Etheridge v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_____________________

No. 99-20602
_____________________

GARY WAYNE ETHERIDGE,

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
(4:98-CV-3910)
_________________________________________________________________
February 2, 2000

Before JOLLY, SMITH, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

In this death penalty case, the petitioner, Gary Wayne

Etheridge, seeks a certificate of appealability (“COA”). Etheridge

seeks certification of two issues relating to his state trial and

death sentence for the murder of fifteen-year-old Christie

Chauviere while in the course of robbing her and sexually

assaulting her. Etheridge argues that his state habeas counsel

rendered ineffective assistance for failure to raise the

ineffectiveness of his state trial counsel, who had failed to

introduce mitigating evidence during the sentencing phase of his

*
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this opinion should not be published and is not precedent except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.
trial. We are presented this rather convoluted ineffective

assistance claim because Etheridge is now procedurally barred from

exhausting in state courts the ineffectiveness of his state trial

counsel--an issue he hopes to reach by using habeas counsel’s

failures as a basis for cause and prejudice, which in turn would

avoid the procedural bar. Further, Etheridge argues that his equal

protection rights were violated as a result of the trial court’s

failure to give the jury a mitigating instruction during the

sentencing phase of his trial. We conclude that Etheridge has

failed to make a substantial showing of the denial of a

constitutional right. Thus, we deny his application for a COA.

I

A

On February 2, 1990, Gail Chauviere arrived home from work at

approximately 5:40 p.m. She was employed as the project manager of

a townhouse-condominium complex in San Luis Pass, Texas. Because

of the nature of her job, Gail usually brought a bag of cash home

with her from the workplace.

Upon arriving home, Gail noticed a dark car parked in her

driveway. As she got out of her car, a dog came from behind the

parked car and ran towards her. Gail immediately recognized the

dog, because only a few days earlier she had given the dog to one

of her co-workers at the apartment complex, Gary Wayne Etheridge.

Gail thus assumed that the dark car in her driveway belonged to

Etheridge. As Gail approached her house, she was met by Etheridge,

2
who was walking from the direction of the garage. The two entered

the house, and Gail placed her purse and the bag containing the

money on a chair. Gail’s fifteen-year-old daughter, Christie, was

the only member of the family at home when Gail and Etheridge

entered the house.

Although the exact details of what happened next are not

absolutely clear, Gail testified that Etheridge inquired if she was

expecting any visitors. Gail responded by saying that she was

expecting her father to come over at any minute. Etheridge then

inquired as to the location of the money he knew she brought home

every day from the office. Gail responded by stating that the

money was in the bag she had just placed on the chair. At this

point, Gail began pleading with Etheridge that he just take the

money and go and that he not harm her daughter Christie. As she

spoke these words, she reached for her daughter, who was moving off

the sofa where she had been seated since they entered the house.

Etheridge reacted to this sudden movement by grabbing Christie by

the hair and pulling her towards him. Christie then began to

scream, and Etheridge told her to shut up. Realizing that his

verbal threats were being ignored, Etheridge then drew a knife from

behind his back and threatened to cut Christie’s throat if she did

not shut up.

After holding the knife to Christie’s throat for a few

moments, Etheridge released Christie and began to stab Gail.

Medical reports indicate that Gail was stabbed two or three times

3
on her left side, and that she suffered a single blow to her head.

The blow to Gail’s head was so severe that she testified that she

thought she heard an explosion in her head. Immediately following

the blow to her head, she lost consciousness.

When Gail regained consciousness she began to scream for help.

At approximately 5:50 p.m., Gail’s neighbor, Lorene McCreight, who

had only just seconds earlier knocked on the door to see if

Christie was at home to ask her if she could babysit for her the

next evening, heard Gail’s pleas for help. Mrs. McCreight

immediately ran home to get her husband. After returning with her

husband, Stan, they tried to enter Gail’s house through a back

door. When this attempt proved unsuccessful, Stan instructed

Lorene to go back to their house and get his gun. Stan then

noticed the garage door was open, and he entered the house though

it. Inside, he discovered Gail’s bloody body lying in the entrance

hall. He then noticed Christie’s body lying on the other side of

the hall. Christie’s hands were bound together and she had been

stabbed several times on her left side. Stan immediately called the

police.

Officer John Rhyne, a Richwood police officer, was the first

to respond to the call. Upon arriving, he discovered Christie’s

body. After a brief examination of her body, Officer Rhyne

determined that she had died as a result of a number of stab

wounds. Additionally, Office Rhyne noted that Christie’s clothes

from the waste down had been stripped off, her hands were bound

4
with a telephone cord, and she had been gagged with a towel.

Officer Rhyne then heard someone moaning for help. After a

brief search, he discovered Gail lying in an adjacent room. At

this point the paramedics had arrived, and Gail was transported to

Brazosport Memorial Hospital. After being transferred to Hermann

Hospital in Houston, Gail was examined by Dr. James H. Duke. Dr.

Duke testified that Gail was admitted to the hospital with multiple

penetrating wounds to the neck, face, chest, upper abdomen, and

arms. She had a severe wound to her right eye, and a gaping slash

wound to her neck. The neck wound was deep enough to have severed

the jugular vein, but tests indicated that the vein had not been

cut. Although the stab wounds she suffered were severe and life

threatening, Gail survived the attack.

B

After fleeing the Chauvieres’ home in Gail’s car, Etheridge

picked up his wife Theresa and their baby daughter Brittany.1

Etheridge then drove to Theresa’s cousins Charles and Glenda

Roenker’s house. Etheridge told the Roenkers that he had just

stabbed a man and that he thought the man was dead. Etheridge

cleaned himself up in the Roenker’s bathroom and dressed a cut he

had suffered to a finger. Etheridge, along with his wife and

1
When Etheridge arrived home to pick up his wife and daughter,
he discovered that she was babysitting her friend’s, Tanya Ray, two
children. Etheridge took the children to a bar in town where Tanya
worked, and during a brief conversation with Tanya he told her that
he had killed a man in a knife fight.

5
daughter, then intended to flee the state of Texas. However, after

about a half-hour on the road, Etheridge returned to the Roenkers’

home and asked them to take care of Brittany.

Somewhere near Mobile, Alabama, Etheridge abandoned his wife.

Shortly thereafter, Etheridge wrecked Gail’s car.2 At this point,

Etheridge decided that he would hitchhike back to Texas. On

February 7, 1990, Paul Day, an off-duty Houston police officer,

spotted Etheridge walking along Highway 288 in Texas. Day arrested

Etheridge and Mirandized him. Officer Day then asked Etheridge if

he knew why he was under arrest. Etheridge responded by saying,

“Yes, I know I’m under arrest for killing that fifteen-year-old

girl. I’m sorry for what I did, and I was going back to Brazoria

County to turn myself in.”

After being returned to Brazoria County, Etheridge was again

Mirandized, and he signed a document confirming that he had

received the warnings. Etheridge then spent four hours answering

questions and drafting a written confession. The confession, which

Etheridge had an opportunity to view and change, was signed by

Etheridge on each page and stated in pertinent part:

On February 2, 1990, . . . I left my work location and
drove to Freeport, Texas and went to a dope house on East
Sixth Street where I bought 50 bucks of powder cocaine
and Al gave me a needle and I done a shot of dope there
at his house. . . . I was driving and I stopped on Gulf

2
While driving Gail’s car in Mobile, Alabama, Etheridge
swerved off of the road and struck the median. As a result of this
collision with the median, two of the car’s tires were punctured
and deflated.

6
Boulevard and got the same needle that I had used earlier
and done another shot of dope. . . . [After arriving at
my house] I went inside the house and locked myself in
the bathroom and was doing dope in there for about one
and a half hours and my wife, Theresa, kept coming to the
door and saying, what are you doing in there. . . . I
came out of the bathroom after awhile and I had drank all
my beer, so I got in my car and drove to a liquor store
on Gulf Boulevard, bought some more beer, and then I
called this queer named Ed and he told me come on over to
his house in Surfside about 6:00 p.m. and I told him I
would have a look at it. . . . [After attempting to buy
some more drugs] I headed for Gail’s house. . . . I knew
where she lives as I had followed her home a few days
earlier because she had given me a dog and went over and
picked up the dog. When I arrived at Gail’s house, her
car was not at home and I went up to the house and
knocked on the door and Gail’s daughter reached up and
opened the door and about this time Gail drove up in the
driveway and I was still on the porch. . . . Gail walked
on in the house and I walked in behind her and I closed
the door behind us. Gail’s daughter had been on the
phone but she hung up when we came in. Gail asked
something about the tax paper but I don’t remember what
it was and I told Gail that I needed some money and she
looked sort of worried and she was holding her purse, a
money bag and bunch of file papers in her arms and I
grabbed the money bag and she freaked out and so did her
daughter so I told them, ‘sit down on the couch and shut
up, bitch,’ and I pulled out my knife. Gail and her
daughter then sit down on the couch and they were all
hysterical. I told them to shut up. All I want is the
money. I said, Gail I like you, but I have a drug
problem and I have got to have the money and I showed
them my arm where I had been shooting up. Gail said all
I had to do was tell us and we would have given you some
money. . . . At this time they are still sitting on the
couch and I tried to gag them with something but I don’t
remember if I gagged them or not. They were still real
hysterical and I told Gail’s daughter to sit right there,
bitch, and I said I am going to put you, Gail, in the
closet and lock it and I told the daughter I am going to
put your mother in the closet and I am out of here. I
took Gail by the arm and we were heading through the
kitchen to a closet and Gail was in front of me and as we
entered the kitchen she reached for the counter and swung
around and cut me with something on my left index finger
and this set me off. I never saw what she cut me with,
but I grabbed her by the hair of her head and pushed her

7
 down and she fell into the hallway. I was scared and I
kicked her and I was cutting Gail and her daughter was
screaming and I went where Gail’s daughter was and I was
cutting her and Gail and I was Fighting in a little
garden room and Gail’s daughter came over to where we
were and we were all fighting in this little room. The
next thing I remember is I was running outside and I had
my pocket knife in my hand and it was all bloody and I
got in my car but it would not start and I went into
their garage to look for some battery cables but there
wasn’t none. I went and tried to start my car again but
it would still not start so I went into the house and got
Gail’s car keys and started up her car. It was a sky
blue color 1989 model Oldsmobile Cutlass Sierra. I first
started forward and when I went backwards I backed off
the concrete and thought I was stuck and I jumped out of
the car and run in the garage and went back to the car
and backed it on out onto the street and drove off.

The next day, February 8, Etheridge was again interviewed by

the police. During the course of this interview, Etheridge gave a

second confession outlining substantially the same course of events

that he had revealed to the police the previous day in his written

confession. Specifically, during the course of this second

confession, Etheridge denied raping Christie and said he could not

remember stabbing either woman. He did state, however: “I killed

a girl.” Etheridge also stated that he had gone to the Chauvieres’

house on February 2, alone.

On April 2, 1990, the day before he was indicted for the

murder of Christie Chauviere, Etheridge told the police that he

wanted to change his story. Etheridge now told the police that he

was not alone when he entered the Chauvieres’ house. Instead, he

stated that he was accompanied by a long-time friend who he

identified as “Queer Eddie.” It was “Queer Eddie,” Etheridge

8
claimed, who had killed Christie. Despite his claims that he had

known “Queer Eddie” for approximately 14 years, Etheridge could not

remember his last name or his address.

C

On April 3, 1990, Etheridge was indicted by a Brazoria County,

Texas Grand Jury on a single-count indictment for the capital

murder of Christie Chauviere.3 Specifically, the indictment

charged Etheridge with the murder of Christie Chauviere while in

the course of robbing her, sexually assaulting her, kidnaping her,

and robbing her mother. The indictment also included four

enhancement paragraphs alleging prior felony convictions for theft,

burglary, and aggravated assault.

On October 31, 1990, Etheridge was tried for the murder of

Christie Chauviere. On November 6, the jury returned a verdict of

guilty. The sentencing phase of Etheridge’s trial began the next

day. Despite Etheridge’s present claim that substantial

“mitigating evidence” existed, his trial counsel decided not to

3
Texas Penal Code section 19.03(a)(2) provides in relevant
part:

Capital Murder.
(a) A person commits an offense if he commits murder
under 19.02(b)(1) and:
. . .
(2) the person intentionally commits the
murder in the course of committing or
attempting to commit kidnaping, burglary,
aggravated sexual assault, a r s o n , o r
obstruction or retaliation.

Tex. Penal Code Ann. § 19.03 (Vernon, 1999).

9
offer any evidence during the sentencing phase of the trial. In

accordance with article 37.071 of the Texas Code of Criminal

Procedure in 1990, the court submitted two special issues to the

jury:

(1) Was the conduct of the Defendant, Gary Wayne
Etheridge, that caused the death of the deceased,
Christie Chauviere, committed deliberately and with the
reasonable expectation that the death of the deceased or
another would result?

(2) Is there a probability that the Defendant, Gary
Wayne Etheridge, would commit criminal acts of violence
that would constitute a continuing threat to society?

The court then instructed the jury that:

If you return an affirmative finding on each of the
Issues submitted to you, the court shall sentence the
defendant to death. You are further instructed that if
you return a negative finding on any Issue submitted to
you, the court shall sentence the defendant to the
penitentiary for life. You are therefore instructed that
your answers to the Issues, which determine the
punishment to be assessed to the defendant by the court,
should be reflective of your finding as to the personal
culpability of the defendant, Gary Wayne Etheridge, in
this case.

Finally, the court instructed the jury that it should consider

mitigating evidence as follows:

You are instructed that when you deliberate on the
questions posed in the Issues, you are to consider
mitigating circumstances, if any, supported by the
evidence presented in both phases of the trial, whether
presented by the state or the defendant. A mitigating
circumstance may include, but is not limited to, any
aspect of the defendant’s character and record or
circumstances of the crime which you believe could make
a death sentence inappropriate in this case. If you find
that there are any mitigating circumstance in this case,
you must decide how much weight they deserve, if any, and
thereafter, give effect and consideration to them in
assessing the defendant’s personal culpability at the

10
 time you answer the Issues. If you determine, when
giving effect to the mitigating evidence, if any, that a
life sentence, rather than a death sentence, is an
appropriate response to the personal culpability of the
defendant, a negative finding should be given to one or
more of the Issues under consideration.

On November 8, the jury answered “yes” to both the special

issues, and the court sentenced Etheridge to death. On

December 10, Etheridge filed a motion for a new trial. On

January 21, 1991, after conducting a hearing, the court denied his

motion. The next day, Etheridge filed a notice of appeal. On

June 22, 1994, the Texas Court of Criminal Appeals affirmed

Etheridge’s conviction and sentence. See Etheridge v. State, 903

S.W.2d 1, (Tex. Crim. App. 1994). On May 10, 1995, the Court of

Criminal Appeals denied his motion for rehearing. On October 10,

1995, the United States Supreme Court denied his petition for

certiorari. See Etheridge v. Texas, 516 U.S. 920 (1995).

On April 23, 1997, Etheridge filed his original petition for

state habeas relief. This petition was amended two months later on

June 18, 1997. On January 6, 1998, the state district court

entered findings of fact and conclusion on law. On April 1, 1998,

the Texas Court of Criminal Appeals denied Etheridge’s application

for state habeas relief.

On November 13, 1998, Etheridge filed a petition for federal

habeas relief. Three days earlier, on November 10, 1998, Etheridge

changed his version of the underlying facts surrounding the murder

11
of Christie Chauviere for the third time.4 Etheridge swore to an

affidavit stating that although he was present when Christie was

murdered, it was his brother, Mike Etheridge, who killed Christie.

The affidavit provided in relevant part:

On February 2, 1990, my brother Mike Etheridge and
I went to the home of Gail Chauviere in Richwood,
Texas. . . . When we got inside the house, I asked Gail
for an advance on my paycheck, but Gail refused to give
me any money. I told her to be quiet, that I only wanted
the money. We struggled, and I tried to calm her down
and put her in the closet so we could take the money and
go. I did stab Gail with a small pocketknife that I kept
in my pocket for work. She grabbed something sharp from
the kitchen and cut me on the left hand.
Meanwhile, her daughter, Christie Chauviere, had
come out of the bathroom and became hysterical and was
screaming. Mike tried to get her to be quiet. They were
in a different part of the house from where Gail and I
were. I was near the kitchen with Gail and Mike was in
the front entrance way with Christie. I could hear
Christie yelling, but I was having a hard time trying to
get Gail to quit fighting me. . . . I then heard
Christie stop making noise. I did not see Mike stab
Christie. I did not stab or cut or hurt or have any
sexual contact with Christie in any way.
Once I freed myself from Gail and heard Christie was
quiet, I saw Mike standing over Christie in the entrance
way. Mike and I then left through the door in the
garage. I was bleeding from the cut on my hand. My car
would not start, so Mike and I got in Gail’s car [and
drove away]. . . .

4
Initially, Etheridge told Tanya Ray and the Roenkers that he
had stabbed a man in knife fight. Then he told Officer Day and the
Brazoria County police department following his arrest that he had
acted alone in killing Christie. Subsequently, just one day before
he was indicted for the murder of Christie Chauviere, he told the
police that his “long-time friend ‘Queer Eddie’” had killed
Christie. Now, after exhausting all of his direct and state habeas
appeals he changed his story for the third time stating that his
brother, Mike Etheridge, had killed Christie.

12
 On May 19, 1999, the United States District Court for the

Southern District of Texas, Houston Division, denied Etheridge’s

petition for habeas relief. See Etheridge v. Johnson, 49 F.Supp.2d

963 (S.D.Tex. 1999). On September 10, 1999, Etheridge filed a

request for a COA with our court.

II

A

Etheridge seeks a COA on two issues: (1) whether the

assistance he received from his state habeas counsel was rendered

constitutionally ineffective as a result of his failure to raise a

claim of ineffective assistance of trial counsel;5 and (2) whether

the district court’s failure to give the jury a special issue on

mitigating evidence resulted in a denial of his Equal Protection

rights because such an issue was later mandated by statute and

given by the court during the trials of other defendants who were

charged with committing capital offenses on the same date as

Etheridge.

5
In Etheridge’s petition and in his reply brief, he argues
that trial counsel was ineffective because he failed to introduce
mitigating evidence during the sentencing phase--specifically, that
“trial defense counsel failed to present evidence of an emotionally
scarred upbringing, abuse by a drunken father, suicide attempts by
his mother, a head injury as a child, and drug dependency since
adolescence.” The failure of habeas counsel to include this claim
may be due in part to the fact that trial counsel furnished an
affidavit indicating that the failure to put on this “mitigating
evidence” was a deliberate choice in trial strategy. See infra
note 8. It should be noted that Etheridge’s state habeas counsel
did raise a claim of ineffective assistance based on trial
counsel’s failure to use all of his peremptory strikes during voir
dire.

13
 In determining if a COA should be issued, we first must decide

whether Etheridge “has made a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Drinkard

v. Johnson, 97 F.3d 751, 756 (5th Cir. 1996). Etheridge can make

such a showing if he “demonstrates that the issues are debatable

among jurists of reason; that a court could resolve the issue [in

a different manner]; or that the questions are adequate to deserve

encouragement to proceed further.” Barefoot v. Estelle, 463 U.S.

880, 893 n.4 (1983)(citations omitted). In a capital case, “the

severity of the penalty does not in itself suffice to warrant the

automatic issuing of a certificate,” although the court may

consider the nature of the penalty in deciding whether to allow an

appeal. Id. at 893.

B

With respect to the first issue, Etheridge argues that he has

been denied constitutionally effective counsel because, in the

state habeas proceedings, habeas counsel failed to raise a claim of

ineffective assistance of trial counsel, based on trial counsel’s

failure to offer mitigating evidence during the sentencing phase of

his trial.

The district court held that because this claim of trial

counsel’s ineffectiveness had not been raised before the state

courts, the federal court could grant no relief until the claim was

exhausted in state court. The district court further held,

however, that no relief in fact could be granted by the federal

14
courts because of the Texas’ abuse of the writ doctrine6--an

independent and adequate state procedural rule, which bars

successive state habeas petitions.

We agree that Etheridge is procedurally barred from raising

this unexhausted claim in state courts because of the Texas abuse

of the writ doctrine. See Coleman v. Thompson, 501 U.S. 722, 735

n.1 (1991)(holding that “[I]f the petitioner failed to exhaust

state remedies and the court to which the petitioner would be

required to present his claims in order to meet the exhaustion

requirement would now find the claims procedurally barred, [then]

there is [a] procedural bar default for purposes of federal habeas

[relief]”); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir.

1997)(stating that the Texas abuse of the writ doctrine represents

“an adequate state procedural bar for purposes of federal habeas

review”). Thus, for purposes of federal habeas relief, this state

6
See Tex. Code Crim. P. Ann. art. 11.071 § 5 (Vernon Supp.
1999), stating in relevant part:

(a) If an initial application for a writ of habeas corpus
is untimely or if a subsequent application is filed after
filing an initial application, a court may not consider
the merits of or grant relief based on the subsequent or
untimely initial application unless the application
contains sufficient facts establishing that:

(1) the current claims and issues have not
been and could not have been presented
previously in a timely initial application or
in a previously considered application filed
under this article or Article 11.07 because
the factual or legal basis for the claims was
unavailable. . . .

15
procedural bar prevents our considering the merits of this claim

absent a showing of “cause for failing to raise the alleged error

earlier and suffered prejudice therefrom,” or the failure of the

court to consider the claim will result in a “fundamental

miscarriage of justice.” Callins v. Johnson, 89 F.3d 210, 212 (5th

Cir. 1996)(citing McCleskey v. Zant, 499 U.S. 467, 493-94 (1991);

see also Nobles, 127 F.3d at 423.

Etheridge argues that the ineffectiveness of his state habeas

counsel in failing to raise a claim of ineffective assistance of

trial counsel constitutes sufficient “cause” for his present

inability to raise this claim. Further, Etheridge argues, that if

this court does not consider the merits of this claim, he will

suffer prejudice because he will be prevented from seeking federal

review of his trial counsel’s performance, which, if considered by

the federal courts, will result in a new sentencing hearing.

Ultimately, Etheridge argues, at this new sentencing hearing, the

jury will be allowed to consider several pieces of mitigating

evidence, which will result in the imposition of a life sentence

rather than death. Consequently, because his state habeas counsel

failed to raise a claim of ineffective assistance based on trial

counsel’s failure to introduce this mitigating evidence, Etheridge

argues that he has suffered prejudice.7 Thus, Etheridge argues, he

7
Although Etheridge raises a claim of ineffective trial
counsel for failing to introduce mitigating evidence, trial
counsel’s affidavit reflects that the decision not to introduce
such mitigating evidence was a deliberate choice of strategy,

16
has demonstrated sufficient “cause and prejudice” to disregard the

state procedural rule.8 Moreover, Etheridge argues in his petition

arrived at after carefully considering that although such evidence
may shed some light on Etheridge’s troubled background, it may also
lead the jury to conclude that Etheridge posed a future danger to
society. Such strategic choices are not likely to provide the
basis for an ineffective assistance of counsel claim. See Mann v.
Scott, 41 F.3d 968, 984 (5th Cir. 1994)(stating that “strategic
decisions not to introduce evidence . . . [of] a double-edged
nature . . . are granted a heavy measure of deference in a
subsequent habeas attack” and carry a strong presumption that they
were in fact reasonable). Here, there is nothing in the record to
suggest that trial counsel’s choice amounted to ineffectiveness.
8
Although Etheridge’s “cause and prejudice” argument, in its
fullest expression, seems to have been evolving throughout the
briefing process, it is best articulated, with some help from us,
as follows: (1) Jones was decided incorrectly insofar as it held
that ineffective assistance of habeas counsel cannot serve as
sufficient “cause” for avoiding the state procedural bar; (2) the
incorrect result reached by the Jones court reflects a
misinterpretation of Coleman v. Thompson, 501 U.S. 722 (1991); (3)
Coleman is properly read to suggest that in death penalty cases in
Texas, where the state is statutorily required to provide competent
habeas counsel, see Tex. Code Crim. P. art. 11.071 § 2(a) (Vernon
1999), the petitioner’s attorney is not the petitioner’s agent;
therefore, the petitioner is no longer responsible for his
counsel’s mistakes because the state has assumed the responsibility
for providing competent counsel; (4) because the state--not the
petitioner--must assume the responsibility for counsel’s mistakes,
habeas counsel’s failures may serve as “cause” for avoiding the
procedural bar when habeas counsel fails to meet the minimal level
of competency; (5) once the plaintiff has been able to establish
that habeas counsel has failed to meet the minimal level of
competence--i.e., sufficient “cause” for invoking the procedural
bar--the petitioner must then establish prejudice resulting from
habeas counsel’s failure to raise the barred claim; (6) with
respect to prejudice, Etheridge argues that if habeas counsel had
raised the claim that trial counsel was ineffective for failing to
introduce mitigating evidence at his sentencing hearing, he would
have received a new sentencing hearing; (7) further, Etheridge
argues that he was ultimately prejudiced by ineffective habeas
counsel because such mitigating evidence introduced at the
sentencing hearing would have resulted in at least one of the
jurors voting to sentence him to life, instead of death.
Therefore, Etheridge argues, the procedural bar based on the Texas

17
that a “fundamental miscarriage of justice” will occur if he cannot

abuse of the writ doctrine can be avoided by this demonstration of
cause and prejudice.
Key to Etheridge’s argument is his particular interpretation
of the following passage in Coleman:
Where a petitioner defaults a claim as a result of the
denial of the right to effective assistance of counsel,
the State, which is responsible for the denial of a
constitutional matter, must bear the cost of any
resulting default and the harm to state interests that
federal habeas relief entails. A different allocation of
costs is appropriate in those circumstances where the
State has no responsibility to ensure that the petitioner
was represented by competent counsel. As between the
State and the petitioner, it is the petitioner who must
bear the burden of a failure to follow state procedural
rules.
Coleman, 501 U.S. at 754. As noted above in this footnote,
Etheridge argues that because the state of Texas has assumed a
responsibility to provide habeas counsel, it must bear the cost of
any resulting default by such counsel, which here is the
opportunity to raise the defaulted claim in this federal habeas
proceeding.
The respondent, on the other hand, rejects this interpretation
of Coleman. Essentially, the respondent argues that the word
“constitutional” is implied when referring to the responsibility of
the state to provide competent counsel. The respondent thus reads
the sentence in the quotation from Coleman above as follows: “A
different allocation of costs is appropriate in those circumstances
where the State has no [constitutional] responsibility to ensure
that the petitioner was represented by competent counsel.” See
Coleman, 501 U.S. at 754. The respondent therefore argues that,
because Etheridge does not have a constitutionally protected right
to counsel in state habeas proceedings, Etheridge must bear the
cost of all procedural defaults.
We do not suggest that the framework of Etheridge’s argument
is implausible. We are, however, precedent bound to reject this
analysis. See Jones, 171 F.3d at 270; Callins v. Johnson, 89 F.3d
210 (5th Cir. 1996). Furthermore, as we have indicated, Etheridge
has provided no evidence that would suggest that counsel’s
strategic choices of introducing no mitigating evidence was not a
professionally acceptable judgment call. See Mann, 41 F.3d at 984.
Finally, it is pure speculation that a new hearing would result in
a different result.

18
present this claim because he is actually innocent of the murder of

Christie Chauviere.9

In Jones v. Johnson, 171 F.3d 270 (5th Cir. 1999), we had an

opportunity to consider whether the ineffective assistance of state

habeas counsel could constitute sufficient “cause” to avoid a state

procedural bar. Id. at 276. The petitioner there alleged that

“his state habeas counsel rendered ineffective assistance by

failing to raise the issue of his trial counsel’s ineffectiveness.”

Id. at 276. As an initial matter, the court stated:

Jones did not present this claim for review on either
direct appeal or during the state habeas proceedings, and
this unexhausted claim is therefore procedurally barred.
Further, Jones’ claim would be dismissed as abuse of the
writ under state law if presented in a second state
petition and is likewise barred from our consideration.
Jones must therefore assert cause and prejudice for not
bringing these claims in his first state application or
be procedurally barred.

Id. at 276-77 (citing Coleman v. Thompson, 501 U.S. 722 (1991)).

Focusing on the issue of “cause,” the court held that attorney

error in a state habeas proceeding could not constitute sufficient

9
We need not address the “fundamental miscarriage of justice”
exception to the independent and adequate state procedural bar.
Although Etheridge has made this claim in his petition, his counsel
at oral argument recognized the lack of evidentiary support for it
in the record. Etheridge, however, did submit his own affidavit in
the federal habeas proceedings in which he stated that his brother
murdered Christie Chauviere while Etheridge was restraining Gail in
another part of the Chauvieres’ house. This statement, however,
reflects at least Etheridge’s fourth version of his involvement in
the murder of Christie Chauviere, and as we have indicated is not
supported by any other evidence.

19
cause for avoiding the adequate and independent state procedural

bar:

Jones contends that his state habeas counsel’s failure to
present his ineffective assistance claim during state
habeas proceedings constitutes cause sufficient to
overcome procedural default. The law is well-
established, however, that such error committed in a
post-conviction application, where there is no
constitutional right to counsel, cannot constitute cause.
Jones’ contention is thus without merit.

Id. at 277 (citations omitted); see also Callins v. Johnson, 89

F.3d 210 (5th Cir. 1996)(stating that state habeas “counsel’s

ineffectiveness will constitute cause only if it is an independent

constitutional violation and [since] there is no constitutional

right to counsel in habeas proceedings . . . no error by habeas

counsel can ever constitute cause for abusing the writ”).

Thus, our precedent is clear that the failure of Etheridge’s

state habeas counsel to raise the issue of the ineffectiveness of

trial counsel cannot constitute “cause” sufficient to escape the

procedural default of this claim. Accordingly, the claim is

procedurally barred from our consideration.

C

Turning to Etheridge’s equal protection claim, Etheridge

points out that he was not entitled to the benefit of a mitigating

instruction provided by a recently enacted Texas statute; yet,

other defendants, who were charged with committing capital crimes

on the same date as his crime, but who were tried after him, are

entitled to the instruction. This circumstance, he says, denies

20
him the Fourteenth Amendment right to equal protection of the law.

With respect to his right at stake, Etheridge contends that

because “there is no personal right so fundamental as the right to

life,” the state’s legislative restriction placed on the benefit

of this statutory instruction must pass strict scrutiny.10

Consequently, Etheridge argues, because the limitation cannot pass

strict scrutiny, it is unconstitutional.

Shortly after Etheridge was sentenced to death, the Texas

Legislature, in 1991, amended the capital sentencing procedure to

include a special issue explicitly requiring the jury to consider

any mitigating circumstances against imposing the death penalty.

See Tex. Code Crim. P. Ann. art. 37.071. The new special issue

required the jury to consider the following question if they had

answered affirmatively to the first two issues of “deliberateness”

and “future danger to society”:

Whether, taking into consideration all of the
evidence including the circumstances of the offense, the
defendant’s character and background, and the personal
moral culpability of the defendant, there is sufficient
mitigating circumstance or circumstances to warrant that
a sentence of life rather than a death sentence be
imposed.

10
Etheridge understandably fails to identify any specific
provision of the Constitution that assures a fundamental right to
life. See Richard v. Hinson, 70 F.3d 415, 417 (5th Cir.
1995)(stating that “a fundamental right for equal protection
purposes is one that is explicitly or implicitly protected by the
Constitution”). Rather, he simply asserts in his brief that “there
is no personal right so fundamental as the right to life.”
Actually, the Constitution only guarantees fundamental due process
before one’s life may be taken by the state.

21
Tex. Code Crim. P. Ann. art. 37.071 § 2(e)(Vernon 1992). This

change in procedure was initially limited to those offenses that

were committed on or after September 1, 1991. Id. at § 5(a).

However, in 1993, the Texas Legislature further amended the

procedure to require that the special issue be given in all

capital cases “whether committed before, on, or after the effective

date of this Act [August 30, 1993].” Tex. Code Crim. P. Ann. art.

37.071 (Vernon 1994). Additionally, a specific provision was

adopted that expressly required that the special issue be given in

all capital cases for offenses committed before September 1, 1991,

that came to trial on or after September 1, 1993, either for the

first time or on re-trial after the granting of a new trial or

punishment hearing. Tex. Code. Crim. P. Ann. art. 37.0711 (Vernon

1994).

As a result of these amendments, defendants who committed

their offenses before September 1, 1991, and were tried for those

offenses before September 1, 1993, did not receive the benefit of

the special mitigating instruction. Etheridge’s trial fell within

this gap.

We agree with Etheridge that the equal protection clause is

“essentially a mandate that all persons similarly situated must be

treated alike;” however, under the equal protection clause, courts

apply “different standards of review depending upon the right or

classification implicated.” Rolf v. City of San Antonio, 77 F.3d

823, 828 (5th Cir. 1996). If a statute disadvantages a suspect

22
class, or if it impinges upon a fundamental right, the statute is

subject to strict scrutiny. Id. Otherwise, courts apply the less

stringent rational basis test to determine if the statute passes

constitutional muster. Id.

Etheridge argues that articles 37.071 and 37.0711 are subject

to strict scrutiny because his fundamental right to life is

impinged by the denial of the additional instruction. The statutes

in question do not address so broad a concern. Instead, these

statutes address the procedure by which the state may take a life,

and thus implicates Etheridge’s right to certain procedures in

death penalty cases. The question is whether the denial of the

benefit of these procedures to Etheridge impinges some fundamental

right to which he is entitled. If they do, then we will have to

determine whether the state can advance a compelling interest in

these laws; if they do not, then the state must only demonstrate a

rational basis to justify these laws that effectively exclude

Etheridge from their coverage.

On numerous occasions, the Supreme Court has held that the

Texas sentencing procedure in place prior to 1993 satisfies the

fundamental constitutional right to due process of law in death

penalty cases.11 See Johnson v. Texas, 509 U.S. 350 (1993); Graham

11
In Lackey v. Scott, 28 F.3d 486 (5th Cir. 1994), we
addressed a constitutional challenge to the exact jury charge given
in Etheridge. The defendant requested a separate jury instruction
on mitigation. Id. at 488. The state trial court denied this
request. Id. On federal habeas review, the defendant agreed that
“without the requested [mitigation] instruction, the Texas special

23
v. Collins, 506 U.S. 461 (1993); Franklin v. Lynaugh, 487 U.S. 164

(1988); Jurek v. Texas, 428 U.S. 262 (1976). Consequently, because

the pre-amendment procedure afforded Etheridge all of the due

process rights to which he was constitutionally entitled, the

denial of the additional instruction does not result in the denial

of a fundamental due process right. Thus, Etheridge cannot assert

the right to have his equal protection claim, challenging articles

37.071 and 37.0711, judged under a strict scrutiny test. We will,

therefore, review Etheridge’s equal protection claim under the

rational basis test. See City of Cleburne v. Cleburne Living

Center, 473 U.S. 432, 440 (1985); Rolf, 77 F.3d at 828.

As the district court noted, the applicability of Article

37.0711 was limited to “new trials or new sentencing hearings--

circumstances in which a court has reopened a judgment--and article

37.01 to new offenses.” Etheridge, 49 F.Supp.2d at 991. Clearly,

Texas has a legitimate interest in providing persons tried in the

future with additional procedural rights. On the other hand, the

State of Texas has a legitimate interest in “the finality of

convictions that have survived direct review within the state court

system.” See Etheridge, 49 F.Supp.2d at 991 (quoting Brecht v.

issues did not allow the jury to give mitigating effect to the
evidence.” Id. We rejected this argument stating: “We have
previously stated that the Texas sentencing scheme does not
preclude the jury from giving mitigating effect to evidence. . . .”
Id. at 489. Thus, Lackey makes it clear that the Texas special
issues provided Etheridge with constitutionally adequate
protection.

24
Abrahamson, 507 U.S. 619 (1993)). Thus, because articles 37.071

and 37.0711 have a rational basis for their enactment, we hold that

these statutes pass constitutional scrutiny under the Equal

Protection Clause.

25
 III

In sum, Etheridge has failed to make a substantial showing of

the denial of any constitutional right. Thus, his request for a

COA is DENIED, and the appeal is DISMISSED.

DENIED and DISMISSED.

26