IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20183
KEITH BERNARD CLAY,
Petitioner-Appellant,
versus
JANIE COCKRELL, Director, Texas Department
of Criminal Justice, Institutional Division,
Respondent-Appellee.
Appeal from United States District Court
for the Southern District of Texas
(01-CV-237)
August 20, 2002
Before JOLLY, HIGGINBOTHAM, and STEWART, Circuit Judges.
PER CURIAM:*
Petitioner Keith Bernard Clay (“Clay”), convicted of capital murder in Texas and sentenced
to death, requests a Certificate of Appealability (“COA”) pursuant to 28 U.S.C. § 2253(c)(2). For
the reasons set forth below, we DENY the COA.
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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FACTUAL AND PROCEDURAL BACKGROUND
A brief summary of the facts is all that is necessary to dispose of the issues involved in this
case. On January 4, 1994, Clay, Shannon Thomas (“Thomas”), and Ernest Lee King (“King”) drove
into the parking lot of a convenience store in Texas. Clay remained outside to use a pay phone and
King went inside to purchase a pack of cigarettes. After King left the store, Clay went inside. As
King returned to the vehicle, he heard gunshots coming from inside the store. King testified that he
saw Clay shoot the clerk, Melanthethir Tom Varguhese (“Varguhese”). Varguhese was shot six
times–Clay used his own gun, as well as a gun stored under the counter at the convenience store.
Clay left the store carrying approximately $2,000 in cash. Clay then ordered Thomas to drive away.
At trial, in an effort to show Clay’s future dangerousness, the prosecution introduced
evidence, during the punishment phase, of Clay’s involvement in the murder of a drug dealer and his
two children. Clay was convicted of capital murder and was sentenced to death. On direct appeal,
the Texas Court of Criminal Appeals affirmed Clay’s co nviction and sentence. Clay v. State, No.
72,811 (Tex. Crim. App. Mar. 10, 1998) (unpublished). Thereafter, Clay filed an application for state
habeas corpus relief, which was denied. Ex Parte Clay, No. 43,906-01 (Tex. Crim. App. Jan. 19,
2000) (unpublished). Clay filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 in federal district court on January 19, 2001. The State moved for summary judgment on all
of Clay’s claims and the district court granted the motion. The district court also denied Clay a COA,
although Clay did not make a formal request for one. Clay now requests a COA from this Court.
STANDARD OF REVIEW
This case is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”)
because Clay filed his § 2254 habeas petition in the district court on January 19, 2001, after the April
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24, 1996 effective date of the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under the
AEDPA, befo re an appeal from the dismissal or denial of a § 2254 habeas petition can proceed, a
petitioner must obtain a COA. 28 U.S.C. § 2253(c)(2). A COA will be granted “only if the
[petitioner makes] a substantial showing of the denial of a constitutional right.” Id. To make a
“substantial showing,” the petitioner “must demonstrate that the issues are debatable among jurists
of reason; that a court could resolve the issues [in a different manner]; or that the questions are
adequate to deserve encouragement to proceed further.” Tennard v. Cockrell, 284 F.3d 591, 594
(5th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Where, as here, the
district court rejects a prisoner’s constitutional claims on the merits, “[t ]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Any doubt regarding
whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be
considered in making this determination.” Tennard, 284 F.3d at 594.
In determining whether a COA should be granted, we must bear in mind the deferential
scheme of the AEDPA. Id. Federal courts defer to a state court’s adjudication of a peti tioner’s
claims on the merits unless the state-court adjudication “(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 was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1)-(2). Under the “contrary to” clause, a federal court may grant habeas relief if the state
court “reaches a legal conclusion in direct opposition to a prior decision of the United States Supreme
Court or when it reaches a different conclusion than the United States Supreme Court on a set of
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materially indistinguishable facts.” Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir. 2002) (quoting
Kutzner v. Johnson, 242 F.3d 605, 608 (5th Cir. 2001)). Under the “unreasonable application”
clause, a federal court may grant the writ if the state court’s application of clearly established federal
law is “objectively unreasonable.” Id. Further, state court findings of fact are presumed to be correct
unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. §
2254(e)(1).
DISCUSSION
In his petition for COA, Clay makes four arguments. First, he claims that the introduction of
unadjudicated offenses in the punishment phase of his trial violated his constitutional rights. Second,
he claims that the state trial court violated his constitutional rights by failing to inform the jury that
he would have not been eligible for parole for forty years had he been given a life sentence. Third, he
asserts that there was legally insufficient evidence to convict him of the crime. Finally, he contends
that the trial court erred in failing to grant him an evidentiary hearing. We will address each of these
arguments in turn.
I. Introduction of Unadjudicated Offenses
Clay asserts that the introduction of unadjudicated offenses during the penalty phase of his
trial violated his Eighth Amendment, Due Process, and Equal Protection rights. However, Clay failed
to present his Eighth Amendment or Equal Protection contentions to the state court. Thus, these
arguments are procedurally barred. See Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997)
(finding an unexhausted claim, which would be barred by the Texas abuse-of-writ doctrine, if raised
in a state successive habeas petition, barred); TEX. CRIM. PROC. CODE ANN. art. 11.071 § 5(a)
(Vernon 2002) (“If a subsequent application for a writ of habeas corpus is filed after filing an initial
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application, a court may not consider the merits of or grant relief based on the subsequent application
unless the application contains sufficient specific facts establishing [factors not present in the instant
action].”). Even if these claims were not barred, and even considering Clay’s Due Process claim, this
Court has repeatedly held that Texas’s system of allowing unadjudicated offenses into evidence
during the penalty phase of a trial does not violate Due Process, Equal Protection, or the Eighth
Amendment. E.g., Jackson v. Johnson, 194 F.3d 641, 656 (5th Cir. 1999) (“[C]ircuit precedent
allows for the admission of unadjudicated offenses in death penalty proceedings without violating
[D]ue [P]rocess, [E]qual [P]rotection, or the [E]ighth [A]mendment.”).
Clay also asserts that Texas, if allowed to introduce unadjudicated offenses, should be
required to prove a defendant’s guilt, of those offenses, beyond a reasonable doubt. However, the
Constitution does not create any such requirement. Turner v. Johnson, 106 F.3d 1178, 1189 (5th Cir.
1997) (“Although the [D]ue [P]rocess [C]lause requires the state to prove each element of the offense
charged beyond a reasonable doubt to secure a conviction, neither this [C]ourt nor the Supreme
Court has ever held that a similar burden exists regarding the proof of facts adduced during the
sentencing phase. The precedents are to the contrary.” (footnote omitted)).
Finally, Clay argues that since most states accompany the introduction of adjudicated offenses
with a limiting instruction, Texas has violated the Constitution by failing to do so. This contention
is meritless. The Constitution does not require any such limiting instruction and the practice of other
states is irrelevant. Barrientes v. Johnson, 221 F.3d 741, 781-82 (5th Cir. 2000). As such, Clay has
failed to make a substantial showing of the denial of a constitutional right with regard to his
unadjudicated offense claim.
II. Failure to Instruct the Jury Regarding Parole
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Clay argues that the state trial court violated his Due Process, Equal Protection, and Eighth
Amendment rights by failing to instruct the jury that, if it elected to impose a life sentence, he would
be ineligible for parole for forty years.
A. Due Process
Clay bases his due process argument on Simmons v. South Carolina, in which a plurality of
the Supreme Court observed that “where the defendant’s future dangerousness is at issue, and state
law prohibits the defendant’s release on parole, due process requires that the sentencing jury be
informed that the defendant is parole ineligible.” 512 U.S. 154, 156 (1994). Clay argues that had the
jury been informed that a life sentence would require him to remain in prison for at least forty years,
the jury may have determined that he would not pose a continuing threat and may have chose to
impose a life sentence instead of the death penalty. Simmons provides no support for Clay’s due
process challenge. Simmons held that when “a capital defendant’s future dangerousness is at issue,
and the only sentencing alternative to death available to the jury is life imprisonment without
possibility of parole, due process entitles the defendant to inform the jury of [his] parole ineligibility,
either by a jury instruction or in arguments by counsel.” Kelly v. South Carolina, 122 S. Ct. 726, 728
(2002) (quoting Shafer v. South Carolina, 532 U.S. 36, 39 (2001)) (internal quotations omitted)
(emphasis added); see also Ramdass v. Angelone, 530 U.S. 156, 166 (2000) (plurality opinion) (“The
parole-ineligibility instruction is required only when, assuming the jury fixes the sentence at life, the
defendant is ineligible for parole under state law.” (emphasis added)). Further, our circuit has
consistently emphasized that Simmons applies only when there is a life-without-possibility-of-parole
alternative to capital punishment, an alternative that is not available under Texas law. E.g., Wheat
v. Johnson, 238 F.3d 357, 362 (5th Cir. 2001) (citing cases). Because Clay did not face a life
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sentence without any possibility of parole, he was not entitled to a Simmons jury instruction.
To the extent that Clay urges that he was entitled to a Simmons instruction because this
lengthy parole ineligibility has the practical effect of a life sentence without the possibility of parole,
such an extension of Simmons would constitute a new rule of constitutional law, and is thus barred
by the non-retroactivity principle announced in Teague v. Lane, 489 U.S. 288 (1989). See Tigner
v. Cockrell, 264 F.3d 521, 525 (5th Cir. 2001).
B. Equal Protection
Clay maintains that Texas' sentencing scheme at the time of his conviction violates the
Fourteenth Amendment's guarantee of equal protection because it treated capital crime defendants
differently from non-capital ones. Specifically, he contends that Texas law irrationally allowed
non-capital defendants to receive jury instructions regarding parole ineligibility, while capital
defendants could not demand such an instruction. He also observes that capital juries may now
receive instructions about parole eligibility.**
Texas does not confer a fundamental right to parole. Id. at 526. Moreover, capital
defendants are not a suspect class. Id. Accordingly, we apply a rational basis test to Texas’s scheme.
Green v. Johnson, 160 F.3d 1029, 1044 (5th Cir. 1998). Under a rational basis test, we must uphold
a governmental classification if it rationally promotes a legitimate government objective. Id. We have
held that a state could rationally conclude that juries should not consider parole ineligibility in capital
cases. We stated that
**
Texas has amended its law to allow a capital crime defendant to receive a jury instruction
regarding the possibility of parole. TEX. CRIM. PROC. CODE ANN. art. 37.071 § (e)(2)(B) (Vernon
2002).
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[i]nstructions on parole eligibility at the punishment phase of capital murder trials might tempt
capital sentence juries to consider such transitory, but public, issues as prison overcrowding,
the identities of the membership of the Texas Board of Pardons and Paroles, or the recent
track record of that Board in releasing violent offenders, as factors which should be weighed
in reaching their verdict at punishment. . . . The Texas legislature could rationally conclude
that injection of parole issues at the punishment phase of capital murder trial would invite
consideration of factors unrelated to the defendant's blameworthiness.”
Id. at 1044 (internal citations omitted).
Accordingly, Clay has not shown a equal protection violation.
C. Eighth Amendment
Finally, Clay argues that parole eligibility constitutes mitigating evidence, which must be
considered under Penry v. Lynaugh, 492 U.S. 302 (1989). However, “[t]he fact that [Clay] presents
[this argument] as a Penry cruel and unusual punishment claim, rather than as a Simmons due process
claim, does not require us to reach a different conclusion.” Alldridge v. Scott, 41 F.3d 213, 233 (5th
Cir. 1994). The Eighth Amendment does not compel jury instructions on parole. Rudd v. Johnson,
256 F.3d 317, 321 (5th Cir. 2001).
Accordingly, Clay has failed to make a substantial showing of the denial of a constitutional
right on his parole-eligibility instruction claim.
III. Sufficiency of the Evidence
Clay contends that there is insufficient evidence to support his conviction. When reviewing
the sufficiency of the evidence, a Court must inquire as to “whether the record evi dence could
reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
318 (1979). This inquiry does not require a court to ask “whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt.” Id. at 319 (citation omitted). “Instead, the
relevant question is whether, after viewing the evidence in the light most favorable to the prosecution,
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any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id. Moreover, where the state court has carefully reviewed the constitutional sufficiency of
the evidence, its determination is entitled to substantial weight. Id. at 332 n.15.
Clay’s central contention is that King, a main prosecution witness, was an accomplice whose
testimony needed to be corroborated under article 38.14 of the Texas Code of Criminal Procedure.
TEX. CRIM. PROC. CODE ANN. art 38.14 (Vernon 1979) (“A conviction cannot be had upon the
testimony of an accomplice unless corroborated by other evidence tending to connect the defendant
with the offense committed; and the corroboration is not sufficient if it merely shows the commission
of the offense.”).
Under Texas law, an accomplice is a person who “participates before, during, or after the
commission of the crime and can be prosecuted for the same offense as the defendant or for a
lesser-included offense.” Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999) (emphasis
added). Texas’s Court of Criminal Appeals found no evidence that King participated in the robbery
or murder. Simply put, King was not an accomplice. Moreover, only federal constitutional claims
are cognizable in a federal habeas proceeding. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
“[T]he Constitution imposes no requirement that the testimony of an accomplice-witness be
corroborated by independent evidence. Accordingly, the prosecution's failure to satisfy the
requirements of the accomplice-witness sufficiency rule, and a state court's failure to enforce that
purely state rule, simply [does] not warrant constitutional attention.” Brown v. Collins, 937 F.2d
175, 182 n.12 (5th Cir. 1991).
Applying the Jackson standard to Clay’s claim, we conclude that a rational trier of fact could
have found, beyond a reasonable doubt, that Clay committed the offense of capital murder. As such,
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Clay’s insufficiency of the evidence claim fails.
IV. Evidentiary Hearing
Clay seeks an evidentiary hearing to flesh out his claims. He alleges that the state trial court
did not address pivotal factual issues. He also avers that he was impeded in his effort to develop
material facts relevant to his claim. In particular, he maintains that his state habeas counsel did not
have access to the District Attorney’s case file.
Section 2254(e)(2) of the AEDPA precludes an evidentiary hearing where an “applicant has
failed to develop the factual basis of a claim in State court proceedings, . . . unless the applicant” can
show that “the claim relies on [either] a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable; or a factual predicate that
could not have been previously discovered through the exercise of due diligence; and the facts
underlying the claim would be sufficient to establish by clear and co nvincing evidence that but for
constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying
offense.” 28 U.S.C. § 2254(e)(2)(A)(i)-(ii),(B). Because Clay does not rely on a new rule of
constitutional law, he must show that he could not have discovered the factual predicate of his claim
through the exercise of due diligence and that, but for constitutional errors committed, no reasonable
factfinder would have found him guilty.
In his state habeas petition, Clay requested a hearing, but did not offer any support for why
a hearing was required. “Mere requests for evidentiary hearings will not suffice; the petitioner must
be diligent in pursuing the factual development of his claim.” Dowthitt v. Johnson, 230 F.3d 733, 758
(5th Cir. 2000). Moreover, even if Clay had exercised due diligence, and even if he had met the
requirements of § 2254(e), a district court’s denial of an evidentiary hearing is reviewed for an abuse
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of discretion. Clark v. Johnson, 227 F.3d 273, 284 (5th Cir. 2000). “[W]here a district court has
before it sufficient facts to make an informed decision regarding the merits of a claim, a district court
does not abuse its discretion in refusing to grant an evidentiary hearing.” Murphy v. Johnson, 205
F.3d 809, 816 (5th Cir. 2000). Our review of the record reveals that the district court had before it
all of the necessary facts to determine whether Clay’s arguments warranted further attention. We find
no factual dispute requiring a hearing. Therefore, we conclude that the district court did not abuse
its discretion in denying Clay a hearing.***
CONCLUSION
Clay has not made a substantial showing of the denial of a constitutional right. We therefore
DENY his request for a COA.
Application for COA DENIED.
***
With regard to Clay’s claim that he was impeded from obtaining access to the District
Attorney’s file, Clay never explains how his attorney was impeded nor does he provide an affidavit
from his attorney supporting this claim. Conclusory arguments such as these do not require the
district court to conduct a hearing.
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