United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 15, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_____________________
No. 03-40492
_____________________
JASEN SHANE BUSBY
Petitioner – Appellant
v.
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
No. 5:02-CV-264
_________________________________________________________________
Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.
KING, Chief Judge:*
Petitioner-Appellant Jasen Shane Busby applies for a
certificate of appealability on five issues raised as part of a
petition for a writ of habeas corpus pursuant to 28 U.S.C. §
*
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that this opinion should not be published and is not precedent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.
2254. We deny Busby’s request for a certificate of appealability
on each contested issue.
I. FACTS AND PROCEDURAL BACKGROUND
On April 16, 1995, Jasen Busby spent the day with friends
Christopher Kelly, Brandy Gray, and Tennille Thompson. The next
day they were joined by another friend, Darrell Smith. After
several hours of partying, Smith and Busby left the trailer where
the group was staying. Shortly thereafter, Busby returned and
shot Kelly, Gray, and Thompson; Gray and Thompson died
immediately, but Kelly survived. After Busby and Smith left,
Kelly walked to a neighbor’s house and reported that Busby had
killed two people. Kelly described Busby and the vehicle which
he and Smith had departed in to the police, and Busby was
arrested soon afterward.
Busby was indicted on June 20, 1995 for capital murder under
Texas Penal Code § 19.03(a)(7)(A). After a jury trial, Busby was
convicted on July 19, 1996. A week later, after a separate trial
on punishment, the jury answered the statutory capital punishment
issues such that the trial court sentenced Busby to death. Busby
appealed to the Texas Court of Criminal Appeals, which affirmed
his conviction and sentence. Busby v. Texas, 990 S.W.2d 263
(Tex. Crim. App. 1999). The Supreme Court denied Busby’s
petition for certiorari review. Busby v. Texas, 528 U.S. 1081
(2000).
2
On November 20, 1998, Busby filed an application in state
court for post-conviction relief. Following a hearing, the court
entered findings of fact and conclusions of law and recommended
that Busby’s request for relief be denied. The Court of Criminal
Appeals adopted the lower court’s findings, conclusions, and
recommendation. Ex parte Busby, no. 28,761-01 (Tex. Crim. App.
Sept. 13, 2000).
On September 12, 2001, Busby filed a § 2254 petition in the
United States District Court for the Eastern District of Texas.
Busby raised ten grounds for relief. While the district court
denied Busby’s request for relief on all of the issues presented,
the court did grant Busby’s request for a certificate of
appealability (COA) on four of the issues: (1) whether Busby’s
appellate counsel’s decision not to appeal the trial court’s
denial of Busby’s motion to suppress his prison correspondence
constituted ineffective assistance of counsel; (2) whether the
trial court’s denial of Busby’s motion to suppress the prison
letters violated his First Amendment rights; (3) whether the
trial court’s denial of Busby’s motion for change of venue
violated his right to a fair trial; and (4) whether Busby had
properly exhausted his change of venue claim. Busby now seeks a
COA on five additional issues raised before that court.
II. APPLICABLE LAW
Busby filed his federal habeas petition after the effective
date of the Anti-Terrorism and Effective Death Penalty Act of
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1996 (“AEDPA”). Lindh v. Murphy, 521 U.S. 320, 326-27 (1997)
(stating that the AEDPA applies to all cases pending as of April
24, 1996). The AEDPA requires that Busby obtain a COA before he
may receive full appellate review of the district court’s denial
of his request for habeas relief. 28 U.S.C. § 2253(c)(1)(A)
(2000) (“Unless a circuit justice or judge issues a certificate
of appealability, an appeal may not be taken to the court of
appeals from the final order in a habeas corpus proceeding in
which the detention complained of arises out of process issued by
a State court.”).
We may grant Busby’s request for a COA only if he can make a
“substantial showing of the denial of a constitutional right.”
Id. § 2253(c)(2). To make such a showing, Busby must demonstrate
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.” Dowthitt v. Johnson,
230 F.3d 733, 740 (5th Cir. 2000), cert. denied, 532 U.S. 915
(2001) (quoting Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)).
If the district court’s denial of some or all of the petitioner’s
claims rests on procedural grounds, then in order to obtain a COA
the petitioner must demonstrate both that “jurists of reason
would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was
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correct in its procedural ruling.” Slack, 529 U.S. at 484. When
considering the petitioner’s request for a COA, the ultimate
determination turns on “the debatability of the underlying
constitutional claim, not the resolution of that debate.” Henry
v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003) (quoting Miller-El
v. Cockrell, 537 U.S. 322, ___ (2003)).
Our review of whether Busby makes a substantial showing of
the denial of a constitutional right is also constrained by the
applicable AEDPA standards of review. Moore v. Johnson, 225 F.3d
495, 501 (5th Cir. 2000), cert. denied, 532 U.S. 949 (2001). On
questions of law, the state court’s conclusions will be disturbed
only upon a showing that they were “contrary to, or an
unreasonable application of, clearly established” Supreme Court
precedent. 28 U.S.C. § 2254(d)(1). In addition, state court
findings of fact are presumed correct unless the petitioner
rebuts them by clear and convincing evidence. Id. § 2254(e)(1).
III. BUSBY’S CLAIMS ON APPEAL
Busby raises five claims rejected by the district court as
potential grounds for a COA: (1) whether the trial court’s
admission of the prison letters violated his Fourteenth Amendment
due process rights; (2) whether the trial court’s jury charge
concerning the voluntariness of Busby’s confession violated his
Fourteenth Amendment due process rights; (3) whether the trial
court’s denial of Busby’s request for an expert jury consultant
violated his Sixth and Fourteenth Amendment rights to a fair
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trial; (4) whether the trial court’s denial of Busby’s request
for a drug abuse expert violated his Sixth and Fourteenth
Amendment rights to a fair trial; and (5) whether the trial
court’s failure to instruct the jury concerning parole
eligibility violated Busby’s Eight Amendment and Equal Protection
rights.
A. Busby’s Prison Correspondence and the Fourteenth
Amendment
Busby’s first claim is that he was denied his Fourteenth
Amendment due process rights when the trial court admitted into
evidence, over objection, copies of his personal letters written
from jail while he awaited trial.1 Busby argues that his
Fourteenth Amendment rights were violated because the letters
were obtained pursuant to “an irrational, arbitrary and
capricious procedure” given that whether mail was seized and
copied was left to the individual discretion of each prison
employee. Turner v. Safley, 482 U.S. 78, 90 (1987) (holding that
prison regulations restricting an inmate’s constitutional rights
do not violate due process so long as they are reasonably related
to a legitimate penological interest, provided that the
1
In the district court, Busby raised First, Fourth, and
Fourteenth Amendment challenges based on the prison’s reading and
copying of his outgoing mail. The district court denied relief
on all three issues but granted a COA on the First Amendment
issue. Busby has apparently abandoned the Fourth Amendment issue
and asserts on application to this court only the Fourteenth
Amendment issue.
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regulations do not have merely an arbitrary or irrational
connection to the interest being served).
The state habeas court found that “reading and copying an
inmate’s outgoing non-privileged mail serves a valid penological
purpose” and thus does not violate the inmate’s Fourteenth
Amendment due process rights. The district court concluded that
this finding was not contrary to, or an unreasonable application
of, clearly established law. We do not think that reasonable
jurists would find this debatable. The letters involved here
concerned threats to witnesses, the trial judge and other
inmates, plans for escape, suicidal thoughts, and prison drug
use, letters that predictably would attract the attention of jail
supervisors. Busby’s arguments that the selection of his letters
for reading and copying was arbitrary (and, by extension, that
the letters should have been suppressed) are meritless. He has
failed to make a substantial showing of the denial of a
constitutional right, and we decline to issue a COA on this
issue.
B. Jury Instruction on the Voluntariness of Busby’s
Confession
Busby’s second claim is that he was denied due process and
the right to a fair trial when the trial court failed to instruct
the jury properly on the issue of the voluntariness of his
confession. Texas law requires that, once the issue of the
voluntariness of a defendant’s confession has been raised before
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the jury, the jury must be charged “generally, on the law
pertaining to such statement.” TEX. CRIM. PRO. CODE ANN. art. 38.22
§ 7 (Vernon 1979). Busby claims that he raised the issue of the
voluntariness of his confession on Miranda grounds but that the
trial court instructed the jury only on the law as it relates to
intoxication and voluntariness. The state habeas court found
that there was “no evidence raising the issue of voluntariness of
Applicant’s confession, only as it related to drug intoxication,
which was given.”
The district court considered the evidence presented at
trial and concluded that the state habeas court’s finding that
there was no evidence raising the issue of voluntariness in the
Miranda context was not unreasonable. Busby presents no new
evidence or arguments before this court that would convince us
that the district court erred in reaching this conclusion. That
(as Busby argues) the confession was “core” to the state’s case
does not in itself require that the jury be instructed on the
voluntariness of the confession. Busby has not shown that he
sufficiently raised the Miranda issue at trial to warrant the
statutorily required voluntariness instruction.
Busby has failed to demonstrate that jurists of reason would
find the district court’s resolution of this issue debatable.
Therefore, he has not made a substantial showing of the denial of
a constitutional right, and we decline to grant a COA on this
issue.
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C. Busby’s Requests for an Expert Jury Consultant and for
a Drug Abuse Expert
Busby’s third and fourth claims are that the trial court
violated his Sixth and Fourteenth Amendment rights by rejecting
his requests for appointment of an expert jury consultant and a
drug abuse expert. Ake v. Oklahoma, 470 U.S. 68 (1985) (holding
that the Due Process Clause of the Fourteenth Amendment requires
the appointment of an expert for an indigent defendant if an
expert would be necessary to provide the defendant with the
“basic tools” to present a defense). Prior to trial, Busby moved
to have these experts appointed, and the trial court, after a
hearing, denied the motions. On direct appeal, the Court of
Criminal Appeals concluded that an expert jury consultant was not
a “basic tool” of the defense and that the court-appointed
psychiatrist was ably qualified to assist and testify as a drug
abuse expert. Busby v. State, 990 S.W.2d at 270-71.
The district court considered the evidence and applicable
law and concluded that the state court’s findings were not
contrary to, or an unreasonable application of, clearly
established law. See, e.g., Moore v. Johnson, 225 F.3d 495, 503
(5th Cir. 2000), cert. denied, 532 U.S. 949 (2001) (rejecting a
defendant’s claim that the trial court violated Ake by denying
his request for a court-appointed expert jury consultant); White
v. Johnson, 153 F.3d 197, 202 (5th Cir. 1998) (stating that the
9
denial of a request for a court-appointed expert in violation of
Ake is subject only to harmless error analysis).
Busby presents no new evidence or arguments in this court to
persuade us that the district court erred in its conclusion.
Jurists of reason would not find it debatable whether the
district court properly resolved these issues. Because Busby has
failed to make a substantial showing of the denial of the
constitutional right to a court-appointed expert, we decline to
grant a COA on either of these issues.
D. Busby’s Request for a Jury Instruction on Parole
Eligibility
Busby’s final claim is that the trial court violated his
Eighth and Fourteenth Amendment rights by instructing the jury
that they were not to consider the possibility of parole during
the sentencing phase of the trial. Busby argues that, in giving
such an instruction, the court made the jury aware that parole
was a possibility and therefore should have also informed them
that, under the Texas capital sentencing statutes, Busby would
not have been parole eligible for at least forty years. Busby
contends that he could have used this information to rebut the
government’s arguments on the future dangerousness special issue.
See Simmons v. South Carolina, 512 U.S. 154, 156 (1994) (holding
that, where a defendant’s future dangerousness is at issue and
the sentencing options are either death or life without the
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possibility of parole, due process requires that defendant be
allowed to inform the jury of his ineligibility for parole).
On direct appeal the Court of Criminal Appeals rejected this
claim on the merits. Busby, 960 S.W.2d at 271-72. The district
court found that this decision was not contrary to, or an
unreasonable application of, clearly established law. See, e.g.,
Collier v. Cockrell, 300 F.3d 577, 583 (5th Cir.), cert. denied,
123 S.Ct. 690 (2002) (rejecting the applicability of Simmons to
the Texas sentencing scheme because Texas provides more
sentencing options than death or life without the possibility of
parole); Rudd v. Johnson, 256 F.3d 317, 320-21 (5th Cir.), cert.
denied, 534 U.S. 1001 (2001) (same).
Busby presents no new arguments to this court calling the
district court’s conclusion into question. This court has
consistently and repeatedly rejected Simmons challenges to the
Texas capital sentencing system. Jurists of reason would not
find the district court’s resolution of this issue debatable.
Busby has failed to make a substantial showing of the denial of a
constitutional right, and he is therefore not entitled to a COA
on this issue.
IV. CONCLUSION
We decline Busby’s application for a COA on each of the
issues presented.
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