Jackson v. Dretke

United States Court of Appeals
Fifth Circuit

In the FILED
May 11, 2006
United States Court of Appeals
Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________

m 05-70014
______________

DONELL O’KEITH JACKSON,

Petitioner-Appellant,

VERSUS

DOUG 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-02-CV-2601
_________________________

Before DAVIS, SMITH, and DENNIS, Donell Jackson requests a certificate of ap-
Circuit Judges. pealability (“COA”) from the denial of his
claim for federal habeas corpus relief under 28
JERRY E. SMITH, Circuit Judge:* U.S.C. § 2254. We deny a COA as to all but
two of Jackson’s claims on which a COA is
required, because jurists of reason would not
*
Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
*
and is not precedent except under the limited (...continued)
(continued...) circumstances set forth in 5TH CIR. R. 47.5.4.
find the rejection of them debatable. As for II.
the claim on which we grant a COA, and the This case is governed by the Antiterrorism
claim for which no COA is required, we affirm and Effective Death Penalty Act of 1996
on the merits. (“AEDPA”), which requires, as a jurisdictional
prerequisite to appeal, that Jackson obtain a
I. COA. Miller-El v. Cockrell, 537 U.S. 322,
Jackson was charged with killing his victim 335-36 (2003). A COA will issue if Jackson
for remuneration. The victim had previously makes “a substantial showing of the denial of
testified before a grand jury in its investigation a constitutional right.” 28 U.S.C. § 2253-
of Jackson’s friend, David Smith. Smith in- (c)(2). The prevailing standard requires Jack-
dicated in a taped statement that he did not son to demonstrate that “reasonable jurists
know Jackson was going to shoot the victim. could debate whether (or, for that matter,
When the police played Smith’s statement for agree that) the petition should have been re-
Jackson during interrogation, Jackson alleg- solved [by the district court] in a different
edly replied that Smith had paid him to commit manner or that the issues presented were ‘ade-
the murder. Jackson then made a taped con- quate to deserve encouragement to proceed
fession. To shift the blame, Jackson at trial further.’” Slack v. McDaniel, 529 U.S. 473,
claimed the police had told him to say that 484 (2000) (quoting Barefoot v. Estelle, 463
Smith had paid him. U.S. 880, 893 n.4 (1983)).

Jackson was convicted by a jury of capital Although the COA determination requires
murder. At sentencing, the state introduced a threshold inquiry into the merits of a peti-
evidence of prior offenses, and Jackson pre- tioner’s claim, it does not involve a full can-
sented evidence of a favorable home life and a vassing of the factual or legal bases for relief.
learning disability. The jury sentenced him to See Miller-El, 537 U.S. at 336-37. We do not
death, finding that he posed a threat of future inquire whether Jackson will succeed on ap-
dangerousness and that the mitigating evidence peal, or even whether any reasonable jurist
was inadequate to warrant a life sentence. would ultimately grant Jackson’s petition.
Rather, we ask only whether the federal dis-
The Texas Court of Criminal Appeals af- trict court’s resolution of Jackson’s claims is
firmed the conviction and sentence on direct debatable among jurists of reason.1
appeal. Jackson filed a concurrent petition for
writ of habeas corpus in the trial court, which When assessing whether jurists of reason
entered findings of fact and conclusions of law could debate the denial of Jackson’s habeas
that were adopted by the Court of Criminal petition, we are mindful of the deferential stan-
Appeals in an order denying habeas relief. dard of review the district court must apply
under AEDPA. See Miniel v. Cockrell,
Jackson filed a federal habeas petition under
§ 2254, alleging twenty-two points of error.
The district court granted summary judgment 1
Miller-El, 537 U.S. at 338 (stating that “a
denying Jackson’s claims, and denied sua claim can be debatable even though every jurist of
sponte a COA as to each claim. Jackson filed reason might agree, after the COA has been grant-
a notice of appeal and request for a COA. ed and the case has received full consideration, that
petitioner will not prevail”).

2
339 F.3d 331, 336 (5th Cir. 2003). The dis- F.3d 190, 193 (5th Cir. 2001). Finally,
trict court must defer to the state court’s ad- AEDPA presumes that the state court’s factual
judication of a defendant’s claims on the merits findings are correct; the defendant has the bur-
unless the state court’s decision was “contrary den of proving otherwise by “clear and con-
to, or involved an unreasonable application of, vincing evidence.” 28 U.S.C. § 2254(e)(1).
clearly established Federal law, as determined
by the Supreme Court of the United States, or III.
. . .was based on an unreasonable determina- Jackson makes eight separate arguments for
tion of the facts in light of the evidence pre- a COA. We deal with each of these in turn.
sented in the State court proceeding.” 28
U.S.C. § 2254(d)(1), (2). A.
Jackson argues that his confession was in-
A state court’s decision is “contrary to” voluntary and the product of police miscon-
clearly established federal law if it reaches a duct. Specifically, he maintains that, to shift
result in direct conflict with Supreme Court blame to Smith, police told him to say that he
precedent, either by drawing a contrary legal received money for the victim’s murder; Jack-
conclusion or basing a contrary judgment on son alleges that discrepancies between the de-
materially indistinguishable facts. Miniel, tails of his confession and statements made by
339 F.3d at 337 (citing Williams v. Taylor, Smith compel the conclusion that police co-
529 U.S. 362, 405 (2000)). A state court’s erced a confession.
decision is based on an “unreasonable applica-
tion” of clearly established federal law if it is The Fifth Amendment provides that no
“objectively unreasonable.” Id. Therefore, it person “shall be compelled in any criminal case
is not enough for the reviewing court to be- to be a witness against himself.” U.S. CONST.
lieve that the state court applied Supreme amend. V. “[A] confession, in order to be
Court precedent incorrectly;2 rather, the appli- admissible, must be free and voluntary: that is,
cation must be outside the range of reasonable must not be extracted by any sort of threats or
judgment permitted by the particular rule.3 violence, nor obtained by any direct or implied
promises, however slight, nor by the exertion
It is the ultimate legal conclusion reached of any improper influence.” Bram v. United
by the state court, not every step of its reason- States, 168 U.S. 532, 542-43 (1897) (quoting
ing process, that should be tested for unrea- 3 RUSSELL ON CRIMES 478 (6th ed.)).
sonableness. See Santellan v. Cockrell, 271
As the district court noted, the admissibility
of Jackson’s confession might be in doubt if
2
the facts he alleges were true. The jury, how-
Woodford v. Visciotti, 537 U.S. 19, 24-25 ever, considered the evidence presented by
(2002).
Jackson and the police at trial, and found that
3
Yarborough v. Alvarado, 541 U.S. 652, 664 no promises were made to Jackson in
(2004) (explaining that “the range of reasonable exchange for his confession. This credibility
judgment can depend in part on the nature of the determination is squarely within the province
relevant rule . . . . The more general the rule, the
more leeway courts have in reaching outcomes in
case by case determinations.”).

3
of the jury,4 and AEDPA tells us to presume ing disability and other psychological prob-
that this finding is correct unless rebutted by lems, to diminish the probative value of his
“clear and convincing evidence.” 28 U.S.C. confession. He seeks only to remove the
§ 2254(e)(1). Because Jackson did not pres- evidentiary basis of the jury’s conclusion that
ent any new evidence in his habeas petition he committed capital murder; i.e., murder-for-
that would satisfy this rigorous standard, hire. Because this is a free-standing actual in-
reasonable jurists could not disagree with the nocence claim, no reasonable jurist could dis-
denial of a COA on this issue. agree that Jackson failed to make “a substan-
tial showing of the denial of a constitutional
B. right.” 28 U.S.C. § 2253(c)(2). Therefore, a
Jackson contends that the alleged discrep- COA for this claim is denied.
ancies between his confession and Smith’s
statements prove that the confession is false, C.
so there was no evidence to establish that 1.
Jackson killed the victim for remuneration. Jackson urges that the state exercised its
Hence, Jackson maintains that he is actually peremptory challenges in a racially discrimina-
innocent of capital murder. tory manner, in violation of his Fourteenth
Amendment rights under Batson v. Kentucky,
A claim of actual innocence based on newly 476 U.S. 79 (1986). The Batson Court held
discovered evidence is not cognizable for that a defendant must first make a prima facie
purposes of federal habeas corpus absent an showing that the prosecutor is exercising his
independent constitutional violation. Herrera strikes based on the prospective juror’s race.
v. Collins, 954 F.2d 1029, 1034 (5th Cir. See id. at 96-97.
1992), aff’d, 506 U.S. 390 (1993). This rule
recognizes that the purpose of federal habeas “Once the defendant makes a prima facie
corpus is “to ensure that individuals are not showing, the burden shifts to the State to
imprisoned in violation of the Constitu- come forward with a neutral explanation for
tionSSnot to correct errors of fact.” Herrera, challenging [minority] jurors.” Id. at 97. If
506 U.S. at 399. A petitioner may prove actu- the state is unable to offer a race-neutral ex-
al innocence to overcome a procedural default, planation, the defendant’s sentence should be
allowing a federal habeas court to reach the reversed. See id. at 100. If the state advances
merits of an otherwise barred constitutional putatively neutral reasons, the defendant bears
claim. Schlup v. Delo, 513 U.S. 298, 316 the ultimate burden of proving that those rea-
(1995). sons are pretextual. See id. at 94 n.18.

Jackson does not allege actual innocence In Miller-El, the Court reversed this court’s
to remove a procedural bar to a separate con- denial of a COA on a Batson claim, finding
stitutional claim. Rather, he submits evidence, that it was debatable among jurists of reason
consisting of testimonial discrepancies and whether Miller-El would succeed in his federal
expert opinion that he may suffer from a learn- habeas case. Miller-El, 537 U.S. at 348. The
Court noted that deference to the state court is
often appropriate for Batson claims, because
4
See United States v. Cathey, 259 F.3d 365, whether the defendant has carried his burden
368 (5th Cir. 2001).

4
of proof will often turn on the credibility of the tor’s credibility;
prosecutor exercising the strikes, and “a re-
viewing court, which analyzes only the tran- (3) the race-neutral reasons provided for
scripts from voir dire, is not as well positioned striking certain black jurors applied equally
as the trial court is to make credibility determi- well to white jurors who went unchal-
nations.” Id. at 339. Such deference, how- lenged;
ever, does not mean that a COA shall never
issue; rather, “[a] federal court can disagree (4) the State used disparate questioning for
with a state court’s credibility determination white and black jurors, prefacing its ques-
and, when guided by AEDPA, conclude the tions to more than half the prospective
decision was unreasonable or that the factual black jurors with an explicit description of
premise was incorrect by clear and convincing Texas’s execution procedures (compared to
evidence.” Id. at 340. 6% of whites), and informed 94% of whites
of the statutory minimum sentence (com-
Miller-El, therefore, did not alter the stan- pared to 12.5% of blacks);
dards for evaluating requests for a COA under
AEDPA, nor did it articulate a new test for (5) the State requested a jury shuffle when
reviewing Batson claims; rather, it spoke only a predominant number of African-Ameri-
to “the type and quantum of record evidence” cans sat at the front of the panel; and
needed to establish eligibility for a COA. Mur-
phy v. Dretke, 416 F.3d 427, 439 (5th Cir. (6) evidence suggested that, historically, a
2005) (describing Miller-El v. Dretke, 125 S. culture of bias against African-American
Ct. 2317 (2005) (“Miller-El II”)), cert. de- jurors suffused the District Attorney’s of-
nied, 126 S. Ct. 1028 (2006). fice, including the formal training of assis-
tant district attorneys on how to exclude
In Miller-El, the Court found a number of minorities from juries.
circumstances in the record that supported the
Batson claim. To succeed on a Batson claim, Miller-El, 537 U.S. at 342-47.
however, a petitioner need not submit each
type of evidence addressed by Miller-El. A pe- To support his Batson claim, Jackson pre-
titioner is also not limited to the types of evi- sents two types of evidence that are similar to
dence considered by the Court in Miller-El. the first and third circumstances examined in
There, the Court found the following factual Miller-El. First, he points out that 5 of the 11
circumstances persuasive in determining that a (or 45%) of the peremptory strikes were
COA should issue: against black venire members.5 Second, he

(1) the State used 10 of its 14 peremptory
strikes against African-Americans, and only 5
Although statistical evidence alone may raise
one ultimately served on the jury; some debate as to whether the prosecution acted
with a race-based reason for striking prospective
(2) the trial court conducted a Batson jurors, Miller-El, 537 U.S. at 342, Jackson fails to
hearing two years after voir dire, so the present this court with sufficient statistical infor-
court had no occasion to judge the prosecu- mation to make that determination. He contends
(continued...)

5
asserts that some of the race-neutral reasons habeas relief, finding the state habeas court’s
provided for striking certain black venire mem- determinations to be consistent with federal
bers applied equally to white venire members law as established by the Supreme Court.
who went unchallenged and were selected for
the jury. He also contends that the prosecu- 2.
tor’s reasons for striking the five black venire Jackson objects to the strikes of five black
members were pretextual because the prof- jurorsSSMaria Brooks, Lee Davis, Myrtle Gib-
fered reasons did not accurately reflect the voir son, Ingrid Poindexter, and Laverne Reid. We
dire testimony of the members. consider each of these briefly in turn.

The Court in Miller-El stated that, when a.
the prosecution’s reasons for striking black The state indicated it struck Brooks be-
jurors could apply equally well to white jurors cause she stated she would have difficulty de-
who were ultimately empaneled, “the applica- ciding that the state had proved future danger-
tion of these rationales to the venire might ousness;6 she expressed opposition to the
have been selective and based on racial consid- death penalty; she said her religion taught her
erations.” Id. at 343. In particular, the Court not to sit in judgment of another person.
noted that similarly-situated white and black Though Jackson cites Terry Arnold as an ex-
potential jurors expressed ambivalence about ample of a white juror who was empaneled de-
the death penalty. Id. spite expressing similar reservations about
sitting in judgment of another,7 Arnold’s res
A COA determination under § 2253(c) re-
quires “an overview of claims in the habeas
petition and a general assessment of the mer- 6
When asked about predicting Jackson’s future
its.” Miller-El, 537 U.S. at 336. This thresh-
dangerousness, Brooks stated, “I can’t predict the
old inquiry, however, “does not require full future for anything. We just don’t know the
consideration of the factual or legal bases ad- future.” When pressed further by the state, she re-
duced in support of a claim.” Id.. sponded that “no one can see into the future of an
individual.”
After our threshold inquiry into the merits
7
of Jackson’s claim, we conclude that reason- Arnold’s questionnaire stated, “I do not par-
able jurists could debate whether the state’s ticularly care to stand in judgment of someone else,
use of peremptory strikes against black venire but if necessary, will do so.” The following ex-
members was race-based and thus in violation change occurred between the Court and Arnold on
of Batson. We therefore grant a COA on this this subject:
claim. After reviewing the briefs and record in
Q. Do you have any convictions that would
full, however, we deny Jackson’s claim for
prevent you from being able to stand in judg-
ment?
5
(...continued) A. Not from a religious standpoint or anything.
that 5 of the 11 peremptory strikes were used It’s just a personal feeling I have as an
against black members of the venire, but without individual.
other information concerning the composition of
the jury pool this statistic has little meaning. (continued...)

6
ervations in this respect were less serious than empaneled white juror, but rather argues that
were Brooks’s. Arnold also did not express Davis’s answers suggest he would be able to
hesitancy about being able to find future dan- apply the correct burden of proof fairly in a
gerousness. capital case. Even though Davis softened his
statement that he would require proof of guilt
b. to a certainty, the state was entitled to con-
The state’s reason for striking Davis was clude that he might require it to prove guilt by
his apparent opposition to the death penalty an elevated standard even if that burden were
and his indication that he would hold the pro- something less than metaphysical certainty.
secution to an elevated standard in capital cas-
es.8 Jackson does not compare Davis to an c.
The state claims it struck Gibson because
she stated she believed that black people were
7
(...continued) treated unfairly by the criminal justice system,
Q. Well, and it doesn’t have a religious basis . because she thought she might know the de-
. . . I need for you to have looked inside fendant personally, and because she was un-
yourself, whether it’s a religious basis or just sure about her feelings on the death penalty.
personal convictions. Do you feel like you
would be able to make the decision in a case if
8
you were in that position? (...continued)
there is a possibility that someone else could
A. I can make a decision, yes, I could. have done it orSS

8
During voir dire the state asked Davis how he Q. Is that beyond, I mean, in your mind, any
felt about the possibility of serving on a jury in a doubt?
case involving the death penalty. He replied, “I
would have to really believe that a hundred percent, A. What’s reasonable? What’s reasonable to
have no doubt that the actual crime was committed me?
by a person for me to . . . render a decision of . . .
death in a situation like this. I’d have to be a Q. Right. And I guess that’s what the ques-
hundred percent convinced.” Later the state again tionSSI mean, what’s reasonable to you seems
asked Davis about the burden of proof he would to be a hundred percent.
require the state to carry in a death penalty case:
A. Okay. It maySSmaybeSSmaybe a hundred
Q. Do you feel like if the State didn’t prove percent is being a little critical, but I have to
[the offense] to you a hundred percent or be- beSSthe balanceSSI have to be convinced in the
yond all doubt, that you could find the defen- balance and maybeSSmaybe a hundred
dant guilty if you didn’t know a hundred per- percentSSI don’t know if you actually mean to
cent? give you a percentage, you know, I don’t know
if that’s fair or not. But I have to be thoroughly
A. I’d have to be convincedSSI’d have to be convinced enough, and that’s notSSmaybe
more convinced that the person did commit this. saying a hundred percent is not the right way
I have to be convinced enough to the point for me to say that, but I have to beSSthe
where I don’t feel like there is a possibility that balance, I have to be more convinced that they
the State could have been mistaken or maybe did it than not and I can’t really give a
(continued...) percentage on that.

7
Besides challenging these contentions on the e.
merits, Jackson argues that Gibson’s comment Reid’s testimony suggested that she
about the unfair treatment of black people is thought that to prove future dangerousness,
substantially similar to white empaneled juror the state would have to demonstrate that the
Kevin Chapman’s comment that the justice defendant would commit murder in the fu-
system treats marihuana users unfairly.9 ture.12 She also expressed confusion over the
special issues. Jackson argues that Reid equiv-
d. ocated in her testimony, that the state rushed
As for Poindexter, the state points to strong Reid through her voir dire, and that empaneled
language10 in her questionnaire opposing the juror Brian Summers indicated similar confu-
death penalty and stating that life imprison- sion on the special issues.13
ment is a worse punishment than death. Jack-
son again points to Chapman, who initially
stated he would hold the state to a higher bur- 11
(...continued)
den of proof in capital cases but later clarified burden of proof: “SoSSand you can correct if I’m
that he understood that the applicable burden wrongSSin a capital case you would want to raise
of proof was beyond a reasonable doubt in all the burden of proof, raise the threshold of what a
cases.11 reasonable doubt is?” Chapman responded, “I said
something similar to that, but that’s not what I was
saying. I can’t remember exactly my words. I
9
We disagree with Jackson’s contention that opened up before I said that, it’s a reasonable
Chapman’s statement that marihuana users are doubt no matter what kind of case you’re doing.”
treated unfairly in the criminal justice system is We agree with the district court that Chapman
equivalent. Therefore, the fact that Chapman ulti- made it plain that he did not intend to say that he
mately served on the jury despite making such a would hold the state to a higher burden of proof.
statement lends no support to Jackson’s Batson
12
claim. As stated by the federal habeas court, When asked whether she thought it was pos-
“[t]here is no evidence that the prosecution would sible to predict whether someone will be dangerous
not have struck a white juror expressing the same in the future, Reid stated, “No, I don’t think that’s
sentiment” as Gibson, and “the selection of Chap- predictable.” She also said that “the State could
man and rejection of Gibson as jurors does not prove it if that person actually did commitSSdid do
demonstrate any racially motivated action by the it, did repeat it. But if the person didn’t repeat it,
State.” then I don’t see how the State could prove it.”
13
10
In her questionnaire, Poindexter stated that After being asked a lengthy question by the
she did not believe in the death penalty and thought state concerning Special Issue No. 2, Summers
it is “the most hideous practice of our time.” She asked, “Do ISScould you take some of the words
also stated that “[w]e can’t call ourselves civilized out in that and condense it?” Jackson contends that
as long as we have capital punishment.” These this statement indicates Summers’s confusion with
statements alone are justification for the state to Issue No. 2. But, after the state condensed its
want Poindexter excused from the jury, even question and asked, “Do you think that the system
though she later said she would have no problem that Texas has in place right now is an appropriate
imposing the death penalty in certain cases. way, in your own mind, to determine who should
get the death penalty and who should get life in
11
The state pressed Chapman on raising the prison?”, Summers responded, “Yes, I do.”
(continued...) (continued...)

8
 Jackson also contends that the prosecutor’s extended Apprendi to capital cases. Jackson’s
reason for striking Reid based on the fact that claim is barred by the non-retroactivity princi-
she did not know that murder-for-hire was a ples of Teague v. Lane, 489 U.S. 288 (1989),
capital offense, was similar to statements made and at any rate, the state court’s refusal to de-
by empaneled juror Chapman. Given the ny a special instruction is not contrary to clear-
strong statements made by Reid concerning ly established federal law as articulated by the
her reluctance to find future dangerousness, Supreme Court. See 28 U.S.C. § 2254(d)(1).
the state certainly had a valid race-neutral Therefore, we deny his request for a COA on
reason to use a peremptory challenge for Reid. that issue.

3. Under Teague, the relevant inquiry is
AEDPA requires that the trial court’s de- “whether a state court considering [the defen-
cision be an “unreasonable application” of dant’s] claim at the time his conviction became
clearly established federal law or based on an final would have felt compelled by existing
“unreasonable determination” of the facts in precedent to conclude that the rule [he] seeks
light of the trial record. 28 U.S.C. § 2254- was required by the Constitution.” Goeke v.
(d)(1), (2). Jackson does not present substan- Branch, 514 U.S. 115, 118 (1995) (internal
tial evidence of racial bias in jury selection be- quotations omitted).14 Apprendi and Ring
yond questionable distinctions in juror testi- create new rules of constitutional law that are
mony. The trial court’s decision to permit the not retroactively applicable to cases under
state to exercise its peremptory strikes as it did federal habeas review.15 Therefore, the only
falls well within the “the range of reasonable question left to answer is when Jackson’s
judgment” afforded by AEDPA. See Yarbor- conviction became final.
ough, 541 U.S. at 664. Therefore, Jackson’s
request for habeas relief on this issue is denied. “A state conviction and sentence become
final for purposes of retroactivity analysis
D. when the availability of direct appeal to the
Jackson contends that the trial court should state courts has been exhausted and the time
have instructed the jury that any unadjudicated for filing a petition for a writ of certiorari has
extraneous offenses introduced during the elapsed or a timely filed petition has been
punishment phase needed to be proven beyond finally denied.” Caspari v. Bohlen, 510 U.S.
a reasonable doubt. Jackson relies on Appren-
di v. New Jersey, 530 U.S. 466, 490 (2000),
14
which held that “[o]ther than the fact of prior The Teague rule is subject to limited excep-
conviction, any fact that increases the penalty tions not applicable here. See Gilmore v. Taylor,
for a crime beyond the prescribed statutory 508 U.S. 333, 345 (1993).
maximum must be submitted to a jury, and 15
See United States v. Brown, 305 F.3d 304,
proved beyond a reasonable doubt,” and Ring 310 (5th Cir. 2002) (“Apprendi creates a new rule
v. Arizona, 536 U.S. 548, 609 (2002), which of criminal procedure which is not retroactively
applicable to initial petitions under § 2255.”);
Schriro v. Summerlin, 542 U.S. 348, 358 (2004)
13
(...continued) (“Ring announced a new procedural rule that does
Contrary to what Jackson contends, Summers’s not apply retroactively to cases already final on
statement does not show confusion on Issue No. 2. direct review.”).

9
383, 390 (1994). Jackson’s motion for rehear- prisonment without parole.18
ing was denied on June 9, 1999, so he had
ninety days from that date to file a certiorari Therefore, Jackson invites us to answer the
petition. See SUP. CT. R. 13. On Septem- unresolved question whether Ring and Ap-
ber 7, 1999, therefore, Jackson’s conviction prendi apply to any fact found by a jury that
became final, the year before Apprendi was bears on its ultimate decision to impose death,
decided. Therefore, Teague bars Jackson’s or merely those facts that increase the autho-
claim.16 rized punishment to death. Because the trial
court’s decision not to require such an instruc-
We note that even if Teague did not apply tion is not contrary to clearly established Su-
here, Apprendi and Ring would not provide preme Court precedent, we would in any event
Jackson with a legal basis for a COA. Ring deny a COA.
states only that “[i]f a State makes an increase
in a defendant’s authorized punishment contin- E.
gent on the finding of a fact, that factSSno Similarly, Jackson asserts that the mere ad-
matter how the State labels itSSmust be found mission of evidence of unadjudicated, extrane-
by a jury beyond a reasonable doubt.” Ring, ous offenses violates his rights under the
536 U.S. at 602 (emphasis added). Eighth and Fourteenth Amendments and jus-
tifies a COA. Because Jackson cites no au-
The onlyfact capable of elevating Jackson’s thority specifically for this proposition, the ar-
charge to capital murder was proof of remu- gument is waived for inadequate briefing.19
neration.17 The state introduced evidence of
unadjudicated offenses only to prove future Even if the argument were not waived,
dangerousness in the sentencing phase, where Jackson would not be entitled to a COA. If he
the jury must exercise its discretion to decide cannot prove that a COA should issue as to
whether to impose a death sentence or life im- whether unadjudicated extraneous offenses
need to be proven beyond a reasonable doubt,
then a fortiori he cannot prove that a COA
should issue as to whether such offenses are
per se inadmissible. Because he does not point
to any Supreme Court precedent foreclosing
16
Jackson appears to concede that Teague bars the trial court’s decision to permit evidence of
his claim. His brief states that “[p]etitioner’s issue unadjudicated extraneous offenses, he cannot
rests not on Apprendi alone, but on Eighth and make a substantial showing of a denial of a
Fourteenth Amendment protections which are not
barred by Teague.” Because Jackson nowhere de-
scribes what these protections might be, we assume
this issue presents only a claim under Apprendi and
Ring, which is procedurally barred.
18
See T EX. CODE CRIM. PROC. art. 37.071
17
See TEX. PENAL CODE § 19.03(a)(3) (“A per- § 2(b)(1).
son commits [capital murder] if the person commits
19
murder as defined under [the relevant statute] and See L & A Contracting Co. v. S. Concrete
. . . the person commits the murder for re- Servs., 17 F.3d 106, 113 (5th Cir. 1994) (stating
muneration.”). that failure to cite authority constitutes waiver).

10
constitutional right.20 jury about the consequences of deadlock. The
Court noted that the Eighth Amendment re-
F. quires that a death sentence not be arbitrarily
Jackson claims that he deserves a COA be- imposed, id. at 381, but rejected the argument
cause the trial court refused, in violation of his that “a death sentence is arbitrary within the
Eighth and Fourteenth Amendment rights, to meaning of the Eighth Amendment if the jury
instruct the jury that failure to reach a verdict is not given any bit of information that might
on either of two special issues would automat- possibly influence an individual juror’s voting
ically result in a life sentence. The Texas Code behavior,” id. at 382. Because Jones con-
of Criminal Procedure provides that if the jury trols, reasonable jurists would not disagree
is unable to answer a special issue unanimously with the district court’s resolution of this issue.
in the affirmative or negative, “the court shall We deny a COA on this question.
sentence the defendant to confinement in the
institutional division of the Texas Department G.
of Criminal Justice for life imprisonment with- Jackson alleges the trial court violated his
out parole.” TEX. CODE CRIM. PROC. art. Eighth Amendment rights by failing to instruct
37.071 § 2(g). The Code also provides, how- the jury that it could consider mitigating evi-
ever, that “[t]he court, the attorney represent- dence even if it did not relate to moral blame-
ing the state, the defendant, or the defendant’s worthiness. Specifically, Jackson argued at
counsel may not inform a juror or a prospec- the punishment phase that the jury should
tive juror of the effect of a failure of a jury to receive the following instruction:
agree on [special] issues[.]” Id. at § 2(a).
Jackson maintains that this provision violates The term “mitigating” evidence or “mitigat-
the Eighth and Fourteenth Amendments by ing” factor as used herein means any type
failing to inform a capital sentencing jury of of evidence relating to the defendant’s
relevant state sentencing law. background, character or the circumstances
of the crime that would militate in favor of
This claim is without merit. In Jones v. a life sentence rather than a death sentence.
United States, 527 U.S. 373, 381-82 (1999), Evidence may be mitigating even if it does
the Court held that the Eighth Amendment not relate in any way to the defendant’s
does not require a court to instruct a capital moral culpability or moral blameworthiness
for the capital murder listed in the indict-
ment.
20
See Brown v. Dretke, 419 F.3d 365, 376 (5th
Cir. 2005) (denying a COA on this issue because Instead, the court gave the following in-
“there is no constitutional prohibition on the intro- struction (in relevant part):
duction at a trial’s punishment phase of evidence
showing that the defendant has engaged in extrane-
ous, unadjudicated, criminal conduct”), cert. de-
A mitigating circumstance may include, but
nied, 126 S. Ct. 1434 (2006); see also Williams v. is not limited to, any aspect of the defen-
Lynaugh, 814 F.2d 205, 208 (5th Cir. 1987) dant’s character, background, record,
(holding that “the admission of unadjudicated emotional instability, intelligence or circum-
offenses in the sentencing phase of a capital trial stance of the crime which you believe could
does not violate the [E]ighth and [F]ourteenth make a death sentence inappropriate in this
amendments”).

11
 case . . . . In answering Special Issue No. al response to the defendant’s background,
2 you shall consider mitigating evidence to character, and crime.” Penry v. Johnson, 532
be evidence that a juror might regard as U.S. 782, 788 (2001) (internal quotations
reducing the defendant’s moral blamewor- omitted). The sentencing instructions must
thiness, including evidence of the defen- provide the jury with an adequate vehicle to
dant’s background, character, record, consider Jackson’s evidence and come to a
emotional instability, intelligence, or the reasoned moral conclusion. See id. at 800.
circumstance of the offense that mitigates
against the imposition of the death penalty. The trial court’s determination that the in-
structions were constitutionally adequate is not
Jackson apparently reasons that, by merely “contrary to” clearly established federal law as
including background, character, and circum- articulated by the Supreme Court. In fact, in
stances of the offense as modifiers of the gen- Johnson the Court approved of a mitigating
eral category of moral blameworthiness, in- instruction under the predecessor statute to the
stead of expressing these criteria in the con- current provisions of the Texas Code that was
junctive, the state unconstitutionally limited less specific in its articulation of the relevant
the scope of the mitigating instruction for mitigating factors:
Special Issue 2.
In determining each of these [Special] Is-
The Texas Code of Criminal Procedure sues, you may take into consideration all
provides that the court shall instruct the jury the evidence submitted to you in the trial of
(should the jury make certain preliminary find- this case, whether aggravating or mitigating
ings) that it shall consider “all of the evidence, in nature, that is, all the evidence in the first
including the circumstances of the offense, the part of the trial when you were called upon
defendant’s character and background, and the to determine the guilt or innocence of the
personal moral culpability of the defendant,” in Defendant and all the evidence, if any, in
determining whether a defendant should re- the second part of the trial wherein you are
ceive life without parole instead of death. called upon to determine the answers to the
TEX. CODE CRIM. PROC. art. 37.071 § 2(e)(1). Special Issues.
Later, however, the Code defines “mitigating
evidence” for purposes of this section as Johnson, 509 U.S. at 355.
“evidence that a juror might regard as reducing
the defendant’s moral blameworthiness.” Id. Neither was the instruction an “unreason-
§ 2(f)(4). able application” of clearly established federal
law. In Beazley v. Johnson, 242 F.3d 248,
Relevant mitigating evidence must be with- 260 (5th Cir. 2001), we held that the current
in the “effective reach” of the jury during pun- statute “does not unconstitutionally ‘pre-
ishment. Johnson v. Texas, 509 U.S. 350, 368 clude[] [the jury] from considering, as a miti-
(1993) (internal quotation omitted). “[I]n a gating factor, any aspect of a defendant’s
capital case, the sentencer must . . . be able to character or record and any of the circum-
consider and give effect to [mitigating] evi- stances of the offense that the defendant prof-
dence in imposing [a] sentence, so that the fers as a basis for a sentence less than death’”
sentence imposed . . . reflects a reasoned mor- (citing Lockett v. Ohio, 438 U.S. 586, 604

12
(1978)). We noted that the definition of issue.
mitigating evidence in § 2(f)(4) does not put
any relevant evidence beyond the effective H.
reach of the jury, because “[v]irtually any Jackson avers that he is entitled to a COA
mitigating evidence is capable of being viewed because the district court denied his motion for
as having some bearing on the defendant’s appointment of an expert in false confessions
‘moral culpability’ apart from its relevance to to support his claim that his confession was
the particular concerns embodied in the Texas coerced and therefore inadmissible. Where
special issues.” Id. (citing Graham v. Collins, expert services are “reasonably necessary” to
506 U.S. 461, 476 (1993)). mount a defense in a post-conviction proceed-
This circuit has declined to articulate a pre- ing, the district court may authorize the de-
cise test for what qualifies as “objectively un- fense attorneys to obtain such services and
reasonable” under AEDPA.21 Where, how- shall pay the relevant expenses. 21 U.S.C. §
ever, a state court reaches a conclusion consis- 848(q)(9).22 Jackson argues that expert assis-
tent with this circuit’s precedent, it presump- tance was reasonably necessary because the
tively falls within the broad discretion afforded circumstances surrounding the police inter-
the state court under § 2254(d)(1), because we views of Jackson and Smith raised a question
presumably would consider our own case law as to the existence of remuneration. Specifi-
as within “the range of reasonable judgment” cally, when the police first interviewed Smith,
afforded by Supreme Court decisions. See he made no mention of paying Jackson for the
Yarborough, 541 U.S. at 664. murder. Only after Jackson confessed were
police able to establish remuneration by further
Furthermore, the trial court could reason- questioning Smith.
ably have concluded that the mitigating evi-
dence offered by JacksonSSthat he was loved The state responds by noting that ruling on
and admired by his family, assisted his grand- a motion to provide expert assistance is within
mother, and provided help at his church and the discretion of the district court. Hill v.
Sunday schoolSSall sufficiently related to his Johnson, 210 F.3d 481, 487 (5th Cir. 2000).
“moral blameworthiness” as to come within Also, the state argues that any testimony ren-
the effective reach of the jury. Therefore, rea- dered by the expert would be procedurally
sonable jurists could not disagree with the dis- barred in a federal habeas proceeding because
trict court’s application of AEDPA’s deferen- it was never presented in state court. Finally,
tial “unreasonable application” standard to because the jury’s credibility determination is
Jackson’s claim. We deny a COA on this entitled to a presumption of correctness, Jack-

21 22
See Neal v. Puckett, 286 F.3d 230, 246 n.14 An indigent defendant is entitled to the provi-
(2002) (en banc) (“To the extent that a nuanced, sion of all reasonably necessary services under,
contextual interpretation of ‘objectively unrea- inter alia, § 848(q)(9). 21 U.S.C. § 848(q)(4)(B);
sonable’ emerges from [the] process [of applying Fuller v. Johnson, 114 F.3d 491, 502 (5th Cir.
the standard in individual cases] over time, this 1997). Jackson does not claim indigence, but in
elaboration will be more useful and meaningful any event he would still need to demonstrate, under
than any definition we might choose to impose ab this section, that provision of a confession expert is
initio.”). “reasonably necessary.”

13
son has not presented evidence to rebut that affirm the denial of Jackson’s motion for
presumption and make necessary the appoint- expert assistance.
ment of an expert.
For the above reasons, Jackson’s request
A COA is not required to appeal the denial for a COA is GRANTED in part and DENIED
of funds for expert assistance. Hill, 210 F.3d in part. The judgment on the issue on which
at 487 n.3. Therefore, we may review the we grant a COA, and on the claim for which
claim on direct appeal for abuse of discretion. no COA is required, is AFFIRMED.
Id. at 487. We will uphold a denial of funding
where the petitioner has “(a) failed to supple-
ment his funding request with a viable consti-
tutional claim that is not procedurally barred,
or (b) when the sought-after assistance would
only support a meritless claim, or (c) when the
sought after assistance would only supplement
prior evidence.” Smith v. Dretke, 422 F.3d
269, 288 (5th Cir. 2005) (internal citations
omitted).

The district court did not abuse its discre-
tion. At trial, Jackson testified that the police
told him to confess that Smith paid him for
murder in exchange for a lesser charge. The
defense also presented two expert witnesses
who testified that Jackson had a learning dis-
ability and was below average in intelligence,
and that Jackson was prone to self-deprecation
and other antisocial behaviors. Therefore, the
testimony of a false confession expert would
merely have supplemented other evidence al-
ready available to and considered by the jury.
See id. at 288-89 (finding no abuse where ex-
pert testimony would merely reinforce testi-
mony already given by defendant).
23
Even if we were inclined to agree as an ini- (...continued)
may authorize the defendant’s attorneys to obtain
tial matter that a false confession expert’s tes-
such services on behalf of the defendant”) (em-
timony was reasonablynecessaryfor Jackson’s phasis added). See also Smith, 422 F.3d at 289
defense, the relevant statute vests discretion (noting that change in AEDPA from the mandatory
squarely in the district court.23 Therefore, we “shall” to discretionary “may” language in
§ 848(q)(9) “can only reasonably be construed as
changing a mandatory granting of funds to a dis-
23
21 U.S.C. § 848(q)(9) (stating that “the court cretionary granting of funds even if the reasonable
(continued...) necessity language is complied with”).

14
DENNIS, Circuit Judge, state court under §

concurring: 2254(d)(1)[.]" The statute

cited simply provides that

I respectfully concur in the (d) An application for a
writ of habeas corpus on
judgment only. I cannot behalf of a person in
custody pursuant to the
subscribe fully for several judgment of a State court
shall not be granted with
reasons. respect to any claim that
was adjudicated on the
First, I respectfully merits in State court
proceedings unless the
disagree with the majority’s adjudication of the
claim--(1) resulted in a
broad, not clearly or decision that was contrary
to, or involved an
immediately qualified, unreasonable application
of, clearly established
suggestions that AEDPA requires Federal law, as determined
by the Supreme Court of the
that federal courts apply a United States[.]

"deferential standard of
The statute says nothing
review," "defer to the state
about deference, a deferential
court's adjudication of a
standard, circuit court
defendant's claims," and
precedent, presumptions of
presume that a state court's
correctness, or broad
conclusion "consistent with
discretion. Although Justice
t h i s c i r c u i t ' s
Stevens has spoken of AEDPA as
precedent...falls within the
having "plainly sought to
broad discretion afforded the
ensure a level of 'deference to

-15-
the determinations of state error. As Judge Easterbrook
noted with respect to the
courts,' provided those phrase “contrary to”:
“Section 2254(d) requires
determinations did not conflict us to give state courts'
opinions a respectful
with federal law or apply reading, and to listen
carefully to their
federal law in an unreasonable conclusions, but when the
state court addresses a
way[,]," Williams v. Taylor, legal question, it is the
law ‘as determined by the
529 US 362, 386 (2000)(Stevens, Supreme Court of the United
States' that prevails."
J.), he makes clear that AEDPA Lindh, 96 F.3d, at 869.

does not intend for us to Williams, 529 US at 386-7.

accord deference in the Justice Stevens further states

ordinary and commonly

understood sense. As Judge Easterbrook has
noted, the statute surely
[I]t is significant that does not require the kind
the word “deference” does of “deference” appropriate
not appear in the text of in other contexts: “It does
the statute itself. Neither not tell us to ‘defer’ to
the legislative history nor state decisions, as if the
the statutory text suggests Constitution means one
any difference in the thing in Wisconsin and
so-called “deference” another in Indiana. Nor
depending on which of the does it tell us to treat
two phrases is implicated. state courts the way we
Whatever “deference” t r e a t f e d e r a l
Congress had in mind with administrative agencies.
respect to both phrases, it Deference after the fashion
surely is not a requirement of Chevron U.S.A. Inc. v.
that federal courts Natural Resources Defense
actually defer to a Council, Inc., 467 U.S.
state-court application of 837, 104 S.Ct. 2778, 81
the federal law that is, in L.Ed.2d 694 (1984), depends
the independent judgment of on delegation. See Adams
the federal court, in Fruit Co. v. Barrett, 494

-16-
 U.S. 638, 110 S.Ct. 1384, appropriate in other contexts"
108 L.Ed.2d 585 (1990).
Congress did not delegate )Lindh v. Murphy, 96 F.3d 856,
either interpretive or
executive power to the 868 (7th Cir. 1996)); rather,
state courts. They exercise
powers under their domestic they dispute his
law, constrained by the
Constitution of the United interpretation of the phrase
States. ‘Deference’ to the
jurisdictions bound by “contrary to, or an
those constraints is not
sensible.” Lindh v. Murphy, unreasonable application of.” I
96 F.3d 856, 868 (C.A.7
1996) (en banc), rev'd on believe that the majority's
other grounds, 521 U.S.
320, 117 S.Ct. 2059, 138 treatment of deference in
L.Ed.2d 481 (1997).
connection with AEDPA, without
Id. at n.13.
needed explanation and
Although these observations
qualification, is unnecessary
appear in part II of Justice
and tends to be misleading and
Stevens' opinion in Williams v.
confusing.
Taylor, which did not carry a
Second, § 2254(e)(1) of AEDPA
majority, Justice O'Connor, who
provides:
wrote part II for the majority,
In a proceeding instituted
and Chief Justice Rehnquist, by an application for a
writ of habeas corpus by a
the only other Justice to write person in custody pursuant
to the judgment of a State
separately, did not disagree court, a determination of a
factual issue made by a
with Justice Stevens’ statement State court shall be
presumed to be correct. The
that AEDPA "surely does not applicant shall have the
burden of rebutting the
require the kind of 'deference' presumption of correctness

-17-
 by clear and convincing court’s determination was
evidence.
reasonable in light of all the
This provision has nothing to
evidence presented at the state
do with fact-finding by the
court habeas proceeding. The
jury at the guilt or penalty
case the majority cites for the
phases of a capital murder
proposition, United States v.
trial. This section relates
Cathey, 259 F.3d 365, 368 (5th
only to fact-finding by a state
Cir. 2001), discusses the issue
court in a state habeas
in a case heard on direct
proceeding. The applicant here
appeal and, I believe, is
simply did not carry his
inapposite here.
burden; he failed to present
Third, the jury instruction
any new evidence in his habeas
given by the Texas trial court
petition on this point. If he
at the capital sentencing
had done so, I do not believe
proceeding required the jury to
that AEDPA authorizes the
consider essentially any factor
federal courts to erect a
"that mitigates against the
presumption against the
imposition of the death
petitioner in habeas
penalty." Under the
proceedings based solely on the
circumstances and in the
jury verdict at trial. Rather,
context of this case, the Texas
this court would still be bound
courts' denial of habeas relief
to determine whether the state

-18-
because of the arguable lack of

complete perfection in this

instruction was not contrary to

or an unreasonable application

of federal law as clearly

established by the Supreme

Court's decisions. The

discussion of Johnson v. Texas,

509 U.S. 350,(1993), which

presented a different issue and

was decided with respect to a

superseded sentencing regime,

is unnecessary and may lead to

confusion.

For the reasons given, I

respectfully concur in the

judgment only.

-19-