Miller-El v. Dretke

Revised August 24, 2001

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 00-10784

THOMAS JOE MILLER-EL,

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 Northern District of Texas

August 7, 2001
Before JONES, DeMOSS and PARKER, Circuit Judges.

DeMOSS, Circuit Judge:

Petitioner Thomas Joe Miller-El (“Miller-El”), who was

convicted of capital murder in Texas state court and who was

sentenced to death therefor, and whose petition for habeas corpus

relief and request for a Certificate of Appealability (“COA”)

therefrom were both denied by the federal district court below, now

seeks from this Court a COA pursuant to 28 U.S.C. § 2253(c)(2).
For all of the reasons set forth below, we DENY the request for a

COA.

I. BACKGROUND

In 1985, Miller-El’s wife, Dorothy Miller-El, was employed as

a night maid for the lobby area of the Holiday Inn South. She

arranged for a religious convention for the Moorish Science

Temple’s Feast on November 8-10, 1985. Her husband was among the

attendees. After the convention, Dorothy did not return to work.

Shortly before midnight on November 15, 1985, Dorothy returned to

the Holiday Inn claiming that she was there to pick up her

paycheck. She was given access to the office area near the vault.

During this time period, four hotel employees were working,

Doug Walker, Donald Hall, Anthony Motari, and Mohamed Ali

Karimijoji. Hall, the chief auditor, was training Mohamed

regarding the hotel’s daily closing procedures. Hall instructed

Mohamed to close out the cash registers, a process which would take

one-half hour. Mohamed encountered a woman who claimed that she

needed accompanying while she waited for her ride. Mohamed sent

her to the front desk area without leaving the locked area he was

in.

At the front desk, a man later identified as Miller-El

appeared and requested a room from Hall. Witnesses identified

Miller-El from having seen him at the Moorish Feast convention the

previous week. A younger man, later identified as Kenneth Flowers

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and dressed in army fatigues and a headset, peered around the

corner as Hall was giving Miller-El his room key, and once spotted

by Hall, he also approached the counter. Miller-El told Hall that

he would be needing two beds. Seconds later, Miller-El and Flowers

pulled out weapons. Miller-El brandished a semi-automatic “tech”

nine millimeter machine gun, with a flash suppressor for night use.

Flowers had a .45 caliber hand gun.

Hall complied with Miller-El’s instructions to empty the cash

drawer and place the money on the counter. Miller-El then ordered

Hall to bring any other people in the back out front. Hall

instructed Walker to come out. Flowers jumped over the counter and

the two men instructed Hall and Walker to lay on the floor. The

two men led Hall and Walker to the bellman’s closet which they

ordered opened. Once the two men removed all of the valuables from

the closet and took Walker’s and Hall’s wallets, Miller-El tied

Walker’s hands behind his back, tied his legs together, and gagged

him with strips of fabric. Flowers did the same to Hall. Walker

was laid on his face and Hall was laid on his side.

Miler-El asked Flowers if he was going to “do it” and Flowers

responded that he couldn’t. Flowers then left. Miller-El stood at

Walker’s feet, removed his glasses and then shot Walker in the back

two times. Hall closed his eyes after the first shot. He heard

two more shots and realized that he had also been wounded. Hall

tried to talk to Walker but only heard him choking. When he heard

familiar voices outside, Hall screamed for help.

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 Several days after the robbery-murder, Officer Cagle was on

surveillance of an apartment complex believed to be Dorothy Miller-

El’s. He spotted Dorothy and Flowers. With the assistance of

back-up units, he stopped their vehicle and arrested them both.

Search warrants were executed for the residence, and “walkie-

talkie” headsets were found. When Miller-El was later arrested,

found in his possession was an arsenal of weapons including the

“tech” nine millimeter murder weapon.

II. PROCEDURAL HISTORY

Miller-El pleaded not guilty to and in March 1986 was tried

before a jury on the charge of capital murder during the course of

committing a robbery. On March 24, 1986, the jury returned with a

guilty verdict and at the conclusion of the sentencing phase, the

same jury answered in the affirmative to the special issues set

forth in the Texas Code. Accordingly, the trial court imposed upon

Miller-El the sentence of death.

Miller-El's conviction and sentence were automatically

appealed to the Texas Court of Criminal Appeals. On December 14,

1992, that court affirmed Miller-El's conviction and sentence in an

unpublished opinion. See Miller-El v. State, No. 69,677 (Tex.

Crim. App. 1992)(en banc)(unpublished). And on October 4, 1993,

the Supreme Court denied Miller-El's petition for writ of

certiorari. See Miller-El v. Texas, 114 S. Ct. 100 (1993).

Miller-El then filed an application for state habeas relief.

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The state trial court judge entered findings of fact and

conclusions of law recommending denial of Miller-El’s state habeas

petition. On June 17, 1996, the Texas Court of Criminal Appeals

adopted the trial judge's findings of fact and conclusions of law

and denied Miller-El's application for state habeas corpus relief.

See Ex parte Miller-El, No. 31,001-01 (Tex. Crim. App. 1996)

(unpublished).

On June 17, 1997, Miller-El filed his petition for habeas

corpus relief pursuant to 28 U.S.C. § 2254 in federal district

court. On August 12, 1997, Miller-El filed an amended petition for

habeas corpus. Miller-El’s petition was referred to a magistrate

judge who, on January 31, 2000, issued findings and conclusions,

recommending a denial of relief. On June 5, 2000, after receiving

objections and conducting a hearing on the magistrate judge’s

report and recommendation, the district court adopted the

magistrate’s findings and conclusions and denied Miller-El’s

petition for a writ of habeas corpus. The district court

subsequently denied Miller-El’s motion to alter or amend the final

judgment denying relief on June 21, 2000. Miller-El then filed a

notice of appeal in this Court and a motion for a COA in the

district court. On August 14, 2000, the district court denied

Miller-El's request for a COA on each of the issues raised herein.

It is Miller-el’s renewed request for a COA that is presently

before us.

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 III. DISCUSSION

Miller-El seeks from this Court a COA on each of the following

issues: (1) whether the district court erred in overruling his

challenges of improper peremptory juror strikes; (2) whether the

state court erred in failing to conduct a sua sponte evidentiary

hearing regarding his competency to stand trial and in finding that

he was competent to stand trial in 1986; (3) whether the district

court likewise erred in failing to conduct a hearing regarding his

competency; and (4) whether the district court erred finding that

his First and Fourteenth Amendment rights were not violated by

admission of evidence, during the punishment phase of his trial,

relating to his affiliation with the Moorish Science Temple..

Miller-El's petition for writ of habeas corpus was filed on

June 17, 1997, and is thus governed by the provisions of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Lindh

v. Murphy, 117 S. Ct. 2059, 2068 (1997); United States v. Carter,

117 F.3d 262 (5th Cir. 1997). Under AEDPA, before an appeal from

the dismissal or denial of a § 2254 habeas petition can proceed,

the petitioner must first obtain a COA, which will 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 same standards

that governed issuance of the pre-AEDPA version of the COA, the

certificate of probable cause (“CPC”), apply to requests for a COA.

See Slack v. McDaniel, 120 S. Ct. 1595, 1603 (2000). A petitioner

6
makes a “substantial showing” when he demonstrates that his

petition involves issues which are debatable among jurists of

reason, that another court could resolve the issues differently, or

that the issues are adequate to deserve encouragement to proceed

further. See id. at 1603-04.

Additionally, pursuant to § 2254(e)(1), a state court's

determination of a factual issue must be presumed correct, and the

habeas petitioner bears the burden of rebutting the presumption by

clear and convincing evidence. The presumption of correctness is

especially strong, where, as here, the trial court and the state

habeas court are one and the same. See Clark v. Johnson, 202 F.3d

760, 764 (5th Cir.), cert. denied, 121 S. Ct. 84 (2000).

And while the nature of the penalty in a capital case is an

appropriate consideration for determining whether to issue a COA,

the severity of the penalty at issue does not, in and of itself,

require the issuance of a COA. See Clark, 202 F.3d at 764 (citing

Lamb, 179 F.3d at 356). However, in capital cases, doubts as to

whether a COA should issue must be resolved in favor of the

petitioner. See Lamb, 179 F.3d at 356. Cognizant of the foregoing

principles, we turn now to consider those issues raised by Miller-

El in his request for a COA.

A.

Miller-El first contends that he is entitled to a COA

regarding his challenge to the prosecution’s alleged improper use

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of peremptory strikes to exclude African-Americans from his jury.

Miller-El argues that the Supreme Court’s decision in Swain v.

Alabama, 85 S. Ct. 824 (1965), is still the applicable law

regarding challenges to improper peremptory strikes when evidenced

by data indicating historic, systematic discrimination against

African-Americans. However, during the pendency of Miller-El’s

direct appeal, the Supreme Court decided Batson v. Kentucky, 106

S. Ct. 1712 (1986), in which it stated that “[t]o the extent that

anything in Swain v. Alabama is contrary to the principles we

articulate today, that decision is overruled.” Batson, 106 S. Ct.

at 1725. Yet Miller-El contends that Batson only overruled one

part of Swain. According to Miller-El, while under Batson, a

defendant is no longer required to establish a prima facie case of

racial discrimination based upon proof of historical, consistent,

and systematic exclusion of African-Americans from juries, if

racial discrimination is proffered, nevertheless, under Swain, then

either the Swain or Batson evidentiary formulations apply. Miller-

El argues that the evidentiary formulation of Swain is, thus,

applicable to his claim of systematic exclusion. The government

contends that the Batson evidentiary formulation overruled the

Swain formulation on which Miller-El relies.

Under Swain, a defendant was required to show the prosecutor’s

“systematic use of peremptory challenges against Negroes over a

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period of time” as a predicate. See Swain, 85 S. Ct. at 839.

Assuming that a defendant would be able to demonstrate a historical

pattern of discrimination continuing unabated to the defendant’s

trial, the burden would then shift to the prosecutor to rebut the

defendant’s allegations. See Alexander v. Louisiana, 92 S. Ct.

1221, 1226 (1972). To satisfy his burden, the prosecutor could do

one of two things. First, the prosecutor could show that the

systematic disparity resulted from racially-neutral selection

procedures. Second, the prosecutor could “show neutral reasons for

the striking of all the blacks in petitioner’s trial itself.”

Willis v. Zant, 720 F.2d 1212, 1220-21 (11th Cir. 1983). However,

in any case under Swain, we have held that it is not sufficient to

prove a Swain violation based solely on statistical evidence from

prior trials without some concomitant showing that the intentional

and systematic discrimination continued “unabated” through to the

petitioner’s trial. See Evans v. Cabana, 821 F.2d 1065, 1068 (5th

Cir. 1987). Additionally, the prosecutor could rebut the

petitioner’s showing with a showing of neutral reasons. Miller-El

argues that his showing under Swain requires only a showing of

historical and systematic discrimination in order to establish a

prima facie case.

In Batson, the Supreme Court, recognizing the “crippling

burden of proof” which Swain created, replaced the Swain

evidentiary formulation with the new Batson standard. That new

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standard involves the following three steps:

First: A defendant can establish his prima
facie case of purposeful
discriminatory petit jury selection
solely upon evidence concerning the
prosecutor’s exercise of peremptory
challenges at the defendant’s trial.
Alternatively, the defendant can
make a prima facie case by proving
historic, systematic discrimination;

Second: If a defendant makes a prima facie
showing, the burden then shifts to
the government to provide a race-
neutral explanation for challenging
the excluded jurors;

Third: The trial court must then determine
if the defendant has established
purposeful discrimination, and the
trial court’s determination is a
finding fact entitled to the
applicable level of deference on
appellate review.

See Batson, 106 S. Ct. at 1723-24.

Despite Miller-El’s contention that the Swain evidentiary

framework was untouched by Batson, the Supreme Court has itself

explicitly stated “we reject [Swain’s] evidentiary formulation as

inconsistent with standards that have been developed since Swain

for assessing a prima facie case under the Equal Protection

Clause.” Id. at 1721; see also Georgia v. McCullum, 112 S. Ct.

2348 (1992) (stating that “[i]n Batson v. Kentucky, [] the Court

discarded Swain’s evidentiary formulation”).

With respect to the second step in the Batson analysis, the

Court stated specifically:

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 Once the defendant makes a prima facie showing, the
burden shifts to the State to come forward with a
neutral explanation for challenging black jurors.
Though this requirement imposes a limitation in
some cases on the full peremptory character of the
historic challenge, we emphasize that the
prosecutor’s [race-neutral] explanation need not
rise to the level justifying exercise of a
challenge for cause.

Batson, 106 S. Ct. at 1723. Miller-El suggests that contrary to

the above language in step two of the Batson evidentiary framework,

the level of explanation required to rebut the prima facie case is

governed by the rebuttal stage of the evidentiary formulation of

Swain and is a “heavy burden.” However, as we have noted, the

Supreme Court has explicitly overruled the evidentiary formulation

of Swain to the extent that it would contradict any principle,

evidentiary or otherwise, announced in Batson. See id. at 1725.

Thus, to the extent that the two burdens of rebuttal in Swain and

Batson are inconsistent, the Supreme Court has mandated that the

standard in Batson be applied. Here, Batson was decided during the

pendency of Miller-El’s direct appeal, and it is, thus, the

applicable standard for analyzing his challenge to the use of

peremptory juror strikes. See Griffith v. Kentucky, 107 S. Ct. 708

(1987) (holding that Batson governs claims by defendants whose

appeals were pending and non-final at the time Batson was decided).

Miller-El contends that the state court’s adjudication was an

unreasonable application of Batson and that the court’s findings

were also unreasonable in light of his prima facie showing. His

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primary challenge is to the district court’s alleged failure to

give proper weight and credit to the evidence which he presented

regarding the historical data evidencing exclusion of African-

American jurors.

The state court findings in this case on the issue of

discriminatory intent, despite Miller-El’s protestations to the

contrary, are entitled to great deference. See Hernandez v. New

York, 111 S. Ct. 1859, 1868 (1991). As an appellate court

reviewing a federal habeas petition, we are required by

§ 2254(d)(2) to presume the state court findings correct unless we

determine that the findings result in a decision which is

unreasonable in light of the evidence presented. And the

unreasonableness, if any, must be established by clear and

convincing evidence. See 28 U.S.C. § 2254(e)(1).

The detailed factual findings made by the state trial court

establish that each of the challenged African-American jurors was

stricken on race-neutral grounds. Miller-El has addressed the

peremptory challenge of six of the ten Batson jurors in his request

for a COA. We have now conducted an independent review of the

findings of the state court and of the evidence presented by

Miller-El in his application. Suffice it to say, and without

commenting on each of the challenged jurors and the reasons

proffered for their being excluded, we find that the state court’s

findings are not unreasonable and that Miller-El has failed to

12
present clear and convincing evidence to the contrary. The

findings of the state court that there was no disparate questioning

of the Batson jurors and that the prosecution’s reasons for

striking the jurors was due to their reluctance to assess and/or

their reservations concerning the death penalty are fully supported

by the record.

Having determined that the state court’s adjudication neither

resulted in a decision that was unreasonable in light of the

evidence presented nor resulted in a decision contrary to clearly

established federal law as determined by the Supreme Court, we

conclude that this issue would not be debatable among jurists of

reason, that courts could not resolve the issues in a different

manner, and that the issue does not deserve encouragement to

proceed further. Miller-El has thus failed to make a substantial

showing of the denial of a constitutional right. Accordingly, we

deny Miller-El’s request for a COA on this issue.

B.

Miller-El’s second issue consists of two parts that revolve

around his claim that he was incompetent to stand trial. He first

claims that the state trial court erred in failing to provide him

with a sua sponte evidentiary hearing pursuant to Pate v. Robinson,

86 S. Ct. 836 (1966). Second, he challenges his conviction as

infirm under Dusky v. United States, 80 S. Ct. 788 (1960), on the

basis that he was incompetent, in fact, at the time of his trial.

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Before analyzing these claims, a brief review of some additional

facts is necessary.

Miller-El was tried some eight weeks following his arrest.

Incident to his arrest, Miller-El was wounded by a gunshot. During

the months following his arrest, Miller-El underwent surgical

treatment for his injuries, and he experienced complications such

as weight loss. On three separate occasions during his trial,

Miller-El was evaluated by a doctor at the direction of the trial

court. First, during jury selection, he experienced chest pains,

chills, and a fever. He was diagnosed with pneumonia and was

treated and discharged the same day. Nine days later, still during

jury selection, Miller-El complained of delays in receiving

medication. The trial court ordered a second evaluation to

determine if Miller-El needed more medication. The doctor

determined that he did not. Two days before jury selection

concluded, Miller-El was taken to the hospital for treatment of a

chest abscess. During his trial, Miller-El complained of pain in

his ribs and asked to see a doctor. And finally, on the evening of

the day he was found guilty, the trial judge ordered a medical

evaluation to determine if Miller-El would be able to sit through

court after complaining of nausea and colostomy bag complications.

He was kept overnight in the hospital and was released the next day

when the punishment phase of his trial began.

Miller-El complains that he was denied a competency hearing at

trial and that his due process rights were denied because whenever

14
evidence raises a sufficient doubt about the mental capacity of the

accused to stand trial, a hearing is required. See Drope v.

Missouri, 95 S. Ct. 896, 908 (1975); Pate, 86 S. Ct. 836. Miller-

El contends that the evidence raised a sufficient doubt as to his

competency.

In Carter v. Johnson, 110 F.3d 1098 (5th Cir. 1997), we

explained the procedural inquiries and burdens required for the two

competency claims Miller-El asserts. Specifically, we summarized

as follows:

The issue of competency may arise in two distinct
contexts. See United States v. Williams, 819 F.2d
605, 607-09 (5th Cir. 1987); Lokos v. Capps, 625
F.2d 1258, 1261-62 (5th Cir. 1980). We must
distinguish between them for purposes of the
present case.

First, a habeas petitioner may allege that state
procedures were inadequate to ensure that he was
competent to stand trial. A trial court must
conduct an inquiry into the defendant's mental
capacity sua sponte if the evidence raises a bona
fide doubt as to competency. Pate v. Robinson, 383
U.S. 375, 86 S. Ct. 836, 15 L.Ed.2d 815 (1966). If
the trial court receives evidence, viewed
objectively, that should raise a reasonable doubt
as to competency, yet fails to make further
inquiry, this constitutes a denial of a fair trial.
SeLks 65F2 a 16.I aPt voain i etbihd te fdrl hba cut ms
e oo, 2 .d t 21 f ae ilto s salse, h eea aes or ut
consider whether a meaningful hearing can be held nunc pro tunc to
determine retrospectively the petitioner's competency as of the
time of trial. Id. at 1262. If so, the petitioner bears the
burden of proving his incompetence by a preponderance of the
evidence; if not, the habeas writ must issue, subject to retrial
at the state's discretion. Id. This Pate procedural guarantee is
not before us, having been expressly abandoned by Carter on appeal.

Second, a habeas petitioner may collaterally attack
his state conviction by directly alleging
incompetence at the time of trial, thereby claiming

15
 a violation of the substantive right not to be
tried and convicted while incompetent, rather than
of the procedural guarantee of a competency hearing
in the event that a bona fide doubt arises at trial
as to competency:

It is always open for the defendant to later assert
his actual incompetence at trial in a subsequent
collateral proceeding, but the substantive claim
should not be confused with a defendant's
procedural rights under Pate to a hearing whenever
a bona fide doubt as to competence surfaces at
trial.

Carter v. Johnson, 131 F.3d 452, 458 n.10 (5th Cir. 1997).

First, with respect to whether Miller-El was entitled to a

hearing, the relevant inquiry is whether the district court

received information “which, if objectively considered, should

reasonably have raised a doubt about the defendant’s competency and

alerted [it] to the possibility that the defendant could neither

understand the proceedings or appreciate their significance, nor

rationally aid his attorney in his defense.” Lokos, 625 F.2d at

1261. In this case, the trial court specifically found that

Miller-El was competent to stand trial, both at the trial and again

on state habeas review. Specifically the court found:

(1) petitioner was legally competent both on and
off his pain medication; (2) he had the capacity to
understand the nature and object of the
proceedings against him, consult with his
attorneys, and assist in the preparation of his
defense; and (3) a competency hearing was not
required because “there was no ‘bona fide doubt’ as
to [petitioner’s] competence to stand trial.

Our independent review of the record evidence convinces us

that the district court’s finding that Miller-El was not entitled

16
to a hearing is not unreasonable, and Miller-El has failed to

present clear and convincing evidence to the contrary.

With respect to whether Miller-El was, in fact, incompetent,

we find that the district court’s conclusion that he was not, is

reasonable, and likewise, we find that the state court’s decision

does not represent an unreasonable application of federal law.

Thus, we conclude that Miller-El has failed to make a substantial

showing of the denial of a constitutional right, and we deny

Miller-El’s request for a COA on this issue.

C.

In his third issue, Miller-El claims that he is entitled to a

COA because the federal district court erred in refusing to conduct

an evidentiary hearing nunc pro tunc to determine whether he was

competent to stand trial in 1986. Having concluded above that

Miller-El has failed to establish a bona fide doubt as to his

competency at trial under Pate and that the state court’s

determination of competence was reasonable, we need not readdress

this issue.

A state court’s competency determination is a finding of fact

entitled to a presumption of correctness under § 2254(d)(2). And

we have stated that “[b]efore the federal district court has a duty

to investigate a habeas petitioner’s claim of incompetency, the

petitioner must show that there are sufficient facts to

‘positively, unequivocally and clearly generate a real, substantial

17
and legitimate doubt as to the mental capacity of the petitioner to

meaningfully participate and cooperate with counsel during trial.’”

Moody v. Johnson, 139 F.3d 477, 481 (5th Cir. 1998) (quoting

Washington v. Johnson, 90 F.3d 945, 950 (5th Cir. 1996)). Under

Section 2254(e)(1), a habeas petitioner is entitled to a nunc pro

tunc evidentiary hearing for the purpose of proving that he was

incompetent at the time he stood trial only when he “makes a

showing by clear and convincing evidence to raise a threshold doubt

about his competency.” Lokos, 625 F.2d at 1261. This threshold

burden is “extremely heavy,” Johnson v. Estelle, 704 F.2d 232, 238

(5th Cir. 1983), and requires that a petitioner present facts

sufficient to “positively, unequivocally, and clearly generate a

real, substantial and legitimate doubt” concerning his mental

competence, id. at 238. See also Jackson v. Anderson, 112 F.3d 823

(5th Cir. 1997) (noting that § 2254(e)(1) places a heavier burden

on petitioners seeking to rebut state court fact findings).

Miller-El suggests that he was entitled to an evidentiary

hearing in the federal district court because he was not given a

live hearing in the state court. The state habeas court instead

based its decisions upon the parties’ supplemental briefing and

expert affidavits, i.e, Miller-El received only a paper hearing.

We find Miller-El’s suggestion untenable, especially where, as

here, the trial judge and the state habeas judge were the same.

See Clark v. Johnson, 202 F.3d at 766 (“we have repeatedly found

18
that a paper hearing is sufficient to afford a petitioner a full

and fair hearing on the factual issues underlying the petitioner’s

claims, especially where . . . the trial court and the state habeas

court were one in the same.”).

We conclude that Miller-El has failed to make a substantial

showing of the denial of a constitutional right on this issue in

that he has failed to rebut the presumptive correctness of the

state habeas and district court findings that he was competent to

stand trial in 1986 and that he was not entitled to a nunc pro tunc

hearing to determine competency. Accordingly, we deny Miller-El’s

request for a COA on this issue.

D.

In his fourth and final issue, Miller-El argues that he is

entitled to a COA on his claim that his First and Fourteenth

Amendment rights were violated by the admission of evidence, during

the punishment phase of his trial, relating to his affiliation with

the Moorish Science Temple faith in violation of Dawson v.

Delaware, 112 S. Ct. 1093 (1992). In Dawson, while the Supreme

Court held that where religious affiliation unrelated to any issue

in the case may be impermissible, there is no “per se” barrier to

the admission of evidence which concerns a defendant’s beliefs and

associations at sentencing. Dawson, 112 S. Ct. at 1097. The Court

noted that “[i]n many cases . . . associational evidence might

serve a legitimate purpose in showing that a defendant represents

19
a future danger to society.” Id. at 166. We have, likewise, held

that if the evidence regarding a defendant’s affiliations or

personal beliefs is sufficiently related to the issues involved,

there is no constitutional violation. See Boyle v. Johnson, 93

F.3d 180, 183-84 (5th Cir. 1996).

Here the state habeas court concluded that Miller-El’s

association with the Moorish Science Temple was inextricably

intertwined with his conviction and sentence. Evidence was entered

in the guilt phase regarding his membership as part of testimony

regarding witnesses’ ability to identify him through his

participation in the Moorish Temple Feast at the murder scene the

week before the robbery-murder. Thus, introduction of this

evidence during the guilt phase was relevant to other matters.

The additional references to his membership during the

punishment phase of his trial, as the state court found, were

appropriate as they related to his involvement with other group

members who were heavily armed and who assisted in the commission

of Miller-El’s offense of conviction. The government’s

characterization of Miller-El as belonging to a heavily armed

paramilitary group was supported by the evidence and was probative

as an indicator of future dangerousness.

Having conducted an independent review, we conclude simply

that the state court’s determination that Miller-El’s due process

rights were not violated by the prosecution’s reference to his

20
membership in the Moorish Science Temple faith was consistent with

and was not contrary to the Supreme Court’s applicable holding in

Dawson. Furthermore, we conclude that the state court’s

adjudication of this claim was reasonable, and therefore, we deny

Miller-El’s request for a COA on this issue.

IV. CONCLUSION

Having carefully reviewed the record, we conclude that Miller-

El has failed to make a substantial showing of the denial of a

constitutional right with respect to any of the issues raised in

his request for COA, and accordingly, we DENY his request for COA

on all issues raised therein.

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