Gribble v. Johnson

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

No. 98-40927
_______________

TIMOTHY L. GRIBBLE,
Petitioner-Appellant,
VERSUS

GARY L. JOHNSON, Director, Texas
Department of Criminal Justice, Institutional Division,
Respondent-Appellee.
_________________________

Appeal from the United States District Court
for the Southern District of Texas
(98-CV-32)
_________________________

September 20, 1999

Before JONES, SMITH, and STEWART, bathrobe, to a secluded field where he
Circuit Judges. strangled her and hid her remains.” Gribble v.
State (“Gribble I”), No. 71,485, slip op. at 2
PER CURIAM:* (Tex. Crim. App. Feb. 1, 1995) (unpublished).
During the investigation of Jones’s
Timothy Gribble requests a certificate of disappearance, Gribble was questioned. He
appealability (“COA”) from this court, submitted to a polygraph examination by a
following the district court's denial of his private investigator, conducted at a police
request for a COA and of his petition for writ station on September 21 and 22, 1987. See id.
of habeas corpus, in regard to his conviction of at 10-11. He left Texas a few days later, id.
capital murder and a resulting sentence of at 11, and was arrested in Tennessee on an
death. Finding no substantial showing of the unrelated felony charge from Harris County,
denial of a constitutional right, we deny the Texas, id. at 5.
request for a COA.
Gribble voluntarily returned to Texas and
I. confessed to the murder. He drew a map of
Gribble “gained entrance into [Elizabeth the location where Jones's body and purse
Jones's] home under false pretenses. He took could be found. Id. Law enforcement officers
her from her home, in nothing but her tape recorded his confession. See id. at 8-9.
Before he guided officers to these locations, he
appeared before a state magistrate on or about
* Pursuant to 5TH CIR. R. 47.5, the court has October 4, 1987. Id. at 5-6. The magistrate
determined that this opinion should not be informed him of his right to counsel,
published and is not precedent except under the whereupon he indicated his desire to have
limited circumstances set forth in 5TH CIR. R. counsel appointed after he led investigators to
47.5.4.
the body. See id. at 6. was no support for any claim concerning
habeas counsel’s assistance, jury instructions,
II. or the purported failure to produce
In April 1992, a jury found Gribble guilty of exculpatory evidence.
capital murder in the course of kidnaping
Jones on or about September 9, 1987. See The Court of Criminal Appeals agreed with
Gribble I, slip op. at 1; see also TEX. PENAL the trial court ’s findings and conclusions
CODE ANN. § 19.03 (West 1987). The jury concerning the claims raised by court-
answered in the affirmative the two special appointed counsel. The court assumed,
issues set forth in TEX. CODE CRIM. P. ANN. without deciding, that the claims raised pro se
art. 37.071(b) (West 1987), and Gribble was were supplemental habeas claims and
sentenced to death. Previously, he had been concluded that Gribble had failed to show
found guilty of capital murder and sentenced entitlement to relief.
to death, but that judgment was reversed, thus
requiring retrial, because of Penry error, see Gribble filed another pro se motion,
Penry v. Lynaugh, 492 U.S. 302 (1989), in the requesting leave to file an out-of-time habeas
jury instructions from the punishment phase. petition, indicating that he intended to assert
See Gribble v. State, 808 S.W.2d 65, 75-76 that habeas counsel had rendered ineffective
(Tex. Crim. App. 1990). assistance. The Court of Criminal Appeals
treated the motion as a second habeas petition
Gribble appealed his conviction and and dismissed it as an abuse of the writ. The
sentence from the retrial by raising eight state trial court set April 22, 1998, for
issues, and the Court of Criminal Appeals execution of the sentence.
affirmed. See Gribble I, slip op. at 1. Court-
appointed counsel filed a state petition for In January 1998, Gribble moved for the
habeas relief. Gribble, pro se, filed a motion to appointment of counsel to assist him in filing
strike the habeas petition because it raised his federal habeas application. Appointed
issues that had been rejected on direct appeal. counsel filed a motion to stay execution and a
Gribble viewed counsel’s petition as habeas application that raised multiple issues.
inadequate, and he listed the following issues The court granted the stay of execution.
for postconviction consideration:
The state filed an amended answer and
(1) [T]he jury charge at the guilt phase motion for summary judgment. Gribble
relieved the prosecution of its obligation requested a conference, pursuant to FED. R.
to prove every element of the crime CIV. P. 16(a), and indicated that he presumed
beyond a reasonable doubt; (2) despite that an order would be entered similar to an
specific requests, the state failed to earlier order that had relieved him of the duty
produce exculpatory evidence related to to file a response to the summary judgment
both guilt/innocence and punishment; motion as contemplated by local rule. The
[and] (3) the trial court committed court denied the request for a conference.
reversal [sic] error by refusing to
instruct the jury on mitigating evidence Eight days after the state filed the summary
of applicant’s background of childhood judgment motion, the district court granted it,
abuse. denied habeas relief on the merits, and lifted
the stay of execution. See Gribble v. Johnson,
The state trial court made proposed 8 F. Supp. 2d 942, 942-57 (S.D. Tex. 1998).
findings of fact and conclusions of law and The court analyzed nine constitutional claims:
denied habeas relief, essentially relying on the four issues arising from Gribble’s statements
opinion from the direct appeal to conclude that to police, from interrogations, and from
no relief was warranted on the claims confessions to the rape, kidnaping, and murder
previously raised. The court considered the of Elizabeth Jones, see id., 8 F. Supp. 2d
claims raised pro se and concluded that there at 948-52; a Sixth Amendment challenge to

2
the exclusion, for cause, of a jury venireman, was based on an unreasonable
see id. at 952-53; a contention concerning determination of the facts in
improper prosecutorial argument, see id. at light of the evidence presented
954-55; challenges to the sufficiency of the in the State court proceeding.
evidence proving the kidnaping, proving
Gribble’s intent to cause Jones’s death, and
proving the deliberateness of his acts, see id. at
955-56; and a due process challenge to the
“nullification charge,” the jury instruction used
to correct the defect identified by Penry, see
id. at 956-57. The court relied on a
procedural bar for disposing of only one claim
but noted that the state had raised a procedural
bar on two other claims. See id. at 950, 954
n.13, 955. After entering final judgment, the
court denied a request for a COA.

III.
“A [COA] may issue . . . only if the
applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). The standard is the same as for
issuance of a certificate of probable cause.
Muñiz v. Johnson, 114 F.3d 43, 44 (5th Cir.
1997), cert. denied, 523 U.S. 1113 (1998).
Because Gribble’s habeas application was filed
after the effective date of the Antiterrorism
and Effective Death Penalty Act of 1996
(“AEDPA”), that statute applies to his case.
See Williams v. Cain, 125 F.3d 269, 274 (5th
Cir. 1997), cert. denied, 119 S. Ct. 144
(1998).

Under the AEDPA,

(d) An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State
court shall not be granted with respect
to any claim that was adjudicated on the
merits in State court proceedings unless
the adjudication of the
claimSS

(1) resulted in a decision that
was contrary to, or involved an
unreasonable application of,
clearly established Federal law,
as determined by the Supreme
Court of the United States; or

(2) resulted in a decision that

3
 (e)(1) In a proceeding instituted by an that he was not in custody when the
application for a writ of habeas corpus statements were made. The Court of Criminal
by a person in custody pursuant to the Appeals determined that Gribble was neither in
judgment of a State court, a custody nor under arrest, because he
determination of a factual issue made by voluntarily appeared at the police station and
a State court shall be presumed to be voluntarily submitted to the polygraph
correct. The applicant shall have the examination. Therefore, the need for the
burden of rebutting the presumption of prophylactic warnings of Miranda v. Arizona,
correctness by clear and convincing 384 U.S. 436 (1966), were not necessary, and
evidence. the exclusionary rule was inapplicable. See
Gribble I, slip. op. at 9-13.
28 U.S.C. § 2254. A full and fair adjudication
of the claims in state court is a prerequisite for “Miranda set[s] forth rules of police
application of AEDPA’s review provisions. procedure appl icable to 'custodial
Corwin v. Johnson, 150 F.3d 467, 471 (5th interrogation.' 'By custodial interrogation, [the
Cir.), cert. denied, 119 S. Ct. 613 (1998). Court] mean[s] questioning initiated by law
enforcement officers after a person has been
Pure questions of law are reviewed under taken into custody or otherwise deprived of his
the “contrary to” standard; mixed questions of freedom of action in any significant way.'”
law and facts are reviewed under the Oregon v. Mathiason, 429 U.S. 492, 494
“unreasonable application” standard. (1977) (quoting Miranda, 384 U.S. at 444).
Drinkard v. Johnson, 97 F.3d 751, 767-68 The “in custody” determination is a mixed
(5th Cir. 1996).* The application of law to question of fact and law. Thompson v.
facts is “unreasonable” only when reasonable Keohane, 516 U.S. 99, 102 (1995).
jurists considering the question would view the Therefore, the § 2254(d)(1) standard applies.
state court's ruling as incorrect. Id. at 768-69.
Habeas relief is thus appropriate only where “a At the suppression hearing conducted on
state court decision is so clearly incorrect that April 26, 1988, Mary Wood, the private
it would not be debatable among reasonable investigator who conducted the polygraph
jurists.” Id. at 769. “State court factual examination on September 21, 1987, testified
determinations shall be presumed correct that Gribble was waiting when she arrived at
unless rebutted by 'clear and convincing the police station; he had questions about
evidence.'” Jackson v. Johnson, 150 F.3d 520, polygraph tests, which she answered; he
524 (5th Cir. 1998) (interpreting signed the test waiver form; she and he
§ 2254(e)(1)), cert. denied, 119 S. Ct. 1339 conversed quite a long time about Jones’s
(1999). disappearance; the test results revealed a
problem response to two of the test questions;
IV. and Gribble signed two written statements
Gribble argues that his statements given to after the test was conducted. Gribble’s
private investigators and police on account of his activity with Jones given to the
September 21, 1987, and without his being private investigators and police officers on
informed of his right to counsel or to remain September 21 was exculpatory. Wood’s
silent, should have been suppressed and that testimony indicated that Gribble’s cooperation
the state appellate court erred in its conclusion on September 21 was voluntary and that he
could have left at any time. Her testimony at
the second suppression hearing was consistent
*
To the extent that Drinkard and its progeny with her earlier testimony.
interpreting the provisions of AEDPA do not
conflict with Lindh v. Murphy, 521 U.S. 320 Officer Sergio Medina testified that Gribble
(1997), they remain controlling precedent for this agreed to come to the police station for the
court. Nobles, 127 F.3d at 413 n.4; see Green v. polygraph examination, although Gribble failed
Johnson, 116 F.3d 1115, 1119-20 (5th Cir. 1997). to appear for the first scheduled examination.

4
Gribble became unsure of the polygraph significantly deprived of freedom of action.**
examiner, and Medina reassured him about the The Court of Criminal Appeals’s
polygraph procedures and told him that he determination that Gribble was not in custody
could leave at any time. Gribble was advised was not an unreasonable application of federal
of his rights after revealing to the officers, law. See Drinkard, 97 F.3d at 767-68; §
following the examination, that the truck he 2254(d)(1); Mathiason, 429 U.S. at 494-96.
had been driving to work could have been a
stolen vehicle.
V.
Before he was warned, the officers had Gribble presents two arguments under one
accompanied him to his residence, impounded issue: He avers that his comment, requesting
the car, and returned to the police department. the stop of the taping of his statement, or the
Gribble came back voluntarily to the office and momentary stop of the recording of his
cooperated with the investigation of the stolen confession, given to investigating officers
truck. during the interrogation on October 3, 1987,
was equivalent to the invocation of his right to
Gribble testified at the first suppression remain silent, so his Fifth Amendment right to
hearing, and his testimony was admitted at the silence was violated. He also contends that his
second suppression hearing. He testified that conversation with the officers that followed his
Medina pressured him into feeling guilty about request for the stop, in which he indicated his
not wanting to cooperate or to take the concern about his wife's hearing the details of
polygraph examination; Gribble did not mind what he had done to the victim, demonstrated
answering the questions, but he did not want police overreaching through subtle
to answer with the monitoring of the psychological persuasion. He argues that this,
polygraph machine; and his impression was coupled with the officers’ failure to comply
that he had to take the test, or he could not with his request to stop, violated his Fifth
leave. Amendment right against self-incrimination.

The findings of fact underlying the Court of The Court of Criminal Appeals affirmed the
Criminal Appeals’s determination that Gribble trial court’s conclusion that Gribble’s request
was not in custody are supported by the to stop the tape recorder was not an
testimony at the suppression hearings, a unequivocal termination of the interview, or
portion of which has been summarized above. interrogation, but instead was a request to stop
See Gribble I, slip op. at 10-12. Gribble momentarily the recording of the confession,
focuses on the lack of warnings he received and thus, his Fifth Amendment right was not
compared to the warnings given to another infringed. See Gribble I, slip op. at 13-14.
person the investigating officers interviewed The district court concluded that Gribble’s
on September 21. He contends that the claim concerning the police officers’
different treatment supports the conclusion overreaching and misleading tactics was
that the police had the subjective intent to procedurally barred and was without merit.
obtain his signed statements without the
benefit of warnings of constitutional rights. The circumstances giving rise to Gribble’s
taped co nfession are as follows: He was
Any difference in the treatment accorded arrested in Tennessee on September 30, 1987,
the two persons interviewed on September 21 pursuant to a Harris County, Texas, warrant
does not detract from the ample testimony
revealing that a reasonable person in Gribble’s
situation would not have viewed himself as **
See Mathiason, 429 U.S. at 494-96; see also
being under arrest, in detention, or United States v. Bengivenga, 845 F.2d 593, 597
(5th Cir. 1988) (en banc) (holding that subjective
intent of police is irrelevant to the determination
whether defendant was in custody).

5
unrelated to the Jones investigation in Before relating the events surrounding Jones’s
Galveston County. Texas Ranger Joe murder, Gribble voiced his concern that his
Haralson and Wayne Kessler, an investigator wife, Tammy, would hear the tape.
with the Galveston County Sheriff’s Office,
traveled to Tennessee, interviewed Gribble, Kessler and Haralson informed Gribble that
and accompanied him to Texas. On October he would have a right to a trial; if he made
3, at the Harris County Sheriff’s Office, “suitable arrangements with the State,” it
Gribble again received Miranda warnings and might not have to go to trial; they anticipated
orally confessed to the rape, kidnaping, and that he would be indicted; if there were a trial,
murder of Jones. He drew a map of where the the tape would be used as evidence at an open-
body and Jones’s purse could be recovered. court proceeding; and he could ask his wife
He agreed to have his confession tape not to be in the courtroom when the tape was
recorded. played. After the tape recording ended,
Gribble’s wife arrived, and he spoke with her
The confession consisted of two tapes, the for approximately one-half hour.
first lasting approximately one minute. After
Haralson had identified each individual in the A.
room during the taping and each person spoke “The Supreme Court has held that if a
his name, these comments followed: suspect 'indicates in any manner, at any time
prior to or during questioning, that he wishes
Mr. Kessler: Tim, you also know that to remain silent, the interrogation must cease.'”
about 15 minutes ago at 9:15 we gave Barnes v. Johnson, 160 F.3d 218, 224 (5th
you rights before we talked the first Cir. 1998) (quoting Miranda, 384 U.S.
time; is that correct. at 474-75), cert. denied, 119 S. Ct. 1768
(1999). Whether a statement is an ambiguous
Mr. Gribble: Yes. invocation of a constitutional right is
determined by an objective inquiry as to how
Mr. Haralson: And I am fixing to again a reasonable police officer would have
advise you of your rights. understood the defendant’s comment. Id.
at 224-25. What Gribble said to the officers
Mr. Gribble: Could we stop this thing? about stopping the tape is a finding of fact
viewed under the § 2254(d)(2) standard. The
Mr. Haralson: WellSS conclusion by the state appellate courtSSthat
the statement was not an invocation of the
Mr. Kessler: What’s the problem? right to remain silentSSis reviewed under the
reasonable-application-of-federal-law standard
Mr. Haralson: We need the tape of § 2254(d)(1).
recorder on.
The Court of Criminal Appeals stated
Mr. Kessler: Do you have a question? Gribble’s “stop” request as follows: “Can we
stop for just a second.” Gribble I, slip op. at
Mr. Gribble: I don’t feel comfortable. 13. As noted above, Gribble requested,
Even after telling you all this, I feel like “Could we stop this thing.” He asserts that
shit. Like I said when I told youSSwhen Kessler’s testimony at the first trial indicated
youSSyou said that after I told you this that Gribble asked, “Can we stop the tape?”
that I would feel better. I don’t feel No matter what the precise phrase was, the
better I feel worse. I feel like shit. ultimate fact found by the state appellate
courtSSthat in the context of the situation,
The confession recorded on the second tape Gribble asked “for a momentary pause to
began three minutes after the first recording. recompose himself”SSis presumptively correct.
Those in the room again identified themselves, See id. at 13; Jackson, 150 F.3d at 524; §
and Gribble again was advised of his rights. 2254(e)(1).

6
 At the first suppression hearing, Gribble confession might be used for or against him.***
testified that it was the concept of recording He argues that the claim presented on direct
his confessionSSa recording his wife might appeal was “functionally identical to the
hearSSthat precipitated his desire to stop the federal claim” presented in his habeas
tape. He was willing to write his confession. application.
Haralson testified at the second suppression “The exhaustion requirement is satisfied
hearing that Gribble was physically distressed when the substance of the federal habeas claim
when he asked for the tape to stop, that he has been fairly presented to the highest state
choked but did not vomit, and that the second court.” Whitehead v. Johnson, 157 F.3d 384,
tape began once he had recomposed himself. 387 (5th Cir. 1998) (footnote omitted). “A
In light of the circumstances surrounding federal court claim must be the 'substantial
Gribble’s comment, the conclusion that the equivalent' of one presented to the state courts
Fifth Amendment was not implicated by his if it is to satisfy the 'fairly presented'
request to stop is not an unreasonable requirement.” Id. (footnote omitted). The
application of federal law. See Barnes, 160 claim presented to the state appellate court
F.3d at 225; Drinkard, 97 F.3d at 767-68; arose from the state procedural rule
§ 2254(d)(1). prohibiting the use at trial of a confession if the
defendant had been told by the interrogating
B. officers that the confession could be used in
As we have noted, the district court his favor as well as against him. See Gribble
concluded that Gribble’s issue concerning the I, slip op. at 8-9. This issue is a separate legal
manner in which the police conducted the theory from the theory underlying the federal
October 3 taped interview/confession was habeas claim, although the claims arise from
procedurally barred. See Gribble, 8 F. Supp. the same operative facts. The federal claim
2d at 949-50. If a the district court does not was not fairly presented to the state court for
address the merits of a particular § 2254 claim satisfaction of the exhaustion requirement.****
but denies relief because the claim is
procedurally barred, the constitutional issue is Because Gribble failed to present his claim
never reached. In this situation, Gribble first to the state courts, and presentation of the
must make a credible showing of error by the claim in state court would result in its
district court in its reliance on the procedural dismissal as an abuse of the writ, the claim is
bar. See Murphy v. Johnson, 110 F.3d 10, 11 procedurally barred in federal habeas court.
(5th Cir. 1997) (applying COA standard to See Sones v. Hargett, 61 F.3d 410, 416 (5th
nonconstitutional issue of exhaustion of state Cir. 1995); Fearance v. Scott, 56 F.3d 633,
remedies). Only if he makes such a showing 642 (5th Cir. 1995). Gribble does not assert
will the court consider whether his underlying an argument of cause and prejudice for this
claim satisfies the COA standard. Id. court to overlook his procedural default. He
Although the district court alternately has not made a credible showing of error by
addressed the merits of the claim, see Gribble, the district court in applying the procedural bar
8 F. Supp. 2d at 950, we do not need to do so
unless we determine that Gribble has made the
initial showing of error under the standard ***
enunciated in Murphy. See Murphy, 110 F.3d See Gribble, No. 71-485, slip op. at 8-9;
at 11. TEX. CODE CRIM. P. ANN. art. 38.22; Creager v.
State, 952 S.W.2d 852, 854-55 (Tex. Crim. App.
1997) (holding that a warning renders confession
Gribble did not raise on direct appeal or in inadmissible if it informs defendant that the
his state habeas petition his argument of police confession can be used for or against him).
overreaching. He asserted on direct appeal
that the recorded confession should have been ****
See Nobles, 127 F.3d at 420 (“The
suppressed because the interviewing officers exhaustion requirement is not satisfied if the
had violated state procedure by misleading him prisoner presents new legal theories or factual
about the possible use of his confession: The claims in the federal habeas petition.”).

7
to this habeas claim. See Murphy, 110 F.3d These prophylactic measures are
at 11. implicated, however, only if the suspect is
being questioned or interrogated by police.
VI. “'[I]nterrogation' under Miranda refers not
Gribble argues that the evidence obtained only to express question, but also to any words
after he invoked his right to counsel should or actions on the part of the police (other than
have been suppressed. Before accompanying those normally attendant to arrest and
the police to the physical location of Jones’s custody) that the police should know are
body and purse, Gribble was taken before a reasonably likely to elicit an incriminating
state magistrate, who informed him of his right response from the suspect.” Rhode Island v.
to counsel. When asked whether he desired to Innis, 446 U.S. 291, 301 (1980) (footnotes
consult with counsel, Gribble answered in the omitted).
affirmative, and the magistrate made the
notation that Gribble wanted counsel to be The record supports the state appellate
appointed. Haralson then interjected that he court’s assessment of the circumstances
believed Gribble had misunderstood the surrounding Haralson’s comment and
question. The magistrate continued to query Gribble’s request for counsel. That court
Gribble, who said he wanted to maintain his found that Haralson’s comment to the
cooperation with authorities before consulting magistrate was “I believe that [Gribble]
with an attorney and subsequently led the misunderstood your question.” Gribble I, slip
officers to the location of the body. See op. at 6. On the printed warning form, the
Gribble I, slip op. at 5-6. Gribble’s argument magistrate indicated Gribble’s affirmative
indicates that he views Haralson’s interjection, response to the question “Do you wish to
occurring after Gribble essentially requested to consult with your attorney?” and noted next to
speak with an attorney, as violative of the Fifth the printed question, “wishes to have atty
and Sixth Amendments. appoint 12:22 AM 10/4.”

The Court of Criminal Appeals concluded The magistrate viewed Haralson’s comm ent
that Haral son’s comment was not as direct ed to him, not Gribble. After
interrogatorial and that, even if it had been Haralson’s comment, the magistrate explained
made as part of an interrogation, it was again to Gribble how counsel can be
constitutionally permissible, because it assisted appointed, and Boyd told him that an attorney
in clarifying Gribble’s qualified invocation of could be there in thirty minutes. Gribble then
his right to counsel. See id. at 7-8. After a responded that he wanted counsel later, not
suspect has been advised of his rights pursuant immediately; he wished to do some act first.
to Miranda and has invoked his right to speak
with counsel, all interrogation must cease until Kessler viewed Haralson’s comment as
he has conferred with counsel or until made to the magistrate, and he testified that
questioning can be done in the presence of Gribble’s “puzzled look” precipitated
counsel. Michigan v. Jackson, 475 U.S. 625, Haralson’s comment. Gribble’s suppression-
636 (1986) (Sixth Amendment); Edwards v. hearing testimony concerning the magistrate’s
Arizona, 451 U.S. 477, 484-87 (1981) (Fifth recitation and advisement of rights did not
Amendment). “[I]f a suspect makes a include any mention by Gribble about
reference to an attorney that is ambiguous or Haralson's making a comment. Gribble
equivocal in that a reasonable officer in light of testified that he indicated he wanted appointed
the circumstances would have understood only counsel for consultation but did not want to
that the suspect might be invoking the right to wait thirty to forty minutes, because his wife
counsel, . . . precedent[] do[es] not require the was waiting.
cessation of questioning.” Davis v. United
States, 512 U.S. 452, 459 (1994). “[T]he Gribble does not challenge the magistrate’s
suspect must unambiguously request counsel.” explanation and further inquiry concerning
Id. Gribble’s request for appointed counsel. The

8
habeas claim focuses on Haralson’s comment, jurisdictional, so if Gribble did not present to
which was not directed to Gribble and the district court a claim as to which he now
occurred as a neutral judicial officer was requests a COA, we are without jurisdiction to
informing Gribble of his constitutional rights consider it. See Whitehead, 157 F.3d at 388;
and was determining whether he understood Muñiz, 114 F.3d at 45. Accordingly, we
those rights and wished to waive them. The cannot review Gribble's request for a COA on
state appellate court’s determination that this issue. Moreover, a limited remand to the
Haralson’s comment was not interrogatorial district court for consideration of a habeas
for purposes of the Fifth Amendment, the claim raised for the first time in the COA
Sixth Amendment, or Miranda is not contrary motion would be contrary to the statutory
to clearly established federal law as determined prohibition against a successive habeas
by the Supreme Court. See § 2254(d)(1); application's raising a claim that could have
Innis, 446 U.S. at 301-02. been raised earlier. See § 2244(b)(2).

VII. VIII.
Gribble argues that the prosecution’s Gribble argues that the evidence fails to
challenge for cause of venireman Beverly prove beyond a reasonable doubt his intent to
Deaton should have been denied, because the murder Jones or that the murder was done
prosecution’s tactics in questioning Deaton with deliberateness. He relies primarily on his
about the standard of proof she would apply in taped confession concerning the immediate
determining the special questions during the events preceding Jones’s death, and he asserts
punishment phase of the trial amounted to that the evidence supports his versionSSthat
“prosecutorial browbeating.” Although the murder was unintentional and not done
Gribble begins his argument by implying that with deliberationSSas much as it supports the
Deaton should not have been excused for prosecution’s version of what happened.
cause, he states his issue as follows:
On direct appeal, Gribble argued that the
[w]hether the prosecutor’s relentless evidence was insufficient to prove that he
examination of this potential juror intentionally killed Jones. He asserted that his
provided a basis from which [Gribble] confession proved “that he accidently killed
could have developed an evidentiary the victim in an attempt to silence her cries for
challenge to the state trial court’s help.” Gribble I, slip op. at 1-2.
determination, had he been given that
opportunity, because the state court The Court of Criminal Appeals held that a
unreasonably accepted the fruits of rational juror could find the evidence sufficient
prosecutorial browbeating as a genuine to establish that Gribble intentionally killed
expression of her disqualification to Jones. Id. at 2. The state appellate court’s
serve. assessment of the evidence focused on the
manner in which Gribble carried out the
This is not the claim raised by Gribble in his kidnaping and murder of JonesSSincluding
federal habeas application, in which he Gribble’s hiding of the bodySSand on the
asserted that Deaton was qualified to serve on medical examiner’s testimony about
the jury and that granting the challenge for strangulation taking several minutes before
cause was erroneous. The district court death occurs. That court’s conclusion, under
denied this claim on the merits, concluding that the federal standard of review of a sufficiency
the trial court’s decision to exclude Deaton for claim, is not an unreasonable application of
cause was presumptively correct, and Gribble federal law. See Drinkard, 97 F.3d at 769; §
presented no evidence to rebut the 2254(d)(1); Jackson v. Virginia, 443 U.S.
presumption. See Gribble, 8 F. Supp. 2d at 307, 319 (1979).
952-53.
As for Gribble’s sufficiency argument
The requirement for a COA is concerning the evidence supporting the jury’s

9
affirmative answer to one of the two special Gribble argues that by urging the jury to
questions in determining punishment, Gribble consider the question of future dangerousness
notes that the district court viewed this portion in terms that included the possibility of his
of his habeas claim as being procedurally being out on the streets and in the community,
barred, because Gribble had failed to exhaust the prosecution improperly commented, in
the claim in state court. See Gribble, 8 F. closing argument during the penalty phase, on
Supp. 2d at 955. To obtain a COA on this the possibility of parole or pardon. In arguing
portion of his sufficiency claim, Gribble must for the answer “no” to special issue 2
make a credible showing of error. See concerning Gribble’s future dangerousness, his
Murphy, 110 F.3d at 11. attorney asked the jury to consider whether
there was any evidence to indicate that he
Gribble did not raise this sufficiency claim would be raping or killing people in prison.
focusing on special issue 1 in his direct appeal During closing argument, the prosecutor made
or in the state habeas proceedings. He the following comments:
concedes the lack of exhaustion and contends
that the issue is properly before the federal Second special issue, again probability
habeas court because he raised it in his first he would commit continuing acts of
direct appeal, which resulted in retrial of the violence and be a future threat to
guilt and punishment phases. Gribble cites no society, again very strong. And I think
authority for his novel interpretation of the we proved those not beyond a
fair-presentment requirement of the doctrine of reasonable doubt, but beyond any doubt.
exhaustion. He is not in custody pursuant to He did that when he went out and
a judgment of conviction and sentence from sexually assaulted Mary Kate O’Grady.
his first trial. His assertion of exhaustion is When you answer that, I think you take
legally frivolous. in consideration conduct in the
penitentiary but I think you also take in
Gribble also asserts that his lack of consideration conduct that the
exhaustion should be excused because Defendant may have on the street in the
attempting to exhaust now would be futile. community as a whole when you answer
He cites Layton v. Carson, 479 F.2d 1275, that special issue.
1276 (5th Cir. 1973), for the proposition that
futility will excuse exhaustion. Supreme Court The defense objected to the comment as
authority defeats this assertion.***** being “clearly outside of what’s going on. If
he gets a life sentence that’s obviouslySSthat’s
Because any attempt to exhaust the claim in improper argument.” The court overruled the
state court would result in the claim’s objection, noting that “[t]he issue is whether
dismissal as an abuse of the writ, the claim is or not he will be a continuing threat to
procedurally barred. See Fearance, 56 F.3d at society.”
642. Gribble fails to make a credible showing
of error in the district court’s determination During deliberations, the jury asked the
concerning this portion of his sufficiency following question: “As per Mr. Abbington’s
claim. See Murphy, 110 F.3d at 11. statement of 'life in prison' does that mean he
will spend the rest of his normal natural life in
IX. prison or does that equate into years.” The
court answered by referring to the following
paragraph in the general charge:
*****
See Coleman v. Thompson, 501 U.S. 722,
735 n.1 (1991) (holding claim procedurally barred With regard to the effect of your
from federal habeas review if “the petitioner would answers to the Special Issues in this case
be required to present his claims in order to meet you are not to discuss or consider any
the exhaustion requirement [and] would now find possible actions of the Governor or the
the claims procedurally barred”). Pardons and Paroles Division of the

10
 Texas Department of Criminal Justice. Green v. Johnson, 160 F.3d 1029, 1045 (5th
During your deliberations in this case, Cir. 1998), cert. denied, 119 S. Ct. 1107
you must not consider, discuss, or relate (1999).
any matters not in evidence before you.
You should not consider or mention any Under Texas law, the jury may not consider
personal knowledge or information you parole or parole eligibility. See Colburn v.
may have about any fact or person State, 966 S.W.2d 511, 519 (Tex. Crim. App.
connected with this case which is not 1998). The prosecutor did not use the word
shown by the evidence. “parole,” and Gribble’s speculation that the
comment was an indirect challenge to defense
Gribble contends that the Eighth counsel’s argument, which incorrectly
Amendment was violated by the comment, presumed that Gribble would be in prison for
because the sentence was arbitrarily imposed: his natural life if given a life sentence, is
The prosecutor placed before the jury that life baseless. The jury showed, by its question,
in prison could be less than Gribble’s natural that its possible consideration of parole was a
life. He also contends that the comment result of the comment of defense counsel, not
amounted to a Fourteenth Amendment the prosecutor. The court answered the
violation, because it made his death sentence question by directing the jury to the general
fundamentally unfair: The jury impermissibly instruction to disregard consideration of parole
considered the possibility of parole if a life or pardon in the deliberations.
sentence was imposed.
The record does not support Gribble’s
The Court of Criminal Appeals held that the contention that the prosecutor’s comments
prosecutor’s comment was not improper, misled t he jury as to its role in determining
because “[t]he possibilities of escape or some sentence or as to the proper boundaries of
other release from prison are legitimate future dangerousness. See Sawyer v. Butler,
concerns in determining the future 881 F.2d 1273, 1285 (5th Cir. 1989) (en
dangerousness of a defendant.” Gribble I, slip banc), aff’d sub nom. Sawyer v. Smith, 497
op. at 14. Although the state asserted that the U.S. 227 (1990). The Constitution does not
constitutional claims based on the prosecutor’s prohibit a jury's consideration of the actual
comment were not raised on direct or state length of a life sentence. See Simmons, 512
habeas review and thus were procedurally U.S. at 163. The state appellate court
barred, the district court gave Gribble the concluded that the prosecutor’s comment was
benefit of the doubt that the constitutional not improper under state law. See Gribble I,
claim had been sufficiently raised on direct slip op. at 14. The state court’s conclusion is
appeal and thus had been exhausted. The not “contrary to . . . clearly established Federal
court addressed the merits. See Gribble, 8 F. law, as determined by the Supreme Court.” §
Supp. 2d at 954-55. 2254(d)(1).

Gribble relies on Simmons v. South X.
Carolina, 512 U.S. 154, 169 (1994), and Gribble argues that the nullification charge,
Caldwell v. Mississippi, 472 U.S. 320, 328-29 given in response to the Penry error****** from
(1985) (reasoning that “it is constitutionally
impermissible to rest a death sentence on a
determination made by a sentencer who has
been led to believe that the responsibility for ******
Penry requires the jury to receive, in
determining the appropriateness of the addition to the instructions on the art. 37.071
defendant’s death rests elsewhere”), for his special issues, special instructions about mitigation
due process and Eighth Amendment evidence if the defendant introduces evidence
arguments. Simmons is inapplicable, because reflecting reduced culpability and the jury cannot
Texas does not provide the jury the option to give mitigating force to the evidence under the art.
impose a sentence of life without parole. See 37.071 special issues. See Penry, 492 U.S. at 318-

11
the first trial, was confusing and cumbersome court committed reversal [sic] error by
and insufficient to make the sentence a refusing to instruct the jury on mitigating
reasoned consideration, as required by the evidence of [Gribble]’s background of
Constitution, of all the mitigating evidence. childhood abuse.” The Court of Criminal
The general charge included the following: Appeals assumed, without deciding, that the
pro se claims could be treated as supplemental
When you deliberate about the habeas claims and denied relief because the
questions posed in the Special Issues, claims were conclusional.
you are to consider any mitigating
circumstances supported by the evidence The state asserted in the district court that
presented in both phases of the trial. Gribble’s nullification charge claim was
Mitigating circumstances may include, unexhausted and could not then be exhausted,
but are not limited to, any aspects of the and thus the claim was procedurally barred
defendant’s background, character, from federal habeas review. The court noted
record, or circumstances of the crime the state’s assertion of the procedural bar but
which you believe makes a sentence of exercised its discretion under § 2254(b)(2) and
death inappropriate in this case. If you reviewed the merits. See Gribble, 8 F. Supp.
find there are any mitigating 2d at 957.
circumstances you must decide how
much weight they deserve, if any; and The court concluded that to grant relief on
give them the consideration and effect Gribble’s nullification charge claim, it would
they deserve, if any, when you answer have to announce a new rule of constitutional
the Special Issues. law, which is prohibited by Teague v. Lane,
489 U.S. 288, 305-08 (1989). See Gribble,
If you determine, in consideration 8 F. Supp. 2d at 957. Gribble argues that
of this mitigating evidence, t hat a life Teague is inapplicable, because his habeas
sentence rather than a death sentence, is claim is based on Penry, 492 U.S. at 318-19,
an appropriate response to the personal and Roberts v. Louisiana, 428 U.S. 325,
moral culpability of the defendant, you 334-35 (1976).
are instructed to answer at least one of
the Special Issues under consideration “Unless they fall within an exception to the
“no.” If you have made such a general rule, new constitutional rules of
determination, an answer of “no” should criminal procedure will not be applicable to
be given independently of whether such those cases which have become final before
mitigating evidence is relevant to either the new rules are announced.” Teague, 489
Special Issue, and regardless of what U.S. at 310. The exceptions are “if the new
you find the answers to the Special rule (1) puts certain kinds of primary, private
Issues to be. individual conduct beyond the power of the
criminal law-making to proscribe or (2) is a
Gribble challenges the constitutionality of the rule of procedure that is implicit in the concept
second paragraph, which he refers to as the of ordered liberty . . . . The second exception
“nullification charge.” is reserved for watershed rules of criminal
procedure.” Muñiz v. Johnson, 132 F.3d 214,
Gribble failed to challenge the nullification 225 (5th Cir. 1998) (internal quotations and
charge on direct appeal, and it was not raised citations omitted).
in his state habeas petition. He listed the
following contention in his pro se motion to Roberts was one of five opinions issued by
strike the state habeas petition: “The trial the Court on the same day. The Court
essentially applied the Gregg v. Georgia, 428
U.S. 153, 195 (1976), rationale to the
(...continued) Louisiana death penalty statute, which directed
19. the use of a responsive-verdict procedure, and

12
held the statute to be violative of the Eighth made a substantial showing of the denial of a
Amendment, because it failed to channel the constitutional right”). Thus, for a COA to
jury’s judgment or provide an adequate check issue, Gribble first must show error in the
on the possible arbitrary imposition of the granting of summary judgment. See Murphy,
death penalty. See Graham v. Collins, 950 110 F.3d at 11.
F.2d 1009, 1018 (5th Cir. 1992) (en banc),
aff’d, 506 U.S. 461 (1993). The Court has To show harm, Gribble contends that
upheld the Texas death penalty sentencing evidence from the first trial would have shown
scheme, see Graham v. Collins, 506 U.S. 461, a different factual context of the taped
474 (1993); Jurek v. Texas, 428 U.S. 262, confession. He does not specify the precise
268-75 (1976), and, as we have noted, Penry factual context, but we presume he is referring
requires that the mitigating evidence not be to the different phrases in the record as to the
beyond the effective reach of the jury, see precise wording he used in asking that the
Robinson v. Johnson, 151 F.3d 256, 263 (5th recording of his confession be stopped or
Cir. 1998), cert. denied, 119 S. Ct. 1578 paused.
(1999).
Gribble avers that the lack of an
Gribble does not contend that any specific opportunity to respond to the state’s amended
mitigating evidence was beyond the jury’s summary judgment motion/answer denied him
reach. A review of the charge confirms that the opportunity to assert that presentation of
the jury could consider mitigating evidence, if issues on the initial direct appeal was sufficient
any, in its consideration of the special issues exhaustion to overcome the state’s assertion of
and beyond the scope of those issues. Thus, the lack of exhaustion and of procedural bar
to grant relief on Gribble's nullification charge on some of his claims. As we have noted,
claim, we would need to apply a new rule of Gribble cites no authority to support his novel
constitutional law, because Gribble seeks relief interpretation of t he fair-presentment
beyond the purview of Jurek, Penry, and requirement.
Graham. See Graham, 506 U.S. at 475-77.
Gribble’s claim is barred by Teague. See Gribble complains that the truncated
Lucas v. Johnson, 132 F.3d 1069, 1083 procedures impaired his right to have counsel
(5th Cir.), petition for cert. dismissed, present the habeas claims to the district court
141 L. Ed. 2d 765 (1998). with factual specificity and citation to
authority. A review of the state’s amended
XI. summary judgment/answer and of the district
Gribble argues that the district court erred court’s memorandum opinion reveals that
in ordering him to refrain fro m filing a Gribble’s habeas application was sufficient for
response to the state's summary judgment consideration of the habeas claims. See
motion and by denying his motion for a FED. Gribble, 8 F. Supp. 2d at 945-57. Any error
R. CIV. P. 16 conference, which he asserts in the procedures surrounding the grant of
would have provided the opportunity to summary judgment was harmless.*******
address the merits of his habeas claims. He
asserts that the truncation of the rule 56 Even assuming Gribble has made a credible
procedures impermissibly impaired his right to showing of error, thus satisfying the first of the
habeas counsel, pursuant to 21 U.S.C. § two-part Murphy standard for a COA, the
848(q)(B), to research and present the habeas
claims.
*******
See Resolution Trust Corp. v. Sharif-
Gribble’s appeal is before us on motion for Munir-Davidson Dev. Corp., 992 F.2d 1398, 1403
COA. His contentions concerning procedural (5th Cir. 1993) (concluding that summary
irregularities, if any, in the district court are judgment without sufficient notice to the
non-constitutional in nature. See § 2253(c)(2) nonmoving party was harmless); FED. R. CIV. P.
(stating that a COA issues if “applicant has 61.

13
second part of the standard is the § 2253(c)(2)
standardSSmaking a substantial showing of the
denial of a constitutional right. See Murphy,
110 F.3d at 11. As we have stated, Gribble
fails to meet the standard warranting the
issuance of a COA on any of his habeas claims.
See § 2253(c)(2). Thus, he is not entitled to a
COA on his claim concerning procedural error
in the district court.

The application for a COA is DENIED.

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