Miller v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT March 24, 2005

Charles R. Fulbruge III
Clerk
No. 04-70009

DONALD ANTHONY MILLER,

Petitioner-Appellee-Cross-Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellant-Cross-Appellee.

Appeal from the United States District Court
for the Southern District of Texas

Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

At issue is whether to grant a certificate of appealability

(COA) to Donald Anthony Miller on any of three claims for habeas

relief denied by the district court. See 28 U.S.C. §§ 2253, 2254.

Miller was convicted in Texas state court of capital murder and

sentenced to death. Federal habeas relief was conditionally

granted by the district court on one claim, but only for

sentencing: that, pursuant to Brady v. Maryland, 373 U.S. 83

(1963), the State violated due process by withholding exculpatory

evidence (Brady-claim). For all claims for which it denied relief,

including the same Brady-claim as applied to guilt/innocence, the

district court denied, sua sponte, a COA.
 The State appeals; Miller seeks a COA in order to cross-

appeal. For the latter, the following COA requests are now at

issue.

First, Miller claims the district court erred by limiting to

sentencing the granted habeas relief on his Brady-claim. He

maintains the same evidence-withholding also entitles him to relief

for the guilt/innocence phase of his trial.

In addition, Miller makes two ineffective assistance of

counsel claims. He maintains his trial counsel provided

ineffective assistance, violative of the Sixth Amendment, by

failing to object: (1) to a non-testifying co-conspirator’s

confession admitted through testimony of another; and (2) to the

State’s closing argument.

A COA is DENIED for each of the three issues. A subsequent

opinion will address the State’s appeal from the habeas relief

granted for sentencing, pursuant to the Brady-claim.

I.

In early 1982, Michael Mozingo and Kenneth Whitt, traveling

furniture salesmen, were approached by Miller, Eddie Segura, and

Danny Woods, who feigned interest in purchasing furniture. After

Mozingo and Whitt were lured to Segura’s house to deliver the

furniture, they were robbed, bound, and gagged. Miller, Segura,

and Woods drove Mozingo and Whitt to Lake Houston in Harris County,

Texas, where they were murdered by Miller and Woods.

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 In October 1982, Miller was convicted for capital murder, and

sentenced to death, for murdering Mozingo while in the course of

committing, and attempting to commit, aggravated robbery. Segura

testified against Miller; Woods did not testify. (Before Miller’s

trial, Woods had pleaded guilty to murder; Segura, to aggravated

robbery. Woods was sentenced, before Miller’s trial, to two life

sentences. Segura was sentenced, after Miller’s trial, to 25 years

in prison.)

The Texas Court of Criminal Appeals affirmed. Miller v.

State, 741 S.W.2d 382 (Tex. Crim. App. 1987) (en banc). The

Supreme Court denied a writ of certiorari. Miller v. Texas, 486

U.S. 1061 (1988).

Miller requested state habeas relief, presenting numerous

claims. The state district court entered findings of fact and

conclusions of law and recommended denial of relief on each claim.

Ex Parte Miller, No. 350303-A (232d Dist. Ct., Harris County, Tex.

7 May 1997). The Court of Criminal Appeals adopted those findings

and conclusions and denied relief. Ex Parte Miller, Application

No. 36140-01 (Tex. Crim. App. 1998) (unpublished order).

In February 1999, Miller requested federal habeas relief,

presenting five claims. Following an evidentiary hearing, the

district court conditionally granted habeas relief for the Brady-

claim, but only for the punishment phase. Miller v. Johnson, H-99-

0405 at 24 (S.D. Tex. 2 February 2004) (USDC Opn.). For the other

3
claims, including the Brady-claim as applied to guilt/innocence,

the district court granted the State’s summary judgment motion and

denied, sua sponte, a COA for those claims. The district court

stayed its judgment pending appeal.

II.

At issue is only the preliminary question of whether Miller

can cross-appeal. For that purpose, three COA requests are at

hand. The state appeals the conditional habeas relief and opposes

Miller’s COA requests. With this opinion, we consider – and deny

– the COA requests. In a subsequent opinion,we will consider the

remaining issue: the State’s appeal from the relief granted for

sentencing, based on the Brady-claim.

Miller’s 28 U.S.C. § 2254 habeas petition is subject to the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

See, e.g., Penry v. Johnson, 532 U.S. 782, 792 (2001). Under

AEDPA, Miller may not appeal the denial of habeas relief on an

issue unless he first obtains a COA from either the district, or

this, court. 28 U.S.C. § 2253(c); FED. R. APP. P. 22(b)(1); Slack

v. McDaniel, 529 U.S. 473, 478 (2000). Under Federal Rule of

Appellate Procedure 22(b)(1), the district court must first decide

whether to grant a COA request before one can be requested here.

4
In ruling on Miller’s habeas petition, the district court denied,

sua sponte, a COA for each issue for which it denied relief.

This COA requirement applies to the issue Miller has labeled

only a cross-appeal, and for which he does not request a COA.

Nevertheless, under Federal Rule of Appellate Procedure 4(a)(3), a

notice of cross-appeal is treated as a notice of appeal; and, under

Federal Rule of Appellate Procedure 22(b)(2), a notice of appeal

constitutes a COA request, if no separate request is filed. (The

State correctly responds to the issue as a COA request.) Miller

also seeks a COA on two ineffective assistance of counsel (IAC)

claims, based on trial counsel’s failing to object: (1) to

introduction of a non-testifying co-conspirator’s extra-judicial

confession admitted through testimony of another; and (2) to the

State’s closing argument. (Miller’s statement of the issues in his

COA request identifies as a ground for COA the denial of his Sixth

Amendment rights concerning the limited cross-examination of the

key prosecution witness, Segura. Miller did not brief that issue.

Instead, he briefed the second IAC claim listed above (which is not

identified as a ground for COA in Miller’s statement of issues).

Accordingly, we do not address the cross-examination issue.)

To obtain a COA, Miller must “make a substantial showing of

the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2); see

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack, 529 U.S. at

483. In order to do so, Miller must demonstrate “reasonable

5
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”. Miller-El, 537 U.S. at 336 (quoting Slack, 529

U.S. at 484). In determining whether to grant a COA, we are

limited, inter alia, “to a threshold inquiry into the underlying

merit of [Miller’s] claims”. Id. at 327. “This threshold inquiry

does not require full consideration of the factual or legal bases

adduced in support of the claims.” Id. at 336. Instead, our

analysis “requires an overview of the claims in the habeas petition

and a general assessment of their merits”. Id. This being a death

penalty case, “any doubts as to whether a COA should issue must be

resolved in [Miller’s] favor”. Hernandez v. Johnson, 213 F.3d 243,

248 (5th Cir.), cert. denied, 531 U.S. 966 (2000).

For purposes of the requisite threshold-inquiry, we are

mindful that, in ruling on the merits, the district court was

required to defer to the state court’s adjudication of Miller’s

claims on both questions of law and mixed questions of law and

fact, unless the state court’s “decision ... was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court”. 28 U.S.C. §

2254(d); see Hill v. Johnson, 210 F.3d 481, 488 (5th Cir. 2000),

cert. denied, 532 U.S. 1039 (2001). A state court’s decision is

contrary to clearly established federal law if it “reaches a legal

6
conclusion in direct conflict with a prior decision of the Supreme

Court or if it reaches a different conclusion than the Supreme

Court based on materially indistinguishable facts”. Miniel v.

Cockrell, 339 F.3d 331, 337 (5th Cir. 2003), cert. denied, 540 U.S.

1179 (2004).

Likewise, for this threshold-merits-inquiry, we are mindful

that, in ruling on the merits, the district court was required to

defer to the state court’s factual findings unless they “resulted

in a decision that was based on an unreasonable determination of

the facts in [the] light of the evidence presented in the State

court proceeding”. 28 U.S.C. § 2254(d)(2). The state court’s

factual findings are “presumed to be correct”, and Miller has “the

burden of rebutting the presumption of correctness by clear and

convincing evidence”. 28 U.S.C. § 2254(e)(1).

Finally, for our COA threshold-merits-inquiry, we must

consider the elements, discussed infra, for the underlying Brady

and IAC claims. Obviously, the COA requests must be considered

against the backdrop of those elements.

A.

Miller’s Brady-claim was not raised in state court. Following

an evidentiary hearing, the district court ruled the claim was not

procedurally barred because the cause and prejudice exception was

satisfied; the suppressed evidence was not reasonably available to

Miller, and the suppression prejudiced him for sentencing. USDC

7
Opn. at 20, 24. For purposes of ruling on this COA request, we do

not address whether the Brady-claim is procedurally barred.

Obviously, were we to hold now that it is barred, that holding

would resolve the merits issue being appealed by the State, an

issue that awaits resolution in our subsequent opinion on the

habeas relief granted Miller for sentencing based on the Brady

claim. As discussed infra, even assuming for purposes of this

opinion that the Brady-claim is not procedurally barred, a COA for

that claim on guilt/innocence is denied.

The well-known elements for a Brady-claim are: (1) the

prosecutor suppressed evidence, (2) favorable to the defense, (3)

and material to guilt or punishment. Brady, 373 U.S. at 87.

Evidence is material if there is “a reasonable probability that,

had the evidence been disclosed to the defense, the result of the

proceeding would have been different”. United States v. Bagley,

473 U.S. 667, 682 (1985) (emphasis added). Concerning Miller’s

guilt/innocence-Brady-claim, at issue for COA purposes is the

district court’s ruling, which restated the test for

Brady—materiality in a different, but similar, form. It ruled

that, even if the State had not suppressed evidence, “there is a

reasonable probability that the outcome of the guilt-innocence

phase would not change”. USDC Opn. at 24 (emphasis added).

The murders occurred in February 1982; Miller was convicted

that October. During a pre-trial motion, the prosecutor argued

8
that Brady did not require his disclosing impeachment evidence, but

only evidence that was exculpatory to Miller’s guilt. The trial

court did not require disclosure of additional evidence. Miller

contends the State suppressed three items of material evidence:

(1) statements by Ray McCall in 5 and 20 May 1982 interviews with

the State; (2) statements by Archie Morris in a 5 May 1982

interview with the State; and (3) affidavits of four persons who

did not testify.

McCall, the brother of Segura’s then girlfriend, Monica

McCall, visited Miller’s home the night of the murders. Outside

Miller’s presence, Segura and Woods described the night’s events to

McCall. Later that night, Miller paid McCall to go to the murder

site, in order to confirm the bodies were still there. McCall was

unable to find the bodies, but returned with Miller and found them.

Investigator’s notes from interviews with McCall were

suppressed. In notes from the 5 May interview, an investigator

acknowledged McCall’s not having told the truth on prior occasions.

The district court found these notes raised questions about

McCall’s credibility and were important because McCall corroborated

testimony by Segura, who had been present at the murders and was

the State’s key witness. USDC Opn. at 22. In the 20 May

interview, however, McCall stated that, on the night of the

murders, Woods and Segura said nothing about them, but admitted

only to the robbery. The district court noted McCall’s statements

9
during this interview differed from his trial testimony and could

have been used for impeachment purposes. Id.

Morris (Ray and Monica McCall’s grandfather) was the source

for the .38 caliber handgun used in the murders. Prosecutor’s

suppressed notes include Morris’ statement that he owned only a .22

caliber handgun and had not given it to Miller. At trial, however,

Morris testified that, just prior to the murders, Miller had

borrowed from him the .38 caliber handgun used in the murders.

While not specifically addressing Morris’ contradictory statements,

the district court found the suppressed evidence undermined

Segura’s credibility, as well as the value of McCall and Morris’

corroborating testimony. Id. at 24.

In the suppressed affidavits from four who did not testify

(Robert White, Tammie Jones, Tommy Holsinger, and Melissa Spears),

each affiant told police they overheard Woods brag about the

murders. The district court found the affidavits indicated Woods,

not Miller, killed both victims and that Segura was armed. Id. at

23.

Referring primarily to McCall and Morris’ statements, and

applying Brady’s above-described three-part test, the district

court ruled: (1) the State withheld evidence; (2) it was favorable

to Miller; and (3) it was material, but only to the penalty phase

of Miller’s trial. USDC Opn. at 26. In its earlier ruling on the

prejudice element for the procedural bar, the district court held:

10
although Miller’s “complicity in the killings is not seriously

disputed”, Miller “challenge[d] his portrayal as the ringleader and

shooter, a role that warranted conviction for capital murder and

imposition of the death sentence”. Id. at 23. In ruling on the

Brady-claim, the district court noted: “The analysis for [Brady-]

materiality tracks that of prejudice” when ruling on whether to

apply a procedural bar. Id. at 26. It held: “the newly disclosed

evidence raises significant doubt about the outcome of the trial,

particularly the punishment assessed”; and “the State’s refusal to

disclose material evidence ... vitiated the sentence imposed”. Id.

In the end, for Miller’s Brady-claim, the district court granted

conditional habeas relief for sentencing, but not guilt/innocence.

Id. at 42.

According to Miller, McCall and Morris’ suppressed statements

were inconsistent with their trial testimony; and, had they been

disclosed, they could have been used to impeach them. Miller

maintains the four affidavits raise doubts about his being the

shooter because they raise the possibility that Segura was the

shooter instead. Along this line, Miller seems to contend that all

of the suppressed evidence relied upon by the district court in

granting conditional habeas relief for sentencing is material to

guilt/innocence. He asserts: (1) evidence, such as Morris’ prior

inconsistent statement, would have impeached Morris’ testimony that

Miller obtained the .38 caliber handgun from him just before the

11
murders; and (2) evidence, particularly White’s affidavit, (a)

suggested Miller did not shoot the handgun and (b) impeached

Detective Clampitte’s testimony suggesting that affidavits by four

individuals supported Miller’s being the shooter. According to

Miller, with the testimony of Morris and Detective Clampitte

impeached, the State would have had to rely primarily on testimony

of Segura and McCall (both of whom had obvious reasons to implicate

Miller, rather than themselves) that Miller shot Mozingo. Miller

maintains it is reasonably probable that, had the evidence been

produced, the jury would have questioned McCall and Segura’s

motives and credibility enough to find Miller did not shoot

Mozingo, nor should he have anticipated his death, as discussed

below. He contends therefore, it is reasonably probable the jury

would not have found him guilty of the capital murder of Mozingo.

In this regard, consistent with the district court’s earlier-

quoted ruling restating the test for Brady-materiality, Miller

claims the district court required him to negate evidence showing

there is a reasonable probability the guilt/innocence outcome would

have remained the same, rather than requiring him to demonstrate by

a preponderance of the evidence a reasonable probability the

outcome would have been different, as required by Kyles v. Whitley,

514 U.S. 419 (1995) (requiring demonstration of reasonable

probability that result of proceeding would have differed had

12
evidence been disclosed). Miller seeks a remand to allow the

district court to apply the correct standard.

According to Miller, when the correct materiality standard is

applied, suppression of evidence that he was not the shooter would

have been material under Texas’ law of the parties. See TEXAS PENAL

CODE § 7.02(b) (co-conspirators guilty of crimes committed during

conspiracy if result should have been anticipated). Miller

contends: had the jury been presented with evidence that Woods and

Segura shot the victims, it is reasonably probable at least one

juror would not have found that the State proved Miller caused

Mozingo’s death; and, because the State charged Segura only with

aggravated robbery, the jury would not have found unanimously that

Miller should have anticipated Mozingo’s death.

In opposing a COA, the State makes the following response.

Reasonable jurists could not debate the ruling that the suppressed

evidence is not material to guilt/innocence. Even if Miller’s

trial counsel had been aware of Morris’ prior inconsistent

statement and had impeached him, there was ample other evidence

supporting Miller’s guilt. McCall and Segura testified

consistently to Miller’s involvement in the robbery and shootings.

Likewise, the four affidavits were not material. The affiants

heard Woods bragging about the crimes; in many ways, the affidavits

support Miller’s guilt and do not contradict Segura and McCall’s

testimony. Simiarily, given the extensive evidence of Miller’s

13
guilt, he cannot demonstrate McCall’s suppressed statement is

material for guilt/innocence. The State’s final assertion is that

even assuming the suppressed evidence was material (for sentencing

purposes) to finding Miller guilty as a direct participant, it is

not material (for guilt/innocence purposes) to finding him guilty

as a party. See TEXAS PENAL CODE § 7.02.

We agree. Again, for Brady purposes, evidence is material if

there is a reasonable probability that, had the evidence been

disclosed, the result would have been different. Bagley, 473 U.S.

at 682. If, during a conspiracy to commit a felony, another is

committed, even without intent to commit that other felony, all

conspirators are guilty under Texas law of the committed felonies

if the result was one that “should have been anticipated as a

result of the carrying out of the conspiracy”. TEXAS PENAL CODE §

7.02(b). Given the testimony by Segura and McCall, among others,

reasonable jurists could not debate that the suppressed evidence is

not material, under Brady, to Miller’s participation in the robbery

conspiracy. Given the uncontroverted, overwhelming evidence of his

involvement in that conspiracy and the nature of the robbery,

reasonable jurists could not debate that: (1) Miller should have

anticipated Mozingo and Whitt’s deaths; and (2) under Texas Penal

Code § 7.02(b), the suppressed evidence is not material to Miller’s

being found guilty for the capital murder of Mozingo. Restated,

reasonable jurists could not debate that there is no reasonable

14
probability that the guilt/innocence verdict would have been

different, had the evidence been produced.

B.

The other two COA requests are premised on IAC claims. As

discussed, a threshold-merits-inquiry is part of the calculus for

deciding whether to grant a COA; part of that inquiry involves

considering the elements for the underlying claim for which a COA

is requested. In order to have been granted habeas relief on his

IAC claims (by either the state, or district, court), Miller was

required to demonstrate both: (1) “counsel’s performance was

deficient”; and (2) “the deficient performance prejudiced [his]

defense”. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Counsel’s performance is deficient if it falls “below an

objective standard of reasonableness”. Id. at 688. In that

regard, there is a “strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance”. Id.

at 689. Deficient performance vel non is judged against the law

existing at the time of the claimed IAC. Id. at 689-90.

To establish prejudice, Miller was required to demonstrate

(similar to the Brady-materiality requirement) “there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different”.

Id. at 694. “A reasonable probability is a probability sufficient

15
to undermine confidence in the outcome.” Id. As discussed below,

each COA request is resolved by addressing the prejudice prong.

1.

The first IAC claim concerns not objecting to the

introduction, through McCall’s testimony, of Woods’ extra-judicial

confession to McCall on the night of the murder and outside

Miller’s presence. (As discussed, McCall visited Miller’s home the

night of the murders and was paid by Miller to search for the

bodies that had been left at the lake; when McCall couldn’t find

them, he returned to the murder scene with Miller, where they

located them.) McCall testified at length that, while he was at

Miller’s house, Woods confessed to him that Woods, Segura, and

Miller committed the murders. In this regard, Segura participated

in most, if not all, of the conversation. (Again, Segura

testified.) Part of McCall’s testimony follows.

Q. Did Danny Woods tell you about any other
shots being fired after he fired with the
shotgun?

A. Yeah, he said that Donny [Miller] had shot
them with a pistol.

Q. And did he tell you how many times Donny
Miller shot his pistol?

A. No, he didn’t specify the times.

Q. But, during that initial conversation, he
[Woods] did indicate to you that he shot the
shotgun and that Miller shot the pistol, is
that correct?

A. Correct.

16
 Q. And at that time, Mr. McCall, did Eddie
Segura agree with this recitation of facts
that Danny Woods was giving to you?

A. Right.

(Emphasis added.)

In seeking a COA, Miller claims: this use of Wood’s

confession violated Miller’s Sixth Amendment Confrontation Clause

rights; and, concomitantly, failing to object on that ground

constituted IAC. Miller urges application of Lee v. Illinois, 476

U.S. 530 (1986), for the proposition that the Confrontation Clause

limits evidence the State may introduce based on exceptions to the

hearsay rule.

In opposing a COA, the State, relying upon Saddler v. State,

320 S.W.2d 146 (Tex. Crim. App. 1959), contends that Woods’

statements are not inadmissable hearsay because they are

declarations of one conspirator made in furtherance of the

conspiracy. Because, according to the State, Woods’ statements

were admissible, failure by Miller’s counsel to object to their

introduction could not be deficient performance. In the

alternative, the State contends that, even if counsel’s performance

was deficient, there was no prejudice, given the overwhelming

evidence against Miller.

The state habeas court held Miller’s counsel was not

ineffective for failing to object to Woods’ statements, presented

through McCall, because they were admissible as statements against

17
interest. The district court relied upon a different basis,

ruling: “McCall’s testimony does not violate the Confrontation

Clause because the other co-defendant, Segura, testified to

essentially the same facts”. USDC Opn. at 35. The district court

reasoned that, even if there were error, it would have been

harmless, because Miller had the opportunity to cross-examine

Segura, one of the two witnesses who testified to the same

information. Id. (For deficient performance vel non, the district

court refused, properly, to apply Lee, because it was decided after

Miller’s trial. Id. at 33 n.8.)

Extra-judicial confessions can violate the Confrontation

Clause because there is no opportunity to cross-examine the

declarant. Cf. Crawford v. Washington, 541 U.S. 36 (2004) (out-of-

court testimonial statements barred by Confrontation Clause unless

witness is unavailable and defendant had opportunity to cross-

examine). For example, in Bruton v. United States, 391 U.S. 123

(1968), the Supreme Court found a Confrontation Clause violation,

despite a limiting jury instruction, when a co-defendant’s

incriminating extra-judicial confession was admitted through an

investigator’s testimony.

The primary function of the Confrontation Clause is to protect

the right of cross-examination, Douglas v. Alabama, 380 U.S. 415,

418 (1965); and, of course, one of the functions of cross-

examination is to allow the jury to assess the credibility of the

18
witness. See Mattox v. United States, 156 U.S. 237, 242-43 (1895).

The district court noted: “Despite spanning numerous pages, the

transcript of [Woods’] confession is remarkably devoid of even a

single objection by [Miller’s] counsel”. USDC Opn. at 34.

Similarly, it was “troubled by trial counsel’s failure to object to

the prosecutor’s elicitation of Woods’ confession ....” Id. at 36.

As noted, and notwithstanding its expressed concerns about

counsel’s performance, the district court held there was no

Confrontation Clause violation because Miller was able to cross-

examine another witness, Segura, who provided similar testimony.

Presumably, for this reason, the district court found counsel’s

performance was not deficient for failing to object to Woods’

confession. In any event, we need not address deficient

performance and prejudice vel non, because this COA request can be

resolved by examining the prejudice prong. See Strickland, 466

U.S. at 687 (must show both deficient performance and prejudice).

Again, the district court ruled that, even if admission of Woods’

confession was error, it was harmless, because Miller was able to

cross-examine Segura, whose testimony corroborated Woods’

confession.

Miller does not address prejudice, however. Instead, he seeks

a remand to district court for a determination of prejudice.

Arguably, the failure to brief the prejudice prong constitutes

abandonment of this COA request. In any event, based on Miller’s

19
Brady-claim COA request, the following contention appears to be

implied: had Woods’ confession not been admitted, Miller would not

have been found guilty and, in the alternative, certainly would not

have received the death penalty.

Reasonable jurists would not debate that, in the light of the

other overwhelming evidence against Miller, there is not a

reasonable probability that: (1) the determination of guilt would

have changed; and (2) Miller would not have received the death

penalty. For example, McCall testified that Miller: admitted to

him that he shot the two victims; had McCall go to the murder

scene; and had McCall return to Morris the handgun used in the

murders.

2.

The other IAC claim concerns failing to object on two grounds

to the State’s closing argument in the punishment phase. Relying

on Payne v. Tennessee, 501 U.S. 808 (1991), and apparently

addressing Strickland’s prejudice prong, Miller maintains juries in

death penalty cases must be permitted to view the defendant as a

uniquely individual human being. (The district court correctly

refused to apply Payne to the deficient performance prong because

Payne was decided “nearly 10 years after the trial”. USDC Opn. at

36 n.13.) Miller contends: (1) the prosecutor’s victim-impact

argument (a) was not based on evidence presented at trial and (b)

deprived the jury of the ability to view Miller as an individual;

20
and (2) the closing argument invited the jury to compare Miller’s

worth to the victims’ in deciding whether to impose the death

penalty, a type argument that was, according to Miller, condemned

by the Supreme Court in Zant v. Stephens, 462 U.S. 862 (1983).

In opposing a COA, the State asserts: the challenged comments

were permissible; and Miller’s reading of Payne is overly broad.

In the alternative, the State contends that, even if the comments

were improper, they did not rise to a level that rendered the

proceeding fundamentally unfair. See Donnelly v. DeChristoforo,

416 U.S. 637, 643 (1974) (relevant question is whether prosecutor’s

comments “so infected the trial with unfairness as to make the

resulting conviction a denial of due process”). The State

maintains: Payne’s relevant holding is that the Eighth Amendment

does not bar per se victim-impact testimony or prosecutorial

argument based on it, a holding that supports the State’s, rather

than Miller’s, position, Payne, 501 U.S. at 824; and Payne holds

that a prosecutor may argue victim impact to counteract mitigating

evidence presented by a defendant, as was done by Miller, id.

at825. The State asserts Miller, for COA purposes, has not

sufficiently demonstrated as unreasonable, under AEDPA, the state

court’s decision that the prosecutor’s arguments did not deny

Miller his due process right to a fair trial.

Victim-impact evidence that is “so unduly prejudicial that it

renders the trial fundamentally unfair” deprives a capital

21
defendant of due process. Payne, 501 U.S. at 825. As discussed

infra, reasonable jurists would not debate that counsel’s

performance was not prejudicial. Accordingly, for COA purposes, we

need not address whether that performance was deficient.

On direct appeal, concerning due process vel non, the Texas

Court of Criminal Appeals examined the State’s punishment phase

closing argument; and, “while [it found] that some of [the

comments] might be considered highly improper ... they were not so

prejudicial as to ... deprive[] [Miller] of a fair and impartial

trial”. Miller, 741 S.W.2d at 393. For Miller’s state habeas IAC

claim, based on counsel’s failure to object to those comments, the

state habeas court’s finding, which the Court of Criminal Appeals

adopted, was that Miller failed to demonstrate counsel’s failure to

object was either deficient performance or prejudicial.

a.

The first of the two challenged segments follows:

And think to yourself as you look at this and
think of this case; what does Marsha Mozingo
tell her kids? “Mommy, why isn’t Daddy here?
Mommy, is Daddy ever going to come back?
Mommy, why did that bad man have to kill
Daddy? Mommy, my birthday is coming up, will
Daddy be there? Mommy, where does somebody go
after he’s been killed? Mommy, help me
understand; Mommy, tell me the truth, Mommy,
are there very many people in the world like
Donald Miller? Mommy, will anyone else ever
have to die because of Donnie Miller?”

The district court stated: the prosecutor speculated about

how one of the victims’ wives would explain the killing to their

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child, despite having elicited no testimony about the impact of the

killings on the families. USDC Opn. at 36. Although it

characterized the comments as “immature and constitut[ing]

pandering to the victims’ families”, the district court held they

did not violate Strickland’s “but for” standard. Id. (Again,

Strickland requires, inter alia, showing “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different”. Strickland,

466 U.S. at 694. (emphasis added).)

Although the district court stated there was no evidence about

the impact of Mozingo’s death on his family, there was testimony

from which the impact could reasonably be inferred by the jury.

Segura testified that, while Mozingo was in Segura’s car en route

to being murdered, Mozingo asked Woods, Miller, and Segura to look

at the picture of his family in his wallet. Likewise, McCall

testified: Segura told him Mozingo asked the men not to kill him

“because he had a wife and a kid at home”. And Mozingo’s wife

testified they had two children.

In this regard, there was sufficient evidence about Mozingo’s

family for the jury to consider the victim impact argument.

Reasonable jurists would not debate the ruling that, had these

comments not been made, there is no reasonable probability that the

death penalty verdict would have been different.

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 b.

Part of the other challenged comments follow:

Is it going to be your vote for saving the
life of a murderer or saving the innocent life
of a person such as Kenneth Whitt and Michael
Mozingo? ... I would like for you, before
anybody votes no to this case, make sure you
understand what it would be like for some
victim in the future that might be with this
Defendant in the future, under the same or
similar circumstances, put yourself in their
position and decide whether you feel
conscientiously you could say no to the
questions knowing you would be risking some
other person’s life ....

In denying habeas relief on the challenged comments, the

district court noted the context of the above-quoted comments, but

did not address them specifically. USDC Opn. at 35. As discussed

above, the district court held the closing argument was not

prejudicial for Strickland purposes. Id. at 36. Again, based on

this record, reasonable jurists could not debate that, had these

comments not been made, there is no reasonable probability that the

death penalty verdict would have been different.

The same conclusion is compelled when the combined effect of

the contested comments is considered. Reasonable jurists would not

debate that there was no Strickland prejudice.

III.

For the foregoing reasons, a COA is DENIED for each of the

three COA requests. A subsequent opinion will address the State’s

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appeal from the conditional habeas relief granted Miller for his

Brady-claim, as it concerns sentencing.

COA DENIED

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