Alberto VALDEZ, Petitioner-Appellee, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant, 274 F.3d 941

EMILIO M. GARZA, Circuit Judge: Janie Cockrell, Director of the Texas Department of Criminal Justice, Institutional Division (“the Director”), appeals the district court’s grant of the writ of habeas corpus to the petitioner, Alberto Valdez (“Valdez”). We hold that a full and fair hearing is not a prerequisite to the application of 28 U.S.C. § 2254’s deferential scheme. Therefore, we vacate and remand to the district court for an assessment of Valdez’s claims applying the standards set forth in § 2254(

d) and (e)(1). With respect to the Director’s appeal of the district court’s evidentiary rulings, we affirm in part and vacate in part. I A Texas jury found Valdez guilty of the capital murder of Police Sergeant J.D. Bock in May 1988. Following the sentencing phase, the jury answered the two special issue questions in the affirmative, finding that the act had been deliberate and that Valdez posed a future danger to society. The court then imposed a sentence of death. Valdez’s conviction and sentence were affirmed on direct appeal. See Valdez v.

State, 776 S.W.2d 162 (Tex.Crim.App.1989) (en banc), cert. denied, Valdez v. Texas, 495 U.S. 963, 110 S.Ct. 2575, 109 L.Ed.2d 757 (mem.), 495 U.S. 963, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990). Valdez filed a state habeas petition, raising twenty-four legal issues. The state habeas court held a two-day hearing in November of 1990. At this hearing, Valdez presented evidence of his ineffective assistance of counsel claim.

Valdez’s theory was that if his trial counsel had investigated his background, they would have found significant evidence that Valdez was mentally retarded, suffered abuse as a child at the hands of his father, and had behaved as a model prisoner during his previous periods of incarceration. Valdez argued that had the jury heard such evidence there was a reasonable probability that the jury would have answered one of the special questions differently, sparing his life. After the presentation of witnesses, the hearing recessed to allow both parties to secure additional witnesses if necessary.

On a motion by the parties to close the proceeding, the state habeas court held a final hearing on the proposed findings. During that hearing, counsel for Valdez and the State presented lengthy arguments as to those findings. One month later, the state habeas court issued findings of fact and law denying Valdez relief. The state habeas court held that Valdez’s trial counsel was not deficient and that any deficiency did not prejudice Valdez. The habeas court found that the trial counsel’s lack of investigation into Valdez’s background was reasonable.

School records, admitted into evidence during the hearing, indicated that Valdez had a full scale I.Q. of 73 and had been classified as educable mentally retarded. The court found that the fact that Valdez had dropped out of school did not put his counsel on notice to inquire into these school records because it found that it was common for Hispanic males in the Corpus Christi, Nueces County, Texas area to drop out of school. With regard to a conviction in Hockley County, trial counsel had received the penitentiary packet containing the conviction and judgment but had not requested the underlying pleadings.

These pleadings contained a letter from his attorney in that case requesting a psychiatric evaluation of Valdez, and the resulting evaluation, which would have also shown that Valdez had a full scale I.Q. of 63 and was determined to be of borderline intelligence. The state habeas court concluded that the failure to request these pleadings did not fall beyond the professional standard of conduct for defense attorneys. Moreover, the state habeas court found that the defendant had knowledge of this psychological testing and had not made it known to his attorneys.

As for the presentation of witnesses regarding Valdez’s childhood background and other humanizing elements, the court also rejected the claim that counsel had been deficient. The habeas court found that Valdez’s “drug use, childhood abuse and hardship, creativity, artistic talent, kindliness towards family was known and available to the applicant at the time of trial.” Ex parte Valdez, No. 87-CR-1459-B at 10 (117th Dist. Ct., Nueces County, Tex., Mar. 31, 1997) (unpublished).

Furthermore, the court found that “evidence of kindness and family assistance was presented at the punishment phase by the testimony of applicant’s brother Daniel Valdez, Mary Jane Barrientes, Julie Salda-na, and Maria Saldana.” Id. In light of these facts, the habeas court concluded that the additional -witness testimony offered during the habeas hearing on these matters would have been cumulative and the failure to present this evidence was “a decision of trial strategy which was sound and reasonable as judged at the time of the trial.” Id. at 11.

More generally, the state habeas court found that trial counsel “exercised reasonable and sound judgment in deciding which individuals to present as punishment witnesses.” Id. at 8. Finally, without specific findings of historical fact, the state habeas court concluded that trial counsel’s failure to present the mitigating evidence offered in the habeas hearing had not prejudiced Valdez. The state habeas court reached no conclusion as to whether Valdez was mentally retarded, noting that it rejected Valdez’s Eighth Amendment claim “without deciding the issue of Valdez’s mental retardation.” Id. at 19.

Based on these findings and conclusions, the Texas Court of Criminal Appeals affirmed the denial of habeas relief in a one-page order. See Ex parte Valdez, Application No. 31,184-01 (Aug. 13, 1997) (unpublished order). The 117th District Court of Nueces County set Valdez’s execution for January 14, 1998. The United States District Court for the Eastern District of Texas granted Valdez a stay of execution and appointed counsel. Valdez then filed the instant § 2254 petition in the United States District Court for the Southern District of Texas and requested an evidentiary hearing.

The district court granted Valdez an evidentiary hearing with regard to his ineffective assistance of counsel claim. It did so because it determined that Valdez had not received a full and fair hearing before the state habeas court. Because Valdez had not received such a hearing, the district court concluded that, under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), an evidentiary hearing was mandatory.

The district court determined that the state habeas court denied Valdez a full and fair hearing because the state habeas court lost the exhibits admitted into evidence during the hearing, and, as a result, excluded those exhibits from its resolution of Valdez’s case.

These lost exhibits included: (1) the results of intelligence tests conducted on Valdez at age thirteen by the Corpus Christi School District; (2) the results of intelligence tests conducted on Valdez at age eighteen by the Big Spring State Hospital, and the accompanying psychiatric evaluation issued by the hospital; and (3) the fee applications submitted by Carl Lewis and David Gutierrez, his trial counsel.

The district court also found that “it appear[ed] that other crucial evidence was excluded from proceedings,” namely, the trial transcript, as the state habeas judge informed the parties at the hearing on the proposed findings that he “had never read the record of the trial” and- that he “did not intend to” as he did not “have the time.” See Order for Evidentiary Hr’g (S.D.Tex. Jan. 13, 1999) (unpublished) at 10 n.8. (quoting State Habeas Hr’g on Proposed Findings Tr. at 144-45).

Consequently, according to the district court, “the [state habeas] judge denied Valdez’s petition without seeing evidence which might have been favorable to Valdez, which the judge did not rule must be excluded, and which the judge even indicated had to be reviewed.” Valdez v. Johnson, 93 F.Supp.2d 769, 782 (S.D.Tex.1999). The court found that the “exclusion” of exhibits also resulted in a failure to develop the state factual record, which Valdez had not caused. Hence, the district court concluded that 28 U.S.C. § 2254(e)(2) did not bar an evidentiary hearing.

Moreover, as discussed above, Townsend required an evidentiary hearing. Alternatively, the district court found it had the discretion to order an evidentiary hearing under Rule 8 of the Rules Governing § 2254 Cases. After the evidentiary hearing, the district court granted habeas relief concluding that Valdez’s attorneys were ineffective in their preparation for and presentation at sentencing. In reaching this conclusion, the district court reviewed Valdez’s ineffective assistance of counsel claim de novo. The district court found that the deferential framework set forth at § 2254(

d) and 2254(e)(1) “largely d[id] not apply” because it had held an evidentiary hearing to remedy the state’s denial of a full and fair hearing. Valdez, 98 F.Supp.2d at 777 (S.D.Tex.1999).

Therefore, it applied the presumption of correctness only to the state habeas court’s specific findings of historical fact, namely: (1) “it is common in the Corpus Christi, Nueces County Texas area for Hispanic males to drop out of school”; (2) “[t]he fact that the applicant had dropped out of school did not put Carl Lewis on notice of any potential mental problem, if any”; and (3) “Carl Lewis’s failure to request the entire court jacket regarding the applicant’s burglary charge in Hockley County did not fall below the professional standard of conduct for defense attorneys.” See id. at 778 n. 20 (quoting Ex parte Valdez, No. 87-CR-1459-B at 7 (117th Dist.

Ct., Nueces County, Tex., March 31, 1997)). The district court then applied a preponderance of the evidence standard to the remainder of the evidence presented at the evidentiary hearing and assessed Valdez’s ineffective assistance claim, a question of mixed law and fact, de novo.

The Director appeals the district court’s grant of habeas relief on the grounds that (1) the district court erred in finding that the state court denied Valdez a full and fair hearing; (2) even if Valdez was denied a full and fair hearing, such a hearing is not a prerequisite to the operation of the deference required under § 2254; (3) even under de novo review, Valdez received effective assistance of counsel; and (4) the district court exceeded its remedial powers by directing the State to resentence Valdez or to impose a sentence of less than death.

Additionally, the Director appeals the district court’s exclusion of evidence offered by the Director at the evidentiary hearing. II In reviewing a grant of the writ of habeas corpus, we review the district court’s findings of fact for clear error. We review de novo the district court’s disposition of pure issues of law and mixed issues of law and fact. See Barrientes v. Johnson, 221 F.3d 741, 750 (5th Cir.2000); Bledsue v. Johnson, 188 F.3d 250, 254 (5th Cir.1999).

The Director disputes the district court’s finding that the state habeas court denied him a full and fair hearing, challenging both the legal conclusion and the conclusion’s factual underpinning. We need not address that dispute because we find that even if the state habeas court denied Valdez such a hearing, a full and fair hearing is not a prerequisite to the operation of AEDPA’s deferential scheme.

AEDPA limits the power of federal courts to grant writs of habeas corpus to those instances in which the state court’s adjudication on the merits “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” or “resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d).

Under AEDPA, clearly established federal law “refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Terry Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). We review questions of law and mixed questions of law and fact under the “contrary to” and “unreasonable application” prong of 28 U.S.C. § 2254(d). See Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000); Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir.1997).

Section 2254(d)’s deference operates when the state court has adjudicated the petitioner’s claim on the merits. See 28 U.S.C. § 2254(d). An “adjudication on the merits” occurs when the state court resolves the case on substantive grounds, rather than procedural grounds. See Mercadel v. Cain, 179 F.3d 271, 273 (5th Cir.1999) (holding that whether an adjudication on the merits has occurred is whether the state court disposed of the case on substantive or procedural grounds); Fisher v.

Texas, 169 F.3d 295, 300 (5th Cir.1999) (finding that where a state habeas court decided the habeas applicant’s claim on procedural grounds, there had not been an “adjudication on the merits”).

In Terry Williams, 529 U.S. at 408, 120 S.Ct. at 1521, the Supreme Court found that a state court’s adjudication falls under the “unreasonable application” prong when it “unreasonably applies the law of th[e Supreme] Court to the facts of a prisoner’s case.” The Court held that the test for whether a state court has unreasonably applied clearly established federal law is an objective one, which it framed as: Stated simply, a federal habeas court making the “unreasonable application” inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.

The federal habeas court should not transform the inquiry into a subjective one by resting its determination instead on the simple fact that at least one of the Nation’s jurists has applied the relevant federal law in the same manner the state court did in the habeas petitioner’s case. Id. at 409-10, 120 S.Ct. at 1521-22. Thus, it is not enough that a single reasonable jurist may agree with the application. While the Court did not fully elucidate the meaning of unreasonable, it carefully distinguished an unreasonable application from an erroneous application of federal law.

According to the Supreme Court, a state court’s erroneous or incorrect application per se is insufficient to allow issuance of the writ. Id. at 410-11, 120 S.Ct. at 1522. The Court stated: Under § 2254(d)(l)’s “unreasonable application” clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established law erroneously or incorrectly. Rather, that application must also be unreasonable. Id. at 411, 120 S.Ct. at 1522.

Thus, a state court application may be incorrect in our independent judgment and, yet, reasonable. See Neal v. Puckett, 239 F.3d 683, 687 (5th Cir.2001). In Gardner v.

Johnson, 247 F.3d 551, 560 (5th Cir.2001), we explored the level of deference to be accorded a state court decision under this standard and found that “we must reverse when we conclude that the state court decision applies the correct legal rule to a given set of facts in a manner that is so patently incorrect as to be ‘unreasonable.’ ” Finally, AEDPA requires us to presume state court findings of fact to be correct unless the petitioner rebuts that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

A The district court found that the AEDPA standards of review “largely did not apply” because it “held an evidentiary hearing in order to consider evidence improperly excluded from consideration by the state habeas court.” See Valdez, 93 F.Supp.2d at 777.

The district court applied a presumption of correctness only to the specific findings of fact made by the state habeas court, namely: it is common for Hispanic males in the Corpus Christi, Nueces County, Texas area to drop out of school; the fact that Valdez “dropped out of school did not put [trial counsel] on notice of any potential mental problem”; and trial counsel’s “failure to request the entire court jacket for the Hockley County charge did not fall below standard of conduct for defense attorneys.” Id. at 778 n. 20.

It declined to review the state habeas court’s conclusions of mixed law and fact under § 2254(d)(l)’s unreasonable application prong. Additionally, it did not apply § 2254(e)(l)’s presumption of correctness to those findings of fact implicit in the habeas court’s mixed law and fact conclusions. Thus, the district court selectively applied the presumption of correctness, and did not apply § 2254(d)’s standards.

The Director asserts that while the district court had the discretion to hold an evidentiary hearing, the district court’s finding of the denial of a full and fair hearing and holding of a plenary hearing does not permit the district court to avoid the application of deference to the state court’s adjudication on the merits.

In response, Valdez contends that a determination that a petitioner has received a full and fair hearing before the state court is a prerequisite to a finding that the state court reached an adjudication on the merits, and, thus, a prerequisite to the application of § 2254(d)’s deference as well as the presumption of correctness under § 2254(e)(1). We disagree with Valdez’s contention and conclude that a full and fair hearing is not a prerequisite to the application of AEDPA’s deferential framework. Prior to the AEDPA amendments, § 2254(

d) provided in relevant part: a determination ... made by a State court ... evidenced by a written finding ... or other reliable and written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit— (2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing; ... (6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding. 28 U.S.C. § 2254(d) (1994) (repealed 1996).

Once a petitioner established one of the situations set forth under § 2254(d)(1)-(7), such as the denial of a full and fair hearing, the presumption no longer operated; instead, the district court reviewed the claim de novo and reached its own independent factual determinations. See 28 U.S.C. § 2254(d) (1994) (repealed 1996) (providing where one of the situations in (d)(l)-(7) was not shown “the burden shall rest upon the applicant to establish by clear and convincing evidence that the factual determination by the State court was erroneous”); Salazar v.

Johnson, 96 F.3d 789, 791 (5th Cir.1996) (“ ‘[A] federal court is to accord a presumption of correctness to findings of state court proceedings unless particular statutory exceptions to § 2254(

d) are implicated.’” (quoting Williams v. Collins, 16 F.3d 626, 631 (5th Cir.1994))). Thus, this pre-AEDPA presumption “merely erect[ed] a starting place or presumption, that [was to] be examined in light of the state court record.” Moore v. Johnson, 194 F.3d 586, 603 (5th Cir.1999). Apart from simply establishing a starting place, the pre-AEDPA presumption of correctness was of limited application and it was § 2254’s only source of deference to state court adjudications. The presumption applied only to findings of fact. See Crane v. Johnson, 178 F.3d 309, 311 (5th Cir.1999); Mason v.

Balcom, 531 F.2d 717, 722 (5th Cir.1976). It did not apply to mixed questions of law and fact nor did it apply to pure questions of law. See Thompson v. Keohane, 516 U.S. 99, 111—12, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (holding that questions with a “uniquely legal dimension” were outside § 2254(d)’s presumption of correctness). Under the now repealed version of § 2254, we reviewed such questions de novo, granting no deference to state court adjudications. See, e.g., Muniz v.

Johnson, 132 F.3d 214, 219 (5th Cir.1998) (reviewing questions of law de novo); Lee, 499 F.2d at 461 (finding that the district court “was under no constraint to defer to the state [court’s] conclusions” as to mixed questions of law and fact). In 1996, Congress enacted AEDPA, Pub.L. No. 104-132, 110 Stat. 1214 (1996), amending § 2254. These amendments jettisoned all references to a “full and fair hearing” from the presumption of correctness accorded state court findings of fact, along with the other situations which previously swept aside the presumption.

The presumption of correctness erected in its place at § 2254(e)(1), now simply provides that unless the petitioner can rebut the findings of fact through clear and convincing evidence, those findings of fact are presumed to be correct. To reintroduce a full and fair hearing requirement that would displace the application of § 2254(e)(l)’s presumption would have the untenable result of rendering the amendments enacted by Congress a nullity. See, e.g., Am. Nat’l Red Cross v.

S.G., 505 U.S. 247, 263, 112 S.Ct. 2465, 2475, 120 L.Ed.2d 201 (1992) (a “change in statutory language is to be read, if possible, to have some effect”). Furthermore, as discussed above, AED-PA put into place a deferential scheme, under which we must defer to a state court adjudication on the merits. See 28 U.S.C. § 2254(d). In the prefatory paragraph to (d)(1) and (d)(2), the statute provides that an application for a writ of habeas corpus “shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings.” The word “shall” is mandatory in meaning.

See, e.g., In re Armstrong, 206 F.3d 465, 470 (5th Cir.2000); City of Dallas, Tex. v. FCC, 165 F.3d 341, 358 (5th Cir.1999). Thus, we lack discretion as to the operation of this section. See Lopez v. Davis, 531 U.S. 230, 240-41, 121 S.Ct. 714, 722, 148 L.Ed.2d 635 (2001); Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 772-77, 104 S.Ct. 2105, 2110-2113, 80 L.Ed.2d 753 (1984). The use of “any” makes clear that this

section applies to all cases adjudicated on their merits in state court. The term “adjudication on the merits,” like its predecessor “resolution on the merits,” refers solely to whether the state court reached a conclusion as to the substantive matter of a claim, as opposed to disposing of the matter for procedural reasons. See Neal v. Puckett, 239 F.3d 683, 686-87 (5th Cir.2001); Mercadel, 179 F.3d at 274 (5th Cir.1999). It does not speak to the quality of the process. See Green v.

Johnson, 116 F.3d 1115, 1121 (5th Cir.1997) (rejecting pre-AEDPA contention that “the resolution on the merits prerequisite is a proxy for the quality of the legal process resolving a dispute”); Murphy v. Johnson, 205 F.3d 809, 813 (5th Cir.2000) (applying Green to “adjudication on the merits”). This mandatory and all-encompassing language combined with the meaning of “adjudication on the merits” leaves no room for judicial imposition of a full and fair hearing prerequisite. Moreover, casting aside AEDPA’s standards of review in the fashion urged by Valdez has another untenable result.

Valdez asks us to inject a full and fair hearing as a prerequisite to the new deferential scheme applied to conclusions of law and mixed law and fact, which Congress put in place of our de novo review. In asking us to read the statute in this manner, Valdez would have us ignore the fact that Congress has excised this prerequisite from § 2254’s presumption of correctness, and apply it to a deferential scheme which did not exist prior to AEDPA. The plain meaning of the text simply will not bear such a reading.

Therefore, we hold that a full and fair hearing is not a precondition to according § 2254(e)(l)’s presumption of correctness to state habeas court findings of fact nor to applying § 2254(d)’s standards of review. In response, Valdez attempts to undercut this statutory

interpretation with three contentions. First, Valdez contends that this reading of the statute renders an evi-dentiary hearing in eases like his a useless exercise. Second, Valdez asserts that this holding overrules our Circuit’s precedent. Third, he urges us to adopt the approach taken by the Tenth Circuit. First, Valdez asserts that our view of the statute renders impotent an evidentia-ry hearing held where the petitioner received an adjudication on the merits after a state hearing that was less than full and fair. We disagree.

Where a district court elects, in instances not barred by § 2254(e)(2), to hold an evidentiary hearing, the hearing may assist the district court in ascertaining whether the state court reached an unreasonable determination under either § 2254(d)(1) or (d)(2). An evidentiary hearing is not an exercise in futility just because §§ 2254(

d) and (e)(1) require deference. Second, Valdez maintains that we have elsewhere held that a full and fair hearing is a prerequisite to a determination that a state court has adjudicated a habeas applicant’s petition on the merits. In support of this contention, Valdez directs us to Morris v. Cain, 186 F.3d 581 (5th Cir.2000); Singleton v. Johnson, 178 F.3d 381 (5th Cir.1999); and Hughes v. Johnson, 191 F.3d 607 (5th Cir.1999). Valdez is correct that we stated in Monis that a full and fair adjudication of a petitioner’s claims in state court is a prerequisite for the application of AEDPA’s standards of review.

See 186 F.3d at 584. Additionally, we used similar language in Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir.1998) (“In this Circuit, provided the state court conducted a full and fair adjudication of the petitioner’s claims, pure questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1).”). To the extent that these references to a “full and fair” adjudication refer to a full and fair state court hearing, they were dicta. Neither in Morris nor in Corwin were we confronted with a claim that the petitioner had been denied a full and fair hearing.

See Morris, 186 F.3d at 584 (“In this appeal, [the petitioner] argues that the state court’s unreasonable instruction led to his conviction under a standard contrary to settled federal law”); Corwin, 150 F.3d at 472 (“Corwin argues that ... all state court determinations of federal constitutional issues in habeas proceedings should be subject to de novo review by the federal courts”). In Nobles v. Johnson, 127 F.3d 409 (5th Cir.1997), on which Morris relies for the “full and fair adjudication” proposition, we evinced concern that the state court had not adequately adjudicated the petitioner’s claim.

While we stated our concern, we resolved the petitioner’s claim on other grounds and did not delve further into the possible import of the way in which the state habeas court adjudicated the petitioner’s claim. Apart from being dicta, these references also appear to conflate the adjudication on the merits requirement with a full and fair hearing requirement, referring to the adjudication on the merits as a “full and fair adjudication on the merits.” Morris, 186 F.3d at 584; Corwin, 150 F.3d at 472.

Where we have conducted an examination of whether an “adjudication on the merits” occurred, we have looked at whether the state court reached the merits of the petitioner’s claim rather than deciding it on procedural grounds. See Murphy, 205 F.3d at 813 (finding that there was an adjudication on the merits because the state court reached the merits of the petitioner’s claim); Fisher, 169 F.3d at 300 (concluding a state court’s denial of relief on waiver grounds constituted a procedural, rather than a substantive, resolution of the case, and as such was not an adjudication on the merits).

In short, we find that Moms and Corwin give us no guidance as to whether a full and fair hearing is a precondition to the operation of the AED-PA standards of review. Furthermore, Valdez’s reliance on Hughes is misplaced. In Hughes, we did not address the applicability of the AED-PA standards where a full and fair hearing had been denied. Instead, we addressed solely the question of whether Hughes was entitled to an evidentiary hearing. See 191 F.3d at 630. Thus, Hughes offers Valdez no support. Valdez’s reliance on Singleton is likewise misplaced.

In Singleton, the trial court granted the petitioner habeas relief in part and, in so doing, issued findings of fact. The Texas Court of Criminal Appeals reversed and denied Singleton relief without issuing an opinion. See 178 F.3d at 384. Concluding that there were no findings of fact to which the presumption of correctness could attach, we remanded the case to the district court for a de novo evidentiary hearing. See id. at 385.

While we found that Singleton was entitled to a “full and fair evidentiary hearing,” we did not pass upon the question as to whether the absence of such a hearing precluded the operation of § 2254(d). Id. More importantly, we rejected Singleton’s assertion that in the absence of any factual findings, the Texas Court of Criminal Appeals had not reached an adjudication on the merits, rendering § 2254(

d) inoperative. See id. at 384. In doing so, we implied that § 2254(

d) applied to such a

summary disposition, even where the petitioner was entitled to an evidentiary hearing. Therefore, as with Morris and Hughes, we find that Singleton offers Valdez no support. Third, Valdez urges us to adopt the approach of the Tenth Circuit. In Miller v. Champion, 161 F.3d 1249 (10th Cir.1998), the state habeas court denied the petitioner relief on the merits of his claim without an evidentiary hearing. See id. at 1253. Our sister circuit found that in the absence of a state hearing the petitioner was entitled to a federal evidentiary hearing. See id.

More importantly, the Tenth Circuit concluded that the district court should not afford AEDPA’s deference to the state court’s mixed law and fact conclusions. See id. at 1254. For this conclusion, the court rested solely on Nguyen v. Reynolds, 131 F.3d 1340, 1359 (10th Cir.1997). See Miller, 161 F.3d at 1253. The Nguyen court, however, did not apply AEDPA to the petitioner’s claims because he had filed before the Act’s effective date, rendering AEDPA’s standards inapplicable. See Nguyen, 131 F.3d at 1345.

Thus, in reaching its conclusion, the Tenth Circuit did not ground its decision on a reading of the statute, but in reliance on a case applying pre-AEDPA § 2254. Because of the rather tenuous footing of the Tenth Circuit’s decision, we decline to adopt its approach. Instead, our

interpretation is in step with the Fourth Circuit’s view of AEDPA deference. In an en banc decision, the Fourth Circuit recently rejected its prior decision in Cardwell v. Greene, 152 F.3d 331 (1998), which had adopted an approach akin to Miller. See Bell v. Jarvis, 236 F.3d 149, 158-160 (2000). In Cardwell, like Miller, the state court summarily denied the petitioner’s request for relief without an evidentiary hearing. See Cardwell, 152 F.3d at 335. The Fourth Circuit found that the failure to develop the claim occurred through no fault of the petitioner, and, thus, § 2254(e)(2) did not bar an evi-dentiary hearing. See id. at 337. While the

summary disposition qualified as an adjudication on the merits, see id. at 339, the court concluded that the absence of an articulated rationale rendered the difference “between de novo review and ‘reasonableness’ review [] insignificant.” Id. at 339, (quoting Cardwell v. Netherland, 971 F.Supp. 997, 1015 (E.D.Va.1997)). The Fourth Circuit rejected Cardwell’s, treatment of AEDPA’s standards of review “to the extent that Cardwell requires federal habeas courts to conduct a de novo or effectively de novo review of a

summary state court decision, or to grant habeas relief based upon an independent determination that the state court has violated the constitutional rights of the petitioner.” Bell, 236 F.3d at 160. In reaching this conclusion, the Fourth Circuit relied on the Supreme Court’s recent elucidation of the AEDPA standards in Terry Williams.

The court concluded that, in Terry Williams, “the Supreme Court has made it clear that de novo, independent, or plenary-review of state court adjudications is no longer appropriate, that there are indeed important distinctions between the ‘reasonableness’ review called for by the AEDPA and the de novo review.” Bell, 236 F.3d at 160. Admittedly, the focus of the Bell court was the

summary nature of the state court’s disposition, not that the state court denied Bell an evidentiary hearing. Nevertheless, the absence of a hearing is precisely a situation under our pre-AEDPA law where we would have found that the state court denied the petitioner a full and fair hearing, potentially making a federal evidentiary hearing mandatory. See, e.g., Austin v. McKaskle, 724 F.2d 1153, 1156 (5th Cir.1984) (finding the denial of a full and fair hearing where no state evidentia-ry hearing was held). Likewise, the Fourth Circuit, pre-AEDPA would have found this to be the denial of a full and fair hearing.

See, e.g., Bacon v. Lee, 225 F.3d 470, 489-90 (4th Cir.2000) (applying pre-AEDPA law and finding that in the absence of hearing, the petitioner had not received a full and fair hearing). In spite of what pre-AEDPA would have been the denial of a full and fair hearing, the Fourth Circuit found that the AEDPA standards applied, implying that there is no full and fair hearing requirement under AEDPA. Moreover, the Fourth Circuit’s reasoning is sweeping, finding that AEDPA standards of review apply whenever there has been an adjudication on the merits.

In sum, we conclude the district court erred in determining that, where there had been a denial of a full and fair hearing, AEDPA’s deferential framework, as set out in § 2254(

d) and (e), did not apply to a state court’s adjudication on the merits. B Valdez contends the AEDPA standards of review still should not apply because the state did not produce the missing exhibits in accordance with § 2254(f). In making this argument, Valdez does not assert that the absence of any particular exhibit rendered impossible the district court’s review of the state habeas court’s determination of a specific factual issue; instead, Valdez’s contention is a blanket one that the AEDPA standards of review should not operate because the State could not produce the exhibits. We find Valdez’s § 2254(

f) argument unavailing. First, in reviewing a claim under this section, we look to whether this inability to produce the exhibits resulted from some “deleterious or improper conduct.” Baker v. Estelle, 711 F.2d 44, 46 (5th Cir.1983) (rejecting petitioner’s argument that his sufficiency of the evidence claim should be resolved in his favor because the state was unable to produce a trial transcript where there had been no “deleterious or improper conduct” by the state). The absence or loss of the pertinent portions of the record alone is insufficient to support a finding of a deleterious or improper conduct.

See id. Valdez has not alleged that the state court’s loss of the exhibits during the six year period between the evidentia-ry hearing and the close of that hearing upon the motion of the parties occurred because of the state court’s misconduct. Nor does the record disclose any such misconduct. In discussing the misplacement of the exhibits, this exchange occurred: THE COURT: Okay. I have gone through the four files and I did not find the exhibits. If I can’t find them, you have copies. MR. LEVINGER: We can resubmit. THE COURT: I am going to have somebody look into, see if we have the actual exhibits.

There was another court reporter that I had. I don’t know if she placed them somewhere else, but if I don’t find them, I am going to ask you to submit copies, if you will. State Habeas Hr’g on Proposed Findings at 148-49. Given the six-year delay between the evidentiary hearing and the hearing on proposed findings in this case, and the absence of any assertion of misconduct, we cannot say that the failure to locate the exhibits was an “egregious breach of [the court’s] duty.” Walker v.

Maggio, 738 F.2d 714, 717 (finding that the state’s inability to locate the transcript after eight years was not “an egregious breach of duty” and applying the presumption of correctness). Second, where there is another means of adducing the requisite information for the purposes of the district court’s review, the standards remain applicable. See id. at 716 (holding that the presumption of correctness still applied where the state court had held an evidentiary hearing as a means of reproducing the evidence and record produced from this hearing allowed the habeas court to review the claim); Pruitt v.

Hutto, 574 F.2d 956, 957 (8th Cir.1978) (holding that while the state record was ordinarily indispensable to federal review, the state was not required to do the impossible and produce the transcript, where the district court had adequate information before it to assess the petitioner’s claim); see also Rideau v. Whitley, 237 F.3d 472, 482-83 (5th Cir.2000) (finding that the state could not establish prejudice warranting dismissal of habeas claim where exhibits were lost because oral testimony in the state hearing adequately described the exhibits for the purposes of federal review).

Our inquiry, therefore, focuses on whether the federal district court had the necessary materials with which to review the state court proceedings. The district court had before it the following exhibits: (1) the Corpus Christi School records; (2) the affidavit of Dr. Cohorn and the Big Spring Hospital Psychiatric Evaluation; (3) the Hockley County conviction packet and underlying pleadings; (4) the Big Spring Hospital Psychiatric Evaluation proved up by the records keeper;

(5) Lewis’s fee application;

(6) Gutierrez’s fee application;

(7) Dr. Price’s curriculum vitae; (8) the American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, February 1989. Thus, the district court had before it what were exhibits 1-4, 6-7, and 13-14 in the state habeas proceeding. These exhibits form the basis for Valdez’s central contention — that he is mildly mentally retarded and that had his counsel performed some investigation they would have learned about his limited intellect— placing before the district court those exhibits essential to its review of the state court’s decision.

The exhibits that the federal district court lacked were: (1) the letters written and sent by Valdez to family members while he was incarcerated, exhibits 8, 9, and 11 at the state habeas hearing; (2) handkerchiefs with artwork added by Valdez and which he sent to his family members, while he was incarcerated, exhibits 10 and 12 at the state habeas hearing; (3) the records from the Nueces County Jail from Valdez’s incarceration there during his trial, including his request slips to use the library, exhibit 5 at the state habeas hearing. See supra note 23.

While the federal district court was without these exhibits, the state habeas record below contained sufficient descriptions of the remaining missing exhibits to inform the district court of their probative value. See supra note 23. Finding neither misconduct by the state court nor that the district court lacked the necessary evidence with which to reach a disposition of Valdez’s claims, we conclude that the state’s inability to produce the missing exhibits did not permit the district court to review Valdez’s claims de novo.

C Because we find that the district court erred in its failure to apply § 2254’s deferential framework, we decline to address the merits of Valdez’s claims for habeas relief. Instead, we vacate the district court’s grant of the writ of habeas corpus and remand to the district court for assessment of Valdez’s claims under standards set forth above. Furthermore, because we vacate the grant of the writ, we need not reach the Director’s contentions regarding the proper scope of the writ.

Ill Finally, the Director contends that the district court abused its discretion by limiting the Director’s introduction of evidence to that which the State presented in the state habeas proceeding. Specifically, the Director points to the exclusion of: (1) a 1972 report by Deborah Mayer detailing Valdez’s “extensive and violent juvenile history”; (2) an affidavit by Dr. Cohorn; (3) intelligence test scores from Valdez’s 1974 incarceration in the Texas Youth Commission; (4) results of a 1986 mental status examination by Dr.

Otero; (5) evidence that Valdez passed an eighth grade equivalency test in 1986; and (6) a 1986 GED test report showing that Valdez passed four out of the test’s five sections. We review the district court’s evidentiary rulings for abuse of discretion. See United States v. Merida, 765 F.2d 1205, 1215 (5th Cir.1985). “ ‘A trial judge sitting without a jury is entitled to greater latitude in the admission or exclusion of evidence.’ ” Gabriel v. City of Plano, 202 F.3d 741, 745 (5th Cir.2000) (quoting S. Pacific Trans. Co. v. Chabert, 973 F.2d 441, 448 (5th Cir.1992)).

An erroneous evidentiary ruling merits the reversal of judgment only “ ‘where the challenged ruling affects a substantial right of a party.’ ” Id. (quoting Johnson v. Ford Motor Co., 988 F.2d 573, 578 (5th Cir.1993)); see Caparotta v. Entergy Corp., 168 F.3d 754, 755-56 (5th Cir.1999). First, the district court excluded the report of Deborah Mayer, a probation counselor, because the Director did not show that it was available in 1988 or in 1990 at the state habeas hearing. Moreover, the district court found that the report contained hearsay.

We find that the district court properly excluded the report as it was rife with hearsay. See Fed. R.Evid. 802. Nor did the district court err in precluding the Director from using the report as a prior inconsistent statement as the report did not attribute the statements to any specific individuals. Additionally, contrary to the Director’s contention that he was not allowed to question witnesses regarding the report, the district court allowed the Director to question witnesses regarding their awareness of the document.

The district court merely precluded the Director from reading aloud hearsay statements contained within the report and asking if the statements surprised the witness. Second, the district court excluded the affidavit of Dr. Cohorn because it contradicted the live testimony of Dr. Randall Price offered at the hearing. The district court concluded that an affidavit was an inappropriate vehicle for adducing controverted evidence, and exercised its discretion under 28 U.S.C. § 2246 to exclude the affidavit. The district court also noted the availability of Dr. Cohorn as a live witness.

The Director asserts that it sought to use this affidavit to clarify Dr. Cohorn’s prior affidavit, which was introduced into evidence at both the state habe-as hearing and the federal evidentiary hearing. The Director maintains that this prior affidavit resulted in the mistaken implication that Valdez was diagnosed as mildly retarded in competence testing by Dr. Cohorn. On an application for a writ of habeas corpus, the district court has the discretion to receive evidence via affidavits. See 28 U.S.C. § 2246; Loper v. Ellis, 263 F.2d 211, 212 (5th Cir.1959).

The introduction of affidavits into evidence is “subject to the right of the opponent to cross-examine the affiants by written interrogatories.” Loper, 263 F.2d at 212. The Director attempted to introduce this new affidavit at the federal hearing without affording Valdez time to propound interrogatories in response. The Director did so when Dr. Cohorn was available to testify as a live witness. The district court instructed the Director that it would accept Dr. Cohorn’s live testimony, but the Director declined to present him at the hearing. In light of Dr.

Cohorn’s availability and the lack of notice given to Valdez, the district court did not abuse its discretion in refusing to admit Dr. Cohorn’s affidavit. The district court found that the State’s failure to produce or offer into evidence the remaining pieces of evidence noted above at trial or at the state habeas hearing established a presumption that the documents would not have been available at trial. The district court excluded these four exhibits as irrelevant because the Director failed to offer evidence to rebut that presumption. We find that the district court abused its discretion in doing so.

Evidence is relevant so long as it tends to “make the existence of any fact that is of consequence to the determination of an action more probable that it would be without the evidence.” Fed.R.Evid. 401. The results' of the Wechsler Adult Intelligence Scale test administered while Valdez was incarcerated with the Texas Youth Commission show that he had a verbal I.Q. of 76, a performance I.Q. of 90, and a full scale I.Q. of 81, which are scores above the classification of mental retardation. During that same period of incarceration, Dr.

Rafael Otero examined Valdez and concluded that Valdez was not mentally deficient. In 1986, Valdez passed an eighth grade equivalency test and four out of five sections of the GED. These results also tend to undercut Valdez’s assertion that he is mentally retarded. Thus, these test results and the report by Dr. Otero tend to contravene Valdez’s contention that he is mentally retarded, which bears on whether his trial counsel’s performance prejudiced him.

Assuming arguendo that the relevance of these four records is contingent on establishing that they were available at trial, the presumption on which the district court based its ruling fails. The district court assumed that had the records been available to the State, the State would have presented the records at the state habeas hearing. Based on this assumption, the district court concluded that the records were not available at the time of trial, absent a showing to the contrary by the Director.

While this inference is not illogical, it is nevertheless belied by the fact that these four documents existed prior to Valdez’s irial and habeas hearing. The Director authenticated these records via offers of affidavits by the records custodians, which substantiates their dates of creation. Therefore, the district court abused its discretion in excluding the Texas Youth Commission Intelligence Test, Dr. Otero’s report, the eighth grade equivalency exam, and Valdez’s results on the GED.

The exclusion of this evidence undermined the Director’s ability to contest Valdez’s contention that he was prejudiced by his counsel’s performance. Thus, we find that the exclusion of these records affected the Director’s substantial rights because we cannot “be certain ... that the error had a slight effect” on the disposition of the case. Tanner v. Westbrook, 174 F.3d 542, 549 (5th Cir.1999). On remand, the district court must admit these records and consider them in reaching its disposition of Valdez’s claims.

IV In sum, we hold that a full and fair hearing is not a prerequisite to the application of 28 U.S.C. § 2254’s deferential scheme. Therefore, we VACATE and REMAND to the district court for an assessment of Valdez’s claims applying the standards set forth in § 2254(

d) and (e)(1). With respect to the district court’s eviden-tiary rulings, we AFFIRM in part and VACATE in part. . For a recitation of the facts surrounding the crime and the testimony at trial, see Valdez v. State, 776 S.W.2d 162 (Tex.Crim.App.1989) (en banc). .

The special issues submitted to the jury were: (1) was the conduct of the Defendant, Alberto Valdez, that caused the death of the deceased, Joseph Bock, committed deliberately and with the reasonable expectation that the death of the deceased or another would result?; (2) is there a probability that the Defendant, Alberto Valdez, would commit criminal acts of violence that would constitute a continuing threat to society? See Tex.Crim. Pro.Code Ann. Art. 37.07(b) (Vernon 1981). . Valdez also presented testimony regarding his juror misconduct claim.

He alleged that one juror visited the crime scene during the trial. The state habeas court found this claim to be without merit. Likewise, the federal district court found this to be without merit. This claim is not before us on appeal. . In Townsend, the Supreme Court held that where a petitioner shciws the existence of a genuine dispute of material fact, which if resolved in his favor would grant him relief, and he has been denied a full and fair hearing in the state proceedings, a federal evidentiary hearing is mandatory. See 372 U.S. at 312-13, 83 S.Ct. at 757, overruled in part by Keeney v.

Tamayo-Reyes, 504 U.S. 1, 5-6, 112 S.Ct. 1715, 1717-18, 118 L.Ed.2d 318 (1992) (holding that where the petitioner has failed to develop a claim in state court proceedings, he must establish cause and prejudice in order to receive a federal evidentiary hearing). . 28 U.S.C. § 2254(e)(2) provides: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evi-dentiary hearing on the claim unless the applicant shows that— (

A) the claim relies on— (

I) a new rule of constitutional law, made retroactively applicable to cases on collateral review by the Supreme Court, that was previously unavailable, or (ii) a factual predicate that could not have been discovered through the exercise of due diligence; and (

B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense. . The district court reached its decision prior to the Supreme Court’s decision in Michael Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) in which the Supreme Court confirmed that § 2254(e)(2) did not bar evidentiary hearings when the failure to develop the record did not result from the prisoner's neglect or lack of due diligence.

The Supreme Court handed down two decisions that we cite in this opinion in which the petitioner has the last name "Williams.” We distinguish between those two decisions by including the petitioners' first names in our citation of these cases. . Rule 8(

a) of the Rules Governing § 2254 Cases provides: 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. . The federal evidentiary hearing was, in many respects, a reprise of the state hearing. With the exception of Dr.

George Parker, a psychologist called by the State, and trial counsel David Gutierrez, all of the witnesses that testified had testified in the state habeas hearing. . Valdez filed his federal habeas petition on January 30, 1998, well after the effective date of AEDPA. See Pub.L. 104-132, 110 Stat. 1214 (1996). Accordingly, apart from the contention that a full and fair hearing bars the application of the AEDPA's standards, there is no dispute that AEDPA applies to Valdez's application. . In Drinkard v.

Johnson, 97 F.3d 751, 769 (5th Cir.1996), we found the state court’s application of federal law to be reasonable under a subjective test. In Terry Williams, the Supreme Court rejected Drinkard's subjective test. See Terry Williams, 529 U.S. at 410, 120 S.Ct. at 1522; see also Moore v. Johnson, 225 F.3d 495, 501 n. 1 (5th Cir.2000) (acknowledging the Supreme Court’s rejection of the Drinkard standard). . The presumption of correctness not only applies to explicit findings of fact, but it also applies to those unarticulated findings which are necessary to the state court’s conclusions of mixed law and fact.

See, e.g., Marshall v. Lonberger, 459 U.S. 422, 433, 103 S.Ct. 843, 850 74 L.Ed.2d 646 (1983) (applying presumption of correctness to implicit finding against the defendant's credibility, where that finding was necessarily part of the court’s rejection of the defendant’s claim); LaVallee v. Delle Rose, 410 U.S. 690, 695, 93 S.Ct. 1203, 1206, 35 L.Ed.2d 637 (1973) (same); see also Goodwin v. Johnson, 132 F.3d 162, 183-84 (5th Cir.1998) (findings of fact can be implied from explicit conclusions of law). .

The district court in its decision appears to have treated both the habeas court’s findings of historical fact and its conclusions of mixed law and fact as falling under (e)(l)’s presumption of correctness. Despite this appearance, we assume that this is not what the district court meant, as the presumption of correctness applies only to findings of historical fact. See 28 U.S.C. § 2254(e)(1) ("a determination of a factual issue made by a State court shall be presumed to be correct”). Instead, a state habeas court’s conclusions of law and mixed law and fact are examined under § 2254(d)(1). See Clark v.

Johnson, 202 F.3d 760, 764 (5th Cir.2000). . In her opening brief, the Director asserted that § 2254 barred the district court from holding an evidentiary hearing. Subsequent to the filing of that brief, the Supreme Court issued its decision in Michael Williams, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (holding that § 2254(e)(2) operated only to bar a district court from granting an evidentiary hearing where a petitioner, through his own fault, failed to develop a claim before the state court and met neither of the exceptions).

In light of this decision, the Director has abandoned this position in her reply brief. Instead, she pursues the argument that even with the discretion to grant an evidentiary hearing, the district court could not cast aside the deference to be accorded state court determinations of law and fact. . The dissent argues that former § 2254(

d) did not apply altogether where the petitioner was denied a full and fair hearing in state court. See Dissenting Op. at 963 (arguing that under the “prevailing view,” § 2254(

d) did not apply where a full and fair hearing was denied, and a federal evidentiary hearing would have been required under Townsend). We disagree with this reading of § 2254(d). To begin, nothing in the statute suggested that its application was limited in this way. Moreover, the dissent’s reading of § 2254(

d) would render superfluous § 2254(d)(2) and (6), which both required a full and fair hearing before the presumption of correctness would apply. .

Section 2254(e)(1) replaced the eight specific exceptions to the presumption of correctness with one standard: In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court proceedings, a determination of a factual issue made by a state court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). . 28 U.S.C. § 2254(

d) provides in full: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. .

The dissent would have us depart from the plain language of the statute out of concern that the new AEDPA framework may abandon some of the procedural safeguards required by the former § 2254(d). See Dissenting Op. at 965. We cannot, however, second guess the intent of Congress in this manner. Moreover, AEDPA continues to provide protection in cases where the state court’s process is in question.

For example, as noted below, where a district court elects to hold an evi-dentiary hearing in light of a state habeas court's failure to allow an applicant to develop the factual basis of his claim, the hearing may assist the district court in ascertaining whether the state court reached a reasonable determination under § 2254(d)(1) & (2). The dissent also contends that too literal of a reading of AEDPA’s provisions is inconsistent with our prior case law interpreting § 2254(e)(2).

Specifically, the dissent reads our construction of AEDPA’s provisions to necessitate a finding that § 2254(e)(2) alone governs a district court's discretion in deciding whether to conduct an evidentiary hearing. The dissent argues that this is contrary to Fifth Circuit precedent, which has found pre-AEDPA case law instructive when reviewing a district court’s refusal of a federal evi-dentiary hearing. See Dissenting Op. at 966. Our construction of AEDPA's provisions here, however, is not inconsistent with those cases.

The cases cited by the dissent involved situations where § 2254(e)(2) did not apply because a prerequisite to that provision was not satisfied. In such cases, the district court’s discretion to hold a hearing was not limited by § 2254(e)(2).

See § 2254(e)(2) ("If the applicant has failed to develop the factual basis of a claim in State court proceedings .... ” (emphasis added)); Michael Williams, 529 U.S. at 437, 120 S.Ct. 1479 (construing conditional language to mean that § 2254(e)(2) does not prohibit a federal evidentiary hearing where the failure to develop the factual basis was attributable to no fault of the petitioner); Clark, 202 F.3d at 765 ("[Section 2254(e)(2) ] appl[ies] only where the failure to develop the factual basis is directly attributable to a decision or omission of the petitioner.”).

Finally, the dissent suggests that a full and fair hearing prerequisite to AEDPA deference can be interpreted from the statute by reading § 2254(d)(2) and § 2254(e)(1) in pari materia: "[where a state habeas court denies a petitioner a full and fair hearing,] it seems disingenuous to conclude that the state court rendered a decision that was based on a reasonable ‘determination of the facts in light of the evidence presented,' and is therefore entitled deference.” Dissenting Op. at 967-68. We disagree with the dissent’s argument on this point for two reasons.

First, Congress’s omission of language of a full and fair hearing is clear. Second, there is an easier way to harmonize § 2254(d)(2) and § 2254(e)(1). Whereas § 2254(d)(2) sets out a general standard by which the district court evaluates a state court's specific findings of fact, § 2254(e)(1) states what an applicant will have to show for the district court to reject a state court’s determination of factual issues.

For example, a district court may find by clear and convincing evidence that the state court erred with respect to a particular finding of fact, thus rebutting the presumption of correctness with respect to that fact. See § 2254(e)(1). It is then a separate question whether the state court's determination of facts was unreasonable in light of the evidence presented in the state court proceeding. See § 2254(d)(2).

Thus, it is possible that, while the state court erred with respect to one factual finding under § 2254(e)(1), its determination of facts resulting in its decision in the case was reasonable under § 2254(d)(2). . The dissent also notes that a recent Supreme Court opinion similarly used language of a "full and fair adjudication.” Michael Williams, 529 U.S. at 437, 120 S.Ct. 1479. Michael Williams, however, like Morris and Corwin, is inapposite in this case. In Michael Williams, the Court addressed the applicability of the § 2254(e)(2) bar to an evidentiary hearing, and not the applicability of AEDPA deference. .

The dissent questions our present reliance on Bell on the ground that it's reasoning is contrary to the direction given by the Supreme Court in three recent cases to courts applying AEDPA. Specifically, the dissent states that the Bell court departed from the requirement stated in Weelcs v. Angelone, 528 U.S. 225, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000), Terry Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), and Ramdass v.

Angelone, 530 U.S. 156, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000), that federal courts "adjudicate habeas corpus claims by first performing the court’s traditional function of analyzing the merits of the federal constitutional claim and only then assessing whether § 2254(d)(l)’s new defense to relief precludes the granting of the writ in a case in which a court has found a constitutional violation.” Dissenting Opinion at 971. Because we do not read the above Supreme Court cases to require the two-step inquiry suggested by the dissent, we continue to find the reasoning in Bell instructive. . 28 U.S.C. § 2254(

f) provides: If the applicant challenges the sufficiency of the evidence adduced in such State court proceeding to support the State court’s determination of a factual issue made therein, the applicant, if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to support such determination. If the applicant, because of indigency or other reason is unable to produce such part of the record, then the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official.

If the State cannot provide such pertinent part of the record, then the court shall determine under the record, then the existing facts and circumstances what weight shall be given to the State court’s factual determination. . We note that it is not clear that § 2254(

f) impacts the § 2254(

d) standards of review. On its face, the

section appears to apply only to the presumption of correctness to be accorded state court factual findings. We decline to determine § 2254(f)'s applicability to these standards because it is unnecessary to our assessment of Valdez’s § 2554(

f) argument. . Although Baker is pre-AEDPA, the AEDPA amendments made no alteration to this section. Instead, AEDPA merely redesignated the

section from § 2254(

e) to § 2254(1), its present location in the code. See AEDPA, Pub.L. 104-132 § 104(2). Thus, our pre-AEDPA cases concerning this

section remain applicable. .

The exhibits entered into evidence during the course of the state habeas hearing are as follows: (1) certified copies of the school records, see State Habeas Tr. 1:16; (2) certified copies of pleadings from the prior conviction at Hockley County, see State Habeas Tr. 1:16; (3) verified copies of a psychiatric and psychological evaluation performed on Valdez in 1974 at age 18, see State Habeas Tr: 1:16; (4) same documents as exhibit 3 but proven up by the psychologist who performed the test, whereas exhibit 3 was proven up by the records custodian, see State Habeas Tr. 1:16; (5) records of the Nueces County jail from Valdez's stay, including his request slips to use the library, see State Habeas Tr: 1:16 and State Habeas Tr. 2:392;

(6) Carl Lewis's fee application, see State Habeas Tr. 1:56;

(7) David Gutierrez's fee application, see State Habeas Tr. 1:63;

(8) Letter from Alberto Valdez to Shirley Lopez, dated April 14, 1985, see State Habeas Tr 1:150-151, 152 (Valdez begins the letter "my dearest sweetheart” and wrote "I miss you and I love you” on the envelope);

(9) Letter from Alberto Valdez to Shirley Lopez, see State Habeas Tr. 1:151, State Habeas Tr. 1:152 (wishing her a happy Mother's day and closing with "With love, hugs, and kisses for you sweetheart”);

(10) Handkerchief made and sent by Valdez to Shirley and her daughter Monica, see State Habeas Tr. 1:151, 153-154; (11) 1985 Easter card to Monica Lopez, see State Habeas Tr. 1:164-65 (card says “Happy Easter, Sweetheart. I love you. Your Uncal [sic] Albert”); (12) handkerchief with panda bear on made by Valdez and sent to his niece Monica, see State Habeas Tr. 1:165-66 (he wrote on it "I love you Monica”);

(13) American Bar Association Guidelines for the Appointment and Profession of Counsel in Capital Murder cases, see State Habeas Tr. 1:183; (14) curriculum vitae of Dr. Randall Price, see State Habeas Tr. 2:236;

(15) Article from the Texas Poll Report summarizing the stories which were released from the 1988 Texas Poll, see State Habeas Tr. 2:342, 344 (discussing that, according to the poll, 73 percent of Texans surveyed were against the application of the death penalty to the mentally retarded);

(16) State Habeas petition of Valdez, State Habeas Tr. 2:383; (17) photocopies of the psychiatric evaluation conducted at the Big Spring State Hospital and school evaluation; (18) penitentiary packs, see State Habeas Tr. 2:384. . 28 U.S.C. § 2246 provides: On application for a writ of habeas corpus, evidence may be taken orally or by depositions, or, in the discretion of the judge, by affidavit. If affidavits are admitted any party shall have the right to propound written interrogatories to the affiants, or to file answering affidavits.