case, and Barrientes’s Second Federal Petition should be treated as a continuation of his dismissed Amended First Federal Petition, making it subject to pre-AEDPA rules. This argument is unpersuasive. We read Graham as holding that a federal habeas corpus petition filed after the effective date of AEDPA is governed by the Act where the petitioner’s previous federal petition was filed before the effective date of AEDPA and was dismissed without prejudice for failure to exhaust state remedies. See id. at 788.

Whether the petition at issue will be considered “second or successive” within the meaning of the Act is immaterial to the analysis. Barrientes’s Second Federal Petition is subject to AEDPA; however, it is not a “second or successive” petition within the meaning of the Act. See Slack v.

McDaniel, — U.S. -, 120 S.Ct. 1595, 1605, 146 L.Ed.2d 542 (2000) (holding that under pre-AEDPA law “[a] petition filed after a mixed petition has been dismissed ... before the district court adjudicated any claims is ... not a second or successive petition” and declining to “suggest the definition of second or successive would be different under AEDPA”); In re Gasery, 116 F.3d 1051, 1052 (5th Cir.1997) (“[A] habeas petition refiled after dismissal without prejudice ... is merely a continuation of [petitioner’s] first collateral attack, not a ‘second or successive’ petition within the meaning of § 2244(b).”). C.

Claims Upon Which Relief Was Granted Barrientes raises numerous claims in his Second Federal Petition. His petition, however, does not clearly stake out the precise constitutional violations he claims warrant the grant of a writ of habeas corpus, and we have further difficulty discerning the exact claims on which the district court granted relief in its 1998 Order and 1995 Order. As we read Barrientes’s various petitions and the two orders of the district court, relief was granted upon six claims. For clarity, we detail these claims and the district court’s rulings on those claims, as we understand them.

As discussed more fully later in this Part, the State argues that the claims upon which relief was granted are proeedurally barred, that one of these claims is barred by the doctrine of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and, alternatively, that the district court abused its discretion by failing to conduct an evidentiary hearing. The State does not address the merits of the claims upon which the district court granted relief. We are not called upon and do not express any opinion on the merits of these claims. 1.

Prosecutorial misconduct claims Barrientes alleges a number of constitutional violations under the heading of “Prosecutorial Misconduct.” Second Fed. Petition at 27. The district court granted relief on the following three claims: a. Failure of the prosecution to turn over exculpatory evidence (the “Brady Claim”) Barrientes claims that the prosecutor failed to turn over the information contained in the Sheriffs File in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, information that could have been used to impeach Garza’s testimony at the sentencing hearing.

Among other things, he avers that evidence in the File indicates that only one person committed the 1979 Unadjudicated Murder, that the investigation of the 1979 Unadjudicated Murder focused on a different individual, that the missing witness was believed to have fled to another city, that no evidence in the File indicates that investigators thought the missing witness had been murdered, and that Barrientes passed at least one polygraph examination after his arrest. See Second Fed. Petition at 20-21. In Strickler v.

Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court recently summarized its Brady jurisprudence. The Court stated: In Brady this Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, and that the duty encompasses impeachment evidence as well as exculpatory evidence.

Such evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Moreover, the rule encompasses evidence known only to police investigators and not to the prosecutor. In order to comply with Brady, therefore, the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in this case, including the police. Id. at 1948 (internal citations and quotation marks omitted); see also id. at 1948 n. 21.

In ruling on this claim, the district court stated: It is the responsibility of the prosecution to disclose material evidence privy only to the prosecution [sic] to defense in order to allow the opportunity to prepare a defense. Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In this case, only the prosecution was aware of its intention to introduce evidence of the 1979 unadjudicated offense and the failure to give proper notice made it unlikely that the defense would be able to lodge the proper objections to its admission or to properly cross-examine Mr.

Garza once it was admitted. Thus, since the immediate goal for our purposes is to examine the effect such misconduct had, in the larger context of the entire trial, or in this case, the entire penalty phase of trial, upon Petitioner’s right to due process, omitting such notice was indeed prosecutorial misconduct. 1995 Order at 20. We read this portion of the district court’s order as a ruling that a Brady violation occurred. b. Solicitation of false or misleading testimony (the “Giglio Claim”) Barrientes argues that Garza’s testimony regarding the 1979 Unadjudicated Murder was false.

The known solicitation of false testimony by the State may constitute a violation of due process. See Giglio v. United States, 405 U.S. 150, 153-154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). We have previously explained regarding the use of misleading evidence: To establish a due process violation based on the State’s knowing use of false or misleading evidence, [a habeas petitioner] must show (1) the evidence was false, (2) the evidence was material, and (3) the prosecution knew that the evidence was false.

Evidence is false if, inter alia, it is specific misleading evidence important to the prosecution’s case in chief. False evidence is material only if there is any reasonable likelihood that [it] could have affected the jury’s verdict. Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir.1997) (internal citations and quotation marks omitted, second alteration in original).

The district court found that while the testimony given by Garza was not actually false — that Barrientes had been arrested for capital murder in 1979 and that a witness had disappeared — “the context in which the testimony was invoked, and the argument made by the prosecutor, gave the clear implication that Mr. Barrientes had committed the 1979 murder and that he also did away with the witness.” 1995 Order at 21-22. Citing Giglio, 405 U.S. at 153, 92 S.Ct. 763, and United States v.

Antone, 603 F.2d 566, 569 (5th Cir.1979), the district court further found that these implications were false and that the prosecutor should be imputed with knowledge of their falsity. Relying in part on Giglio, 405 U.S. at 154, 92 S.Ct. 763, and Kirkpatrick v. Blackburn, 777 F.2d 272, 281 (5th Cir.1985), the district court concluded that improper introduction of Garza’s testimony and the prosecutor’s corresponding argument rendered “the penalty phase of trial ... fundamentally unfair, in derogation of Petitioner’s constitutional rights.” 1995 Order at 23.

We read the district court’s order as granting relief on the Giglio Claim. c. Improper comments during closing argument of the penalty phase (the “Donnelly Claim”) Barrientes claims that, during closing argument at the penalty phase of his trial, the prosecutor asserted that Barrientes had committed the 1979 Unadjudicated Murder and had additionally murdered a witness in that case, despite knowledge that neither allegation was true. “During the penalty phase of [the] trial, the prosecuting attorney repeatedly argued that Mr. Barrientes had committed the 1979 unadjudicated murder and that Mr.

Bar-rientes ... also murdered [the] witness .... This entire discourse and the prosecuting attorney’s conduct amount to the use of false and prejudicial evi-dence_” Second Fed. Petition at 32. “In habeas corpus proceedings, we review allegedly improper prosecutorial statements made during a state trial to determine whether they ‘so infected the [penalty phase of the] trial with unfairness as to make the resulting [sentence] a denial of due process.’” Ables v. Scott, 73 F.3d 591, 592 n. 2 (5th Cir.1996) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)).

The statements must render the trial fundamentally unfair. “A trial is fundamentally unfair if ‘there is a reasonable probability that the verdict might have been different had the trial been properly conducted.’ ” Foy v. Donnelly, 959 F.2d 1307, 1317 (5th Cir.1992) (internal quotation marks omitted); see also Little v. Johnson, 162 F.3d 855, 861 n. 7 (5th Cir.1998); Nichols v. Scott, 69 F.3d 1255, 1278 (5th Cir.1995). “[I]t is not enough that the prosecutors’ remarks were undesirable or even universally condemned....

Moreover, the appropriate standard of review for such a claim on writ of habeas corpus is the narrow one of due process, and not the broad exercise of supervisory power.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quotation marks and internal citations omitted). In its 1995 Order, the district court stated that “the argument made by the prosecutor ... gave the clear implication that Mr. Barrientes committed the 1979 murder and that he also did away with the witness.

If [the prosecutor] knew or should have known that this implication was false, the introduction of the evidence and argument is prosecutorial misconduct.” 1995 Order at 22-23. We understand the district court’s order as concluding that the prosecutor should be imputed with knowledge of the falsity of his statements and further concluding that the argument rendered the penalty phase of the trial unfair. See id. at 23-24. 2. Ineffective assistance of counsel (the “Strickland Claims”) Barrientes further alleges that he was denied the effective assistance of counsel.

The district court granted relief on the following two claims: that Barrientes’s trial counsel was ineffective for failing to request a recess after evidence of the 1979 Unadjudicated Murder was introduced and that his appellate counsel, who was the same person who represented Barrientes at trial, was ineffective for failing to raise as error on direct appeal the fact that evidence of the 1979 Unadjudicated Murder was admitted over the objection of surprise. Claims of ineffective assistance of counsel are evaluated under the familiar standard first enunciated by the Supreme Court in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under that standard, a habeas petitioner must “demonstrate both that counsel’s performance was deficient and that the deficiency prejudiced the defense.” Crane v. Johnson, 178 F.3d 309, 312 (5th Cir.1999). To establish the first prong of deficient performance, [a habeas petitioner] must show that his trial counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the Sixth Amendment.

However, this Court must be highly deferential of counsel’s performance and must make every effort to eliminate the distorting effects of hindsight. Therefore, we must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. We will not find ineffective assistance of counsel merely because we disagree with counsel’s trial strategy. For the second prong, [the petitioner] must show a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional errors.

A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. (internal citations and quotation marks omitted). “[I]n cases involving mere ‘attorney error,’ we require the defendant to demonstrate that the errors ‘actually had an adverse effect on the defense.’ ” Roe v. Flores-Ortega, — U.S. -, 120 S.Ct. 1029, 1037, 145 L.Ed.2d 985 (2000) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052). The district court stated in regard to the first of Barrientes’s two claims that: Petitioner alleges that [trial counsel] failed to effectively block the admission of Mr.

Barrientes [sic] 1979 arrest for capital murder. As a result of the prosecution’s failure to notice defense counsel of his intent to offer these facts into evidence, defense counsel was surprised by the attempt to introduce such evidence and, consequently, unprepared to make the. proper objections. [Defense counsel] did properly object to the admission of the evidence on the basis of surprise but upon, having been overruled, thereafter failed to move for a recess in order to investigate the 1979 arrest. It appears from the record that this failure was indeed prejudicial.

Since this allegation is related to the admission of evidence of the 1979 unad-judicated capital murder the effect of this failure in counsel performance will be discussed inclusively in the

section below. 1995 Order at 14-15. Later in its order, the court concluded that “[t]he added failure of defense counsel to move for a recess in order to investigate the proposed introduction, despite Mr. Barrientes’s repeated insistence on his having been exonerated of this offense, removed any final relief for Mr. Barrientes.” Id. at 21. The district court stated with regard to Barrientes’s second claim that “Petitioner is correct that the admission of [evidence of the 1979 Unadjudicated Murder] over the objection of surprise gave defense counsel a basis for appeal....

Defense counsel’s assistance was ineffective for failing to allege this error on appeal.” Id. at 22. We read the district court’s statements as granting relief on the ineffective assistance claims discussed. 3. The admission of evidence of unad-judicated crimes (“Preliminary Showing Claim”) Barrientes makes several claims regarding the admission of evidence of unadjudi-cated crimes. The district court granted relief on one of these claims.

In his petition, Barrientes argued that “[t]he admission of evidence of unadjudicated crimes, without evidence that a crime had been committed[,] ... was admitted during the penalty phase of Mr. Barrientes’ capital trial and, accordingly, [his] sentence of death violates the Eighth and Fourteenth Amendments to the United States Constitution.” Second Fed. Petition at 54.

The district court read this statement as a claim that, before evidence of an unadju-dicated crime can be admitted in the sentencing phase of a trial, the prosecution must make a preliminary showing to the court that a reasonable jury could find the defendant committed the unadjudicated crime by a certain standard of proof.

In its 1998 Order, the district court stated: The issue before this Court is whether a certain standard of proof is required before any evidence of an unadjudicated offense should be admitted at the sentencing phase of a capital murder trial in order to prove that a person might be a future danger to society. In Turner v. Johnson, 106 F.3d 1178, 1189 (5th Cir.1997), the Fifth Circuit recognizes that a jury may here [sic] evidence of an unad-judicated offense if the trial court concludes that a reasonable jury could find that the accused committed the offense by a preponderance of the evidence. Huddleston v.

United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). In the Petitioner’s case, such a preliminary showing was not made and the evidence was admitted even though Defense Counsel objected to its introduction. This Court remains of the opinion that the admissibility of such evidence contributed to the Petitioner’s death sentence and the proceedings at the penalty phase of the trial did not meet the required procedural protections guaranteed by the U.S. Constitution. Barrientes v. Johnson, No. B-89-044, order at 4 (S.D.Tex. Feb. 27,1998) [hereinafter “1998 Order”].

While we have serious reservations whether this legal conclusion addresses a claim raised by Barrientes, we assume arguendo that it addresses the claim quoted above. A Materiality, error, and prejudice In Chapman v. California, the Supreme Court held that “there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In Brecht v.

Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), the Court addressed the issue of harmless error in the context of collateral review. The Court explained that “the writ of ha-beas corpus has historically been regarded as an extraordinary remedy, a bulwark against convictions that violate fundamental fairness. Those few who are ultimately successful [in obtaining habeas relief] are persons whom society has grievously wronged and for whom belated liberation is little enough compensation.” Id. at 633-34, 113 S.Ct. 1710 (internal citations and quotation marks omitted) (alteration in original).

Accordingly, the Court determined that “habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.’ ” Id. at 637, 113 S.Ct. 1710. This standard requires a court to determine “whether the error had substantial and injurious effect or influence in determining the jury’s verdict.” Id. (quotation marks omitted).

Of course, harmless error analysis applies to errors commonly referred to as “trial errors.” In Brecht, the Supreme Court distinguished between errors of this type and “structural defects.” Trial error occur[s] during the presentation of the case to the jury, and is amenable to harmless-error analysis because it may ... be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial].

At the other end of the spectrum of constitutional errors lie structural defects in the constitution of the trial mechanism, which defy analysis by harmless-error standards. The existence of such defects— deprivation of the right to counsel, for example — requires automatic reversal of the conviction because they infect the entire trial process. Id. at 629-30, 113 S.Ct. 1710 (internal citations and quotation marks omitted) (alterations in original). In Kyles v.

Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the Supreme Court explained that Brecht harmless error analysis is unnecessary when the inquiry for a particular habeas claim requires application of the more demanding “reasonable probability” standard. See id. at 435-36, 115 S.Ct. 1555. This standard requires the petitioner to demonstrate a reasonable probability that, but for the error, “the result of the proceeding would have been different”. Strickler, 119 S.Ct. at 1948. Both Brady claims and Strickland claims utilize the more demanding “reasonable probability” standard.

See id. (Brady claim); Crane, 178 F.3d at 312 {Strickland claim). Moreover, in this circuit, the “reasonable probability” standard is built into the determination of whether improper prosecutor comments rendered the trial fundamentally unfair. See Foy, 959 F.2d at 1317. In adjudicating a claim involving the use of false testimony, the “any reasonable likelihood” standard has been applied to determine materiality. See Giglio, 405 U.S. at 153-54, 92 S.Ct. 763.

Under that standard, “[a] new trial is required if ‘the false testimony could ... in any reasonable likelihood have affected the judgment of the jury ...’” Id. at 154, 92 S.Ct. 763 (quoting Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)). This standard is considered less demanding on a defendant than either the “reasonable probability” or Brecht harmless-error standards. See generally Strickler, 119 S.Ct. at 1956-58 (Souter, J., concurring) (discussing the standards).

We have never specifically addressed whether, when addressing a claim utilizing the “any reasonable likelihood” standard of materiality in the habeas context, we must additionally apply the more-demanding Brecht harmless-error standard if we find the petitioner presents a valid claim.

After considering the interests of finality and state sovereignty supporting the Supreme Court’s decision in Brecht, see 507 U.S. at 635-37, 113 S.Ct. 1710, and weighing those interests against the Court’s recognition that “a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct, might so infect the integrity of the proceeding as to warrant the grant of habeas relief, even if it did not substantially influence the jury’s verdict,” id. at 638 n. 9, 113 S.Ct. 1710, we assume, without deciding, that it is appropriate to conduct a Brecht harmless-error analysis in such a circumstance.

See Gilday v. Callahan, 59 F.3d 257, 268 (1st Cir.1995) (applying Brecht harmless-error to a claim of knowing use of perjured testimony). Finally, with regard to the Preliminary Showing Claim, the district court did not specifically apply a harmless error analysis. It simply stated that “the admissibility of [the unadjudicated crime] evidence contributed to the Petitioner’s death sentence and the proceedings at the penalty phase of the trial did not meet the required procedural protections guaranteed by the U.S. Constitution.” 1998 Order at 4.

Because the district court chose not to apply the Brecht harmless-error analysis to this claim, we assume for purposes of this opinion that it concluded that the error was of the “structural defect” type that does not require harmless-error analysis. Consequently, every claim upon which the district court granted relief, save for the Preliminary Showing Claim, required some sort of showing of materiality, prejudice, or harmful error. At the root of each of these determinations was the Sheriffs File and its contents.

For the Brady Claim, there was an implicit conclusion that, based upon the contents of the File, there was a reasonable probability that, had the File been disclosed to the defense, the result of the proceeding would have been different. For the Giglio Claim, the district-court concluded, based upon the contents of the File, that Garza’s testimony was false or misleading and there was a reasonable likelihood that his testimony could have affected the jury’s verdict.

For the Donnelly Claim, the district court concluded, based upon the contents of the File, that the prosecutor’s comments were improper, and the comments rendered the penalty phase of the trial fundamentally unfair. Finally, regarding the Strickland Claims, there was an implicit conclusion that, based upon the contents of the File, there is a reasonable probability that the outcome of the penalty phase would have been different had counsel not performed deficiently. The -resolution of all five of these claims was therefore dependent upon the contents of the Sheriffs File. D.

The State’s Arguments The State makes three arguments on appeal. First, it argues that the district court erred by granting relief on procedurally barred claims. Second, it argues that the district court’s ruling in its 1998 Order granting relief on the Preliminary Showing Claim relied on a rule of law that was not presented to the state courts and whose retroactive application is barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Finally, it argues alternatively that the district court erred by failing to grant an evidentiary hearing.

In the sections that follow, we determine, first, that the Texas Court of Criminal Appeals’s dismissal of Bar-rientes’s Second State Petition constituted an independent and adequate state ground barring consideration of affected claims absent a showing of cause and actual prejudice. Next, we decide that of the claims upon which relief was granted, all but the Preliminary Showing Claim are affected by the issue of procedural bar.

Because the Preliminary Showing Claim is not affected by the potential procedural bar, we need not determine whether Bar-rientes has established cause and prejudice to overcome his default if the Preliminary Showing Claim independently supports the relief granted by the district court. We determine, however, that the rule announced by the district court in granting relief on the Preliminary Showing Claim is Teague-barred, and that that relief therefore cannot independently support the district court’s ruling.

Consequently, we must ascertain whether Barrientes has established cause and actual prejudice to overcome his default. We conclude that a hearing in the district court is necessary to determine whether Barrientes has established cause and actual prejudice. Accordingly, we reverse that portion of the district court’s 1998 Order granting relief on the Preliminary Showing Claim and vacate those portions of the district court’s 1998 and 1995 Orders granting relief on the other five claims, and we remand the case for a determination of cause and prejudice.

Finally, we determine that the district court should have granted an evidentiary hearing on the merits of the claims affected by the Sheriffs File and that such a hearing is not barred by 28 U.S.C. § 2254(e)(2). We therefore instruct the district court to conduct an evidentiary hearing on the merits of the affected claims, should it find that Barrientes has established cause and prejudice to overcome his procedural default. We turn now to the specifics. 1.

Procedural Bar A federal court cannot consider a petitioner’s constitutional claim in a habeas proceeding if the state court rejected that claim on an adequate and independent state ground, “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice,” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Martin v. Maxey, 98 F.3d 844, 847 (5th Cir.1996).

The state must “clearly and expressly” rely on the adequate and independent state ground. Coleman, 501 U.S. at 735, 111 S.Ct. 2546. We now turn our attention to the question of adequacy and address the State’s argument that the dismissal of Barrientes’s Second State Petition as an abuse of the writ is an adequate and independent state ground that procedurally bars consideration of certain claims in a federal habeas proceeding. a. Texas’s abuse-of-the-writ doctrine Barrientes’s Second State Petition was dismissed as an abuse of the writ under Texas Code of Criminal Procedure

article 11.071 § 5. We have previously held that Texas’s abuse-of-the-writ doctrine has, since 1994, provided an adequate state ground for the purpose of imposing a procedural bar. See Emery v. Johnson, 139 F.3d 191, 195-96 (5th Cir.1997). In Emery, we stated: An abuse of the writ can qualify as a procedural bar. A procedural bar is not adequate, however, unless it is applied strictly or regularly to the vast majority of similar claims. Historically, Texas courts have failed to apply the abuse-of-the-writ doctrine in a strict or regular manner, and, therefore, we have refused to honor it.

This changed in 1994, when the Texas Court of Criminal Appeals announced the adoption of a strict abuse-of-the-writ doctrine, tempered only by an exception for cause. See Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App.1994) (en banc) (plurality opinion). Barber represents an adequate procedural bar for purposes of federal habeas review. Id. (most citations and all internal quotation marks omitted). b. Controlling date Barrientes argues that the Texas abuse-of-the-writ doctrine should not bar his claims despite the fact that his Second State Petition was dismissed as an abuse of the writ after 1994.

He argues that in determining the adequacy of the abuse-of-the-writ doctrine in this case, we should look to the date on which his First State Petition was filed (in 1988) because that is the point at which he defaulted. He relies on Fields v. Calderon, 125 F.3d 757 (9th Cir.1997), in which the Court of Appeals for the Ninth Circuit adopted a rule that adequacy should be determined at the point “when the defaulted claims should have been raised.” Id. at 760.

In that case, much like the instant case, the court was faced with a state procedural rule that existed throughout the proceedings at issue but was not, at the time the petitioner failed to raise the claims in question, applied “strictly or regularly to the vast majority of similar claims.” The rule, however, was so applied at the time the state court decided that the claims at issue were defaulted. Barrientes’s reliance on Fields is misplaced because the cases in this circuit have reached the opposite conclusion, foreclosing his argument. Barrientes argues that our holding in Lowe v.

Scott, 48 F.3d 873 (5th Cir.1995), is in accord with the Fields rule and that it must be adhered to despite the opposite result reached in subsequent cases. See In the Matter of Dyke, 943 F.2d 1435, 1442 (5th Cir.1991). Bar-rientes stretches Lowe beyond its natural reading. It is true, as Barrientes points out, that the final state habeas petition in Lowe was filed in 1990 before Texas’s Barber decision, but it was also dismissed as an abuse of the writ before Barber was decided. See Lowe, 48 F.3d at 874-75.

Our decision that the Texas abuse-of-the-writ doctrine was inadequate in Lowe’s case, therefore, does not necessitate the conclusion that we determined adequacy as of the date Lowe took action creating the default, that is, as of the date he filed his first state petition that failed to include all of the claims raised in his federal petition. Cases decided after Lowe, however, necessitate the conclusion that we determine adequacy as of the date that the Texas court dismissed, or would dismiss, the claims at issue as an abuse of the writ. In Fearance v.

Scott, we found ourselves barred from considering a claim raised for the first time in a state habeas petition filed in 1995, which the state rejected as an abuse of the writ because it had not been included in petitioner’s previous state habeas petition filed in 1992. See 56 F.3d 633, 642 (5th Cir.1995). We determined adequacy as of the date his claims were dismissed, noting that at the time “the state district court dismissed an issue raised in Fearance’s third petition that was not raised in his earlier petition it was no longer acting with any discretion.” Id. In Nobles v.

Johnson, Nobles filed his first state habeas petition in 1993. See 127 F.3d 409, 412 (5th Cir.1997). We affirmed the district court’s ruling that a claim first presented in Nobles’s federal habeas petition was procedurally barred because it would be dismissed as an abuse of the writ if included in a future state habeas petition. See id. at 423. Muniz v. Johnson, 132 F.3d 214 (5th Cir.1998), and Little v. Johnson, 162 F.3d 855 (5th Cir.1998), are also in accord with the Fearance rule.

Our precedent requires us, at least in the case of the Texas abuse-of-the-writ doctrine, to determine adequacy as of the date the Texas court determines that a claim is procedurally defaulted. The Texas Court of Criminal Appeals dismissed Barrientes’s Second State Petition in 1997, several years after Barber was decided and Texas Code of Criminal Procedure

article 11.071 § 5 was passed. The dismissal constituted an independent and adequate state ground. Our task, then, is to determine whether the claims upon which the district court granted relief are procedurally barred by this dismissal. c. Barred claims In our 1996 unpublished opinion denying Barrientes’s application for a CPC to review the district court’s dismissal of his Amended First Federal Petition for failure to exhaust state remedies, we noted three areas in which the State argued that Bar-rientes presented new factual allegations or significantly stronger evidentiary support for certain of his claims:

(1) Although Barrientes had presented his claim that the State improperly admitted evidence of his unadjudicated 1979 capital murder arrest at the penalty phase and improperly argued concerning this arrest to the state habeas court, Barrientes presented significantly stronger evidentiary support for this argument in his amended federal habeas petition.

Specifically, Barrientes included with his amended federal habeas petition the Cameron County sheriffs office’s file on the 1979 arrest, indicating that the charges against Barrientes were dropped, as well as an affidavit by the prosecutor that, had he known the exculpatory information contained in the police file, he would not have argued or presented evidence regarding the 1979 arrest at the penalty phase of Bar-rientes’s trial.

(2) Although Barrientes had argued to the state habeas court that David Meza’s testimony was fabricated, he had not alleged before the state habeas court that Meza lied because the district attorney’s office threatened him.

In his federal petition, Barrientes argued that Meza testified falsely because the district attorney’s office threatened him, and offered Meza’s testimony to that effect. (3)Before the state habeas court, Bar-rientes had broadly asserted that his counsel was ineffective for failing to interview witnesses to obtain information with which to impeach the government’s principal witness, Felix Sanchez. However, in his federal habeas petition, Bar-rientes specifically alleged and offered evidence that Sanchez’s wife and mother would have testified in a way that would have undermined Sanchez’s credibility. Barrientes v.

Johnson, No. 95-40880, at 4-5, 96 F.3d 1441 (5th Cir. Aug.20, 1996) (unpublished) (quoting the State’s Motion to Dismiss). We held that claims relying on the new factual allegations or significantly stronger evidentiary support were unexhausted. We explained: The record demonstrates that Bar-rientes’s amended federal habeas petition presents new factual allegations and significantly stronger evidentiary support for his legal claims than he had presented to the state habeas court.

We have held that a habeas petitioner fails to exhaust state remedies when he presents additional factual allegations and evidentiary support to the federal court that was not presented to the state court. See Joyner v. King, 786 F.2d 1317, 1320 (5th Cir.) (holding that “the policies of comity and federalism underlying the exhaustion doctrine” require that “new factual allegations in support of previously asserted legal theory” be first presented to the state court), cert. denied, 479 U.S. 1010, 107 S.Ct. 653, 93 L.Ed.2d 708 (1986); Brown v.

Estelle, 701 F.2d 494, 495-96 (5th Cir.1983) (holding that when a claim is filed in federal court in a significantly stronger evidentiary posture than it was before the state court, it must be dismissed for failure to exhaust state remedies and remanded to the-state court). Id. at 5-6, 96 F.3d 1441. We denied Bar-rientes’s CPC application, and he returned to state court to exhaust the claims that relied on the new factual allegations and significantly stronger evidentiary support.

Of the claims upon which relief was granted, all but the Preliminary Showing Claim rely on the significantly stronger eviden-tiary support Barrientes claims is provided by the Sheriffs File. The Texas Court of Criminal Appeals denied his Second State Petition as an abuse of the writ, and these claims are therefore barred, unless Bar-rientes can show cause and prejudice for defaulting on these claims. 2.

The non-barred Preliminary Showing Claim Before proceeding to determine whether Barrientes has established cause and prejudice for his procedural default, we pause to address an issue that could pretermit that determination. We need not address the issues of cause and prejudice if the Preliminary Showing Claim, which we assumed in

Part III-C-4, supra, did not rely on the contents of the Sheriffs File, is sufficient to support the relief granted by the district court. The State argues first that this ground for relief was never claimed by Barrientes, that if he claimed it now before the state court it would be dismissed as an abuse of the writ, and therefore that it is procedurally barred.

See Coleman, 501 U.S. at 735 n. *, 111 S.Ct. 2546 (“[I]f the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred[, then] ... there is a procedural default for purposes of federal habeas regardless of the decision of the last state court to which the petitioner actually presented his claims.”). Alternatively, the State argues that the rule announced by the district court is Teague-barred. As we stated in

Part III— C-3, supra, we assume, despite serious reservations, that the district court’s relief addressed a claim actually raised in Bar-rientes’s petition. We therefore address the State’s alternative argument and determine whether the district court’s relief is Teague-barred. We begin by noting that the district court misstated Fifth Circuit law. In Turner, we simply held that evidence of unadjudicated crimes presented at the sentencing phase of a capital murder trial need not be proved beyond a reasonable doubt.

See Turner, 106 F.3d at 1189 (“Although the due process clause requires the state to prove each element of the offense charged beyond a reasonable doubt to secure a conviction, neither this court nor the Supreme Court has ever held that a similar burden exists regarding the proof of facts adduced during the sentencing phase.” (footnote omitted)). Moreover, we can find no other precedent from this court or the Supreme Court that supports the proposition on which the district court’s grant of relief relies.

We need not determine whether the rule announced by the district court is of constitutional significance, however, because we conclude that, even if it is, its application in this case is barred by the nonretroactivity rule of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In determining whether a state prisoner is entitled to habeas relief, a federal court should apply Teague by proceeding in three steps. First, we must determine when [the defendant’s] conviction and sentence became final for Teague purposes.

Second, we must survey the legal landscape as it then existed and determine whether a state court considering the defendant’s claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution. Third, if we determine that [the defendant] seeks the benefit of a new rule, we must consider whether that rule falls within one of the two narrow exceptions to the nonretroactivity principle. Fisher v. Texas, 169 F.3d 295, 305 (5th Cir.1999) (citations and internal quotation marks omitted).

An exception exists if the rule “places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe” or if it is a rule of procedure that is “implicit in the concept of ordered liberty.” Teague, 489 U.S. at 307, 109 S.Ct. 1060 (internal quotation marks omitted).

This second exception is “reserved for watershed rules of criminal procedure.” Id. at 311, 109 S.Ct. 1060. “A state conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.” Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994). Barrientes’s petition for certiorari was denied in 1988.

We easily conclude that, at that time, “reasonable jurists hearing petitioner’s claim ... ‘would [not] have felt compelled by existing precedent’ to rule in his favor.” Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (quoting Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990)). Finally, the rule does not fall within one of the two narrow exceptions. The new rule announced by the district court is therefore Teaguebarred. 3.

Cause and prejudice Having determined that the Preliminary Showing Claim is Teague-barred, we turn our attention to the question of whether cause and prejudice exist to excuse Bar-rientes’s procedural default on the five remaining claims as to which the district court granted relief. “[T]he resolution of ‘when and how defaults in compliance with state procedural rules can preclude [federal court] consideration of a federal question is itself a federal question.’ ” Fairman v. Anderson, 188 F.3d 635, 641 (5th Cir.1999) (alteration in original) (quoting Johnson v.

Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988)). To the extent, therefore, that the Texas Court of Criminal Appeals decided issues of cause and prejudice in dismissing Barrientes’s Second State Petition, we are not bound by its decision.

In considering cause and prejudice in this case, we are mindful that “[w]here a district court fails to make necessary findings, a remand for entry of such findings is the usual recourse for an appellate court; however, where all of the issues on appeal may be fairly resolved from the record presented, a remand may not be required.” In the Matter of Legel, Braswell Gov’t Securities Corp., 648 F.2d 321, 326 n. 8 (5th Cir. Unit B 1981). Here, the district court has never explicitly addressed the issues of cause and prejudice.

In its 1998 Order, it simply stated, “[t]he court has reviewed the file of the 1979 murder case which apparently was not available at the punishment phase of the trial.” 1998 Order at 3. Likewise, in its 1995 Order, it stated, “[i]n addition, since the filing of his First Federal Petition, as reflected in the Amended Petition, Petitioner has recovered the Cameron County police file related to the 1979 capital murder.” 1995 Order at 21. Finally, in its Order denying Petitioner’s Rule 59(

e) Motion, the court stated, “[furthermore, this Court denied the Respondent’s Motion to Reconsider the 1998 Order, and obviously disagrees with the Respondent’s argument that the Petitioner’s claims should be ‘procedurally barred....’” Barrientes v. Johnson, No. B-89-044 (S.D. Tex Aug. 26, 1998) (order at 1). Our task, then, is to determine whether the issues of cause and prejudice “may be fairly resolved from the record presented” or whether remand is necessary. a.

Cause With regard to the issue of cause, the Supreme Court has stated that: the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.... [A] showing that the factual or legal basis for a claim was not reasonably available to counsel, or that some interference by officials made compliance impracticable, would constitute cause under this standard. Murray v.

Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (internal citations and quotation marks omitted).

Barrientes asserts that cause exists in this case because 1) despite diligent pursuit, habeas counsel had only four months to secure the file, which proved insufficient; 2) counsel’s discovery motions were denied and attempts to elicit testimony at the state evidentiary hearing on ineffective assistance of counsel were thwarted by the state judge; and 3) counsel’s efforts were frustrated by State officers and the exception to the Texas Open Records Act, Texas Government Code § 552.101, et seg., that applies to investigative records.

We decline to hold that a four-month investigative time-frame establishes cause as a matter of law. With regard to his second and third alleged factors constituting cause, the record on these points is important to our disposition of this case and warrants discussion. Barrientes filed his First State Petition on August 16, 1988. On August 19, 1988, he filed a Motion for Discovery in which he sought to depose District Attorney Ben Euresti and Garza.

The motion further requested: All reports, memoranda, file notes, docket sheet entries, diaries or diary entries, calendars, and any other written documents of any kind whatsoever, whether official or unofficial, which are in deponent’s possession or under his control, and which refer or relate to: d. The arrest of Antonio Barrientes, the arraignment, and all investigation and any legal research relating to Antonio Barrientes’ arrest for capital murder in April of 1979. Motion for Discovery, filed Aug. 16, 1988, Ex. B.

On September 20, 1988, he filed a Supplemental Motion for Discovery, in which he requested, inter alia: 2. The Cameron County District Attorney’s legal and investigative files, including, but not limited to, correspondence, memoranda, file notes, docket sheet entries, diaries or diary entries, calendars, exhibits, and any other written documents of any kind whatsoever, whether official of unofficial, and which refer or relate to: (

a) the arrest of Antonio Barrientes, the arraignment, and all investigation and any legal research relating to Antonio Barrientes’ arrest for capítol [sic] murder in April, 1979. 8. All police, highway patrol or sheriffs files, or information, relating to the investigation and/or charging of Antonio Barrientes for each and every action listed in number 2, above, if in the possession of the Cameron County District Attorney’s office.... Supplemental Motion for Discovery, filed Sept. 20, 1988 at 1-2.

The limited state court record before us is bereft of any indication of the disposition of these motions, but we feel safe in assuming, at this point, that they were denied. His First State Petition, which did not include the contents of the Sheriffs File, nonetheless detailed what was known at the time about the 1979 Unadjudicated Murder: Although not introduced at trial, post-conviction investigation has shown that when Mr.

Barrientes was arrested and charged for this capital murder, he voluntarily agreed to submit to a poly-graphic examination, that he submitted to two polygraphic examinations conducted by the State of Texas and, as a result of those polygraphic examinations, all charges concerning this alleged prior unadjudicated murder were dropped against him. Although the State introduced evidence of this alleged 1979 unadjudicated murder (although there was no evidence that a murder occurred), the State had full knowledge that Mr.

Barrientes had taken and passed a polygraph examination concerning the alleged 1979 unadju-dicated murder. The most egregious aspect of this is that the State, itself, administered that polygraph examination and the arresting officer, Mr. Joe Garza, who testified at the penalty phase concerning the 1979 arrest for the unad-judicated murder, was also the officer who released Mr. Barrientes from custody in 1979 when he passed the polygraph examination. First State Petition at 10,17-18.

At the evidentiary hearing ordered by the Texas Court of Criminal Appeals, Bar-rientes attempted to obtain information about the Sheriffs File. Most significant was the following exchange between Bar-rientes’s counsel, Mr. Montoya, Garza, the Court, and counsel for the State, Mr. Cy-ganiewicz: Q. BY MR. MONTOYA [to Garza]: Did you have the file with you at the time you testified [in Bar-rientes’s 1985 trial]? MR. CYGANIEWICZ: Your Hon- or, again, that has nothing to do with [the ineffective assistance claim]. THE COURT: Sustained. Counsel, get to the ineffective counsel. This isn’t a fishing expedition. Q. BY MR.

MONTOYA: Did Mr. Davidson discuss with you your testimony after you had taken the stand in April, 1985? A. I didn’t talk with Mr. Davidson, no, sir, not that I can recall. It’s been so long. Q. Did you have your file with you at the time you testified in April of 1985? MR. CYGANIEWICZ: Same objection, your Honor. Whether he has a file or not with him has nothing to do with Mr. Davidson. THE COURT: Objection sustained. MR. MONTOYA: Your Honor, with all due respect— THE COURT: The objection was sustained. State Record, Evidentiary Hearing Vol. I, at 136.

These portions of the record indicate some effort on the part of Bar-rientes’s habeas counsel to secure the Sheriffs File, but the picture of counsel’s efforts becomes much more remarkable when the affidavits of Bruce A. Montoya and Todd E. Kastetter, two of the lawyers representing Barrientes, are considered. Montoya claims that he attempted to meet with Richard Lara, an Assistant District Attorney, on May 20, 1988, while on a trip to Brownsville, but that Lara was unable to meet with him. Montoya tried to contact Lara again on July 25, 1988, but Lara would not accept his call.

On July 27, Montoya sent Lara a letter stating that Kastetter would attempt to contact the District Attorney’s office while in Brownsville on July 28. See Affidavit of Bruce A. Montoya, Esquire, subscribed and sworn on September 3, [year missing] at 2-3 [hereinafter “Montoya Affidavit”]. While in Brownsville on July 28, Kastet-ter claims to have met with Luis Saenz, an Assistant District Attorney. Kastetter requested to see all files regarding Bar-rientes, including anything pertaining to the 1979 Unadjudicated Murder, and, after consulting with the District Attorney, Mr.

Euresti, Saenz informed Kastetter that he had no right to review any of the District Attorney’s files, and he would not be allowed to do so. See Affidavit of Todd E. Kastetter, Esquire, subscribed and sworn on Sept. 2,1997 at 2. The following day, Kastetter went to the state district court, still seeking information on the 1979 Unadjudicated Murder. He had heard that the matter had at one time been set for trial. The clerk of the court was unable to locate any files and suggested that Kastetter contact the District Attorney’s office. See id. at 2-3.

From there Kastetter went to meet with Barrientes’s lawyer for the 1979 case, A.G. Betancourt. Betancourt remembered little about the case, and the two of them searched through Betancourt’s storage area for information but came up empty-handed. See id. At some point, Montoya and Kastetter tentatively identified the missing witness as “Castro Bob.” They spent considerable time searching for him before discovering that Castro Bob was not the missing witness. See Montoya Affidavit at 4.

The two then located one of the two polygraph reports and discovered the name of the justice of the peace who had sworn out the arrest warrants and determined bond issues, Judge Edward Sarabia. Montoya met with Judge Sarabia, who originally directed Montoya to the District Attorney’s office but cautioned that the District Attorney would be unlikely to release any information if the case was still open. After several meetings, Judge Sara-bia gave Montoya a single sheet of the docket book for the 1979 Unadjudicated Murder, indicating that Barrientes’s bond had been reduced from “no bond” to $5,000 bond.

See id. at 5. Judge Sarabia further suggested that Montoya search through papers in the attic of the old Cameron County Courthouse, so Montoya and Kas-tetter did just that for many hours, but to no avail. See id. Next, Montoya contacted the Brownsville Police Department and the Brownsville Sheriffs Department. Both said that no records would be released without a subpoena. The Sheriffs Department suggested that Montoya contact the District Attorney’s office. At some point, someone from the Sheriffs Department informed Montoya that an investigator named Alex Perez was in charge of all unsolved capital murders.

Montoya tracked Perez down the next day, October 20, 1989, and Perez produced the file, but would not allow Montoya to copy it. See id. Finally, Montoya and Kastetter were allowed to copy the file. See id. at 6. The affidavits provided by Barrientes along with a review of the record indicate that he may well have cause for failing to discover the Sheriffs File before the conclusion of his first state habeas proceedings. The allegations he makes are the sort that have led to a finding of cause in previous eases. See Amadeo v.

Zant, 486 U.S. 214, 222, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988) (finding cause when county officials concealed evidence); Paradis v. Arave, 130 F.3d 385, 394 (9th Cir.1997) (finding cause when prosecutor withheld Brady evidence and quashed subpoena in first habeas proceedings); Kirkpatrick v. Whitley, 992 F.2d 491, 495 (5th Cir.1993) (finding cause when evidence was suppressed and falsified coupled with state and federal laws that deterred discovery of the evidence); Bliss v.

Lockhart, 891 F.2d 1335, 1341 (8th Cir.1990) (noting that “prosecutorial interference with disclosure of the full evidence may indeed constitute cause”); Strickler, 119 S.Ct. at 1952 (acknowledging that several factors taken together can constitute cause). Moreover, we note that at each stage of his post-conviction collateral attack on the penalty phase of his trial, he presented the evidence available to him, discussed the evidence he hoped to uncover through discovery, and argued the claims he felt were appropriate based upon the available evidence and factual assertions.

His counsel, it would appear, diligently pursued the Sheriffs File out of court and moved to discover the File in court, which motions were denied by the state courts. At the beginning of our examination of cause and prejudice we noted that the district court has never addressed these issues. We stated that our task was to determine whether cause and prejudice “may be fairly resolved from the record presented.” See supra. We determine that the issue of cause cannot be adequately resolved on the record before us. The affidavits supplied by Barrientes, while compelling, have never been answered by the State.

We find it necessary to remand this case to the district court with instructions to conduct an evidentiary hearing on the issue of cause. We, of course, do not instruct the district court on what decision it should make on the issue of cause. b. Prejudice To overcome a procedural default, a habeas petitioner must demonstrate “actual prejudice as a result of the alleged constitutional violations.” Coleman, 501 U.S. at 745, 111 S.Ct. 2546. Prejudice can be examined at both the guilt/innocence and penalty phases of a capital murder trial.

See Strickler, 119 S.Ct. at 1955; id. at 1956 (Souter, J., concurring in part and dissenting in part) (“As the Court says, however, the prejudice enquiry does not stop at the conviction but goes to each step of the sentencing process .... ”). The Supreme Court has been reluctant to define the precise contours of the prejudice requirement. See Amadeo, 486 U.S. at 221, 108 S.Ct. 1771.

However, the Strickler Court recently explained that in the context of establishing cause and prejudice for proeedurally defaulting on a Brady claim, a petitioner must convince the court that: there is a reasonable probability that the result of the trial would have been different if the suppressed documents had been disclosed to the defense....

The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. 119 S.Ct. at 1952 (internal citations and quotation marks omitted). The Court explained that the prejudice inquiry in the situation presented in Strickler mirrored the materiality prong of the underlying Brady claim. See id. at 1949 (“In this case, cause and prejudice parallel two of the three components of the alleged Brady violation itself.”). In Williams v.

Taylor, however, the Supreme Court stated, when addressing the issue of prejudice for procedural default, “[questions regarding the standard for determining the prejudice that petitioner must establish to obtain relief on these claims can be addressed by the [lower courts] in the course of further proceedings.” — U.S. -, 120 S.Ct. 1479, 1494, 146 L.Ed.2d 435 (2000). This statement implies that the “reasonable probability” standard may not guide the prejudice inquiry in the case of every defaulted habeas claim.

We leave to the district court the task of establishing for each claim the proper standard to guide the determination of actual prejudice, should Barrientes establish cause for his default. h. A hearing on the merits Finally, we must address two related arguments advanced by the State. First, the State argues at several points in its brief that the district court erred in making findings of fact related to the Sheriffs File without conducting an evidentiary hearing.

The State then argues that even if Barrientes can establish cause and prejudice to prevent his claims from being proeedurally barred, the district court still cannot reach the merits of his claims because, as previously stated, an evidentiary hearing is required, and Barrientes cannot establish the so-called “cause and actual innocence” required by > 28 U.S.C. § 2254(e)(2) before a federal habeas court is permitted to hold an evidentiary hearing. See, e.g., Nobles, 127 F.3d at 423 n. 33 (discussing the cause and actual innocence standard).

We begin by deciding whether the district court should have conducted an evidentiary hearing in this case. Finding that it should have, we proceed to dispose of the State’s § 2254(e)(2) argument. The Rules Governing

Section 2254 Cases in the United States District Courts provide guidance on the appropriateness of an evidentiary hearing in cases such as this. Rule 8(

a) states: If the petition is not dismissed at a previous stage in the proceeding, the judge, after the answer and the transcript and record of state court proceedings are filed, shall, upon a review of those proceedings and of the expanded record, if any, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the petition as justice shall require. 28 U.S.C. foil. § 2254 Rule 8(a) (1994).

The decision whether to conduct an evi-dentiary hearing is left to the sound discretion of the district court, and we review its decision for an abuse of that discretion. See McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir.1998). We have stated before that when “[t]he district court ha[s] sufficient facts before it to make an informed decision on the merits of [the habe-as petitioner’s] claim” it does n

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