United States Court of Appeals
Fifth Circuit
F I L E D
In the December 27, 2004
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-70006
_______________
SHANNON CHARLES THOMAS,
Petitioner-Appellant,
VERSUS
DOUGLAS DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m H-03-CV-988
_________________________
Before SMITH, DEMOSS, and Shannon Thomas seeks a certificate of ap-
STEWART, Circuit Judges. pealability (“COA”) from the denial of his
petition for a writ of habeas corpus pursuant
JERRY E. SMITH, Circuit Judge:* to 28 U.S.C. § 2254. Because Thomas cannot
make a substantial showing of the denial of a
federal constitutional right, we deny a COA.
*
Pursuant to 5TH CIR. R. 47.5, the court has de-
I.
termined that this opinion should not be published On Christmas Eve 1993, Thomas and his
and is not precedent except under the limited cir- friend Keith Clay entered the home of Roberto
cumstances set forth in 5TH CIR. R. 47.5.4. Rios, a marihuana dealer. Thomas and Clay
robbed Rios, then murdered him by shooting several photograph identification arrays and
him three times and stabbing him in the neck one live line-up. Another witness testified that
with a pair of scissors. Thomas then went he saw a car resembling Clay’s near the Rios
upstairs and executed Rios’s two children, ten residence shortly before the murders.
year-old Maria and eleven year-old Victor, by
shooting each in the head through a pillow as Thomas was convicted, and the jury an-
they lay side-by-side on the floor. swered the special issues in a manner requiring
the imposition of a death sentence. The Texas
The murders remained unsolved for over a Court of Criminal Appeals affirmed the con-
year, until the police received information from viction and sentence on direct appeal. Thomas
Joseph “Boo” Jones, a friend of Clay and v. State, No. 72,701 (Tex Crim. App. Mar. 31,
Thomas. After his arrest, Thomas gave the 1999). Thomas did not seek a writ of certio-
police two written statements. In the first, he rari.
acknowledged purchasing narcotics from Rios
that day but denied any knowledge of the While his direct appeal was pending, Thom-
killings. In his second statement, Thomas as sought state habeas relief, which was denied
asserted that Clay had acted alone in killing the by the Court of Criminal Appeals. Ex Parte
Rios family after Thomas had left the resi- Thomas, No. 51,306-01 (Tex. Crim. App.
dence. Mar. 20, 2002). Thomas then filed for a
federal writ of habeas corpus under § 2254,
Thomas was indicted for the capital murder raising six claims of error. The district court
of Victor Rios. At trial, no physical evidence dismissed the claims on summary judgment
was presented to link him to the murders. He and refused to grant a COA. Thomas v. Dret-
was inculpated, however, by an abundance of ke, No. H-03-CV-988 (S.D. Tex. Dec. 10,
circumstantial evidence, including information 2003). Thomas now seeks a COA on two of
that he possessed a gun similar to the murder his claims.
weapon. In addition, the state presented
testimony linking him to the robbery and II.
murders. Three witnesses testified that Thom- Our review on a request for a COA is high-
as had asked them to participate in robbing ly circumscribed by statute. Pursuant to the
Rios; two of them stated that Thomas had Anti-Terrorism and Effective Death Penalty
admitted the murders to them. One of the Act of 1996 (“AEDPA”), to be entitled to re-
witnesses, Jones, agreed to tape record a lief a petitioner must show that the state court
conversation with Thomas at the request of the resolution of his case was either “contrary to,
police, in which Thomas made incriminating or involved an unreasonable application of,
statements about the murders. clearly established federal law, as det ermined
by the Supreme Court of the United States” or
Additionally, evidence put Thomas at the “resulted in a decision that was based on an
scene of the crime, including the statement of unreasonable determination of the facts in light
a postal worker, Earl Guidry, who saw two of the evidence presented in the State court
men leaving the Rios home near the time of the
killings. Guidry tentatively identified Thomas
after undergoing hypnosis and participating in
2
proceeding.” 28 U.S.C. § 2254(d).1 This high United States, 390 U.S. 377 (1968). Although
level of deference to state court proceedings he expends much breath in analyzing the two-
“embodies the principles of federalism, comity, prong test established under Simmons v. Unit-
and finality of judgments . . . .” Evans v. ed States and its progeny, we focus on the
Cockrell, 285 F.3d 370, 374 (5th Cir. 2002). analysis performed by the Court of Criminal
Appeals and the district court. Both courts -
concluded that even assuming arguendo that
To grant a COA, however, we need not de- the admission of the testimony was unconsti-
cide the ultimate merits of the underlying habe- tutional, the error was harmless in light of the
as petition; we ask only whether the petitioner overwhelming evidence corroborating the
has made “a substantial showing of the denial content of the witnesses’ testimony.
of a constitutional right.” 28 U.S.C. 2253-
(c)(2). “A petitioner satisfies this standard by A habeas petitioner has the burden of
demonstrating that jurists of reason could demonstrating “actual prejudice” from the
disagree with the district court’s resolution of alleged constitutional error. Brecht, 507 U.S.
his constitutional claim or that jurists could at 637. Under Brecht, the appropriate harm-
conclude the issues presented are adequate to less error st andard on collateral review is the
deserve encouragement to proceed further.” test established by Kotteakos v. United States,
Miller-El v. Cockrell, 537 U.S. 322, 327 328 U.S. 750 (1946), under which there has to
(2003). That is, our duty is to determine not be more than a reasonable possibility that it
whether Thomas is entitled to relief, but contributed to the verdict; the error must have
whether the district court’s conclusion (that had a “substantial effect or influence in deter-
the state court adjudication was not contrary mining the verdict.” Woods v. Johnson, 75
to or an unreasonable application of federal F.3d 1017, 1026 (5th Cir. 1996) (emphasis
law) is one about which jurists of reason could added). The district court meticulously laid
disagree. Furthermore, other doctrines bridle out how the other evidence presented by the
habeas relief, including the harmless error state corroborated and was cumulative of both
doctrine. See Brecht v. Abrahamson, 507 of the elements that Guidry’s in-court identifi-
U.S. 619, 637 (1993). cation and testimony supported: (1) that
Thomas was at or near the Rios residence at
III. the established time of the murders; and (2) the
Thomas petitions for a COA based on an impeachment of Thomas’s statement that
argument that his constitutional rights were claimed that he left the residence by himself
violated by the admission of Guidry’s in-court before Clay did, implying that Clay acted alone
identification; he asserts that it was in murdering the family.
impermissibly tainted by suggestive pre-trial
identification procedures under Simmons v. First, although Guidry’s identification
placed Thomas at the crime scene, it was far
from the only evidence that did so. Beyond
1
See also Yarborough v. Gentry, 540 U.S. 1, 5 other circumstantial corroborating evidence,
(2003) (“Where, as here, the state court’s appli- this element of the state’s case was most
cation of governing federal law is challenged, it plainly demonstrated by Thomas’s own admis-
must be shown to be not only erroneous, but ob- sionSSin his voluntary statement to the po-
jectively unreasonable.”).
3
liceSSthat he was present. Given the great under Brecht.2
mass of particularly credible evidence sup-
porting this fact, we cannot conclude that IV.
reasonable jurists could disagree as to the dis- Thomas applies for a COA on the issue of
trict court’s finding that admitting the testi- whether the state court violated his right to
mony was harmless for establishing this ele- due process under the Fourteenth Amendment
ment. by failing to instruct the jury that, if given a life
sentence, he would be eligible for parole in
Further, Guidry’s testimony, claiming that forty years. At trial, the court forbade any
he observed Clay and Thomas leaving the Rios reference to the potential for parole eligibility
residence together, refuted Thomas’s claim that is available for prisoners serving life
that he “left home alone and waited in the car sentences for capital murder in Texas. Alth-
after he bought some marijuana . . . [until] ough Texas subsequently has allowed for jury
Clay came out of the home fifteen minutes instructions regarding parole eligibility in
later wit h blood on his pants.” Thomas v. capital murder cases,3 this was not the case at
State, No. 72,701, at 9 (Tex. Crim. App. Mar. the time of Thomas’s trial. The jury was
31, 1999). As the district court articulated, forced to consider the issue of his future dan-
the testimony of numerous witnesses also gerousness without hearing testimony or ar-
undercut Thomas’s statement to the police and gument regarding the possibility of his release
his claim that Clay acted alone in killing the on parole if given a life sentence.
family while Thomas waited in the vehicle. No
less than three of Thomas’s own friends com- Thomas contends it was error to keep the
petently testified that Thomas had confessed
the killings to them.
2
There has been some doubt expressed with
Thomas attempts to meet his burden of es- respect to whether the Brecht standard is still via-
tablishing that admitting the testimony sub- ble after the enactment of AEDPA. See Tucker v.
jected him to actual prejudice, because all that Johnson, 247 F.3d 617, 629 n.16 (5th Cir. 2001)
remained was unreliable “biased” testimony, (citing Anderson v. Cowan, 227 F.3d 893, 898 n. 3
because it came from witnesses paid to testify (7th Cir. 2000)). The parties have not briefed this
by the police or subject to cooperation deals to issue, and we have employed the Brecht analysis in
obtain assistance in their own cases. This cases decided pursuant to AEDPA. See, e.g.,
argument is unavailing; the bias of the remain- Corwin v. Johnson, 150 F.3d 467, 476-77 (5th
ing witnesses was appropriately the subject of Cir. 1998). We need not decide this question,
cross-examination and is customary grist for because jurists of reason could not disagree with
the jury mill. We deny a COA regarding the the district court’s resolution of the claim under the
admission of Guidry’s identification testimony, Brecht standard, which we and others have recog-
nized would be a more generous standard for
because given the extensive mass of evidence
defendants than what would be applicable if it is in
that was present, reasonable jurists could not fact superseded by AEDPA. See Tucker, 247 F.3d
disagree as to the district court’s sound finding at 629 n. 16; see also Anderson, 277 F.3d at 898-
that the Court of Criminal Appeals was rea- 99 n.3.
sonable in its conclusion that it was harmless
3
See T EX. CODE CRIM PROC. art. 37,071,
§ 2(e)(2)(B).
4
information about his parole eligibility from procedure.5
the jury based on Simmons v. South Carolina,
512 U.S. 154, 169 (1994), where the Court Because there is no well-settled federal law
concluded that the possibility of a life sentence supporting Thomas’s position, AEDPA pre-
without possibility of parole is relevant to a cludes federal courts from granting relief,
jury’s determination of whether the defendant because it cannot be said that the state court’s
poses future harm to society. To support his application of federal law was objectively
position, Thomas points to language in unreasonable. Because binding precedent
Simmons v. South Carolina saying that “[i]n forecloses relief on this claim, jurists of reason
assessing future dangerousness, the actual could not disagree with the district court’s
duration of the defendant’s prison sentence is decision to dismiss this claim, and therefore
indisputably relevant.” Id. at 163. the request for a COA is DENIED.6
The Court, however, also specifically de-
lineated that the holding was inapplicable in
circumstances in states where parole was
available for capital offenses, as is the case in
Texas.4 The Court confirmed the limited
nature of the Simmons v. South Carolina
holding in Ramdass v. Angelone, 530 U.S.
156, 168 (2000), stating that “Simmons applies
only to instances where, as a legal matter,
there is no possibility of parole if the jury
decides the appropriate sentence is life in
prison.” Moreover, as the district court ob-
served, we have repeatedly rejected similar
claims seeking to extend Simmons v. South
Carolina to the Texas capital sentencing 5
See, e.g., Woods v. Cockrell, 307 F.3d 353,
360-62 (5th Cir. 2002); Johnson v. Cockrell, 306
F.3d 249, 256-57 (5th Cir. 2002); Collier v. Cock-
rell, 300 F.3d 577, 583-84 (5th Cir. 2000).
6
Even if we were to agree that the Simmons v.
4
Simmons v. South Carolina, 512 U.S. at 168 South Carolina line of cases lends support to
(“In a State in which parole is available, how the Thomas’s claims, relief would be barred by the
jury’s knowledge of parole availability will affect non-retroactivity principle of Teague v. Lane, 489
the decision whether or not to impose the death U.S. 288 (1989), which prevents a federal court
penalty is speculative, and we shall not lightly sec- from creating new constitutional rules of criminal
ond-guess a decision whether or not to inform a procedure on habeas review. See Wheat v. John-
jury of information regarding parole.”) (citing Cal- son, 238 F.3d 357, 361 (5th Cir. 2001). We have
ifornia v. Ramos, 463 U.S. 992, 1013-14 (1983)). repeatedly held that an extension of the scope of
The Simmons v. South Carolina Court, id. at 168 Simmons in the way requested by Thomas would
n.8, explicitly acknowledged that its holding did not constitute a “new” rule under Teague. See id.; see
apply to Texas, because Texas does not offer a also Tigner v. Cockrell, 264 F.3d 521, 525 (5th
life-without-parole sentencing alternative. Cir. 2001).
5