United States Court of Appeals
Fifth Circuit
F I L E D
July 28, 2003
In the
Charles R. Fulbruge III
United States Court of Appeals Clerk
for the Fifth Circuit
_______________
m 02-41459
_______________
ANZEL KEON JONES,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent -Appellee.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
m 6:99-CV-660
_________________________
Before HIGGINBOTHAM, SMITH, and Anzel Jones appeals the denial of his peti-
CLEMENT, Circuit Judges. tion for writ of habeas corpus sought pursuant
to the Antiterrorism and Effective Death Pen-
JERRY E. SMITH, Circuit Judge:* alty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254. We affirm.
*
I.
Pursuant to 5TH CIR. R. 47.5, the court has In 1995, Jones entered the residence of
determined that this opinion should not be pub-
Edith Jones (“the mother”), age 72, and her
lished and is not precedent except under the limited
daughter Sherry Jones (“the daughter”),
circumstances set forth in 5TH CIR. R. 47.5.4.
age 49.1 Armed with a gun and a knife, Jones statements made by Dollins claiming no
beat and tortured both women, then confined knowledge of the crime. After introducing the
the mother in a closet while he continued to inconsistent statements, counsel asked, “Well,
beat the daughter. The mother escaped from Mr. Dollins, tell this jury what suddenly caused
the closet and ran for the back door, but Jones you on the 17th to finally tell the story that
caught her before she could escape. He then you are now telling us is the truth?”
killed the daughter by stabbing her in the heart
and slitting her throat as her mother watched. Dollins responded that the police had con-
He raped the mother; then stabbed her in the fronted him with a letter indicating that Dollins
chest, slit her throat, and set the house on fire. and Jones had conspired to kill Dollins’s father
The mother survived by crawling outside the and brother. On redirect, the court allowed
burning house, where a neighbor saw her and the state to have Dollins read the letter, which
called authorities. described a murder plan in detail, with most of
the crime to be carried out by Jones. Dollins
Jones’s fingerprint was found on a bottle of also testified that he and Jones had discussed
fingernail polish found in the house; his DNA the plan and that Jones was willing to commit
matched the DNA found in semen swabbed the crime.
from the mother’s mouth; the mother’s blood
was found on his clothing; and the daughter’s In the district court, Jones argued that this
blood was fo und on his shoes. Though the questioning was ineffective, because counsel
mother could not positively identify Jones be- could have structured the questions so as to
cause of poor eyesight, she did select his pic- impeach Dollins without opening the door to
ture from an array of twelve photographs as the letter, and this prejudiced the verdict. The
most resembling her attacker. Joe Dollins, court agreed that Jones’s counsel performed
Jones’s best friend, testified that Jones had deficiently under Strickland v. Washington,
confessed to the crime. 466 U.S. 668 (1984), but opined that Jones
had failed to meet the second prong of Wash-
Jones was found guilty of capital murder. ington requiring a showing of prejudice.
At the penalty phase, the jury found that there
was a probability that he would constitute a Jones asserts that he has demonstrated pre-
continuing threat to society and that there was judice, because the admission of the letter and
insufficient evidence of mitigating circum- related testimony eliminated “residual doubt”
stances to preclude a death sentence. that Jones was the murderer and supported the
state’s case that Jones could represent a future
II. danger, bo th of which might have caused the
Jones argues that he had ineffective assis- jury to impose the death sentence. The state
tance of counsel at trial because, in question- argues that Jones did not raise this argument
ing Dollins, his attorney opened the door to before the district court, that trial counsel’s
testimony of a collateral offense. Jones’s performance was not deficient, and that any
counsel tried to impeach Dollins’s testimony error was not prejudicial.
that Jones had confessed to the murder, using
1
Jones was not related to the victims.
2
A. about innocence and supported a finding of fu-
We review the district court’s factual find- ture dangerousness sufficient to prejudice the
ings for clear error and its determinations of sentencing.
law de novo. Evans v. Cockrell, 285 F.3d
370, 374 (5th Cir. 2002). Jones’s petition for The argument Jones now presents is not
habeas relief is governed by the heightened properly before us. In his state habeas peti-
standard of review provided by AEDPA, tion, Jones argued that ineffective cross-exam-
which “‘substantially restricts the scope of ination of Dollins “deprived Applicant of a fair
federal review of state criminal court proceed- trial in which the jury was to determine his
ings.’” Id. (quoting Montoya v. Johnson, 226 guilt or innocence of the offense changed in
F.3d 399, 404 (5th Cir. 2000)); Wiggins v. the indictment.” Jones now contends that al-
Smith, 123 S. Ct. 2527, 2534 (2003). Under though the petition did not address prejudice
the Act, as it related to sentencing, it also did not “limit
the effect of that error to the guilt phase ver-
neither the district court nor this Court dict.”
may grant a writ of habeas corpus based
solely on a finding of error by a state In his federal habeas petition, Jones again
court. Rather, a writ may be granted failed to argue that the prejudice applied to
only if a state court arrives at a conclu- sentencing; rather, he asserted that it “under-
sion opposite to that reached by the Su- mined the guilt phase theory that the state’s
preme Court on a question of law or if evidence failed to establish that Mr. Jones
the state court decides a case differently killed Sherry Jones.” None of the words that
than [sic] the Supreme Court has on a might imply an argument based on a prejudice
set of materially indistinguishable facts. to sentencingSSsuch as sentencing, penalty
Without such a direct conflict, a writ phase, residual doubt, or future dangerous-
will be granted only if the state court nessSSappears in either petition’s discussion of
identifies the correct governing legal the Dollins questioning.2
principle from the Supreme Court’s de-
cisions but unreasonably applies that Jones’s contention that the issue was raised
principle to the facts of the prisoner’s in the district court essentially rests on the no-
case. tion that his previous argument did not ex-
pressly contradict the argument he now raises.
Evans, 285 F.3d at 374-75 (citations and Though this is debatable, we find it beyond
punctuation omitted). question that Jones’s petitions before the state
B.
The state contends that Jones has never be- 2
In his response to the state’s motion for sum-
fore raised this argument as it relates to the mary judgment, Jones attempted, unconvincingly,
penalty phase, but rather has argued only that to recast his argument as relating to “[r]esidual
the questioning prejudiced the guilt/innocence doubt, or lack of certainty about whether a person
phase. Jones now disclaims any argument that actually killed the victim of a capital murder,
the Dollins questioning prejudiced the verdict, [which] is often a powerful basis for a jury to de-
but does claim that it reduced residual doubt cide not to impose death.” This marked the first
appearance of this argument.
3
and district courts did not actually make the Smithey at the sentencing phase prejudiced his
argument. We are precluded from considering sentencing and denied him his right to an indi-
the claim, because Jones did not raise it prop- vidualized sentencing determination required
erly before the district court. Beazley v. John- under the Eighth Amendment, as explicated in
son, 242 F.3d 248, 271 (5th Cir. 2001) (stat- Enmund v. Florida, 458 U.S. 782 (1982).
ing that issues not raised in habeas proceedings Smithey testified that a prisoner in another
before the district court cannot be considered Texas county, serving a life sentence for a cap-
on appeal).3 ital murder conviction, escaped from a work-
release program. Though the Texas Court of
Even were we to find that Jones’s response Criminal Appeals decided that the evidence
to summary judgment was sufficient to raise was irrelevant to the sentencing determination
the argument in the district court, it was also and should not have been admitted over
not raised in state court. A claim is procedur- Jones’s objection, it found the admission
ally defaulted if a petitioner has failed to ex- harmless. The district court held the denial of
haust all available state remedies, and the state this claim was “neither contrary to, nor an
court to which he would be required to peti- unreasonable application of, any clearly es-
tion would now find that the claim is proce- tablished federal law,” see Wiggins, 123 S. Ct.
durally defaulted. Bledsoe v. Johnson, 188 at 2534, and granted summary judgment; in
F.3d 250, 254 (5th Cir. 1999). The Texas doing so, it addressed Jones’s Eighth Amend-
Code of Criminal Procedure prohibits the filing ment argument and found it to be without
of subsequent or untimely habeas applications, merit.
absent a demonstration of cause or actual in-
nocence. See TEX. CODE CRIM. PROC. art Jones challenges this decision, arguing that
11.071 § 5(a); Ex parte Davis, 947 S.W.2d the decision of the Court of Criminal Appeals
216 (Tex. Crim. App. 1996) (en banc) (up- was objectively unreasonable “because it failed
holding the constitutionality of art. 11.071). to take into account the profound effect the
Jones does not claim that he meets these ex- prospect of an easy escape would have had on
ceptions; we find that he cannot, and therefore the jurors’ assessment of Anzel Jones’s future
his claim is procedurally barred. dangerousness.” We disagree that the decision
was objectively unreasonable.
III.
Jones argues that the testimony of Royce A.
We first consider how Jones’s failure to ex-
haust this claim affects our review. On direct
3
appeal before the Court of Criminal Appeals,
It is the petitioner’s burden under Washington Jones’s claim with respect to this evidence was
to show that trial counsel’s errors were so serious
based entirely on the argument that the ev-
that they rendered the proceedings unfair or the re-
sult unreliable. Hopkins v. Cockrell, 325 F.3d
idence was not relevant under TEX. R. CRIM.
579, 586 (5th Cir. 2003); see Wiggins, 123 S. Ct. EVID. 401 and 402 and was prejudicial. His
at 2535. A petitioner who fails even to indicate arguments did not touch upon the Constitution
that prejudice influenced a given phase of a pro- generally or the Eighth Amendment par-
ceeding cannot be said to have raised the argument ticularly, and he did not cite Enmund or any of
with respect to that phase, and much less to have the other cases he relies on in his argument
met his burden under Washington.
4
before this court. “[W]here petitioner ad- exceptions to the non-retroactivity principle.
vances in federal court an argument based on Id. at 705 (citations omitted). Jones did not
a legal theory distinct from that relied upon in petition the Supreme Court for a writ of
the state court, he fails to satisfy the certiorari on direct appeal, so his conviction
exhaustion requirement.” Henry v. Cockrell, and sentence became final in 1999, after the
327 F.3d 429, 432 (5th Cir. 2003) ) (citations time for filing such a petition had elapsed.
and quotation marks omitted). “It is not Fisher v. Texas, 169 F.3d 295, 305 (5th Cir.
enough that all the facts necessary to support 1999).
the federal claim were before the state courts
or that a somewhat similar state-law claim B.
was made.” Anderson v. Harless, 459 U.S. Enmund requires, 458 U.S. at 801, that, in
4, 6 (1982) (internal citation omitted) death penalty cases, punishment must be tai-
(emphasis added). lored to the offender’s personal responsibility
and moral guilt. Enmund forbids the
Though the state has not addressed Jones’s imposition of the death penalty for a defendant
failure to exhaust this claim, we raise the issue “who aids and abets a felony in the course of
sua sponte, because 28 U.S.C. § 2254(b)- which a murder is committed by others but
(1)(A) precludes granting a habeas petition un- who does not himself kill, attempt to kill, or
less the state, through counsel, has expressly intend that a killing take place or that lethal
waived the exhaustion requirement. Although force will be employed.” Id. at 797. In Booth
the state has not done so here, “[a]n v. Maryland, 482 U.S. 496, 504, 509 (1987),
application for a writ of habeas corpus may be another case cited by Jones, the Court rejected
denied on the merits, notwithstanding the fail- the requirement of a state statute that the jury
ure of the applicant to exhaust the remedies consider a victim impact statement, finding
available in the courts of the State.” § 2254- that it impermissibly took the focus of
(b)(2). sentencing away from the defendant and
placed it on “the character and reputation of
When we consider a claim that has not been the victim and the effect on his family” and
adjudicated on the merits by a state court, our their “emotionally charged opinions as to what
review is governed by Teague v. Lane, 489 conclusions the jury should draw from the
U.S. 288 (1989). See Daniel v. Cockrell, 283 evidence . . .”
F.3d 697, 702 (5th Cir.), cert. denied, 123 S.
Ct. 286 (2002). Teague held that a federal Jones argues not that Texas’s death penalty
court may not create or apply new procedure is inadequate under the Eighth
constitutional rules on habeas review. The Amendment,4 but rather that the improper ad
Teague analysis involves three determinations:
(1) when the conviction became final; (2)
whether a state court considering the federal 4
“The Texas capital-sentencing procedure
claim when the conviction became final would guides and focuses the jury’s objective consid-
have felt compelled by existing precedent to eration of the particularized circumstances of the
apply the rule the applicant now seeks; and (3) individual offense and the individual offender be-
if the applicant seeks to apply a new rule, fore it can impose a sentence of death.” Jurek v.
whether that rule falls within one of the narrow Texas, 428 U.S. 262, 274 (1976). With the excep-
(continued...)
5
mission of evidence within that proceeding in- will not do so today. The Eighth
appropriately influenced the jury’s Amendment does not establish a federal
determination of future dangerousness in a code of evidence to supersede state
manner unrelated to his personal responsibility evidentiary rules in capital sentencing
or guilt. This argument is akin to that raised proceedings.
by the petitioner in Romano v. Oklahoma, 512
U.S. 1, 10-11 (1994), who argued that the Id. at 11-12 (emphasis added).
jury’s consideration of irrelevant evidenceSSin
that case the fact that the petitioner had Given that the Court found no Eighth
received a death sentence for a prior, separate Amendment violation in Romano, Jones has
murder convictionSS”rendered his sentencing not demonstrated an Eighth Amendment claim
proceeding so unreliable that the proceeding under the facts before us. If anything, the
violated the Eighth Amendment.” The Court evidence considered here has even fewer
held “[t]hat the evidence may have been Eighth Amendment implications than did that
irrelevant as a matter of state law, however, considered in Romano.5 A Texas court
does not render its admission federal considering Jones’s federal claim in 1999
constitutional error.” Id. at 10. It rejected the would not have felt compelled by existing pre-
“proposition that the mere admission of cedent to find an Eighth Amendment violation,
irrelevant and prejudicial evidence requires the and accordingly we deny the claim.6
overturning of a death sentence,” affirming the
state appellate court’s determination that the
death penalty was warranted and supported
despite the improper admission. Id. at 11.
Concluding its discussion of the argument, the
Court held: 5
Though the Court in Romano did weigh the
prejudice of the remarks against the remaining un-
Petitioner’s argument, pared down, tainted evidence, it did so when considering the pe-
seems to be a request that we fashion titioner’s alternative argument “that the introduc-
general evidentiary rules, under the tion of the evidence in question violated the Due
guise of interpreting the Eighth Process Clause of the Fourteenth Amendment.”
Amendment, which would govern the Romano, 512 U.S. at 12-14. Jones has not raised
admissibility of evidence at capital an argument based on the Due Process Clause, and
sentencing proceedings. We have not therefore we need not engage in such a weighing.
done so in the past, however, and we 6
To the extent that Jones seeks the application
of a new rule that extends beyond the mandates or
relevant precedent, it plainly would not meet either
4
(...continued) narrow exception to retroactivity laid out in
tion of a modification taken by the Texas legis- Teague. See Daniel, 283 F.3d at 708 (“The two
lature to respond to Penry v. Lynaugh, 492 U.S. exceptions are for new rules that: (1) place certain
302 (1989), “Texas’ death penalty scheme sub- kinds of primary, private individual conduct be-
stantively is the same as the one the United States yond the power of the criminal law-making au-
Supreme Court upheld in Jurek[.]” Cockrell v. thority to proscribe; or (2) are implicit in the con-
State, 933 S.W.2d 73, 92-93 (Tex. Crim. App. cept of ordered liberty.”) (quotation marks
1996). omitted).
6
IV. state habeas counsel failed to raise the
Jones contends that the death penalty, as argument Jones wishes to assert here, Jones
applied to a seventeen-year-old, violates the reasons that Texas failed to meet its burden to
Eighth and Fourteenth Amendments. The provide competent counsel, and therefore the
state argues, inter alia, that we should affirm process was ineffective to protect his rights.
the district court, which found the claim pro- The district court rejected this argument and
cedurally barred because petitioner did not found that it is procedurally barred.
present it to the Court of Criminal Appeals.
Jones does not address this holding, and we Failure to exhaust under § 2254(b)(1)(B)(i)
find nothing in the record to undermine it.7 cannot be excused by arguing that appointed
state habeas counsel provided ineffective as-
V. sistance. Martinez v. Johnson, 255 F.3d 229,
Jones argues that he had ineffective 240-41 (5th Cir. 2001). Moreover, “failure to
assistance at trial because counsel failed provide ‘competent’ counsel for a state habeas
adequately to develop and present evidence of petition does not fall under the general catchall
mental health problems that could have exception provided in 28 U.S.C. § 2254(b)(1)-
mitigated against a death sentence. Jones (B)(ii).” Id. at 238 n.10.8 Jones argues that
admits that the claim is unexhausted, because we provided insufficient reasoning in Mar-
he failed to raise it in state habeas proceedings, tinez, suggesting that perhaps the court mis-
and further concedes that he could not satisfy understood the contention, and urges that we
the state’s requirements for filing a second “should fairly address the argument.” But,
habeas application. See TEX. CODE CRIM. absent “an intervening contrary or superseding
PROC. art 11.071 § 5(a). He contends, decision by this court sitting en banc or by the
however, that counsel’s failure to raise the United States Supreme Court, a panel cannot
issue in his state habeas application, together overrule a prior panel’s decision.” Burge v.
with the refusal of the Court of Criminal Parish of St. Tammany, 187 F.3d 452, 466
Appeals to allow a second filing, meets the (5th Cir. 1999). Under Martinez, Jones’s
requirements of § 2254(b)(1)(B)(ii), which claim is procedurally barred.
allows a grant of a writ of habeas corpus
where “circumstances exist that render [state
corrective] process ineffective to protect the
8
rights of the applicant.” Furthermore, the statutory right created in
TEX. CODE CRIM. PROC. art. 11.071 § 2(a) relates
Jones notes that Texas’s 1995 Habeas Cor- to “habeas counsel’s qualifications, experience, and
pus Reform Act (“Reform Act”) provides that abilities at the time of his appointment,” not “the
“an applicant shall be represented by final product of representation.” Ex parte Graves,
70 S.W.3d 103, 113-14 (Tex. Crim. App. 2002).
competent counsel unless the applicant has
Jones’s argument rests entirely on state habeas
elected to proceed pro se . . . .” TEX. CODE counsel’s inadequate representation in failing to
CRIM. PROC. ART. 11.071 § 2(a). Because raise a particular claim; he makes no arguments as
to counsel’s general competence. Therefore, to the
extent that Jones’s argument rests on the guar-
7
This argument also is foreclosed by precedent. antees of the Reform Act, his reliance is misplaced,
See Beazley, 242 F.3d at 268-69 (citing Stanford because we defer to the Court of Criminal Appeals’
v. Kentucky, 492 U.S. 361, 370-73 (1989)). interpretation of a Texas statute.
7
AFFIRMED.
8