Taylor v. Cain

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________

No. 98-30389
_____________________

FELTUS TAYLOR, JR.,

Petitioner-Appellant,

v.

BURL CAIN, Warden, Louisiana State Penitentiary, Angola,
Louisiana,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court
for the Middle District of Louisiana
(97-1167-B-M2)
_________________________________________________________________

July 29, 1999

Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

WIENER, Circuit Judge:*

Feltus Taylor seeks a certificate of appealability to appeal

the district court’s denial of his application for habeas corpus.

He argues that he has made a substantial showing of the denial of

a constitutional right with respect to five issues, including

whether the state trial court properly excused several jurors for

cause after they expressed reservations about imposing the death

penalty. For the reasons that follow, we deny Taylor’s request

for a certificate of appealability on all issues presented for

our review.

*
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this opinion should not be published and is not precedent except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.
 I.

FACTS AND PROCEEDINGS

On January 22, 1992, a Louisiana state court jury found

Feltus Taylor guilty of first degree murder for the killing of

Donna Ponsano.1 After the punishment phase of Taylor’s trial,

the same jury determined that Taylor should be issued a death

sentence. On March 30, 1992, the trial court sentenced Taylor to

death. The Louisiana Supreme Court affirmed Taylor’s conviction

and sentence on February 28, 1996, see State v. Taylor, 669 So.

2d 364 (La. 1996), and the Supreme Court of the United States

denied Taylor a writ of certiorari on October 6, 1996, see Taylor

v. Louisiana, 519 U.S. 860 (1996).

On October 6, 1997, Taylor filed a motion for post-

conviction relief in Louisiana state court, raising eight claims.

On October 14, 1997, the state trial court dismissed six of

Taylor’s eight claims on the basis that they had been adjudicated

on direct appeal. After conducting an evidentiary hearing on

Taylor’s two remaining claims, the trial court denied relief on

these as well. On December 17, 1997, the Louisiana Supreme Court

denied review of the trial court’s denial of Taylor’s motion for

post-conviction relief.

On December 18, 1997, Taylor filed a habeas corpus

application in the District Court for the Middle District of

1
The Louisiana Supreme Court set forth the facts relating
to Taylor’s crime, which are not relevant for the purposes of
this application, in State v. Taylor, 669 So. 2d 364, 366-67 (La.
1996).

2
Louisiana. The district court heard oral argument to determine

whether to grant an evidentiary hearing, and, on April 3, 1998,

denied relief on each of Taylor’s claims without an evidentiary

hearing. In addition, the district court denied Taylor’s request

for a certificate of appealability (COA) to appeal the denial of

collateral relief to us.

II.

ANALYSIS

Taylor now seeks from us a COA to appeal the district

court’s denial of habeas relief. As Taylor filed his habeas

application in the district court after April 24, 1996, we apply

the Anti-Terrorism and Effective Death Penalty Act of 1996

(AEDPA). See Lindh v. Murphy, 521 U.S. 320, 336 (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 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 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)).

3
 Taylor advances five issues in his COA application, alleging

that (1) the trial court violated his rights under the Sixth,

Eighth, and Fourteenth Amendments by excluding jurors for cause

based on their reservations about returning a death sentence if

mitigating evidence regarding mental health issues was presented;

(2) his rights under the Due Process Clause of the Fourteenth

Amendment were violated by the state’s alleged misadministration

of anti-psychotic medication during the pendency of his trial;

(3) questions asked of members of the victim’s family regarding

their feelings toward Taylor and the death penalty violated his

rights under the Eighth Amendment; (4) the prosecutor’s rebuttal

argument regarding “prison lifestyle,” coupled with the trial

court’s refusal to allow a defense witness to testify concerning

conditions in prison, violated his rights under the Eighth and

Fourteenth Amendments, and (5) the cumulative effect of errors of

constitutional magnitude denied him a fundamentally fair trial as

required by the Fourteenth Amendment.

Taylor 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 petition 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), cert. denied, 119

S. Ct. 1474 (1999); 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

4
fact are reviewed under § 2254(d)(2). See Corwin v. Johnson, 150

F.3d 467, 471 (5th Cir.), cert. denied, 119 S. Ct. 613 (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 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), cert. denied, 119 S. Ct. 1339 (1999).

With this deference scheme in mind, we consider whether

Taylor has raised a substantial showing of the denial of a

constitutional right.

A. Jury Selection Issue

5
 Taylor bases his first claim of error on Wainwright v. Witt,

469 U.S. 412 (1985), and Adams v. Texas, 448 U.S. 38 (1980). He

argues that the trial court improperly excused several jurors for

cause after they expressed reservations about returning a death

sentence. In essence, Taylor’s argument is that each juror at

issue merely stated that the presence of mitigating factors such

as alcohol abuse and mental retardation would impair the juror’s

ability to return a death verdict, and that none of the jurors in

question stated that this viewpoint “would prevent or

substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath.” Witt, 469 U.S.

at 420 (internal quotation marks and emphasis omitted).

The Louisiana Supreme Court rejected this claim on Taylor’s

direct appeal. That court noted that a juror’s bias need not be

proven with “‘unmistakable clarity,’” and that a trial court’s

determination with respect to whether a juror is unfit for

service must be afforded great deference. Taylor, 669 So. 2d at

*42 (quoting Witt, 469 U.S. at 424). The Louisiana Supreme Court

then rejected Taylor’s argument that the voir dire of several of

the jurors did not reflect an inability to follow the law,

concluding that, after analyzing the voir dire examinations of

the jurors in question, “it is evident that the trial court was

2
The Louisiana Supreme Court chose to designate as
published only part of its opinion affirming Taylor’s conviction
on direct review. The court disposed of Taylor’s remaining
claims in an unpublished appendix. See Taylor, 669 So. 2d at 366
n.3. This opinion cites to the unpublished appendix using star
pagination. Thus, Taylor, 669 So. 2d at *4 refers to the fourth
page of the unpublished appendix.

6
of the opinion that these jurors would not be able to properly

weigh aggravating and mitigating circumstances if the defense

presented evidence that the defendant had mental difficulties.

The trial court did not abuse its discretion, and properly

excused these jurors for cause under Witt. This argument lacks

merit.” Id. at *5-*6.

The district court, adopting the reasoning of the Louisiana

Supreme Court, also denied habeas relief on this issue.

In his application for a COA, Taylor specifically points to

the voir dire of two potential jurors, William Smith and Douglas

Wright. He argues that the transcript of the voir dire reflects

that each juror, although willing to give mitigating effect to

evidence of mental disability and alcohol abuse, was willing to

follow the law as dictated by the trial court. According to

Taylor, the Louisiana Supreme Court’s application of Witt to the

facts of this case was contrary to, and involved an unreasonable

application of, clearly established federal law as determined by

the Supreme Court.

“A trial judge’s finding of bias during voir dire is a

determination of fact, subject to a presumption of correctness on

collateral review . . . .” Fuller v. Johnson, 114 F.3d 491, 500-

01 (5th Cir.), cert. denied, 118 S. Ct. 399 (1997). Recently, in

McFadden v. Johnson, 166 F.3d 757, 758-761 (5th Cir. 1999), we

discussed the deference we must afford to a state court’s

determination that a potential juror’s views would prevent or

substantially impair performance of his duties. Quoting Witt, we

7
noted how difficult is the task of a federal court on collateral

review, armed only with a transcript of the voir dire, in

determining whether a potential juror is biased:

This is because determinations of juror bias cannot be
reduced to question-and-answer sessions which obtain
results in the manner of a catechism. What common
sense should have realized experience has proved: many
veniremen simply cannot be asked enough questions to
reach the point where their bias has been made
“unmistakably clear”; these veniremen may not know how
they will react when faced with imposing the death
sentence, or may be unable to articulate, or may wish
to hide their true feelings. Despite this lack of
clarity in the printed record, however, there will be
situations where the trial court is left with the
definite impression that a prospective juror would be
unable to faithfully and impartially apply the law . .
. . [T]his is why deference must be paid to the trial
judge who sees and hears the juror.

Id. at 758 (quoting Witt, 469 U.S. at 424) (alteration in

McFadden).

We conclude that Taylor has failed to make a substantial

showing of the denial of a constitutional right with respect to

this issue. Simply put, Taylor has failed to rebut the

presumption of correctness that we must afford the state trial

court’s finding that Mr. Smith and Mr. Wright were biased. As in

Fuller, “[a]lthough the record is not as clear as we might like,

the trial judge had enough evidence to make his own factual

determination of bias based on the questioning of counsel and

[the jurors’] answers.” Fuller, 114 F.3d at 501. The voir dire

testimony given by Mr. Smith and Mr. Wright does indicate, as

Taylor contends, that both jurors were willing to give mitigating

effect to certain evidence; however, the record also contains

testimony from which the trial judge could conclude that these

8
veniremen’s views toward the death penalty could or would

substantially impair the performances of their duties as jurors.

Mr. Smith stated, in response to questioning by the trial judge,

the prosecution, and the defense, that his work in the mental

health field could affect his deliberations during the punishment

phase. The prosecutor argued to the trial judge that Mr. Smith’s

statements during voir dire evidenced that Mr. Smith could not

fulfill his juror duties under Witt. In response, Taylor’s

attorney made the same argument Taylor makes before this court--

that Mr. Smith’s statements indicated only an intent to give

weight to mitigating circumstances, and did not demonstrate that

Mr. Smith could not follow the law. The trial judge sustained

the prosecution’s challenge for cause, applying the correct Witt

standard: “I believe that [Mr. Smith] could not, based upon his

experiences, his employment, he could not follow his instructions

in toto and follow his oath. I think that his experiences would

override what –- what his -- what his legal responsibility should

be.”

The record of the voir dire examination of Mr. Wright also

contains evidence from which the trial judge could have concluded

that Mr. Wright’s views about the death penalty could have

substantially impaired his duties as a juror. The record

reflects that Mr. Wright hesitated after being asked whether he

had feelings that would make it “extremely difficult” for him to

return a death verdict. Although Mr. Wright then stated that he

could return a death verdict, the prosecutor noted that Mr.

9
Wright shook his head “no” as he gave this answer. In fact, the

prosecutor noted later in the voir dire examination that Mr.

Wright shook his head no while he gave affirmative answers to

several questions regarding his ability to return a death

verdict. Perhaps more importantly, Mr. Wright also admitted that

his personal experiences with family members using drugs might

impair his ability to give mitigating effect to evidence of drug

use by Taylor. Even Taylor’s attorney noted Mr. Wright’s

reservations about following the law with respect to evidence of

drug use; she noted that Mr. Wright was “having real problems

with” the drug use issue. As in the case of Mr. Smith, the

prosecution and defense argued the relevance of Witt to the voir

dire testimony, and, after considering the arguments, the trial

court granted the challenge for cause.

Thus, the record supports the trial judge’s factual finding

that Mr. Smith’s and Mr. Wright’s personal views regarding the

death penalty would substantially impair their ability to follow

the law. Based on Taylor’s failure to rebut the presumption of

correctness that we must afford the state court finding that the

jurors in question were biased, we conclude that we must deny

Taylor a COA to appeal this issue.3

3
The state’s sole argument with respect to this issue is
that the Louisiana Supreme Court’s resolution of this issue is
not unreasonable in light of the United States Supreme Court’s
decision to deny Taylor a writ of certiorari on direct appeal.
We have never equated the AEDPA deference standards with the
decision of the Supreme Court to grant or deny a writ of
certiorari on a particular issue, and we decline to do so now.
See generally Hughes Tool Co. v. Trans World Airlines, Inc., 409
U.S. 363, 366 n.1 (1973) (noting the “well-settled view” that the

10
B. Misadministration of Medication

Next, Taylor contends that he has made a substantial showing

of the denial of a constitutional right based on his claim that

the state failed properly to administer anti-psychotic medication

to him during his trial. Taylor makes three distinct claims with

respect to this issue. In his claim, Taylor asserts first that

the federal district court failed to grant him an evidentiary

hearing to develop the factual basis of this claim. He argues

that the district court erred in refusing to hold a hearing to

consider a report filed by Dr. Ware, a psychiatrist, regarding

the relationship between Taylor’s conduct during his trial and

the dosages of medicine that he received. In his second claim,

Taylor maintains that the misadministration of medication without

notice to his trial counsel deprived him of the right to due

process. And, in his third claim related to medication, Taylor

argues that the state habeas court’s denial of funds to develop

this claim violated his due process rights.

We concentrate first on whether Taylor has made a

substantial showing of the denial of a constitutional right with

respect to his substantive claim that the misadministration of

anti-psychotic medication to a defendant during a capital trial

without notice to his trial counsel violates Taylor’s due process

rights.

Supreme Court’s “denial of certiorari imparts no implication or
inference concerning the Court’s view of the merits”).

11
 Taylor brought this claim in his state habeas petition, and

the state habeas court held an evidentiary hearing relating to

his claim that the state misadministered his medication during

his trial. At the evidentiary hearing, Taylor called four

witnesses--two sheriff’s deputies, each of whom testified

concerning the general procedure in the parish prison for

dispensing medication and transporting pretrial detainees; and

Taylor’s two trial attorneys. In addition, Taylor introduced

copies of his medical records from the parish prison regarding

the medication that was prescribed for him.

The state habeas court denied relief on this issue. The

trial court found as a factual matter that “[t]here is no

indication . . . -- from the testimony or the other evidence [--]

that these medications were administered in any[]way other than

was ordered.” The court concluded that Taylor had failed to

establish that he did not receive the medications as prescribed

and, therefore, that collateral relief was not warranted. The

district court denied relief on this issue for the same reason as

had the state court, noting that, even considering Dr. Ware’s

report, Taylor had failed to present any evidence that overcame

the deference due the state court finding.

We conclude that Taylor is not entitled to a COA to appeal

this issue. First, as the district court correctly ruled, Taylor

has failed to present any clear and convincing evidence rebutting

the state habeas court’s factual finding that there was no

evidence indicating that Taylor’s medication was administered

12
improperly. Further, even assuming arguendo that Taylor could

establish that the state misadministered his medication during

his trial, Taylor has failed to show that the state court’s

resolution of his claim involved an unreasonable application of

clearly established federal law as determined by the Supreme

Court. See 28 U.S.C. § 2254(d)(1). The only Supreme Court case

that Taylor cites in support of this claim is Riggins v. Nevada,

504 U.S. 127 (1992). The Court in Riggins, however, “narrowly

define[d]” the issue before it to be whether the “involuntary

administration of [medication] denied” the defendant a full and

fair trial. Id. at 133. Taylor cites no authority from the

Supreme Court, nor are we aware of any, dictating relief in a

situation such as the one now before us, i.e., requiring a

holding that a state’s failure to administer medication to a

defendant denies the defendant due process at trial. We cannot

say that “reasonable jurists considering the question would be of

one view that the state court ruling was incorrect.” Trevino v.

Johnson, 168 F.3d 173, 181 (5th Cir. 1998) (internal quotation

marks omitted), petition for cert. filed, (U.S. June 17, 1999)

(No. 98-9936). We therefore decline to issue a COA on this

issue.

We can also easily dispose of Taylor’s first and third

medication-related claims. He argues that the district court

erred in refusing to hold an evidentiary hearing to consider a

report filed by Dr. Ware regarding the relationship between

Taylor’s conduct during his trial and the dosages of medicine

13
that he received. Even assuming Taylor is correct that, under

McDonald v. Johnson, 139 F.3d 1056 (5th Cir. 1998), the district

court erred in failing to hold an evidentiary hearing, (a

question we need not decide) the district court ruled in the

alternative that, even considering Dr. Ware’s report, Taylor was

not entitled to relief on this issue. Other than Dr. Ware’s

report, Taylor has neither explained what additional evidence he

would have presented nor shown how the additional evidence would

have established that the states’s alleged misadministration of

his medication violated his due process rights. Thus, Taylor is

not entitled to relief on his claim that the district court erred

in refusing to hold an evidentiary hearing.

Further, we refuse to grant a COA on Taylor’s claim that the

state habeas court’s refusal to fund his development of this

claim denied him due process during his state habeas proceeding.

“Our circuit precedent makes clear that [Taylor’s] ‘claim fails

because infirmities in state habeas proceedings do not constitute

grounds for relief in federal court.’” Trevino, 168 F.3d at 180

(denying a COA on petitioner’s due process claim based on alleged

failing in state habeas court’s process) (quoting Hallmark v.

Johnson, 118 F.3d 1073, 1080 (5th Cir.), cert. denied, 118 S. Ct.

576 (1997)).

C. Victim Impact Testimony

Taylor next asserts that he is entitled to a COA to appeal

the district court’s denial of his claim that the state

improperly presented particular victim impact testimony.

14
According to Taylor, the prosecutor deliberately elicited

testimony from the victim’s sister, niece, and fiancé concerning

the appropriateness of the death penalty. Taylor relies on Payne

v. Tennessee, 501 U.S. 808 (1991), and Booth v. Maryland, 482

U.S. 496 (1987), for the proposition that the presentation of

this testimony violated his rights under the Eighth and

Fourteenth Amendments.

This claim was rejected by the Louisiana Supreme Court in

Taylor’s direct appeal. That court first noted that the Supreme

Court’s opinion in Payne changed the standards regarding the

admissibility of victim impact evidence. In Payne, the state

court noted, the Supreme Court stated that the Eighth Amendment

“‘erects no per se bar’” to the admission of such evidence, and

that evidence of that kind is admissible when it (1) reveals the

individuality of the victim, or (2) provides information

revealing the impact of the crime on the victim’s survivors.

Taylor, 669 So. 2d at 369-70 (quoting Payne, 501 U.S. at 827).

The Louisiana Supreme Court also noted, however, that “Payne left

undisturbed the rule that ‘the admission of a victim’s family

members’ characterizations and opinions about the crime, the

defendant, and the appropriate sentence violates the Eighth

Amendment.’” Id. (quoting Payne, 501 U.S. at 830 n.2).

The state court then considered the testimony given by the

three victim impact witnesses in this case. See id. at 370-71.

In addition to statements about the victim’s “good

characteristics” and the effect that the crime had on them, each

15
witness gave a short negative answer to the prosecution’s

question of whether he or she “had any sympathy” for Taylor. Id.

The Louisiana Supreme Court, assuming without deciding that the

testimony regarding whether the witnesses had sympathy for Taylor

was inappropriate under Payne and Booth, concluded that any

possible error was harmless. See id. at 371. In reaching this

conclusion, the state court emphasized that during the five-day

penalty hearing, Taylor introduced a “vast amount of mitigation

evidence,” including the testimony of twenty witnesses consisting

of thirteen lay witnesses, Taylor himself, numerous experts, a

clinical psychologist, a psychiatrist, and a social worker.

Taylor also introduced letters that he had written to his

grandmother, as well as his school, work, and mental health

records. See id. According to the state court, the mitigating

evidence presented by Taylor overshadowed any possible adverse

impact caused by the introduction of the allegedly inadmissable

victim impact testimony, which totaled “only 10 pages of the 793

page penalty hearing transcript.” Id.

The Louisiana Supreme Court also stated that two additional

factors weighed heavily in favor of finding any Payne error

harmless. First, the state court noted that both the state and

the defense had questioned prospective jurors regarding their

ability to remain impartial after listening to emotional victim

impact testimony. Thus, according to the state court, the jurors

“surely . . . regarded the testimony of these victim impact

witnesses as normal human reactions to the death of a loved one”

16
and did not give undue weight to the testimony. Id. Moreover,

the Louisiana Supreme Court recognized that at the close of the

penalty phase, the jury was specifically instructed by the trial

judge on the proper weight to be afforded the victim impact

evidence:

Ladies and gentlemen, you heard testimony in this case
from persons who are relatives of the victim. These
persons are called victim impact witnesses. Evidence
adduced from these witnesses is simply another form of
informing the sentencing authority about the specific
harms caused by the crime in question. These
witnesses, however, are not called into court for the
purpose of deciding the penalty in the case. You, the
jurors, are the ones, who, in law, must bare [sic] the
responsibility of deciding the penalty to be received
by the defendant. You’re not to be influenced by
sympathy, passion, prejudice, or public opinion. You
are expected to reach a just verdict.

Id. (alteration in original). Given the specific instructions

that the jury was given regarding victim impact testimony, the

state court concluded that “any possible error created by the

admission of this victim impact evidence was harmless, and does

not warrant reversal of the sentence.” Id.

The district court refused to grant habeas relief on this

issue, adopting the reasons articulated by the Louisiana Supreme

Court.

Taylor concedes that under Payne, victim impact testimony

regarding the uniqueness of the victim and the effect of the

crime on the witness is admissible, but maintains that because

the Payne Court left untouched the prohibition on the use of

testimony about the crime, the defendant, and the appropriate

sentence, he is entitled to a COA to appeal this issue. We

17
disagree. Although it is true that the Supreme Court left

untouched the Booth prohibition regarding eliciting victim impact

testimony about the crime, the defendant, and the appropriate

sentence, we conclude that reasonable jurists would not conclude

that the victim impact testimony elicited in this case warrants

relief, even under Booth.

In Byrne v. Butler, 845 F.2d 501, 511 (5th Cir. 1988), we

rejected the contention that inclusion of impermissible victim

impact testimony mandated granting collateral relief. We stated

in that case that even if the prosecutor had elicited testimony

inappropriate under Booth, “we must still determine . . . whether

[the testimony] rendered Byrne’s trial fundamentally unfair so as

to invite habeas relief.” Id. We then considered the brevity of

the improper remarks and the risk that the improper remarks would

have caused the jurors to be influenced by “sympathy, passion, or

prejudice.” Id. (internal quotation marks omitted). Considering

this circuit precedent, we have no trouble concluding that the

denial of relief on this issue by the Louisiana Supreme Court was

not an unreasonable application of federal law as determined by

the Supreme Court. As the Louisiana Supreme Court explained, the

allegedly impermissible remarks were isolated relative to the

broad scope of mitigation evidence offered by Taylor. In

addition, given the voir dire questioning and jury instructions

regarding the weight to be given such testimony, the probability

that the jury considered the testimony improperly was slight. We

therefore conclude that Taylor has failed to make a substantial

18
showing of the denial of a constitutional right with respect to

this issue.4

D. The “Prison Lifestyle” Argument

Taylor’s fourth argument is that the trial court’s refusal

to allow testimony during the penalty phase regarding the rigors

of prison life, combined with the prosecutor’s rebuttal argument

that “there is a life in the Penitentiary,” violated his due

process rights. During the penalty phase, the trial court

sustained the prosecution’s objection to the proffered testimony

of C. Paul Phelps, a former Secretary of the Louisiana Department

of Corrections, regarding the prison lifestyle. The prosecution,

however, made the following argument in its rebuttal:

He asked you that this person get a life sentence in
the Penitentiary instead of a death sentence. What is
he asking you? And I’ll admit, life without suspension
of probation and parole in the Penitentiary, that’s a
serious sentence, but in that, no matter what, he’s
asking you to let him live, to wear clean clothes, to
have good meals, to have friends[’] companionship, the
ability to watch t.v., to take part in sports, to work,
to make friends, to have other lovers, to have a life,
because there is a life in the Penitentiary.

Taylor argues that this argument by the prosecution “violates

every notion of fairness and due process,” citing Simmons v.

South Carolina, 512 U.S. 154 (1994).

4
Again, the state’s only argument with respect to this
issue is that this court must necessarily conclude that Taylor
cannot prevail on this claim in light of the AEDPA deference
scheme because the Supreme Court denied Taylor a writ of
certiorari to appeal the Louisiana Supreme Court’s denial of
relief on direct appeal. For the same reasons discussed in
footnote 3, supra, this argument lacks merit.

19
 The Louisiana Supreme Court rejected this claim on direct

review, and its reasoning was adopted by the district court in

denying relief on Taylor’s federal habeas application. The

state court concluded that Phelps’s testimony was properly

excluded as irrelevant, and that the prosecutor’s references to

the prison lifestyle, even if error, were harmless under State v.

Sanders, 648 So. 2d 1272, 1285-86 (La. 1994). Sanders teaches

that the Louisiana Supreme Court will not overturn a guilty

verdict on the basis of improper argument unless “firmly

convinced that the jury was influenced by the remarks and that

they contributed to the verdict.” Id. at 1286 (internal

quotation marks omitted).

Taylor has failed to make a substantial showing that the

Louisiana Supreme Court’s decision on this point was “contrary

to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court.” 28

U.S.C. § 2254(d)(2). First, reasonable jurists would not be of

one view that the exclusion of Phelps’s testimony ran afoul of

the Due Process Clause as interpreted in Simmons. The Simmons

Court held that the “Due Process Clause does not allow the

execution of a person on the basis of information which he had no

opportunity to deny or explain.” Simmons, 512 U.S. at 161

(internal quotation marks omitted) (ruling that trial court’s

refusal to reveal to the jury that a capital defendant would be

ineligible for parole if given a life sentence was

unconstitutional in light of the prosecutor’s argument that the

20
defendant would be a threat to society if allowed to live).

Similarly, in Skipper v. South Carolina, 476 U.S. 1, 4-8 (1986),

the Court ruled that relief was warranted where the defendant was

prohibited from presenting evidence of his good behavior in

prison when the state vigorously argued that he would be

dangerous in the future.

We are convinced that reasonable jurists would not conclude

that the Louisiana Supreme Court’s decision on this issue was an

unreasonable application of Simmons and Skipper. Unlike the

exclusion in Simmons, the exclusion of Phelps’s testimony did not

create a “grievous misconception” that reasonably could have

“pervaded the jury’s deliberations.” Simmons, 512 U.S. at 161-

62. In Simmons and Skipper, the jury was prohibited from

learning of evidence which could have contradicted its knowledge

of crucial issues--in Simmons, whether the defendant could be

paroled if given a life sentence, and in Skipper, whether the

defendant would be dangerous in prison. The prosecutor’s general

comments about prison life in this case, however, did not keep

any mitigating evidence out of the effective reach of the jury;

and common sense dictates that the jury understood that, despite

the prosecutor’s statement, prison life is difficult. We are

mindful that a state court’s conclusion involves an unreasonable

application of clearly established federal law as determined by

the Supreme Court 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. We

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conclude that Taylor has not made a substantial showing that

reasonable jurists considering this issue would uniformly

conclude that the state court erred, and we therefore decline a

COA on this issue.

Further, we decline to issue Taylor a COA to appeal his

claim of prosecutorial misconduct arising from the statements.

To establish a prosecutorial-misconduct claim in a habeas

proceeding, the prosecutor’s remarks to the jury must be more

than merely undesirable, or even universally condemnable; they

must have “so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” Darden v.

Wainwright, 477 U.S. 168, 181 (1986) (internal quotation marks

omitted). The Sanders standard applied by the Louisiana Supreme

Court is consistent with Darden. That court’s determination that

the prosecutor’s remarks did not contribute to the jury’s

decision in this case is not contrary to, and does not involve an

unreasonable application of, clearly established federal law as

determined by the Supreme Court. See 28 U.S.C. § 2254(d)(2).

E. Cumulative Error

In his last claim, Taylor argues that, in the aggregate,

the errors in his trial necessitate granting collateral relief

under the cumulative error doctrine. Taylor first raised this

argument in his direct appeal to the Louisiana Supreme Court.

The state court rejected the claim, reasoning that because it

found no merit to any of the 339 errors raised on direct appeal,

“[t]he combined effect of the errors complained of did not

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deprive the defendant of the right to a fair trial.” Taylor, 669

So. 2d at *31. Like that state court, the district court denied

relief on this issue, concluding that “there were no errors in

this case, singularly or cumulatively, that would mandate

reversal of the jury’s decision in this case.”

Taylor is not entitled to a COA on this issue. To be

entitled to appeal this issue, he must make a substantial showing

that the decision of the Louisiana Supreme Court is an

unreasonable application of federal law, as interpreted by the

Supreme Court. See 28 U.S.C. § 2254(d)(2). Taylor points to no

Supreme Court precedent dictating relief, and we are aware of

none. Even under our precedent, federal habeas relief can be

granted for cumulative error in the conduct of a state trial only

when: (1) the individual errors concern matters of a

constitutional dimension, (2) the errors have not been

procedurally defaulted, and (3) the errors infected the entire

trial to such an extent that the resulting conviction violated

due process. See Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir.

1992) (en banc). In light of our foregoing discussion of

Taylor’s other claims, we are satisfied that reasonable jurists

would not be of one mind that the state court’s ruling on this

issue is incorrect; we therefore decline to issue a COA.

III.

CONCLUSION

For the foregoing reasons, we deny Taylor’s request for a

COA and vacate our grant of a stay of his execution.

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COA DENIED; STAY VACATED.

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