Fernando GARCIA, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee, 456 F.3d 463

EDITH H. JONES, Chief Judge: This appeal raises questions concerning whether a petitioner is entitled to a new sentencing hearing for capital murder based on the Supreme Court’s Penry line of cases, whose purpose is to afford effective jury consideration of evidence mitigating a defendant’s moral culpability. The district court granted COA on this sole issue, after rejecting the others petitioner raised. After careful review, we conclude that Garcia has failed to meet the standards governing habeas relief under AED-PA. I.

Background Around 2:00 a.m. on Sunday, August 30, 1987, Debbie Rodriguez (“Rodriguez”) returned from an evening out with friends to discover her three-year old daughter, Veronica, missing. After Ms. Rodriguez and her fiancee, Martin Barbosa (“Barbosa”), could not find the young girl inside the house, they went to the garage apartment behind the house and asked Fernando Garcia (“Garcia”), who was renting the apartment from Barbosa, whether he had seen Veronica. Garcia replied that he had not seen the girl and offered to help search for her.

As the three left the area to move back toward the house, Garcia padlocked the apartment behind them. Ultimately, the police were called. Officer Patrick Burke of the Dallas Police Department was dispatched to the residence around 11:20 a.m. to investigate Veronica’s disappearance. When Officer Burke arrived, he spoke to Rodriguez and Barbosa. He saw Garcia standing on the porch of the residence with two other men and, shortly thereafter, noticed Garcia walk off in an easterly direction. Burke conducted a walk-through search of the house and then went to a nearby store to call his superiors.

Because the case involved a child under ten years of age, the department would assign an officer to the case until Veronica was found. Sometime between 1:30 and 2:00 p.m., Royce Dickey, a youth investigator, arrived at the scene. By the time Dickey arrived, Officer Burke had conducted a thorough search of the house and canvassed the neighborhood, but still had not found the missing child. After discussing the status of the investigation, the officers expressed a need to look in the garage behind the house to determine whether Veronica might have entered the structure and hurt herself.

Barbosa explained to the officers that he owned both the house and the garage, and that he had an agreement with Garcia that he could enter the garage whenever he wanted because he kept some of his own property there. Barbosa then consented to the officers’ search of the garage. However, when he went to unlock the garage door, Barbosa discovered that his key did not fit the padlock Garcia had placed on it earlier that morning. Barbosa then broke the door open. The officers conducted a cursory search of the garage.

After this initial search, the officers and Barbosa found nothing, so they exited the garage and continued the search elsewhere. The next morning, Monday, August 31, Investigator Dickey returned to the residence and asked Barbosa if he could again search the garage. Barbosa again consented. The garage had remained open since the previous day when Barbosa had broken the lock. Garcia had not been seen since the previous day, when he had supposedly promised Barbosa and Rodriguez to aid in the search.

When Investigator Dickey opened the garage door to initiate a second search, he immediately detected the odor of a dead body. Upon further investigation, Dickey found the body of young Veronica wrapped in a blanket under Garcia’s bed next to a wall of the garage. She had been brutally sexually assaulted, bitten twelve times, severely beaten with blunt force to the head, and strangled. Garcia was arrested and charged with capital murder. A Texas jury convicted him and recommended a sentence of death on December 8, 1989. The state trial court imposed this sentence pursuant to Texas law.

After exhausting his state court remedies, Garcia filed the instant petition for habeas corpus, which the district court denied. The district court granted a COA on Garcia’s Penry claim. II. Discussion A. Standard of Review The district court granted Garcia a COA on a single issue: whether the trial court violated Garcia’s Eighth and Fourteenth Amendment rights by charging the jury with a “nullification” instruction which failed to give effect to his mitigating evidence.

As this court has recently stated, to obtain relief Garcia must demonstrate: (1) that his mitigating evidence had relevance beyond the special issues, and (2) that his mitigating evidence was beyond the reach of the jury. See Bigby v. Dretke, 402 F.3d 551, 564-65 (5th Cir.2005) (reformulating this circuit’s Penry I test in light of Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004)). As Garcia filed his petition for federal habeas relief after April 24, 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this appeal.

Under AEDPA, 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 .... 28 U.S.C. § 2254(d).

The Supreme Court has explained that a state court decision is “contrary to” federal law where the state court applies a rule that “contradicts the governing law set forth [in Supreme Court precedent];” a state court decision will also be contrary to federal law where, confronting facts that are “materially indistinguishable” from those in controlling Supreme Court precedent, the state court nevertheless reaches an opposite result. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000).

A state court is said to have made an “unreasonable application” of federal law where it identifies “the correct governing legal principle from [the Supreme Court] but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. at 1523. However, the fact that a habeas court would have reached a different conclusion than did the state court is insufficient to merit habeas relief. Woodford v. Visciotti 537 U.S. 19, 27, 123 S.Ct. 357, 361, 154 L.Ed.2d 279 (2002).

The Court in Williams was careful to note that “an unreasonable application of federal law is different from an incorrect application of federal law,” and as such, the state court’s application of federal law must be “objectively unreasonable,” as opposed to merely incorrect, for habeas relief to be granted. Williams, 529 U.S. at 409-10, 120 S.Ct. at 1521-22 (emphasis in original); see also Penry v. Johnson (Penry II), 532 U.S. 782, 793, 121 S.Ct. 1910, 1919, 150 L.Ed.2d 9 (2001). Notwithstanding erroneous reasoning of state courts, we review the reasonableness of their ultimate decision. Neal v.

Puckett, 286 F.3d 230, 236 (5th Cir.2002)(en banc), cert. denied, 537 U.S. 1104, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003). B. Amenability of Garcia’s Mitigating Evidence to Jury Consideration The issue Garcia poses is whether his sentencing violated the Supreme Court’s Penry line of cases, which have focused on the inability of the former Texas death penalty issues to allow the jury adequately to consider and give effect to certain mitigation evidence at sentencing. Garcia’s evidence may be divided into several categories: (

a) childhood sexual abuse and bizarre upbringing, (

b) pedophilic condition, and (

c) drug and alcohol abuse. To put this evidence in perspective, the State’s evidence, as well as Garcia’s response to the State’s case, is relevant. During the punishment phase, the State focused on the facts of the grisly crime and Garcia’s criminal history. First, the State put forward evidence relating to Garcia’s previous conviction for sexual abuse of a child, which he committed on May 5, 1981. The victim was Diana Estrada, the five-year old daughter of a woman Garcia was living with at the time, Rose Maria Estrada.

One afternoon, Diana’s brother asked a neighbor, Estella Rangel, to come by Garcia’s apartment to check on the young-girl. Rangel soon noticed that little Diana had “a lump as big as an egg ... between her private part and her rectum.” 20 RR 2734. When Garcia arrived home and realized what was happening, he threatened Rangel. Rangel notified child welfare. Thereafter, whenever Garcia would see Rangel, he would call her a snitch. Caseworkers from the Texas Department of Human Services (“DHS”) investigated the case.

After a full investigation, DHS concluded that Garcia had fondled Diana and forced her to perform oral sodomy on him. Additionally, Garcia physically abused Diana, her mother, and her then-eight-year old brother, Roland Es-quivel. When questioned during the investigation, Garcia denied any sexual or physical abuse, even after Diana confirmed the allegations. Garcia characterized the allegations as “a big joke” and “ludicrous.” Garcia invoked a religious transformation to bolster his denial: He explained to DHS personnel that he was a born-again Christian.

While continuing to assert his innocence, Garcia ultimately agreed to leave the home. However, follow-up visits by DHS indicated that he was still living in the apartment, and Garcia proved evasive when questioned about the exact whereabouts of his new residence. Against the recommendation of the probation officer, Garcia was originally sentenced to probation for these crimes beginning April 16, 1982. The probation officer’s notes and pre-sentence report are prescient.

During his interview, Garcia admitted engaging in the lewd acts, but claimed that “he was drunk ... and did not realize what he was doing.” 21 RR 2777. Probation was not recommended because the offense was heinous, Garcia (apparently convinced his voluntary intoxication negated his acts) continued to deny any wrongdoing, and his “prognosis for rehabilitation is extremely guarded to poor.” Id. at 2780. On March 7, 1983, Garcia was paroled. Less than two months later, Garcia was charged with another sexual offense. In the early morning hours of April 28, Garcia broke into the apartment of George Merenue.

Merenue’s girlfriend, who was asleep, was awakened by someone pulling at her shorts and fondling her. Garcia tried to push her onto her back, but ran away when she fully awoke. For these acts, Garcia was charged with the offense of burglary of a habitation with the intent to commit sexual assault. He was sentenced to ten years in prison, then paroled after serving only three years. He absconded from the halfway house to which he had been assigned. Within a year, Garcia committed the horrific crime underlying the instant case. In addition to his prior crimes, the State introduced the testimony of Dr.

Betty Schroeder. She had evaluated Garcia in 1981 at the request of the Bexar County Probation Office. Garcia initially denied all of the child abuse charges and claimed the DHS investigators “had brainwashed the child into making various accusations, ... had actually coached the child into saying that he had sexually abused her.” 21 RR 2770. When she asked Garcia about his background, he indicated that he had been adopted at birth and never really knew his natural father. Additionally, Garcia told Dr. Schroeder that he had dropped out of high school in the tenth grade.

Schroeder testified that Garcia’s “academic abilities were somewhat diminished” but confirmed that he had above normal intelligence and an IQ of 110. Garcia told Schroeder that he had smoked marijuana and sniffed spray paint in the past, but he denied having used either for six months before November 1981. Schroeder testified that Garcia’s prior drug use “strongly suggested some addictive propensities.” Id. at 2787. Dr. Schroeder further testified that Garcia was a pedophile.

She defined “pedophile” as “an individual who resolves his sexual excitation, his urges for sex mainly through the use of small children, fondling to actual sexual intercourse.” 21 RR 2792. Schroeder characterized Garcia’s likelihood for rehabilitation as: extremely guarded to poor .... Individuals who are pedophiles, in fact, any kind of a psychiatric/psychological pathology that emerges from the basic human primary drives such as the drive to eat, drink, have sex, ... are very, very resistant to change.

Even the best of psychotherapists, behaviorists, all the range of individuals find it very difficult to penetrate and aid the individual dealing with this kind of pathology. 21 RR 2791. Dr. Schroeder added that even within the confines of prison, secreted away from children, Garcia would express his pedophilic urges through “fighting, viciousness, anger, depression.” Id. at 2805. According to Dr. Schroeder, pedophiles tend to “grow more violent, more heinous as time goes on.” Id. at 2792.

It is critical to focus on the facts, arguments, and mitigation theory Garcia actually made to the jury before we address his new arguments in federal court. Garcia’s mitigation effort began with the cross-examination of Dr. Schroeder. On cross, she testified that Garcia “did not have the usual nurturing [from his parents] that one would hope that a young child would have and did not have the kind of encouragement toward formal education.” 21 RR 2794.

She “hypothesized” this aspect of Garcia’s upbringing based on her experience that “[o]ften times individuals such as this have also been sexually abused as children or had a great deal of abnormality in that area in their rearing.” Id. at 2795. Concerning his progression in school, she conceded that Garcia most likely reached the tenth grade only because of social promotion. Defense counsel also elicited testimony amplifying Garcia’s substance abuse, as well as Schroeder’s opinion that she had observed erratic and psychotic behavior in teenagers who abused drugs or alcohol.

Schroeder also testified that she was more optimistic that a substance-abusing pedophile could be rehabilitated than a pedophile who acts out without being intoxicated because it is possible that once the substance abuse is controlled, the pedophile may not act on his urges. Finally, Dr. Schroeder opined that in light of Garcia’s past behavior in prison, he would likely conform to the prison environment and would not present a future danger to prison society. At the beginning of its penalty phase case-in-chief, the defense recalled Estella Rangel.

She testified that she first knew Garcia when he began living with Rosa Estrada. Rangel described seeing Garcia cross-dressing on several occasions in 1979; when he dressed in this manner, Garcia would get into a waiting car where he and the driver (also a man) would kiss. Rangel further testified that she had seen Garcia sniffing paint more than once. Rangel stated that she had seen Garcia sniff paint on at least one occasion immediately before he abused Rosa’s daughter.

Rangel also cited Garcia’s paint-sniffing habit as one of the reasons she was afraid of intervening in his abuse of Diane Estrada, which Rangel had witnessed on several occasions. Garcia also called Dr. Robert Powitzky, a clinical psychologist specializing in sexual abuse. Like Dr. Schroeder, Dr. Powitzky diagnosed Garcia as a pedophile. However, Dr. Powitzky had a much lengthier, and in fact much different, account of Garcia’s family history. His most pertinent testimony is as follows: [Garcia] was abandoned by his mother to be adopted by his grandmother.

They ... didn’t really abuse him, but pretty well neglected him and pretty well ignored him and also exposed him to some witchcraft and other kinds of bizarre ... experiences. When his mother would come to visit him, she would take him away. As far back as he could remember, on occasion she would come back and would get herself and him and her boyfriend intoxicated, and they would all have sex together. First it started with him just being in the bed while they were having sex, and graduated to where they all were sexual together.

And he was forced to perform oral sex at the age of five on his older brother’s friend, forced by his older brother at the age of six to perform oral sex. Abused ... at the age of eight by a 14 year old cousin, a female cousin, who had him perform oral sex on her. Third grade was taken for a few weekends by a nun that ostensibly convinced the grandmother that she wanted to help him with confirmation class. And ... she sexually abused him for a couple of weekends. Dr. Powitzky conceded that he could not verify any of this information.

However, he testified that male victims of sexual abuse tend to respond by acting out, reclaiming a sense of power after the “total helplessness of being sexually abused by someone ... trusted and loved as a child.” Id. at 2867. Feelings of rage and confusion as to sexual identity are also common in child sex abuse victims. Dr. Powitzky then testified that Garcia would be a danger to free society because he would again resort to substance abuse and engage in further child abuse. However, Powitzky also asserted that Garcia would not be a danger to prison society.

Garcia’s prior positive disciplinary record in prison, coupled with the sobriety required of prisoners, would result in Garcia’s being “much, much less of a danger to anybody.” Moreover, Dr. Powitzky asserted that, in his experience, pedophiles tend to be passive, well-behaved inmates, and that, if anything, Garcia himself would be the target of abuse while incarcerated. When asked if Garcia would be likely to abuse “a fresh faced 18 year old boy that looks like he’s about 10” if such an inmate were placed in a cell with him, Dr. Powitz-ky said no, contending that Garcia’s preferred victims were young girls.

This was Garcia’s case for mitigation. Not a single family member or anyone else took the stand to plead for his life. As previously noted, several types of actual or alleged mitigating evidence are deducible from the trial record. Garcia focuses in this court on the argument that his pedophilia should be treated as mitigating, and in a footnote he “by no means concedes” that his history of childhood physical and sexual abuse, neglect and bizarre upbringing could adequately be considered by the jury under the Texas special issues.

Although evidence that a defendant was a victim of childhood abuse may constitute mitigating evidence, it was not so used here. At trial and before this court, Garcia’s child abuse evidence and argument have been entirely bound up in his contention that pedophilia should be treated as a “mitigating circumstance.” We disagree, for two reasons. First, defense counsel neither presented evidence of Garcia’s child abuse for its mitigating effect nor sought sympathy at trial based on Garcia’s upbringing. Second, being a pedophile is inherently not mitigating of moral culpability.

With respect to the alleged independent mitigating effect of Garcia’s childhood sexual abuse, this court can only review the case that his counsel presented to the jury at trial, not the case as Garcia recharacter-izes it nearly twenty years later. At trial, Garcia’s own expert testified that he is an irremediable pedophile and, as such, a clear future danger in free society. Faced with that reality as well as Garcia’s criminal record of pedophilia, the defense counsel sensibly urged the jury not to give Garcia sympathy because of his background: I ask for no sympathy for Fernando Garcia.

Fernando lost all right to our sympathy when he went from being a victim to a predator. When Fernando crossed that line, I don’t know. It’s nowhere in the evidence. Two psychologists can’t tell you, but he crossed that line. We unfortunately, as lawyers, cannot bring you evidence as to when that line was crossed. These statements effectively tell the jury not to give any independent mitigating effect to evidence of Garcia’s childhood abuse and neglect. The evidence of his background is presented to the jury only as an explanation for his adult pedophilia.

Counsel essentially argued that Garcia’s childhood abuse led to his pedophilia, which in turn precipitated his assault, rape, and murder of Veronica Rodriguez to such an extent that his act was not sufficiently “deliberate” to warrant the death penalty. The defense strategy was to focus on expert testimony that pedophiles do not act with the requisite deliberateness and pose no danger to prison society.

While the Supreme Court has made clear that jurors must not be denied, by any acts of the State — in the death penalty laws or in their implementation through jury instructions — the ability to give effect to mitigating evidence, the Court’s rulings do not affect a defendant’s trial strategy. No question of constitutional error by the State is raised where, as here, Garcia’s evidence of childhood abuse is taken on the terms in which his counsel offered it — as an explanation, but not in extenuation of his crimes.

Contrary to the explanation offered by the dissent, the defense counsel’s characterization of Garcia as a “predator” and specific request for “no sympathy” do not invite the jury to apportion moral responsibility to persons other than the defendant. Rather, with these statements, defense counsel did just what Garcia contends the special issues do — removed the abuse evidence from the scope of the jury’s mitigation considerations. It may be argued that counsel’s above-quoted statements are a mere “rhetorical flourish,” part of a peroration culminating in his urging the jury to spare Garcia’s life as

an act of justice, not sympathy. As such, it would be contended, the statements should not constrain Garcia’s argument to this court. We disagree. It is elemental to orderly legal procedure that an appellate court review the case as presented in the trial court. The record is clear, and the above-quoted references use Garcia’s childhood problems only to explain his transformation into a “predator.” No doubt counsel chose not to seek mitigation from the evidence of Garcia’s childhood because a jury would inevitably draw comparisons with what Garcia had inflicted on other children.

As a result, we reject the contention, offered by the dissent, that the reason for the defense counsel’s trial strategy was the constraint imposed by the Texas special issues. At the time the case was argued, Garcia had the benefit of a nullification instruction. Even though this type of instruction was later found to be unconstitutional, it still provided the defense counsel with a reason to argue mitigation beyond the special issues. The second error in Garcia’s argument is the suggestion that pedophilia may be considered “mitigating” of a defendant’s moral culpability. No case has so held.

While it may be true that Garcia’s condition arose in part from his abnormal childhood, and that the condition is both permanent and involuntary, pedophilia is unlike any other personal characteristic that courts have held to be potentially mitigating. Other personal characteristics, e.g., mental illness, retardation, addiction, or certain personality disorders, may suggest that a defendant is himself arguably both a victim and not fully morally responsible for his actions. Such characteristics have no intrinsic negative component; they may limit a person’s potential without necessarily causing harm to society.

Pedophilia of the type exhibited by Garcia, however, is manifest only in his victimization of others for his personal, perverted gratification. See, e.g., Kansas v. Hendricks, 521 U.S. 346, 375-77, 117 S.Ct. 2072, 2080, 2088-89, 138 L.Ed.2d 501 (1997)(Breyer, J., dissenting) (acknowledging pedophilia as a serious mental disorder or abnormality that can render a - person dangerous to others).

There is no sense in which reasonable people could view Garcia’s pedophilia as morally mitigating of guilt, any more than reasonable people would find a defendant’s uncontrollable compulsion to commit incest or eat human flesh “mitigating.” Garcia’s argument, in short, represents a novel and illogical extension of the Supreme Court’s Penry cases, which we reject. III.

Conclusion Our principal conclusions are that, on the record, Garcia cannot seek mitigating treatment for his childhood abuse because he did not do so before the jury, and he cannot advocate that his pedophilia, as represented in his criminal record and expert testimony, was in any way mitigating. His other forms of mitigating evidence were clearly cognizable by the jury in the context of the special punishment issues. We respectfully disagree with the dissent’s position that any evidence of childhood abuse must be considered under Perny regardless of the context in which it was offered at trial.

We are presented here with a situation in which the defense counsel’s theory was that the evidence should be considered for its relevance under the deliberateness special issue and not for additional mitigating effect. On habeas review, the petitioner argues that the special issues limited the jury’s ability to give-mitigating effect to the evidence, but it was the defense counsel’s theory that imposed the limits on the jury. Because the jury was able to give effect to the evidence as presented, there is no Penry violation.

Our holding is a narrow one, specific to the facts of this case where defense counsel did not present the evidence for its mitigating effect and instead expressly asked the jury not to sympathize with Garcia. Contrary to the dissent’s somewhat hyperbolic suggestions, we do not hold that relevant mitigating evidence should be ignored, nor that a mitigation theory is even required. We do, however, believe we are required to review the case that was actually presented to the jury.

We fail to understand how the dissent extrapolates from our holding that defense counsel must argue jury nullification in order to preserve Penry error. We also reject any comparisons to a procedural default claim since the issue is not whether or not Garcia has raised a Penry claim but whether or not the evidence was advanced for its mitigating effect. In sum, the decisions of the state courts are not vulnerable under AEDPA’s demanding tests. The judgment of the district court denying habeas relief is AFFIRMED. . Penry v. Lynaugh (Penry I), 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Penry v.

Johnson (Penry II), 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004); see also Smith v. Cockrell, 311 F.3d 661 (2002). . This account of the facts is derived primarily from the decision of the Texas Court of Criminal Appeals, Garcia v. State, 887 S.W.2d 846 (Tex.Crim.App.1994). .Rodriguez and her two children lived with Barbosa at the time of the crime. Barbosa's parents actually owned the house, but there was no question that Barbosa had lived there his entire life and exercised present control of the property at the relevant time. .

In the Texas Court of Criminal Appeals, Garcia argued, inter alia, that the Texas death penalty jury instructions were inadequate to afford him a meaningful opportunity to give effect to his proffered mitigating evidence. Garcia v. Texas, 887 S.W.2d at 860-61. The Texas Court of Criminal Appeals upheld his conviction in light of a supplemental jury instruction similar to that given and rejected by the Supreme Court in Penry II, 532 U.S. at 802-04, 121 S.Ct. at 1923-24.

On state habeas review, Garcia argued instead that the supplemental instruction is constitutionally infirm, a contention rejected on grounds of procedural bar and then-binding precedent. Penry II later vindicated Garcia's contention. . The State introduced this evidence through the testimony of Esther Diaz and Mel Villareal of the DHS, as well as through the testimony of the individuals involved, Diana Estrada, Rosa Marie Estrada, and Roland Esquivel. . The State reduced the charge to simple burglary in exchange for Garcia’s guilty plea.

Garcia’s parole for the conviction for sexual abuse of a child was revoked on these grounds. .Garcia had committed numerous other violations of the rules of his parole. Garcia failed to submit monthly reports in April, May, July, and August 1987; he further failed to report public intoxication offenses committed March 8, 1987, and July 17, 1987. . Absent from Garcia's case is any evidence of organic brain damage, mental retardation, or diminished mental capacity. Garcia's expert, Dr.

Powitzky, admitted that he had found no evidence of organic brain disease, brain syndrome, mental illness or psychosis beyond "mild depression" and Garcia's "personality disorder,” pedophilia. 21 RR 2875. . Elsewhere, Garcia preserved claims that his substance abuse and good character during incarceration are mitigating. Case law concludes, however, that contrary to Garcia's view, these two types of evidence may be fully accounted for under the Texas sentencing scheme. See Franklin v.

Lynaugh, 487 U.S. 164, 177-79, 108 S.Ct. 2320, 2329-30, 101 L.Ed.2d 155 (1988) (evidence of good character during incarceration encompassed by Texas sentencing scheme); Brewer v. Dretke, 442 F.3d 273, No. 04-70034, 2006 WL 477142 (5th Cir. Mar.1,2006)(evidence pertaining to substance abuse encompassed by Texas sentencing scheme); Harris v. Cockrell, 313 F.3d 238, 242 (5th Cir.2002)(same), cert. denied, 540 U.S. 1218, 124 S.Ct. 1503, 158 L.Ed.2d 152 (2004). .

Garcia's counsel went on with this theme very briefly: We cannot bring you Fernando’s father to tell you that my only fatherly act began at conception and ended at conception. We cannot bring you his mother whose only motherly love was ended at birth. What do we have? What is the sum total we can bring you about this man? We can bring you two pathetically short records from San Antonio, the sum total of Fernando's academic achievements. We can bring you some records from the Texas Department of Corrections. We can bring you medical records from Maine regarding a suicide attempt.

We do not have the luxury of having any exhibits showing when Fernando was victimized. When did the neglect, the abuse, the indifference, the poverty and the hate turn Fernando Garcia from a victim to a predator? Only you can answer that in your verdict. 21 RR 2920-21. . For that matter, Dr. Powitzky’s testimony about Garcia's sexual abuse is (

a) based solely on Garcia’s history as related to the doctor and (

b) the only evidence that Garcia was sexually abused as a child. There is no corroboration from family members or friends in the record. . We do not understand Judge Benavides to disagree with our conclusion that Garcia’s pedophilia is not morally mitigating. . Based on these conclusions, the ultimate decision of the state court falls far short of meeting the "objectively unreasonable” requirement for the issuance of a writ of habeas corpus under 28 U.S.C. § 2254(d), regardless of whether the court’s reasoning was at times incorrect.

We therefore need not discuss the (likely) infirmity of the special "nullification” instruction given the jury or the State's contention that there is no reasonable likelihood, on this record, that the jury unconstitutionally applied the jury instructions. See Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1197-98, 108 L.Ed.2d 316 (1990).