Summary:

According to Perry's confession, he and his friend Jason Aaron Burkett decided to steal two cars from the parents of another friend, 17 year old Adam Stotler. Burkett knocked on the front door and asked to use the phone. Perry then went into the house through the back door in the garage with a shotgun and hid in the laundry room. Perry then knocked on the back door.

When Sandra Stotler went to the back door, Perry came out of the laundry room and shot her in her side. Sandra Stotler fell, then tried to get up, and Perry shot her again. They loaded the body into the back of a truck and rolled her body into a nearby lake.

Burkett and Perry then drove to pick up another friend, Kristin Willis, from work and returned to the Stotler house. When Adam Stotler arrived with his friend Jeremy Richardson, Burkett and Perry convinced them that a friend had been shot in the woods and needed their help.

Adam and Jeremy followed Willis's truck into a nearby wooded area and according to Perry, Burkett then shot Jeremy and then Adam. They returned to the Stoller home then went to a bar.

Two days later, Perry was stopped for a traffic violation and after a high speed chase was arrested and booked in as Adam Stoller since he was in possession of his wallet. Several days later after posting bail, while in the stolen Isuzu, Perry and Burkett ran into a deputy sheriff's vehicle while trying to escape arrest. Both were arrested hiding in a neighboring apartment complex where the shotgun used to kill Sandra Stotler was found. Forensic evidence found near Crater Lake, in the woods, and at the Stotler residence matched Perry's confession. Perry was tried for Sandra Stotler's murder.

During his trial, Perry took the stand in his defense and claimed that his confession was coerced by police and untrue. The jury did not buy it. Accomplice Burkett was tried separately, convicted of capital murder and sentenced to life in prison.

Citations:

Perry v. State, 158 S.W.3d 438 (Tex.Crim.App. 2004). (Direct Appeal)
Perry v. Quarterman, 314 Fed.Appx. 663 (5th Cir. 2009). (Habeas)

Final/Special Meal:

Three bacon,egg, cheese omelets. In addition three chicken cheese enchiladas and 3 each of Pepsi, Coke and Dr. Pepper.

Last Words:

“I want to start off by saying I want everyone to know that’s involved in this atrocity that they are forgiven by me.” He sobbed briefly, then whispered, “Mom, I love you. I’m coming home, Dad. I’m coming home.”

Perry, Michael James
Date of Birth: 04/09/1982
DR#: 999444
Date Received: 03/03/2003
Education: 12 years
Occupation: Laborer
Date of Offense: 10/24/2001
County of Offense: Montgomery
Native County: Harris
Race: White
Gender: Male
Hair Color: Brown
Eye Color: Brown
Height: 5' 09"
Weight: 132

Prior Prison Record: None.

Summary of incident: On 10/24/2001, in Montgomery, Texas, Perry, and one co-defendant fatally shot a 50 year old white female, a 17 year old white male and and 18 year old white male with a shotgun. A vehicle was also stolen from the residence of two of the victims.

A jury convicted appellant of capital murder. The trial court sentenced appellant to death pursuant to the jury's answers to the special issues submitted at the punishment phase. Appellant raises seven points of error in his original brief and another point of error in a supplemental brief. We affirm.

Appellant does not challenge the sufficiency of the evidence to support his conviction. The evidence shows that appellant murdered the victim by shooting her with a shotgun while appellant and another person were burglarizing her home.

Later that night appellant was involved in the murder of this victim's son and another person. Appellant was arrested about a week later in an apartment where he had fled following a high-speed car-chase with the police during which appellant injured his arm, and one of the other occupants in the car was shot by the police in an exchange of gunfire. The injury to appellant's arm was serious enough to require treatment at a hospital. The police obtained a written confession from appellant at the hospital.

Appellant was charged and tried only for the murder of the mother during the burglary of her home. Appellant testified at the guilt/innocence phase that he was not involved in this murder and that his confession was not true. The following portion of appellant's confession was admitted into evidence at the guilt/innocence phase:

Last week, the week of October 22-26, my friend, Jason Burkett, and I decided we needed to get a vehicle, or two vehicles. We both know a younger white male [the burglary victim's son], known to us as Adam Stotler whose parents have a lot of money. They also have a newer Camaro and Isuzu Rodeo.

On Wednesday 10-24-01 Jason and I made a plan that we were going to ask to spend the night with Adam at his house, and we were going to take the Camaro in the middle of the night while Adam and his mom was [sic] sleeping. We went to Adam's house at about 7 pm on Wednesday 10-24-01. Jason was driving his girlfriend, Kristen Ranel's, blue Chevy truck, and I was riding in the passenger seat. We had a 12 gauge shotgun with us. Jason and I got to Adams [sic] house, and his mom told us that Adam was not home, that he was at the skate park and would be home around 9 pm.

Jason and I left in the truck, but before we got out of the subdivision, Jason said that it would be easier to get the car with only one person home. Jason and I then made a plan that Jason would knock on the front door, and I would sneak in the back door, through the garage with the shotgun. We went to Adam's house on foot and left Kristen's truck down the road. I walked around to the side of the house through the garage, and Jason knocked on the front door and asked to use the phone. When I heard Jason talking on the phone, I went into the house through the back door in the garage. Once in the house, I hid in the laundry room between the kitchen and garage. I then knocked on the back door, and when Adam's mom came to the back door, I shot her one time in the side near her back with the shotgun. She fell to the floor, and I dropped the shotgun.

She then moved or tried to get up or something, and I grabbed the shotgun and shot her one more time. She fell to the floor in front of the laundry room and garage, back door. Jason freaked out and ran to the front door and opened the door. We calmed down a little and grabbed the blankets and sheet off of the bed in the bedroom near the kitchen and put the blankets and sheet over her because we did not want to look at her. Jason ran and got Kristen's truck and brought it back to Adam's house. Jason backed the truck into the garage, and we dragged Adam's mom's body and the blankets out into the garage, where we loaded her into the back of the truck with the blankets and sheet. I could not find the keys to the Camaro, and I remembered that the inspection sticker was expired, and Adam's mom never drove it.

Jason then got into the drivers [sic] side of the truck and I got in the passenger seat, and Jason drove to an area he called Crater Lake. I did not know where Crater Lake was, but I remember driving down a dirt road, then going across a big bump and seeing some type of pipeline or something. We then drove down a cleared road and saw an old stripped out truck blocking the road. The road to what Jason called Crater Lake was off to the left of the stripped truck. Jason turned the truck around and first tried to open the tailgate, speed backwards toward the pond, and try to slam on the brakes to get the body to slide out. He did that I think twice, but it would not work so we grabbed her body, and we rolled her down into the water. Jason and I then threw sheets into the water on top of her and covered her up with some sticks and brush we found near by. It was about 8:20-8:30 pm by that time, and we drove to pick up Kristen, where she works at Big Dog Sports at the Outlet Mall in Conroe.

I jumped the fence and ran to Adam's house. I got in the Camaro, which was parked in the garage and drove it out of the garage. I pressed the button to close the garage door, but it would not close so I drove off. I drove out of the gate, met Jason, and we left to go to our trailer. Jason drove the white Isuzu with the shotgun in it, and I drove the red Camaro. We went home, smoked several cigarettes, and then got cleaned up and went to Nite Life.

The rest of appellant's confession was admitted into evidence at the punishment phase of the trial.

We picked up Kristen and drove back to Adam's subdivision. Jason drove, Kristen sat in the middle, and I sat on the passenger's side. We still had the shotgun with us. When we got to the subdivision, we could not get in, because we did not know the gate code. We knew that Adam would be home soon so we waited at the gate, and Adam pulled up in the white Isuzu Rodeo with another guy I know as Jeremy in the passenger seat. While Jason, Kristen, and I waited at the gate for Adam, we agreed on a story to tell Adam. Jason and I told Adam and Jeremy that a friend of ours had shot himself while we were all hunting squirrels, and we needed their help to get him.

We left the front of the subdivision and turned right onto the road in front of the subdivision. We were still in the truck, and Adam and Jeremy followed us in the Isuzu Rodeo. We then came to a stop sign and turned right. We then took the first left off that road and crossed the railroad tracks. We drove down a dark, winding road and stopped at I think was the first dirt road on the left. We all parked there, and Jason, Jeremy, Adam, and I started walking back into the woods off the dirt road. Kristen sat in her truck. After we walked awhile, Adam realized where we were and said that he knew an easier way to get to our friend.

Adam and I went back to Adams [sic] Isuzu, and Jason and Jeremy stayed in the woods. Adam drove me in his Isuzu to the 1^st subdivision on the left off of the same road we were on. Adam said that there was a road that went into the area we had earlier walked to. I think we turned onto the first road on the left in that subdivision and stopped at a cul-de-sac.

Adam and I got out of the Isuzu and we saw Jason walking toward us with the shotgun. Jason asked if we heard the gunshots and said that he was trying to let us know where he was. I told him that I had heard two to three shots. Adam then walked toward Jason, who did not have Jeremy with him, and Jason told him that he (Jason) would take Adam to where the others supposedly were. I walked back to get my cigarettes, and I saw Jason shoot Adam in the left side. I then covered my eyes. I heard a second gunshot and uncovered my eyes. I then saw Jason lean in close to Adam and fire a third shot at close range. I walked over to Adams [sic] body and got his car keys out of his pocket.

Jason and I then went to the Isuzu, and Adam [sic] got in the drivers [sic] side with me in the passenger side. We went back to where Kristin [sic] was waiting, and Kristen asked Jason, "What happened" and then said, "Never mind I don't want to know." Jason then said, "You're right, you don't want to know." Kristen's sister called, and Kristen was upset and said she was going home. Kristen left in her truck, and Jason drove me back to Adam's subdivision.

I took the keys to the Camaro off of Adam's key ring for the Isuzu, and I jumped the fence and ran to Adam's house. I got in the Camaro, which was parked in the garage and drove it out of the garage. I pressed the button to close the garage door, but it would not close so I drove off. I drove out of the gate, met Jason, and we left to go to our trailer. Jason drove the white Isuzu with the shotgun in it, and I drove the red Camaro. We went home, smoked several cigarettes, and then got cleaned up and went to Nite Life.

The shotgun we used came from a burglary that Jason and I did on Ave. E by the Salvation Army. Jason and I both know the homeowner, and he drives a green Ford Ranger. We took a Glock .40 and a 12 gauge defender out of the house. The 12 gauge defender is the shotgun we used to kill Adam's mom, Adam Stotler, and Jeremy.

I also took Adam's wallet out of his Isuzu with his driver's license.

In point of error one, appellant claims that the trial court erroneously permitted the prosecution to cross-examine him at the guilt/innocence phase with specific instances of his unadjudicated misconduct for impeachment purposes. See Tex. R. Evid. 608(b) (generally prohibiting cross-examination of a witness with specific instances of unadjudicated conduct for impeachment purposes). The State argues, however, that the prosecution cross-examined appellant with this evidence under the theory that appellant opened the door to it with his prior testimony that "most of [his] problems were concentration type problems" related to his psychiatric disorders. See generally Ochoa v. State, 481 S.W.2d 847, 850 (Tex.Cr.App. 1972) (party can open the door to admission of otherwise inadmissible impeachment evidence).

The record reflects that appellant did not object to this cross-examination. Appellant, therefore, presents nothing for review. See id.; see also McDuff v. State, 939 S.W.2d 607, 618 (Tex.Cr.App.), cert. denied, 522 U.S. 844 (1997) (failure to object to proffered character testimony forfeits appellate claim that it should not have been admitted). Point of error one is overruled.

In points of error two and three, appellant claims that the trial court erroneously admitted testimony at the guilt/innocence phase of appellant's involvement in the two other murders that occurred on the same day as the capital murder for which he was on trial . In point of error two, appellant complains about the admission of Sergeant Blair's testimony that he heard appellant tell another detective that appellant did not shoot the victim's son.

Q. [PROSECUTION]: And how does [appellant] respond when Detective Mace introduces himself?

A. [BLAIR]: He-he told him he knew what was going on, that he was-it was going to be the needle or he was going to get the needle and he was just going to make it easy on everybody and kind of started-we were, you know-I didn't shoot-he said that he didn't shoot [the victim's son]--

Q. Stop, stop, stop.

A. Yes, sir. Sorry.

Q. Let's back up.

Strike that, please.

In point of error three, appellant complains about the admission of another witness' testimony that the police told her that appellant was a suspect in a triple homicide.

Q. [PROSECUTION]: Okay. And what were you awakened by?

A. [LAZRINE]: Officers at my door.

Q. Okay. And who were they looking for?

A. They were looking for [another person and appellant].

Q. Okay. And did they tell you what or do you know what-why they were looking for them?

A. Yes. They said that they were suspects for a triple homicide.

Appellant did not object to this testimony. We need not decide whether this testimony was foreseeable because appellant also did not request an instruction to disregard or move for a mistrial. Appellant, therefore, failed to preserve any error. See Young v. State, 137 S.W.3d 65, 68-70 (Tex.Cr.App. 2004). Points of error two and three are overruled.

Q. [PROSECUTION]: Let me ask you this while you are looking through your report. This statement-were the statements made by [appellant] before you asked him any questions?

A. [Mace]: Yes, they were. It was actually immediately upon me introducing myself he started talking.

Q. Okay.

A. The first thing he stated was, "I know it's the needle and I want to save everybody the trouble and just confess."

Q. Okay. Now, when that statement was made to you, did you interrupt him?

A. Yes, I did. He continued speaking about this. I interrupted him and advised him of his Miranda rights.

A paramedic testified that appellant's bandaged arm was cut to the bone and that appellant had a "T-shirt, shorts and some socks on." Appellant complained that he was cold and that he was "shivering a little bit." The paramedic also testified that he observed a "big knot on the back of appellant's head" which was "possibly from contact with officer during apprehension." Appellant was coherent, he did not seem intoxicated and he carried on a normal conversation with another officer (Blair) on the way to the hospital.

Blair testified that appellant did not ask for a lawyer at the arrest scene. The paramedic testified that he heard appellant tell Detective Mace in the ambulance that "I know I have a lawyer, but I am going to save us both a lot of time." Mace obtained a tape-recorded statement that was reduced to writing at the hospital. Mace provided no testimony at trial on whether appellant invoked his right to counsel at the hospital (although Mace testified at the pretrial suppression hearing that appellant did not ask for a lawyer either in the ambulance or at the hospital).

Appellant testified that the police continued to question him after he had invoked his right to counsel.

Q. [DEFENSE]: Let me ask you if you will go back to the morning of-the early morning of [October 30^th]. You remember Detective Mace giving you some warnings orally some time after 7:00 o'clock that morning?

A. [APPELLANT]: In the morning? I don't recall.

Q. You're not-and what I'm specifically talking about, your Miranda rights or anybody's Miranda rights, a common term. You have the right to remain silent and not make any statement and any statement might be used against you at trial. Any statement you might make can be used as evidence against you in a court of law. You have the right to have a lawyer present to advise you during-prior to and during any questioning. If you can't afford a lawyer, you have the right to have a lawyer appointed to advise you prior to and during any questioning. And do you have-and you have the right to terminate, if you began an interview, at any time that you saw fit. Now, do you remember those warnings being given to you in the ambulance out there at Wildwood Forest?

A. I think he did. Until I-sorry. Sorry. Sorry. Sorry. I caught myself.

Q. Your answer is what?

A. Yes, he did.

[PROSECUTION]: Objection. Asked and answered. Obviously, he said he gave him the warnings.

[THE COURT]: Sustained.

Q. And then at any time thereafter, were you read or given your Miranda rights again?

A. No, sir.

Q. At any time that morning prior to Detective Mace arriving or subsequent to his arrival, did you announce to anybody that you wanted a lawyer?

A. Yes, sir.

Q. Did that request go unheeded?

A. What's unheeded?

Q. Was there any response to that request?

A. No.

Q. Did they continue talking to you?

A. Yeah. Their response was continuing talking [sic].

Q. And you give this statement to Detective Mace because you were frightened. Is that what I heard your testimony to be?

A. One of the many reasons.

Q. And what other reasons?

A. I was just shocked, tired and wanted to be left alone. I was just overwhelmed with everyone around me. I was dizzy. I just-all the talking, attacking-

Appellant also provided testimony suggesting that the police coerced him into making a false confession.

Q. [DEFENSE]: Let me restate the question. Why do you put your name on something that's not the truth?

A. [APPELLANT]: It would-I would have to start from the time of arrest, if you want me to.

Q. I want you to-

A. All right.

Q. -answer the question.

The trial court denied appellant's request for an instruction directing the jury not to consider appellant's confession if it was "due to intoxication or illness resulting from the loss of blood." Appellant's requested instruction stated:

A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion. "Intoxication" means not having the normal use of mental faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body. Now, if you find from the evidence, or if you have a reasonable doubt thereof, that at the time the defendant gave the oral statement to [Mace], if the defendant did give it, the defendant was reduced to a condition of physical and mental impairment, due to intoxication or illness resulting from the loss of blood, such as to render such oral statement, if any, not voluntary, then you will wholly disregard the oral statement and not consider it for any purpose, nor any evidence obtained as a result thereof.

In Blakely, the Supreme Court stated that the statutory maximum sentence for Apprendi purposes "is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict . . . ." See Blakely, U.S. at , 124 S.Ct. at 2537 (emphasis in original). The Court stated:

Ring, 536 U.S. at 611 (Scalia, J., concurring).

It is, therefore, clear that what a jury is asked to decide in the mitigation special issue is not a "[fact] legally essential to the punishment." See Blakely, U.S. at , 124 S.Ct. at 2531 (Apprendi holds that every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment); Blue, 125 S.W.3d at 501 (by the time jury reaches the mitigation special issue, the State has already demonstrated the defendant's eligibility for a death sentence). By the time the jury reaches the mitigation special issue, the prosecution has proven all aggravating "facts legally essential to the punishment." See Blakely, U.S. at , 124 S.Ct. at 2531; Tuilaepa, 512 U.S. at 971-75. This Court's decisions in cases such as Blue are consistent with Apprendi, Ring and Blakely. Point of error five is overruled.

In point of error six, appellant claims that the "trial court erred in failing to instruct the jury that the State has the burden of proof beyond a reasonable doubt on the mitigation issue, because the Texas statute gives the jury mixed signals as to how the mitigation issue is to be applied." The mitigation special issue does not send "mixed signals" because it permits a capital sentencing jury to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant. See Johnson v. Texas, 509 U.S. 350, 367-69 (1993); Cockrell v. State, 933 S.W.2d 73, 93, (Tex.Cr.App. 1996), cert. denied, 520 U.S. 1173 (1997). Point of error six is overruled.

In point of error seven, appellant claims the "trial court erred by not instructing the jury that each juror had the power to prevent assessment of the death penalty by blocking a unanimous verdict for the State." This Court has rejected this claim. See Cathey v. State, 992 S.W.2d 460, 466 (Tex.Cr.App. 1999), cert. denied, 528 U.S. 1982 (2000). Point of error seven is overruled.

In a supplemental point of error, appellant claims that it offends "the principles underlying [the United States Supreme Court's recent decision in] Tennard v. Dretke, [ U.S. , 124 S.Ct. 2562 (2004)] to instruct a capital sentencing jury to disregard evidence that the jurors do not find to be sufficiently connected to the crime to reduce moral blameworthiness." This Court has decided that the mitigation special issue "does not unconstitutionally narrow the jury's discretion to factors concerning only moral blameworthiness." See Cantu v. State, 939 S.W.2d 627, 648-49 (Tex.Cr.App.), cert. denied, 522 U.S. 994 (1997). The Supreme Court's Tennard decision, which was decided under another statutory scheme that did not include the mitigation special issue, does not hold otherwise. See Tennard, U.S. at , 124 S.Ct. at 2569-72 ("impaired intellectual functioning" is inherently mitigating and, therefore, meets the definition of "constitutionally relevant" mitigating evidence). The supplemental point of error is overruled.

The judgment of the trial court is affirmed.

Hervey, J.

Delivered: December 15, 2004

Publish

*****

1. Since appellant's only complaint on appeal is that the trial court refused his requested instruction, it is unnecessary in this case to resolve any conflict between our decision in Mendoza and our decision in Thomas on the issue of whether a trial court must sua sponte submit any other "properly worded" Article 38.23 instruction.

2. See Atkinson v. State, 923 S.W.2d 21, 23 (Tex.Cr.App. 1996) (issue of whether evidence should be excluded under Article 38.23 may also be tried to the jury).

3. The record reflects that appellant was arrested on October 30^th and that he murdered the victim on October 24th.

4. See State v. Terrazas, 4 S.W.3d 720, 723-24 (Tex.Cr.App. 1999) (statement involuntary "only if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker").

5. 536 U.S. 584 (2002).

6. 530 U.S. 466 (2000).

7. See, e.g., Blue v. State, 125 S.W.3d 491, 501 (Tex.Cr.App. 2003), cert. denied, U.S.L.W. (U.S. October 4, 2004) (No. 03-10832).

8. These holdings are based on the Sixth Amendment right to a jury trial and "the right to have every element of the offense proved beyond a reasonable doubt." See, e.g., Apprendi, 530 U.S. at 477 n.3.

9. Blakely, U.S. at , 124 S.Ct. at 2537 (emphasis in original).

10. See Tuilaepa v. California, 512 U.S. 967, 971-75 (1994) (describing legally essential facts that make a defendant death-penalty eligible).

11. Appellant argues in a supplemental brief:

Thus, the Blakely decision clarifies our understanding of the rule of Apprendi with respect to the meaning of the statutory maximum punishment for the crime. In this context, the "maximum" is not the maximum sentence that may be imposed after a jury finding of additional punishment facts, but the maximum that may be imposed without any additional jury findings. The maximum sentence that may be imposed upon a Texas capital defendant [by the time the jury reaches the mitigation special issue] alone is life imprisonment. In order to receive death, his sentencing jury must also return a ["no"] answer to the mitigation special issue, which means that the jury has found a new ultimate fact adverse to the defendant: his mitigation case was not sufficient to warrant a life sentence.

(Emphasis in underline in original) (Emphasis in italics added).

12. 492 U.S. 302 (1989).

13. See, e.g., Ring, 536 U.S. at 597-98 n.4 (noting that Ring's claim was "tightly delineated" and made no "Sixth Amendment claim with respect to mitigating circumstances") and at 612 (Scalia, J., concurring) ( what "today's decisions says is that the jury must find the existence of the fact that an aggravating factor existed") (emphasis in original).

14. A state may, without violating due process, even require a defendant to prove facts in mitigation of punishment. See Martin v. Ohio, 480 U.S.228, 230-36 (1987) (no violation of due process for state to require a defendant to prove self-defense); Patterson v. New York, 432 U.S. 197, 201-02 (1977) (same with respect to extreme emotional disturbance). It is noteworthy that appellant's supplemental brief even refers to "his mitigation case" in the context of apparently arguing that the State has the burden to disprove "his mitigation case" beyond a reasonable doubt. See Footnote 11.

15. 497 U.S. 639 (1990), overruled by Ring, 536 U.S. at 609.

16. Emphasis in original.

Perry v. Quarterman, 314 Fed.Appx. 663 (5th Cir. 2009). (Habeas)

Background: Petitioner, who was convicted of capital murder and sentenced to death, sought writ of habeas corpus. The United States District Court for the Southern District of Texas denied petition. Petitioner requested certificate of appealability (COA) permitting appeal.

Holdings: The Court of Appeals, Edith H. Jones, Chief Judge, held that: (1) trial counsel conducted reasonable investigation into mitigating evidence, and did not render ineffective assistance of counsel; (2) state did not violate its Brady disclosure obligations in the way that it presented testimony of defendant's roommate; (3) state did not violate its Brady disclosure obligations when it did not disclose blood spatter to defendant; and (4) Court of Appeals would not consider as-applied challenge to Texas mitigation instruction that was not raised before state courts or in district court. Request for certificate of appealability denied.

EDITH H. JONES, Chief Judge:

FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

Petitioner Michael James Perry was convicted and sentenced to death in Texas state court for murdering Sandra Stotler while burglarizing her house in a subdivision in Montgomery County, Texas. After he exhausted state remedies, Perry sought a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied relief and refused to grant a certificate of appealability (“COA”). Perry now requests a COA on three issues: (1) his counsel was ineffective during the sentencing proceedings; (2) the government withheld potentially exculpatory evidence; and (3) as applied, the jury's mitigation instruction unconstitutionally limited the evidence the jury could consider. Because no reasonable jurist could find the district court's resolution of these issues debatable or conclude that Perry's arguments deserve to proceed further, we deny the request for a COA on all issues.

I. BACKGROUND

Perry's guilt is not at issue in this appeal. The jury convicted him of capital murder for brutally murdering Sandra Stotler in the course of burglarizing her house. According to Perry's confession, he and his friend Jason Burkett decided to steal two cars. They identified two cars, a Camaro and Isuzu Rodeo, that belonged to the parents of another friend, Adam Stotler. Perry and Burkett made a plan to spend the night at the Stotler house and steal a car in the middle of the night. On October 24, 2001, Perry and Burkett drove to the Stotler house with a 12-gauge shotgun in a blue Chevy truck belonging to Burkett's girlfriend, Kristin Willis. Sandra Stotler, Adam's mother, told Perry and Burkett that Adam would not be home until 9 pm. They returned to their truck and drove several blocks before deciding that it would be easier to steal the car when only one person was home.

When they arrived back at the house, Burkett knocked on the front door and asked to use the phone. Perry then went into the house through the back door in the garage with the shotgun and hid in the laundry room. Perry knocked on the back door. When Sandra Stotler went to the back door, Perry came out of the laundry room and shot her in her side. Sandra Stotler fell, then tried to get up, and Perry shot her again. At this point, Perry and Burkett wrapped her in bedsheets and blankets and loaded her into the back of the truck. As they could not find the keys to the Camaro, both Perry and Burkett left in Willis's truck.

Burkett drove the car to nearby Crater Lake. At first, Burkett and Perry opened the tailgate and tried backing up to the lake, hoping that Sandra Stotler's body would slide out. When that did not work, they grabbed her body and rolled her into the water. They covered her body with the sheets, sticks, and brush. Burkett and Perry drove to pick up Willis from work and returned to the Stotler house. When Adam Stotler arrived back at his house with his friend Jeremy Richardson, Burkett and Perry convinced them that a friend had been shot in the woods and needed their help. Adam and Jeremy followed Willis's truck in Adam's Isuzu. When they arrived in the woods, Perry and Burkett led Adam and Jeremy into the woods. According to Perry, Burkett shot Jeremy and then Adam. Perry removed the car keys and wallet from Adam's pocket. Burkett and Perry returned to the truck. Willis asked what had happened, became upset, and left in her truck. Burkett and Perry stole the Camaro and Isuzu. Perry ended his confession by stating that they returned home, cleaned up, and went to a bar.

Two days later, Perry attempted to evade police who had tried to stop him for traffic violations. The high speed chase ended when Perry wrecked the Camaro and fled on foot. He was eventually apprehended with Adam Stotler's wallet. He was booked and released on bond as Adam Stotler. The next day, Sandra Stotler's body was found in Crater Lake. Several days later, while in the stolen Isuzu, Perry and Burkett ran into a deputy sheriff's vehicle while trying to escape arrest. The vehicle crashed into a nearby store. Burkett and Perry were arrested hiding in a neighboring apartment complex; the shotgun used to kill Sandra Stotler was also found there.

Forensic evidence found near Crater Lake, in the woods, and at the Stotler residence matched Perry's confession. Perry was tried for Sandra Stotler's murder. During his trial, Perry took the stand in his defense and claimed that his confession had been untrue. Perry, however, had made several subsequent statements that implicated him in the murder.

At the sentencing phase, the defense presented extensive evidence about Perry's family history and upbringing. An adopted child, Perry had been diagnosed with Attention Deficit Disorder (“ADD”) at 8 years old. He was later diagnosed with oppositional defiant disorder. A year after that, he was diagnosed with conduct disorder. Perry twice tested negative for bipolar disorder after being admitted to a mental hospital. He never qualified for special education classes in elementary school, had an IQ of 97, and was by all accounts an average student.

Perry often ran away from home. He stopped going to school in junior high. He stole his mother's jewelry and the family car. He broke into a neighbor's home and destroyed the moldings. Perry's parents filed charges and had him committed to a long-term facility for mental health care. He was sent to Boys Town in Nebraska, but after threatening his house parents, he was moved to a locked facility within the program. Perry's problems did not qualify him for any mental health care provided by the facility. When he was expelled from Boys Town, his parents moved him to a secured high school campus in Mexico called Casa by the Sea. After high school, Perry was essentially homeless and jobless. He had a brief stint in the Job Corps, laying tile, and at Wal-Mart. Perry also stole and sold prescription pills to support his indulgence in alcohol and pills.

The defense presented testimony from Perry's biological mother who testified that she used drugs and alcohol until a month or two before Perry was born. Despite this, Perry was full weight and healthy when born. Although no biological relatives had committed murder, Perry's mother testified to a family history of depression, alcoholism, drug use, and thievery. Dr. Gilda Kessner, a clinical psychologist with a forensics background, interviewed Perry and testified that Perry's youthfulness was his greatest risk factor for recidivism. After serving time in prison, Dr. Kessner testified, the likelihood of Perry's becoming violent would drop to zero.

The jury found Perry guilty of capital murder. During the sentencing phase, the jury found that Perry posed a continuing threat to society and that there were not sufficient mitigating circumstances to warrant a life sentence. The trial court sentenced Perry to death. The Texas Court of Criminal Appeals affirmed, and the United States Supreme Court refused Perry's petition for a writ of certiorari. Perry then filed a writ of habeas corpus. The Texas Court of Criminal Appeals denied all nineteen grounds for relief. Perry filed a federal petition for a writ of habeas corpus. The district court granted the director's motion for summary judgment and sua sponte denied Perry a certificate of appealability. Perry subsequently filed this appeal.

II. DISCUSSION

To obtain a COA under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which governs this case, Perry must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Thus, he “must demonstrate that reasonable jurists could find the district court's resolution of his constitutional claims debatable or that reasonable jurists could conclude that the issues presented are adequate to deserve encouragement to proceed further.” Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir.2005) (citing Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. Rather, it only “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. Nevertheless, “[b]ecause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [the defendant's] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000).

In addition, a state habeas court's findings of facts and its credibility determinations are presumed correct but may be rebutted by clear and convincing evidence. See Summers v. Dretke, 431 F.3d 861, 871-72 (5th Cir.2005) (citing 28 U.S.C. § 2254(e)(1)). Against these background criteria, we address each of Perry's issues.

A. Ineffective Assistance of Counsel

In his application for a COA, Perry asserts that his trial counsel failed adequately to investigate, develop and present mitigating evidence for use at sentencing. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Perry must show that his trial counsel's performance was deficient and that the deficiency resulted in prejudice. We measure counsel's performance against an objective standard of “reasonableness under prevailing professional norms.” Id. at 688, 104 S.Ct. at 2065. Analysis under this standard begins with a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,” and we must make “every effort ... to eliminate the distorting effects of hindsight.” Id. at 689, 104 S.Ct. at 2065.

When assessing effectiveness at the sentencing stage, counsel's “investigations into mitigating evidence should comprise efforts to discover all reasonably available mitigating evidence.” Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 2537, 156 L.Ed.2d 471 (2003). In assessing the prejudice prong, this court will ask “whether the changes to the mitigation case would have a reasonable probability of causing a juror to change his or her mind about imposing the death penalty.” Blanton v. Quarterman, 543 F.3d 230, 236 (5th Cir.2008). In doing so, we “evaluate the totality of the available mitigation evidence-both that adduced at trial, and the evidence adduced in the habeas proceeding-in reweighing it against the evidence in aggravation.” Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 1515, 146 L.Ed.2d 389 (2000).

First, Perry argues that counsel was late in locating and unsealing Perry's adoption records. Trial counsel subpoenaed Perry's adoption records at the beginning of jury selection, found several biological and adoptive relatives to testify, and retained Dr. Kessner to put together a mitigation package for sentencing. While Perry does not dispute this, he claims earlier and further investigation would have turned up three generations of alcoholism, substance abuse, and depression and provided a more complete picture of Perry's inherited problems.

Second, Perry argues that he is bipolar and a more complete psychological evaluation would have revealed his mental illness. Although Perry's counsel attributed Perry's crime to impulsivity associated with mental illness, the jury did not hear any specific evidence that Perry might be bipolar. Dr. Kessner is a clinical psychologist who interviewed Perry for seven to eight hours and also interviewed his biological relatives. The doctor testified at sentencing that Perry had ADHD and had suffered sexual abuse as a child. Although Dr. Kessner did not suspect Perry of being bipolar and there was nothing in Perry's record to indicate that he might suffer from bipolar disorder,FN1 Perry argues that effective trial counsel would have suspected organic brain damage or some mental impairment beyond what had already been discovered. FN1. The first mention of possible bipolar disorder was not made until Perry was transferred to death row.

Finally, Perry argues that his counsel did not investigate and present sufficient evidence of his drug and alcohol abuse. Although counsel presented evidence of Perry's drug and alcohol problems, Perry argues that counsel did not present it as serious enough or as something Perry had no control over. Counsel did present evidence that Perry had starting drinking and smoking marijuana at a very young age, had progressed to more serious drugs, was involved in a lot of drugs and drinking, and had been selling prescription drugs at one point.

Perry argues that trial counsel's conduct is analogous to the ineffective assistance in Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). In that case, post-trial investigation uncovered a picture of Rompilla's “childhood and mental health [that was] very different[ ] from anything defense counsel had seen or heard.” Id. at 390, 125 S.Ct. at 2468. Despite the fact that the prosecution had provided defense counsel with the file that included such evidence, Rompilla's counsel did not present this evidence during sentencing and had failed to examine a public file of the defendant's previous convictions. Petitioner has also directed us to Walbey v. Quarterman, 309 Fed.Appx. 795 (5th Cir.2009), an unpublished and therefore non-precedential opinion of this court. As with Rompilla's counsel, Walbey's trial counsel did not discuss mitigation with the psychologist, interview Walbey's mother, or investigate Walbey's relationship to the victim. The psychologist in that case presented no testimony on the mitigation issue.

In this case, however, Perry is unable to point to the sort of unreasonable performance that existed in Rompilla or Walbey. Perry's counsel did extensive investigation into Perry's biological family, provided the jury with testimony regarding Perry's troubled background, and offered Dr. Kessner's evaluation and mitigation testimony. Trial counsel was not required to shop for an expert who would diagnose Perry with a disorder for which he had already tested negative or present even more evidence of Perry's genetic past. “While in hindsight, it is easy to say that trial counsel could have done more, we find the state habeas court reasonable in its conclusion that trial counsel performed reasonably based on the context and circumstances at the time of the representation.” Blanton v. Quarterman, 543 F.3d 230, 239 (5th Cir.2008).

Because Perry fails to raise an issue concerning counsel's mitigation strategy that is debatable among reasonable jurists, we need not consider the Strickland prejudice prong and deny COA on this issue.

B. Brady Violation

Perry argues that the prosecution violated his right to due process when it concealed potentially exculpatory evidence. Specifically, he believes that the State willfully or inadvertently withheld evidence that would have impeached key witnesses, Victor Neal and Kristin Willis, and that this prejudiced him.

Under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the suppression by the prosecution of “evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. at 1196-97. In order to prevail on a Brady claim, Perry must show that “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). This court has held that “evidence is not ‘suppressed’ if the defendant either knew, or should have known of the essential facts permitting him to take advantage of any exculpatory evidence.” Rector v. Johnson, 120 F.3d 551, 560 (5th Cir.1997).

Victor Neal was Perry's roommate at the time of the murder. He testified both at the guilt and sentencing stage of the proceedings. Neal provided testimony that Sandra Stotler's murder was premeditated, that Perry and Burkett drove around town with a loaded shotgun looking for a place to dump the body, and that Perry was a serial criminal. At the sentencing stage, Neal testified that he was present when Perry and Burkett broke into a house and stole several electronics but that he waited in the car. Perry now argues that the prosecution agreed not to prosecute Neal for his role as a lookout in the burglary and that they failed to turn over this information to the defense.

The State admits that Neal was nervous about his role in the burglary, but it asserts that prosecutors only assured Neal that they were not interested in him and that in exchange for his cooperation they did not discuss immunity or any other promises not to prosecute Neal in exchange for his testimony. One of the prosecutors explained to Neal that, based on what Neal had described, he could not be prosecuted because he was not actually a participant in the crime.

The State is required to disclose any inducements made to a witness-not just formal immunity agreements or promises. “Where, as here, the witness's credibility ‘was ... an important issue in the case ... evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.’ ” Tassin v. Cain, 517 F.3d 770, 778 (5th Cir.2008) (quoting Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (omissions in original)).

The state habeas court issued extensive and detailed factual findings, including that the “State did not suppress evidence of an ‘immunity agreement’ with Victor Neal,” “the evidence was insufficient to prove that Mr. Neal was more than merely present during the burglary,” and, even without Neal's testimony, “the evidence of [Perry's] guilt is overwhelming.” Perry does not present clear and convincing evidence to contradict these findings. It is untenable to argue that prosecutors have achieved testimony for their side from an innocent witness by offering to do that which they are required to do, i.e. not prosecute. We, therefore, agree with the district court that no reasonable jurist could conclude that the prosecutors violated their obligations under Brady in the way that they presented Neal's testimony.

Perry also contends that the prosecution suppressed a blood spatter on Kristin Willis's shirt, which would have impeached her testimony that she was not present during the murders. According to an affidavit from the State, the prosecution had an open file policy. Willis's shirt, her statement admitting that the shirt was hers, and blood tests revealing blood matter and the possibility of a high velocity blood spatter were all included in the case file. Trial counsel admitted that he recalled seeing photos of the shirt, and another trial counsel remembered seeing DNA reports on it.

Perry acknowledges that his trial counsel were aware of the shirt and a DNA report that did not link the blood on the shirt to Perry or Sandra Stotler, but he argues that the blood spatter itself was not disclosed. Because the State maintained an open file policy and trial counsel had access to the necessary information, the prosecution had no duty to give further guidance as to what evidence may have been exculpatory. See United States v. Mulderig, 120 F.3d 534, 541 (5th Cir.1997). In addition, there was unrefuted evidence that Kristin Willis was at work during the time that Sandra Stotler was killed. This evidence included phone and work records and the testimony of a coworker.

In the alternative, Perry asserts in passing that if his trial counsel did have access to the blood spatter, trial counsel was ineffective for failing to use the shirt to impeach Willis. Perry, however, did not brief this issue to the district court and presents no reason why her impeachment could have overcome the overwhelming evidence tying him to Sandra Stotler's murder.

Our review of the record persuades us that reasonable jurists could not debate the district court's conclusion that no relief is warranted by the Brady claims.

C. Unconstitutional Mitigation Instruction

Perry argues that, as applied, the Texas mitigation instruction unconstitutionally limited the mitigating evidence that Perry's jury considered. Because Perry did not raise this as-applied challenge before the state courts or the district court, his claim has not been exhausted and is procedurally defaulted. “A federal habeas petition should be dismissed if state remedies have not been exhausted as to all of the federal court claims.... The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court.” Smith v. Dretke, 422 F.3d 269, 275 (5th Cir.2005) (citing Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). “The exhaustion requirement is not satisfied if the prisoner presents new legal theories or factual claims in his federal habeas petition.” Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir.1997) (citing Anderson v. Harless, 459 U.S. 4, 6-7, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982)).

In his brief to the district court, Perry brought a facial challenge to Texas's mitigation instruction. Examples from his trial were given to demonstrate the facial invalidity of the instruction. Perry now argues that this also constituted an as-applied challenge. Nothing in his brief, however, gave any indication that Perry was challenging Texas's mitigation instruction as it was applied in his case. Rather, Perry argued that “viewed in practice, [the Texas scheme] unconstitutionally denies capital defendants the right to have all their relevant mitigating evidence considered by the jury.”

The district court made no ruling on the effect of the mitigation instruction in this trial because Perry had not argued it. We reject Perry's suggestion that the district court had an independent obligation to look beyond the issue and instruction for “reason to believe that the jury was confused or misled in answering the mitigation special issue.” Scheanette v. Quarterman, 482 F.3d 815, 826 (5th Cir.2007). In Scheanette, the district court considered the as-applied challenge to the instruction because it had been raised by Scheanette, not because of an independent obligation to do so. Id. (“Scheanette's claim that the instruction in effect ‘nullified’ the mitigation special issue is unsupported.”). Requiring district courts to search through the record to determine whether as-applied Penry challenges are appropriate would be a gross distortion of AEDPA, which places the burden on the petitioner to prove that the state courts have unreasonably applied governing constitutional law. See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (holding that jury instructions must provide the jury with a vehicle for expressing its reasoned moral response to mitigating evidence in rendering its sentencing decision).

At the state level, Perry briefly made a facial challenge to the mitigation instruction in his direct appeal to the Texas Court of Criminal Appeals. In his reply brief to this court, Perry does not contest that he did not argue an as-applied challenge to the state court. Instead, Perry argues that the State waived this argument. 28 U.S.C. § 2254 states that a state can only waive the exhaustion requirement through express waiver. In its answer to Perry's federal habeas petition, the State acknowledged that “Perry exhausted his claims regarding the constitutionality of the Texas mitigation special issue during direct appeal.” This is not an express waiver as to the as-applied challenge. While the State conceded that Perry had exhausted the claims he had presented below, the State did not and could not have waived this argument as to the new claims he now argues.

Because Perry did not exhaust this argument at the state level or brief this issue to the district court, we will not consider it.

III. CONCLUSION

For the reasons discussed above, we deny Perry's request for a COA on all claims and as such lack jurisdiction to review the district court's denial of habeas relief on these claims. See Miller-El, 537 U.S. at 335-36, 123 S.Ct. at 1039. COA DENIED.