IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-10846
____________________
DESMOND DOMINQUE JENNINGS,
Petitioner-Appellant,
v.
GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(4:98-CV-238)
_________________________________________________________________
January 21, 1999
Before KING, Chief Judge, BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:*
Desmond Jennings, a Texas death row inmate, seeks a
certificate of appealability to review the district court’s
denial of his petition for a writ of habeas corpus. For the
reasons that follow, we deny Jennings’s application to appeal.
I. FACTS AND PROCEDURAL HISTORY
*
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this opinion should not be published and is not precedent except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.
Sometime after midnight on December 27, 1993, Eric Gardner
was standing outside the Ambassador Apartments in the “Stop Six”
area of Fort Worth, Texas. Gardner, needing a ride home, flagged
down Jennings and John Freeman as they were driving along in
Freeman’s white Honda Accord. Freeman and Jennings agreed to
drive Gardner home. After Gardner got into the car, Freeman
stated that he would take Gardner home, but that he first wanted
to get some heroin. On their way to a drug house, Jennings
suggested that they “jack the house.” Freeman responded, “Well,
whatever. Whatever you want to do.” Gardner urged them not to
rob the drug house, but Jennings responded, “Well, ain’t nothing
but two dope fiends in the house.”
Upon arriving at the drug house, Jennings and Freeman exited
the car and went into the house. As they approached the house,
Jennings pulled the hood of his jacket over his head and he
placed both hands inside the jacket pockets. Freeman’s hands
were free, and he did not appear to have a gun. Gardner stayed
in the car and heard shots. He then saw Jennings and Freeman
emerge from the house and walk calmly back to the car.
As the three men drove away from the crime scene, Jennings
pulled a pouch out of his pocket and opened it. The pouch
contained thirteen cents and two empty capsules sometimes used to
store heroin. Freeman then drove to the Americana Apartments,
and he parked the Honda in front of the apartment of a mutual
friend, Derrick Price. Price and another person, Victor Walker,
joined the group. Jennings got out of the car and then began to
2
brag about the day’s events. He recounted that when he entered
the drug house, a man, Sylvester Walton, stood up and asked
Jennings what he wanted. Jennings shot Walton in the face.
Jennings then went to the back room where a woman, Wonda Mathews,
was in bed. When she began to rise out of the bed, Jennings shot
her in the head. He then went back to the front room, shot
Walton again, and removed a pouch from Walton’s pants. Before
leaving the house, Jennings heard Mathews moaning, so he returned
to the back room and shot her again. After describing the
killings, Jennings noted, “I got blood all over my Chucks and my
khakis.” Gardner saw blood on Jennings’s “Chuck Taylor” Converse
All Star tennis shoes.
On July 19, 1995, Jennings was convicted of capital murder
in connection with the deaths of Sylvester Walton and Wonda
Mathews. The trial court sentenced Jennings to death in
accordance with state law after the jury returned affirmative
answers to the three special issues presented to it pursuant to
Tex. Crim. P. Code Ann. § 37.071 (West 1998).
Jennings’s appellate counsel raised eleven grounds of error
on direct appeal. Jennings’s state habeas counsel then moved for
leave to intervene in the direct appeal and file a supplemental
brief raising an additional ground of error relating to the
exclusion of a venireperson for cause. The Texas Court of
Criminal Appeals denied the motion. Jennings’s habeas counsel
then filed an application for a state writ of habeas corpus
during the pendency of the direct appeal.
3
On April 2, 1997, the Texas Court of Criminal Appeals
affirmed the trial court’s judgment on direct appeal. On May 8,
1997, the trial court entered findings of fact and conclusions of
law, recommending that state habeas relief be denied. The Texas
Court of Criminal Appeals adopted the trial court’s findings of
fact and conclusions of law and denied the application. The
Supreme Court denied Jennings a writ of certiorari on December 8,
1997. See Jennings v. Texas, 118 S. Ct. 605 (1997).
On April 24, 1998, Jennings filed this petition for a
federal writ of habeas corpus. The federal district court denied
Jennings’s habeas petition and denied Jennings a certificate of
appealability (COA) to appeal the denial of the habeas petition
to this court. Jennings timely requested a COA from this court.
II. DISCUSSION
Jennings filed his habeas petition in the federal district
court in April 1998; therefore, the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) applies to his case. See Green
v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir. 1997). Under AEDPA,
“[u]nless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals
from . . . the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by a
State court.” 28 U.S.C. § 2253(c)(1)(A). A certificate of
appealability (COA) can only issue if a habeas petitioner makes a
“substantial showing of the denial of a constitutional right.”
Id. § 2253(c)(2). “A ‘substantial showing’ requires the
4
applicant to ‘demonstrate that the issues are debatable among
jurists of reason; that a court could resolve the issues (in a
different manner); or that the questions are adequate to deserve
encouragement to proceed further.’” Drinkard v. Johnson, 97 F.3d
751, 755 (5th Cir. 1996) (quoting Barefoot v. Estelle, 463 U.S.
880, 893 n.4 (1983)), cert. denied, 117 S. Ct. 1114 (1997).
Jennings advances seven issues in his COA application,
alleging that 1) the trial court violated the Confrontation
Clause of the Sixth Amendment by limiting his cross-examination
of Gardner, the state’s primary witness; 2) the trial court
violated Jennings’s rights under the Fifth, Sixth, and Fourteenth
Amendments when it determined that a prospective juror, Peggy
Robinson Miesner, was excludable for cause; 3) Jennings’s
appellate counsel rendered unconstitutionally ineffective
assistance by failing to raise the juror exclusion issue on
direct appeal; 4) the Texas Court of Criminal Appeals violated
Jennings’s rights under the Fifth, Sixth, and Fourteenth
Amendments by refusing to allow his state habeas counsel to
intervene in the direct appeal and file a supplemental brief; 5)
Texas’s capital sentencing procedures are unconstitutional as
applied to Jennings because they did not provide him with
meaningful appellate review as required by the Eighth and
Fourteenth Amendments; 6) the federal district court erred in
accepting the State’s waiver of the exhaustion of state court
remedies requirement with respect to the meaningful appellate
review issue; and 7) the federal district court erred in denying
5
Jennings an evidentiary hearing.1
Jennings raised several of these claims in his direct appeal
and his state habeas petition. Under AEDPA, when a petitioner
brings a claim in his federal habeas petitioner that a state
court has previously adjudicated on the merits, we must defer to
the state court’s findings of fact and conclusions of law. See
Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998); Drinkard, 97
F.3d at 768. Under the AEDPA deference scheme, pure questions of
law and mixed questions of law and fact are reviewed under
§ 2254(d)(1), and questions of fact are reviewed under
§ 2254(d)(2). See Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir.
1998); Drinkard, 97 F.3d at 767-68. When reviewing a purely
legal question, we must defer to the state court unless its
decision rested on a legal determination that was contrary to
clearly established federal law as determined by the Supreme
Court. See Lockhart v. Johnson, 104 F.3d 54, 57 (5th Cir.),
cert. denied, 117 S. Ct. 2518 (1997); Drinkard, 97 F.3d at 768.
Additionally, a federal court “will not disturb a state court’s
application of law to facts unless the state court’s conclusions
involved an ‘unreasonable application’ of clearly established
1
Prior to the presentation of specific issues in his
appellate brief, Jennings states that “all factual allegations,
arguments, and authorities in Petitioner’s Petition for Writ of
Habeas Corpus and Response to Respondent Johnson’s Answer and
Motion for Summary Judgment are hereby incorporated by
reference.” A petitioner, however, may not adopt previously
filed legal and factual arguments by reference. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Accordingly, only
the issues presented and argued in Jennings’s appellate brief are
addressed. See id. at 225.
6
federal law as determined by the Supreme Court.” Davis, 158 F.3d
at 812 (quoting 28 U.S.C. § 2254(d)(1)); see Lockhart, 104 F.3d
at 57. An application of federal law is unreasonable only “when
it can be said that reasonable jurists considering the question
would be of one view that the state court ruling was incorrect.”
Drinkard, 97 F.3d at 769; see Davis, 158 F.3d at 812; Corwin, 150
F.3d at 471-72. State factual findings are presumed to be
correct unless rebutted by clear and convincing evidence. See
Davis, 158 F.3d at 812; Jackson v. Johnson, 150 F.3d 520, 524
(5th Cir. 1998).
With this deference standard in mind, we consider whether
Jennings has raised a substantial showing of the denial of a
constitutional right.
A. Gardner Cross-Examination
In his first argument, Jennings maintains that the trial
court violated his Sixth Amendment right to confrontation by
limiting his cross-examination of Gardner, the state’s chief
witness. Specifically, Jennings argues that he was prohibited
from cross-examining Gardner about his deferred adjudication for
unlawful carrying of a weapon and his juvenile criminal history.
These prior offenses, Jennings contends, exposed Gardner to a
potentially higher punishment if he was convicted in a pending
drug case and therefore gave Gardner an incentive to give
testimony favorable to the prosecution.
On direct appeal, the Texas Court of Criminal Appeals
rejected this claim. First, the state court found that Gardner’s
7
potential bias was minimal because, under the Texas Penal Code,
the prior offenses in question could not have been used to
enhance his sentence if convicted of the pending drug charge.
Second, the court found that Jennings had been given a fair
opportunity to effectively cross examine Gardner and that the
trial court had properly limited the scope of the cross-
examination. The state habeas court determined that the issue
was foreclosed as a result of having been raised on direct
appeal.
Jennings does not raise a substantial showing of the denial
of a constitutional right with respect to this issue. Whether
the Confrontation Clause has been violated is a mixed question of
law and fact. See Gochicoa v. Johnson, 118 F.3d 440, 445 (5th
Cir. 1997), cert. denied, 118 S. Ct. 1063 (1998). The state
trial court’s resolution of the Sixth Amendment claim given these
facts was not an unreasonable application of clearly established
federal law as determined by the Supreme Court. The trial court
found, and Jennings does not contest, that the state elicited
from Gardner that he had two pending cases against him involving
a possession with intent to deliver heroin and cocaine and a
misdemeanor assault, and that Gardner confirmed, on cross
examination, the range of punishment for each of his pending
cases. A defendant’s Confrontation Clause rights are not
violated so long as a jury “had sufficient other information
before it, without the excluded evidence, to make a
discriminating appraisal of the possible biases and motivations
8
of the witness.” United States v. Anderson, 139 F.3d 291, 302
(1st Cir.), cert. denied, 119 S. Ct. 158 (1998); see United
States v. Jackson, 51 F.3d 646, 652-53 (7th Cir. 1995); United
States v. Ramirez, 622 F.2d 898, 899 (5th Cir. 1980). The state
court’s finding that Jennings was allowed to cross-examine
Gardner in compliance with the Sixth Amendment was not so
unreasonable that reasonable jurists considering the question
would be of one view that the state court ruling was incorrect,
and we therefore decline to issue a COA on this issue.
B. Challenge for Cause of Venireperson Miesner
Jennings next argues that the trial court erred in excusing
for cause prospective juror Miesner because of Miesner’s apparent
difficulty with the concept of convicting Jennings based on the
testimony of one witness. Jennings admits that the trial record
supports the conclusion that Miesner could not find the testimony
of one witness sufficient to satisfy the State’s burden of proof
beyond a reasonable doubt, but argues that this inability did not
render Miesner biased against the State.
Jennings raised this claim in the state habeas proceeding,
although the state habeas court found that he had not objected on
constitutional grounds to the excusal of Miesner during either in
his trial or in his state habeas petition. The state habeas
court also found that Miesner was properly excluded for cause
because she could not follow the law. Specifically, the state
habeas court found that Miesner
steadfastly maintained that she was unable to convict
based upon the testimony of a single witness even if
9
she believed the witness’ testimony beyond a reasonable
doubt. Additionally, the veniremember was not able to
consider the minimum range of punishment for the
lesser-included offense of murder. Furthermore, she
could not convict based on circumstantial evidence
alone or where a single witness and circumstantial
evidence existed.
The trial court took special care to ensure that
it granted the challenge for cause only after the
veniremember had clearly demonstrated that she could
not follow the law.
The federal district court, in denying Jennings habeas
relief, did not rely on Jennings’s failure to exhaust this claim
in denying his petition, and we do not address that question.
Because under AEDPA, “an application for a writ of habeas corpus
may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the
state,” 28 U.S.C. § 2254(b)(2), we can review whether Jennings
has raised a substantial showing of the denial of a
constitutional right with respect to this issue. See Nobles v.
Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 118 S.
Ct. 1845 (1998); Smith v. Klinger, No. 98-6012, 1998 WL 703144,
at *2 (10th Cir. Oct. 9, 1998) (unpublished opinion).
Jennings has not made a substantial showing of the denial of
a constitutional right on this issue. Jennings has not attempted
to rebut the state habeas court’s factual findings regarding
Miesner’s unwillingness to follow the law, nor could he. The
record reflects that Miesner was unwilling, inter alia, to
consider the minimum range of punishment on the lesser-included
offense of murder. A trial court does not violate a defendant’s
rights under the Sixth or Fourteenth Amendments by excluding
10
jurors who testify that they are unwilling to follow the law.
See Mann v. Scott, 41 F.3d 968, 981 (5th Cir. 1994) (“We think
Witherspoon and Adams make it unmistakably clear that it is
constitutionally permissible to exclude a venire member for cause
when it is clear that she cannot faithfully render a verdict
according to the evidence.”). We therefore decline to issue
Jennings a COA on this issue.
C. Effective Assistance of Counsel on Direct Appeal
Jennings next argues that his court-appointed attorney on
direct appeal was deficient for failing to argue that the trial
court erred in excusing venireperson Miesner for cause. To grant
Jennings a COA on this ineffective assistance of counsel claim,
Jennings must raise a substantial showing that his attorney’s
performance was deficient, and that the deficiency prejudiced his
defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
An attorney’s performance is deficient only when the
representation falls below an objective standard of
reasonableness. See id. at 687-88. Our review of the
performance of Jennings’s attorney must be “highly deferential,”
and we must make every attempt to “eliminate the distorting
effects of hindsight.” Id. at 689. We must also maintain a
“strong presumption that . . . the challenged action might be
considered sound trial strategy.” Id. (internal quotation marks
omitted).
The state habeas court adjudicated this claim on the merits,
finding that Jennings’s Sixth Amendment right to effective
11
assistance of counsel was not violated because, although
Jennings’s attorney could have raised the issue regarding the
challenge for cause on direct appeal, he was not constitutionally
required to raise the issue because it lacked merit.
Whether an attorney’s performance violated the Strickland
test is a mixed question of law and fact. See Davis, 158 F.3d at
812; Nobles, 127 F.3d at 418. We find that the state habeas
court’s resolution of this issue was not an unreasonable
application of clearly established federal law as determined by
the Supreme Court. As discussed above, Jennings has not rebutted
the presumption we must afford to the state court’s findings that
venireperson Miesner was unwilling to follow the law and was
therefore properly excused for cause by the trial court. The
state court’s conclusion that a defendant does not have a Sixth
Amendment right to have his attorney raise meritless claims on
direct appeal is not unreasonable, and we therefore decline to
issue Jennings a COA on this issue. See McCoy v. Lynaugh, 874
F.2d 954, 965 (5th Cir. 1989) (finding no Sixth Amendment
violation resulting from failure of appellate counsel to raise
claim on direct appeal regarding exclusion of prospective juror
where habeas petitioner did not rebut presumption that
venireperson was properly excluded for cause).
D. Denial of Habeas Counsel’s Motion to Intervene in Direct
Appeal
Jennings next argues that the Texas Court of Criminal
Appeals violated his rights to the effective assistance of
12
counsel, to a fair trial, and to due process by refusing to allow
his habeas counsel to intervene and file a supplemental brief on
direct appeal to argue that venireperson Miesner was improperly
discharged for cause. The Texas Court of Criminal Appeals, in
adjudicating Jennings’s state habeas petition, rejected this
claim, finding no merit to his contention that he was denied any
of his constitutional rights.
Jennings points to no established constitutional principle
requiring an appellate court to accept supplemental claims filed
during the pendency of an appeal. As the federal district court
noted in denying Jennings habeas relief on this issue, there is
no authority for such a claim, and it is barred by Teague v.
Lane, 489 U.S. 288, 301 (1989), as an improper request for
recognition of a new constitutional rule on habeas review. See
Vega v. Johnson, 149 F.3d 354, 357 (5th Cir. 1998) (“In Teague,
the Court held that federal courts may not create new
constitutional rules of criminal procedure on habeas review.”);
Lucas v. Johnson, 132 F.3d 1069, 1080 (5th Cir.) (denying
petitioner a certificate of probable cause (the pre-AEDPA COA
equivalent), relying on Teague, because no “established
constitutional principle” supported his contention), cert.
dismissed, No. 97-9463, 1998 WL 313489 (U.S. July 17, 1998).
Jennings argues that the second Teague exception applies;
the Texas Court of Criminal Appeal’s failure to allow his habeas
counsel to intervene, he maintains, resulted in a lack of
“fundamental fairness that is implicit in the concept of ordered
13
liberty.” Teague, 489 U.S. at 314 (internal quotation marks
omitted). The second Teague exception, however, is only
“designed to redress constitutional violations that ‘so distort
the judicial process as to leave one with the impression that
there has been no judicial determination at all, or else skew the
actual evidence crucial to the trier of fact’s disposition of the
case.’” Davis v. Scott, 51 F.3d 457, 467 (5th Cir. 1995)
(quoting Sawyer v. Butler, 881 F.2d 1273, 1294 (5th Cir. 1989)
(en banc), aff’d sub nom. Sawyer v. Smith, 497 U.S. 227 (1990)).
Jennings offers only a conclusory statement in support of this
argument--he fails to explain how the failure of the appellate
court to allow Jennings’s habeas counsel to intervene rendered
his trial fundamentally unfair, and he cites no case law in
support of his contention. No exceptions apply to the Teague
bar, and we therefore decline to issue Jennings a COA.
E. Lack of Meaningful Appellate Review
Jennings’s next argument also focuses on the failure of the
Texas Court of Criminal Appeals to address the excusal for cause
issue on direct appeal. Jennings argues that the failure of the
Texas Court of Criminal Appeals to consider whether Miesner was
properly excluded for cause on direct review, and its failure to
consider the full scope of his Confrontation Clause argument,
deprived him of meaningful appellate review, and that the Texas
death penalty scheme, as applied to him, is therefore
unconstitutional. The substance of this claim has been addressed
and rejected above. No precedental authority required the Texas
14
Court of Criminal Appeals to address the juror exclusion issue on
direct appeal, and that court’s rejection of both the juror
exclusion issue and the Confrontation Clause issue were not
contrary to clearly established federal law as interpreted by the
Supreme Court. Jennings has not made a substantial showing of
the denial of a constitutional right on this issue, and we
therefore decline to issue a COA.
F. Federal District Court Procedural Issues
Jennings’s last two arguments focus on the federal district
court proceedings in which the district court denied his habeas
petition. First, Jennings contends that the district court erred
in accepting the State’s waiver of the exhaustion requirement
with respect to his “meaningful appellate review” issue. Second,
Jennings argues that the district court erred in not granting his
request for an evidentiary hearing on his claims.
These claims lack merit. AEDPA specifically allows a
district court to deny a federal habeas petition on the merits
despite the petitioner’s failure to exhaust state remedies. See
28 U.S.C. § 2254(b)(2); Nobles, 127 F.3d at 423. The exhaustion
requirement is not jurisdictional in nature; it can be waived by
the state. See Earhart v. Johnson, 132 F.3d 1062, 1065 (5th
Cir.), cert. denied, 119 S. Ct. 344 (1998). In addition, as our
resolution of Jennings’s claims reveals no relevant factual
disputes that would require development, the district court did
not abuse its discretion in denying Jennings’s motion for an
evidentiary hearing. See Robison v. Johnson, 151 F.3d 256, 268
15
(5th Cir. 1998) (finding that district court did not abuse its
discretion in denying evidentiary hearing in habeas proceeding,
assuming arguendo that failure to develop record did not result
from petitioner’s own decision or omission, because of lack of
factual disputes).
III. CONCLUSION
For the foregoing reasons, we DENY Jennings’s request for a
certificate of appealability.
16