UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 02-50046
MICHAEL DEWAYNE JOHNSON,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL, Director, Texas Department
of Criminal Justice, Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
For the Western District of Texas
September 17, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
DeMOSS, Circuit Judge:
On May, 8, 1996, Michael Dewayne Johnson was convicted of, and
received the death penalty for, the 1995 murder of Jeff Wetterman.
The Texas Court of Criminal Appeals affirmed the conviction and
sentence in an unpublished opinion, and the United States Supreme
Court denied certiorari on May 18, 1998. Johnson filed a state
application for habeas relief in the trial court, which was denied
on February 18, 2000, after a hearing was held. The Texas Court of
Criminal Appeals also denied the application based on the trial
court’s findings. In September 2000, Johnson filed his federal
habeas petition in the Western District of Texas. After the
district court denied relief, Johnson filed a timely notice of
appeal, but the court denied his request for a certificate of
appealability (COA). Johnson now appeals, requesting this Court
issue a COA. For the following reasons, Johnson’s request is
denied.
I. BACKGROUND
Around 7:00 a.m. on September 10, 1995, Johnson and David Vest
were driving a stolen Cadillac southbound on I-35 near Waco after
leaving Dallas on their way to the Texas coast. Johnson possessed
a stolen 9 mm gun. Their car was low on gas, so they decided to
“make a gas run.”1 Johnson drove the car into Lorena Fastime, a
convenience store/gas station, and Vest jumped out and started
pumping gas. The store clerk, Jeff Wetterman, came outside and
began talking to Vest. Johnson got out of the car and moved to the
rear of the vehicle, where Vest was pumping gas. Vest asked
Johnson if he had the gun on him, and Johnson lifted his shirt to
A “gas run” is a quick theft of gas from a service station. The
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car is driven up to a gas pump and left running, while the
passenger (who leaves his door open) pumps gas into the tank. When
the passenger hangs up the pump handle, the passenger jumps into
the car as the driver speeds away without paying for the gasoline.
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show Vest the gun. Vest claimed at trial he muttered “shit” under
his breath, and, as he returned the nozzle to the pump, he heard a
shot and saw the victim fall. Johnson later claimed at trial that
he thought Vest said “shoot.” The two sped away, headed for Corpus
Christi. The single bullet passed through Wetterman’s jaw and
neck, killing him.
II. ISSUES PRESENTED
Johnson does not challenge his conviction for this crime.
Rather, he seeks COA on several issues related to the imposition of
the death penalty. Specifically, he asserts:
1) Trial counsel was ineffective during the punishment
phase when they failed to investigate and produce
available mitigating evidence of Johnson’s organic
brain impairment, physical and sexual abuse as a
child, alcoholism, drug use, and an exceptionally
unhappy and unstable childhood.
2) Trial counsel was ineffective when they failed to
object to Dr. Grigson’s expert testimony on the
future dangerousness issue.
3) Article 37.071 of the Texas Code of Criminal
Procedure is unconstitutional because it does not
provide an independent review of the propriety of
the death sentence, and thus creates the
possibility the death sentence in Texas will be
imposed arbitrarily and capriciously in violation
of the Eighth and Fourteenth Amendments to the
United States Constitution.
4) Capital sentencing provisions are unconstitutional
because they fail to inform juries of minimum
prison time.
5) The trial court failed to properly instruct the
jury about Texas parole law and the meaning of a
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life sentence in violation of the Eighth and
Fourteenth Amendments.
III. ANALYSIS
Johnson may not appeal the district court’s denial of his
petition for habeas corpus absent this Court’s issuance of a COA.
To obtain a COA, Johnson must make a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(2). This
standard is met if he demonstrates that “reasonable jurists could
debate whether (or, for that matter agree that) the petition should
have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir.
2000). “[T]he determination of whether a COA should issue must be
made by viewing the petitioner’s arguments through the lens of the
deferential scheme laid out in 28 U.S.C. § 2254(d).” Id. at 772.
ISSUE I: Whether Johnson’s trial counsel failed to adequately
investigate and introduce available mitigating evidence,
and, if so, whether this failure amounted to ineffective
assistance of counsel.
Johnson argues that his trial counsel had available
substantial evidence of his history of head injuries, physical and
sexual abuse, behavioral instability, and drug and alcohol abuse.
He asserts that this evidence “supports the scientific conclusion”
that he “suffers from an organic brain impairment which not only
mitigates his moral culpability for the offense, but also supports
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a claim that because of a physical/mental defect, he was unable to
conform his actions to the requirement of the law.” In addition,
he argues that there was evidence available to show that his brain
injuries are treatable and that treatment, combined with a highly
structured environment, could significantly reduce or eliminate his
propensity toward violence.
Johnson likens his counsels’ failure to conduct adequate
research about mitigating evidence to the deficient performance by
counsel in Lockett v. Anderson, 230 F.3d 695 (5th Cir. 2001). In
Lockett, there was evidence that the defendant suffered from a
personality disorder and brain abnormality. Also, the defendant
suffered from seizures caused by temporal lobe epilepsy, a
condition that would explain “senseless acts of violence and . . .
[an] eccentric interpretation of reality.” Lockett, 230 F.3d at
713. After noting that “[a]lthough he possessed information that
plainly suggested the need to investigate Lockett’s psychological
problems, he did not, to any degree, pursue this information,” this
Court held Lockett’s counsel to be deficient. Id. at 714. Johnson
asserts here that his counsel had a photo taken shortly after his
birth that shows a head injury resulting from forcep’s use.
However, his trial counsel did not take this cue to investigate.
Consequently, the photo was not introduced to the jury, and his
mental state was not really investigated until his state habeas
counsel took the initiative to do so.
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Finally, Johnson urges that his attorneys incorrectly resolved
a perceived conflict in interest. Specifically, he claims his
attorneys were faced with a quandary: Any mitigation evidence
about his abusive childhood would have impugned his mother, father,
and other relatives. However, these same people were necessary
witnesses to his alibi. Nonetheless, Johnson argues that his
attorneys had a duty to present mitigating evidence at the
sentencing phase because it was already apparent that the alibi had
failed. And he asserts that his counsel’s failure to do so amounts
to deficient performance. See Williams v. Taylor, 529 U.S. 362,
395-96 (2000); see also Caro v. Woodford, 280 F.3d 1247, 1255-58
(9th Cir.), cert. denied, 122 S.Ct. 2645 (2002).
We deny Johnson’s request for a COA on this issue because he
has not made “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). During the
punishment phase of his trial, the Government introduced evidence
of Johnson’s violent propensities and future dangerousness. To
rebut this evidence, Johnson’s attorneys introduced mitigating
evidence of his good character, mainly through testimony by his
family members. Johnson’s contention here is that his counsels’
failure to also introduce mitigating evidence about an alleged
injury, alcohol and drug abuse, and abusive childhood was deficient
representation. To prevail on this claim, he must establish that
his attorneys failed to investigate or introduce this evidence;
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that this failure amounted to deficient performance by his
attorneys; and that he was prejudiced by this failure. See
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Johnson fails to establish any of these three things. First,
it does not appear that his attorneys shirked their duty to
investigate possible mitigating evidence—an important fact which
distinguishes this case from Lockett, the case upon which Johnson
relies. In Lockett, this Court noted:
[T]he state habeas record reflects an overworked defense
counsel, trying to present a defense in two death penalty
trials . . . Defense counsel’s December 1998 affidavit
states: “Because of my mother’s illness and
hospitalization and my unexpected appointment to
represent two other capital murder defendants while
trying to prepare for Carl’s two trials, I was simply
unable to devote time to investigating the facts and
witnesses involved in Carl’s case as much as I would have
liked to.” This admission is borne out in the affidavits
of those who testified on Lockett’s behalf. Lockett's
mother states: "Mr. Townsend never approached me to
testify at Carl's trials but I asked him if I could
testify. Mr. Townsend asked me what I wanted to say and
I told him that I just wanted to say something on Carl's
behalf and ask the jury for mercy. Mr. Townsend said
that I could do that, but he never really discussed my
testimony with me or suggested anything else for me to
testify about. He never explained to me [the] kind of
evidence that would be useful at the sentencing phase of
Carl's trial or asked me questions about what kind of
person Carl was." Other witnesses' and potential
witnesses' statements are similar.
230 F.3d at 711-12. In contrast, the Government notes here that
Johnson’s attorneys spent hours interviewing his family members at
length and maintained weekly contact with them. During these
interviews, they asked about a “laundry list” of topics, beginning
7
with Johnson’s childhood. They specifically inquired about
possible substance abuse, physical and sexual abuse, and brain
injury issues. Apparently, despite all their questions, neither
Johnson nor his family ever disclosed any history of abuse or brain
injury.
Because Johnson’s attorneys appear to have adequately
investigated possible mitigation evidence, their performance was
not deficient under Lockett. This Court has consistently refused
to hold attorneys responsible for introducing mitigation evidence
that their client and other witnesses fail to disclose. E.g.,
Soria v. Johnson, 207 F.3d 232, 250-51 (5th Cir. 2000); West v.
Johnson, 92 F.3d 1385, 1408-09 (5th Cir. 1996).
Second—even assuming the truth of Johnson’s newly claimed
mitigating evidence and that it was available to his attorneys—we
have made clear that, so long as the decision not to introduce
double-edged mitigating evidence was based on trial strategy rather
than lack of investigation, “those questions are even less
susceptible to judicial second-guessing.” Kitchens v. Johnson, 190
F.3d 698, 703 (5th Cir. 1999).
Finally, it does not appear that Johnson could establish that
he was prejudiced by his attorneys’ alleged deficient performance.
See Strickland, 466 U.S. at 693. The Government introduced
evidence from several witnesses as to his future dangerousness: (1)
he beat his ex-girlfriend and she had witnessed him fleeing police
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in a stolen car; (2) he pointed a gun at a neighbor; (3) he pulled
a knife on another person and chased him around, eventually cutting
him; (4) he tried to run over a cat, and, when he failed, he backed
up and tried again; (5) he would steal cars and drive them into
mailboxes to wreck them; (6) he got in an argument with a woman,
jumped on the hood of her car, and smashed in the window; and (7)
he was spiteful, uncooperative, and destructive while in pre-trial
confinement. Dr. Grigson, the state’s expert psychologist, also
testified that Johnson posed a continuing threat to society.
In response, Johnson’s attorneys introduced character evidence
on his behalf. They also vigorously attacked the validity of the
state’s expert who opined that Johnson presented a future danger to
society. They even introduced their own expert testimony to rebut
the state’s expert. Notably, this was the strongest mitigation
evidence they could offer because any evidence about Johnson’s
alleged brain injury, abusive childhood, and drug and alcohol
problems is all “double edged.” In other words, even if his recent
claims about this evidence is true, it could all be read by the
jury to support, rather than detract, from his future
dangerousness. Thus, “[i]n light of the evidence presented at
trial, [Johnson] has failed to show evidence of sufficient quality
and force to raise a reasonable probability that, had it been
presented to the jury, a life sentence would have resulted.”
Andrews v. Collins, 21 F.3d 612, 624 (5th Cir. 1994); see also
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Santellan v. Cockrell, 271 F.3d 190, 198 (5th Cir. 2001)
(“Considering [petitioner’s] history in light of the horrific
nature of this offense, a reasonable court could conclude that
there was no substantial likelihood that the outcome of the
punishment phase would have been altered by evidence that he
suffered organic brain damage.”), cert. denied, 122 S.Ct. 1463
(2000).
Because it is unlikely that Johnson can satisfy his burden
under Strickland to prove deficient performance and prejudice, we
deny his application for a COA on this issue.
ISSUE II: Whether trial counsels’ failure to object to Dr.
Grigson’s expert testimony regarding future dangerousness
amounted to ineffective assistance of counsel.
Under Texas law, the jury is required to decide, in a capital
case, “whether there is a probability that the Defendant would
commit criminal acts of violence that would constitute a continuing
threat to society.” TEX. CODE OF CRIM. PROC. art. 37.071 §2(b)(1).
In addition to the Government’s evidence about Johnson’s prior
violent behavior, it also presented Dr. Grigson’s expert testimony
that, based on a hypothetical assuming the truth of Johnson’s prior
acts, Johnson presented a future threat. Johnson’s attorneys did
not object to this testimony, although they did rigorously cross-
examine him about his methodology and credentials. In addition,
they presented their own rebuttal expert who opined that Johnson
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was not a future danger to society.
Johnson argues that his counsels’ failure to object to Dr.
Grigson’s testimony amounted to ineffective assistance of counsel.
Specifically, he contends that Grigson’s opinion was inadmissable
and that it effected the jury’s decision to impose the death
penalty.
Johnson relies almost exclusively on Rios-Delgado v. United
States, 117 F. Supp. 2d 581, 588-89 (W.D. Tex. 2000), where the
district court held that an attorney’s failure to object to a
sentencing enhancement that was the subject of a circuit split
amounted to ineffective assistance of counsel. In Rios-Delgado,
the district court concluded that the attorney’s “silence
reflect[ed] nothing more than a failure to investigate the relevant
facts and law that would have given her a strategy.” 117 F. Supp.
2d at 591.
In arguing the inadmissability of Grigson’s testimony, Johnson
relies upon Judge Garza’s concurrence in Flores v. Johnson, where
he questioned the admissibility of expert future dangerousness
testimony. 210 F.3d 456, 458 (5th Cir. 2000). He also points to
Daubert, Robinson, and Kelly for the proposition that expert
testimony must be reliable, relevant, and helpful to the jury to be
admissible.2 He argues that Grigson’s methodology cannot be
2
See Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993); E.I. du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549 (1995); Kelly v. State, 824 S.W.2d 568
(Tex. Crim. App. 1992).
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tested, and that his testimony is not ultimately helpful to the
jury.3 Thus, he contends that any objection to this testimony
would have been sustained by the trial court.
For these reasons, Johnson asserts that his counsels’ failure
to object to this testimony amounts to deficient performance under
Strickland’s first prong. He characterizes the decision not to
object as “an unexplainable and erroneous decision.”
He also argues that, under Strickland’s second prong, he has
demonstrated prejudice. Specifically, he posits that his criminal
history is unremarkable, and would not have incited in the jury a
natural or reasonable fear that he was a future danger without an
“expert” to interpret this criminal history.
We deny Johnson’s application for a COA on this issue. The
facts here are distinguishable from Rios-Delgado, the district
court case upon which he relies. In Rios-Delgado the defendant’s
attorney failed to object to a sentencing enhancement that treated
his prior conviction for commercial burglary as an “aggregated
felony.” The district court concluded that this failure to object
was deficient for three reasons. First, such an objection would
not have been frivolous. 117 F. Supp. 2d at 589. The plain
3
Johnson acknowledges that the Supreme Court, in a case
involving this same expert, concluded that expert testimony about
future dangerousness was admissible in Barefoot v. Estelle, 463
U.S. 880, 897-99 (1983); however, he contends that, under Daubert
and Robinson, the Supreme Court would reach a different result if
faced with the same facts now.
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language of the sentencing guidelines could support an argument for
a narrow reading of the sentencing guideline provision. Id. at
590. Second, this failure to object reflected a failure to conduct
even the most basic legal investigation. Id. Had the attorney
investigated, she would have discovered and brought to the court’s
attention a circuit split on this very issue. Id. She could also
have pointed to a pending Fifth Circuit case on this very issue.
Finally, the court noted that there was no evidence that counsel’s
failure to object stemmed from strategic reasons rather than pure
neglect. Id. at 591.
In contrast with Rios-Delgado, precedent from the Supreme
Court, Fifth Circuit, and Texas Court of Criminal Appeals
unanimously support the conclusion that an objection to Dr.
Grigson’s testimony would have been frivolous. Johnson’s argument
about the inadmissability of Grigson’s testimony is foreclosed by
Barefoot v. Estelle, where the Supreme Court rejected the view that
this type of evidence is inadmissable. We also disagree that
Johnson could have persuasively argued to the district court that
Daubert or Robinson altered the admissibility of this type of
evidence after Barefoot. Johnson cites no authority questioning
the continued validity of Barefoot. And, more importantly, this
Court has rejected the very argument that Johnson is making here.
See Tigner v. Cockrell, 264 F.3d 521, 526-27 (5th Cir. 2001) (“We
decline Tigner’s invitation to undercut Barefoot, because to do so
13
on collateral review would constitute a new rule in violation of
Teague’s non-retroactivity principle”); see also Little v. Johnson,
162 F.3d 855, 862-63 (5th Cir. 1998).
In addition, the Texas courts have repeatedly found
psychiatric predictions of future dangerousness to be admissible.
Fuller v. State, 829 S.W.2d 191, 195 n.1 (Tex. Crim. App. 1992)
(“Indeed, we have even held, without dissent, that objection to Dr.
Grigson’s expert testimony on this issue ‘would amount to a futile
act.’”), overruled on other grounds by Castillo v. State, 913
S.W.2d 529 (1995); Nenno v. State, 970 S.W.2d 549, 560-62 (Tex.
Crim. App. 1998) (holding ‘future dangerousness’ expert testimony
to be admissible), overruled on other grounds by State v. Terrazas,
4 S.W.3d 720 (Tex. Crim. App. 1999).
Because any objection to the admissability of Grigson’s
testimony would have been overruled based on existing precedent,
such an objection would have been futile. See Koch v. Puckett, 907
F.2d 524, 527 (5th Cir. 1990) (“This Court has made clear that
counsel is not required to make futile motions or objections.”).
Finally, the fact that there is evidence that Johnson’s
attorneys’ decision not to object was made for strategic reasons
further distinguishes this case from Rios-Delgado. In fact, his
attorneys claim that they consciously decided not to mount a futile
objection to prevent putting the witness and Government on notice
as to the challenges they intended to make to Dr. Grigson’s
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qualifications.
In sum, given the factual differences between this case and
Rois-Delgado, coupled with our prior admonishment that “[g]enerally
speaking, a failure to object, standing alone, does not rise to the
level of constitutionally deficient performance,” see Rios-Delgado,
117 F. Supp. 2d at 589 (citing Murray v. Maggio, 736 F.2d 279, 283
(5th Cir. 1984)), Johnson has failed to make a substantial showing
of the denial of a constitutional right. Accordingly, we deny his
application for a COA on this issue.
ISSUE III: Whether Article 37.071 of the Texas Code of
Criminal Procedure is unconstitutional because it
does not provide for an independent review of the
propriety of a death sentence.
Article 37.071(e)(1) of the Texas Code of Criminal Procedure
requires the court in a capital murder case to instruct the jury to
answer the following issue:
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 a sufficient
mitigating circumstance or circumstances to warrant that
a sentence of life imprisonment rather than a death
sentence be imposed.
While a defendant’s potential “future dangerousness” is subject to
review on appeal, the Texas Court of Criminal Appeals has refused
to review the sufficiency of the evidence weighed by the jury in
deciding whether mitigating evidence exists to support a life
15
sentence rather than death under article 37.071(e). See McFarland
v. State, 928 S.W.2d 482, 498 (Tex. Crim. App. 1996).
Johnson argues that article 37.071(e) grants juries the
unfettered discretion to impose the death penalty. Accordingly, he
urges that it is unconstitutional.
The Government notes that Johnson asserted this claim on
direct appeal where it was rejected by the Texas Court of Criminal
Appeals. It urges us to deny COA because the Texas Court of
Criminal Appeals’ determination that article 37.071 is
constitutional is not contrary to clearly established federal
precedent.
Johnson’s request for a COA on this issue is denied. This
Court has previously rejected a claim identical to the one Johnson
urges here. See Hughes v. Johnson, 191 F.3d 607, 621-23 (5th Cir.
1999). And the Supreme Court has held that the Eighth Amendment
does not require an appellate court to independently re-weigh
aggravating and mitigating evidence. Pulley v. Harris, 465 U.S.
37, 45-46 (1984). In fact, the Court has held that “[o]nce the
jury finds that the defendant falls within the legislatively
defined category of persons eligible for the death penalty, . . .
the jury then is free to consider a myriad of factors to determine
whether death is the appropriate punishment.” Tuilaepa v.
California, 512 U.S. 967, 979 (1994). And “the sentencer may be
given unbridled discretion in determining whether the death penalty
16
should be imposed after it has found that the defendant is a member
of the class made eligible for the penalty.” Id.
We deny Johnson’s request for COA on this issue because he
cites no authority directly supporting his position. Moreover,
even if this Court decided this claim had merit, we would not be at
liberty to create a new rule and apply it retroactively here. See
generally Teague v. Lane, 489 U.S. 288 (1989).
ISSUES IV & V: Whether Texas capital sentencing provisions are
unconstitutional because they fail to inform juries
of minimum prison time, and, if so, whether the
trial court failed to properly instruct the jury
about Texas parole law and the meaning of a life
sentence in violation of U.S. Constitutional
amendments XIII and XIV.
When Johnson was tried, Texas law provided that a defendant
who received a life sentence for a capital offense was first
eligible for parole after serving forty years. Consistent with
Texas law at the time, the district court specifically instructed
the jury that it was not allowed to consider the prospect of
parole. Johnson argues that the court’s failure to instruct the
jury in his case that he would not be eligible for parole until he
had served forty years violated the Eighth and Fourteenth
Amendments.
In Simmons v. South Carolina, the Supreme Court held that a
jury must be informed about the defendant’s non-eligibility for
parole when: (1) the Government argues the defendant’s future
17
dangerousness, and (2) where the “life sentence” option for a
capital offense carries no possibility of parole. 512 U.S. 154,
156 (1994). However, the Simmons’ Court specifically acknowledged
that its holding did not apply to Texas, where life without any
possibility of parole is not a sentencing option. See id. at 168
n.8.; see also Ramdass v. Angelone, 530 U.S. 156, 166 (2000) (“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.”).
Moreover, consistent with Simmons and its progeny, our Circuit
has also consistently emphasized that Simmons only applies when
there is a life-without-possibility-of-parole alternative to
capital punishment, an alternative not available in Texas. Collier
v. Cockrell, No. 01-10803 (July 25, 2002); e.g., Tigner, 264 F.3d
at 525.
Nonetheless, Johnson asserts that this limited reading of
Simmons’ reach is incorrect because the Supreme Court expanded
Simmons’ scope in Kelly v. South Carolina, 534 U.S. 246 (2002).
Kelly involved South Carolina’s sentencing scheme in capital cases.
Under South Carolina law, capital jurors first decide whether the
State has proven statutory aggravating circumstances beyond a
reasonable doubt. If they do not agree on these aggravating
factors unanimously, then the jury does not make a sentencing
recommendation. Rather, the judge is charged with sentencing the
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defendant either to life imprisonment without parole, or to a
prison term of at least thirty years. S.C. Code Anno. §§ 16-3-
20(B), (C). But, if the jury does find a statutory aggravating
circumstance, it recommends one of only two possible sentences:
life without the possibility or parole, or death. Id. The Supreme
Court in Kelly held that, under this scheme, Simmons applied and
the defendant was entitled to have the jurors instructed that he
would be ineligible for parole. Kelly, 534 U.S. at 730. Nowhere
do we read Kelly to extend Simmons’ reach. To the contrary, Kelly
simply reiterates that when the jury is faced with only two
choices—death or life without the possibility of parole—the
defendant is entitled to an instruction about his or her parole
ineligibility. Accordingly, any extension of Simmons here in
Johnson’s case would constitute a new rule which is barred by the
non-retroactive principles of Teague v. Lane. For these reasons,
we decline to issue a COA on this issue.
IV. CONCLUSION
Johnson has not made a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). We therefore DENY
his request for a COA.
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