ShisInday v. Quarterman

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
December 20, 2007

No. 07-70008 Charles R. Fulbruge III
Clerk

SHOZDIJIJI SHISINDAY,
aka Danny Dean Thomas.

Petitioner - Appellant
v.

NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,

Respondent-Appellee

Appeal from the United States District Court for the
Southern District of Texas, Houston Division

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:
Petitioner Shozdijiji ShisInday was convicted of capital murder in Texas
and sentenced to death. He now seeks a certificate of appealability (“COA”) from
the district court’s denial of habeas corpus relief on nine issues. Because
ShisInday has failed to make a substantial showing of a denial of a
constitutional right or otherwise meet the qualifications for his application, we
deny his application for COA.
 No. 07-70008

I.
A jury first convicted ShisInday of capital murder on March 17, 1982. The
Court of Criminal Appeals provided the following detailed description of the
murder largely taken from ShisInday’s confession:
The evidence at the guilt/innocence phase of trial revealed that in
July of 1981, ShisInday and his girlfriend, Phoebe, were staying at
the home of James Peels, his two sons, fifteen-year old Doyle Peels
and seventeen-year-old Zendal Peels, and Martha Ann Tarver. On
July 17, ShisInday gave Doyle a ride in his 1969 black-and-white
Cadillac to pick up Doyle’s work schedule at K-Mart. ShisInday
entered the store with Doyle and purchased some ammunition in
the sporting goods department. Later that evening, ShisInday,
accompanied by Zendal, drove Doyle and Ronald McHenry to the
skating rink.
...
According to ShisInday’s July 9th transcribed statement and
testimony from other witnesses, ShisInday and Zendal went
shopping at a Safeway store after dropping the boys off at the rink.
As they were leaving the store, they spotted nineteen-year-old
Sylvia Harrison who was having car trouble. They stopped to help
her, and ShisInday determined that she needed a new fan belt. They
drove her across the street to an auto parts store, purchased the
belt, and put it on her car. Harrison asked ShisInday and Zendal to
follow her down the street to her house to make sure her car did not
overheat again. Once they arrived, ShisInday fixed a leak in her
car’s “heater hose.” She offered them a beer and invited them into
the house. They sat in her living room, drank beer, and smoked
some marijuana.

According to ShisInday’s statement to the police, Zendal
unexpectedly hit Harrison in the side of the head with ShisInday’s
gun, which Zendal had concealed in a paper bag. They carried
Harrison, unconscious, out to the car and shoved her down on the
passenger-side floorboard. They also took several items from her
house including her telephone and eye glasses. ShisInday drove
away with Zendal sitting in the passenger seat. Harrison regained
consciousness, kicked the steering wheel, and bit ShisInday’s hand.
ShisInday told Zendal to grab her, and Zendal hit her in the head
again with the gun, knocking her out. She regained consciousness
again, and Zendal repeatedly hit her in the head with his knife until

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she passed out. She came to once more and began repeating, “God
help me.” ShisInday got his gun, put it to the side of her head, and
shot her one time. They drove her to a bridge near the river and
picked up some cinder blocks. They then drove to a more secluded
bridge and parked under one of the support pillars. ShisInday
looked around to see if anyone was nearby. Zendal removed
Harrison’s clothes and cut off her bra. After tying cinder blocks to
Harrison’s feet and neck with a rope, they dumped her in the San
Jacinto River. ShisInday broke off a willow branch and brushed
away their footprints as they returned to the car. They drove to a
grocery store parking lot where they threw Harrison’s clothes and
other personal items in a dumpster. Then they went to a car wash
and washed the outside and inside of the car, particularly the
floorboard, which was covered in blood.

Opinion on Direct Appeal, at 2-4.
The District Court’s opinion provides additional information about the
crime and the procedural history of this case.
After disposing of Ms. Harrison’s body, Zendal and ShisInday
returned to the Peels’ home between four and five a.m. Zendal Peels’
father accused ShisInday and Zendal of being late because they
were smoking pot. ShisInday explained that they had car trouble.
ShisInday then went to sleep in a back bedroom with his girlfriend.

The Peels family soon discovered blood on the outside and inside of
ShisInday’s vehicle. ShisInday’s girlfriend woke him up in the
morning and confronted him about the blood. ShisInday claimed
that he ran over a dog, put it in his car, and mercifully killed the dog
to end its suffering. ShisInday told the same story to the Peels
family. When the Peels and ShisInday’s girlfriend did not believe his
story, ShisInday decided to leave. Before going, ShisInday
threatened Zendal “[i]f I go down, you are going down with me
because you are in this with me.” Tr. Vol. 15 at 44.

ShisInday, who had a long history of mental problems, soon sought
treatment at a psychiatric hospital claiming that others accused him
of killing a person when he actually killed a dog. After talking to
Zendal Peels, and going to Ms. Harrison’s residence and finding that
there had been a fire, the police arrested ShisInday at around 1:00
a.m. at the hospital. ShisInday initially repeated his dog story to the

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police, but he later confessed to killing Ms. Harrison. In 1982, a jury
convicted ShisInday of capital murder and he received a death
sentence. The state courts affirmed his conviction and sentence on
state appellate and habeas review.

ShisInday sought federal habeas relief. On July 2, 1997, United
States District Judge Norman Black issued a habeas writ because
Texas involuntarily medicated ShisInday with antipsychotic drugs
during trial without making a proper inquiry into his mental state.
Texas filed a late notice of appeal. ShisInday filed a cross-appeal
and moved to dismiss the State’s untimely appeal. On October 16,
1997, the Fifth Circuit dismissed the appeal when Texas conceded
that the notice of appeal was not timely and that the circuit court
lacked jurisdiction. On October 24, 1997, an assistant attorney
general and ShisInday entered into a “stipulation of dismissal”
agreeing that: (1) ShisInday would be released immediately; (2)
Texas would not seek further review of the final judgment; and (3)
ShisInday would not prosecute his cross appeal. The Fifth Circuit
dismissed the cross appeal on November 4, 1997.
...

The guilt/innocence phase of ShisInday’s second trial began on
November 9, 1998. Unlike in his first trial, the jury charge allowed
for ShisInday’s conviction either as a party or as the principal actor
in Ms. Harrison’s murder. A jury again found ShisInday guilty of
capital murder. After a separate punishment phase, the jury retired
to consider Texas’ special issue questions.1 After sending out four

1
The special issues submitted pursuant to article 37.071 of the Texas Code of Criminal
Procedure provided as follows:
Special Issue No. 1
Was the conduct of the defendant, Shozdijiji ShisInday also known as Danny
Dean Thomas, that caused the death of the deceased committed deliberately and
with the reasonable expectation that the death of the deceased or another would
result?
Special Issue No. 2
Is there a probability that the defendant, Shozdijiji ShisInday also known as
Danny Dean Thomas, would commit criminal acts of violence that would
constitute a continuing threat to society?
Special Issue No. 3
Do you find from the evidence, taking into consideration all of the evidence,
including the circumstances of the offense, the defendant’s character and
background, and the personal moral culpability of the defendant, that there is

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notes suggesting that they were experiencing problems in reaching
a verdict, the jury finally answered Texas’ special issue questions in
a manner requiring the imposition of a death sentence. ShisInday
unsuccessfully sought state appellate and habeas relief from his
conviction and sentence.

ShisInday v. Quarterman, 2007 U.S. Dist. LEXIS 17099, *6-8 (S.D. Tex. Mar. 9,
2007).
ShisInday filed a federal petition for a writ of habeas corpus raising
numerous issues. Respondent Nathaniel Quarterman filed a motion for
summary judgment. The district court granted Quarterman’s summary
judgment motion, denied ShisInday’s petition and dismissed the case. The
district court declined to certify any issues for appellate review.
ShisInday now seeks a certificate of appealability from this court raising
nine issues.
II.
ShisInday filed the instant Section 2254 application for habeas relief after
the April 24, 1996 effective date of the Antiterrorism and Effective Death
Penalty Act (AEDPA). His application is therefore subject to the AEDPA. Lindh
v. Murphy, 521 U.S. 320, 336 (1997). Under the AEDPA, a petitioner must
obtain a COA before appealing the district court’s denial of habeas relief. 28
U.S.C. § 2253(c)(2). “This is a jurisdictional prerequisite because the COA

a sufficient mitigating circumstance or circumstances to warrant that a sentence
of life imprisonment rather than a death sentence be imposed?

You are instructed that in answering this “Special Issue” that you shall answer
the Issue “Yes” or “No.”
You may not answer this Issue “No” unless you agree unanimously, and you
may not answer this Issue “Yes” unless ten (10) or more of you agree to do so.
You shall consider mitigating evidence to be evidence that a juror might
regard as reducing the defendant’s moral blameworthiness.

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statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals. . . .’” Miller-El
v. Cockrell, 123 S. Ct. 1029, 1039 (2003) (citing 28 U.S.C. §2253(c)(1)). “The COA
statute establishes procedural rules and requires a threshold inquiry into
whether the circuit court may entertain an appeal.” Id. (citing Slack v.
McDaniel, 529 U.S. 473, 482 (2000); Hohn v. United States, 524 U.S. 236, 248
(1998)). A COA will be granted only if the petitioner makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make
such a showing, a petitioner “must demonstrate that the issues are debatable
among jurists of reason; that a court could resolve the issues [in a different
manner]; or that the questions are adequate to deserve encouragement to
proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (citation and
internal quotation marks omitted). Any doubt regarding whether to grant a
COA is resolved in favor of the petitioner, and the severity of the penalty may
be considered in making this determination. Fuller v. Johnson, 114 F.3d 491,
495 (5th Cir. 1997).
The analysis “requires an overview of the claims in the habeas petition and
a general assessment of their merits.” Miller-El, 123 S.Ct. at 1039. The court
must look to the district court’s application of AEDPA to the petitioner’s
constitutional claims and determine whether the court’s resolution was
debatable among reasonable jurists. Id. “This threshold inquiry does not
require full consideration of the factual or legal bases adduced in support of the
claims.” Id. Rather, “‘[t]he petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable
or wrong.’” Id. at 1040. (citing Slack v. McDaniel 529 U.S. 473, 484). “[W]hen
the denial of relief is based on procedural grounds (Slack two-prong test): the
petitioner must show not only that ‘jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right’,

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but also that they ‘would find it debatable whether the district court was correct
in its procedural ruling’.” Beazley v. Johnson, 242 F.3d 248, 263 (5th Cir. 2001).
III.
Exempt from Execution due to Long History of Mental Illness
ShisInday argues first that a certificate of appealability should issue on
the question whether executing him violates Supreme Court precedent because
of his long history of mental illness. Because ShisInday did not raise this claim
in state court, the district court found the claim to be procedurally barred. The
district court also rejected the claim on the merits. The district court concluded
that there is no precedent for excluding from execution a petitioner who has a
history of mental illness and mental disorders, citing In re Neville, 440 F.3d 220,
221 (5th Cir. 2006)(finding that Atkins did not exempt mentally ill inmates from
execution).
The nature of ShisInday’s argument is not entirely clear. On the one hand
he argues that the Supreme Court’s exemptions from execution of the mentally
retarded in Atkins v. Virginia, 536 U.S. 304 (2002), and of juveniles in Roper v.
Simmons, 543 U.S. 551 (2005), are milestones along a path that leads to an
exemption from execution for inmates who are mentally ill. However, he also
relies heavily on Panetti v. Quarterman, 127 S. Ct 2842 (2007), both to overcome
the procedural bar and as a basis for granting a COA on this issue. Panetti
raised a claim under Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 91
L.Ed. 2d 335 (1986), that he was incompetent to be executed due to insanity. In
Panetti, the Supreme Court held that the petitioner’s claim was not procedurally
barred under 28 U.S.C. § 2254 despite his failure to raise it in previous habeas
applications because the claim was not ripe at that time. It also held that the
state court failed to provide adequate procedures in response to his claim that
he was incompetent to be executed. Finally, addressing the merits of the
petitioner’s incompetency claim, the Supreme Court rejected the Fifth Circuit’s

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test for incompetency that treated “delusional beliefs as irrelevant once the
prisoner is aware the State has identified the link between his crime and the
punishment to be inflicted.”
To the extent ShisInday seeks an extension of Atkins and Roper to the
mentally ill, that claim is procedurally barred for failure to present the issue to
the state court. In addition, this circuit’s precedent precludes that argument,
unless the petitioner contends he is insane and therefore incompetent to be
executed. In re Neville distinguished an inmate who is mentally ill from an
inmate who is insane. “Twenty years ago, Ford v. Wainwright established that
the Eighth Amendment prohibits the execution of the insane. 477 U.S. 399, 410,
106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986). Neville, however, does not assert that
he is insane.” 440 F.3d at 221 n.1. Similarly, ShisInday does not claim that he
is insane.
To the extent ShisInday argues that he is insane and therefore
incompetent to be executed, that claim is not yet ripe, nor has it been exhausted.
The setting of an execution date, which causes a Ford-based incompetency claim
to become ripe, has not occurred in this case. Panetti, 127 S.Ct. at 2852; Stewart
v. Martinez-Villareal, 523 U.S. 637, 643 (U.S. 1998). In addition, ShisInday has
not presented this claim to the state court.
ShisInday has not demonstrated that he is entitled to COA on this claim.
IV.
Coerced Confession
ShisInday argues that a certificate of appealability should issue on the
question whether the state court erred in determining that his confession was
not the result of police coercion. The state court found that ShisInday
voluntarily and knowingly confessed without threats or coercion. The district
court found that ShisInday had not met his AEDPA burden to rebut the

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presumptive correctiveness of the finding that the police did not coerce his
confession.
ShisInday’s principal argument in support of his application for COA on
this issue is that the district court applied the wrong legal standard to reject his
claim. He argues that the district court treated the issue as an issue of fact,
rather than as a legal question meriting independent consideration, citing Miller
v. Fenton, 474 U.S. 104 (1985). ShisInday is correct that the voluntariness of a
confession is matter for independent federal determination and is ultimately a
legal determination. Id. at 112. However, “subsidiary factual questions . . are
entitled to the § 2254(d) presumption.” Id. In Miller, the Supreme Court held
that
[S]ubsidiary questions, such as the length and circumstances of the
interrogation, the defendant's prior experience with the legal
process, and familiarity with the Miranda warnings, often require
the resolution of conflicting testimony of police and defendant. The
law is therefore clear that state-court findings on such matters are
conclusive on the habeas court if fairly supported in the record and
if the other circumstances enumerated in § 2254(d) are inapplicable.
But once such underlying factual issues have been resolved, and the
moment comes for determining whether, under the totality of the
circumstances, the confession was obtained in a manner consistent
with the Constitution, the state-court judge is not in an appreciably
better position than the federal habeas court to make that
determination.

Id. at 117. Contrary to ShisInday’s assertion, the district court properly applied
this standard.
The district court quotes the trial court as finding that
(1) the police did not coercively abuse, threaten, or promise
ShisInday anything in return for his confession; (2) ShisInday was
lucid and could understand the nature of his confession; (3)
ShisInday did not experience any delusion, hallucination, or effects
of mental illness while confessing; (4) the police did not deprive
ShisInday of food or sleep; and (5) ShisInday did not invoke his right

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to silence or request an attorney's assistance. Opinion on Direct
Appeal, at 17.
These are all subsidiary factual questions under Miller that are subject to § 2254
deference. Miller,474 U.S. at 112. ShisInday raised this argument at trial, on
direct appeal and on state habeas review. The trial court held a suppression
hearing and concluded that ShisInday’s confession was properly obtained, a
conclusion that has not been disturbed by several reviewing courts. The state
court’s factual findings are fairly supported by the record and ShisInday has not
rebutted this presumptively correct finding by clear and convincing evidence as
is required by 18 U.S.C. § 2254(e)(1). Reasonable jurists could not debate that
the district court properly rejected this claim in full accord with constitutional
standards, including the correct standard of review. COA is denied on this
claim.
V.
Jury Instruction to Continue Deliberating
ShisInday argues next that COA should issue on the question whether the
state court violated his constitutional right to due process by instructing the jury
to continue deliberating after receiving repeated notes from the jury indicating
they could not reach agreement without informing the jury of the effect of a hung
jury. Petitioner has two complaints: the trial court’s failure to instruct the jury
that if they could not reach a verdict on the death penalty that a life sentence
would be imposed and the trial court’s instruction to the jury to continue to
deliberate in response to notes from the jury that they were deadlocked.
Courts are given wide discretion in determining whether to declare a
mistrial. In a habeas context, the petitioner must establish that under the
totality of the circumstances, the charge was so coercive as to have
constitutionally rendered the petitioner’s trial fundamentally unfair. Montoya
v. Scott, 65 F.3d 405, 409 (5th Cir. 1995). Based on our review of the record in

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this case, the instructions from the trial court were not coercive - they simply
told the jury to continue to deliberate. Despite statements indicating that there
was “little hope” of a unanimous verdict, later notes indicated that progress was
being made. In addition, the jury continued to request evidence indicating that
they were still deliberating. COA is not appropriate on this point. See United
States v. Lindell, 881 F.2d 1313, 1321 (5th Cir. 1989).
ShisInday argues that the above circumstances coupled with the erroneous
instruction to the jury that 10 votes were required for a life sentence make the
instructions to continue to deliberate impermissibly coercive. In Jones v. United
States, 527 U.S. 373 (1999), the Supreme Court held that an accused facing the
death penalty is not entitled to an instruction as to the effect of a sentencing
deadlock. ShisInday is not entitled to COA on this issue.
VI.
Admission of Testimony from First Trial
After his first trial, ShisInday was granted a retrial because the trial court
had ordered him medicated without making factual findings necessary to justify
his medication as required by Riggins. Riggins v. Nevada, 504 U.S. 127 (1992).
In ShisInday’s second trial, the trial court allowed the admission of testimony
from the first trial. The witness, Gilliam, was deceased at the time of the second
trial. Gilliam’s testimony was brief. He testified that he knew ShisInday and
that he recognized State’s Exhibit 10 as the .25 automatic pistol he owned and
later sold to ShisInday for fifty dollars in July 1981. Gilliam testified on cross-
examination that the gun had one clip when he sold it to ShisInday. ShisInday
argues that admitting this testimony in his second trial violates Riggins and the
confrontation clause because he has no means to refute it. He was medicated
during the first trial when the witness testified. The witness was unavailable
for cross-examination during his second trial.

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The state court held that the testimony was cumulative and thus not a
violation of ShisInday’s confrontation rights. The federal district court ruled
that even if the admission of the testimony violated the confrontation clause, the
error did not have a substantial and injurious effect or influence in determining
the jury’s verdict.
ShisInday argues that when a petitioner establishes a Riggins violation,
he need not prove prejudice or harm to obtain relief. We disagree. Under
Brecht v. Abrahamson, federal habeas relief may not be granted for trial error
that, although of constitutional magnitude, did not have a “substantial and
injurious effect or influence in determining the jury’s verdict.” 507 U.S. 619, 637
(1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see also,
Hogue v. Johnson, 131 F.3d 466, 499 (5th Cir. 1997). Based on our review of the
record, we agree with the Court of Criminal Appeals that the evidence was
cumulative of other properly admitted evidence and thus its admission did not
have a substantial and injurious effect on the verdict. As stated by the Court of
Criminal Appeals,
There was other evidence that linked ShisInday to the gun - the gun
was found covered in blood in ShisInday’s car, other witnesses
testified that the gun used in the murder belonged to ShisInday,
and ShisInday confessed to shooting the victim with that gun. We
need not determine whether admission of Gilliam’s testimony
violated ShisInday’s Sixth Amendment right to confront his
witnesses because the testimony was cumulative and did not
contribute to ShisInday’s conviction.

Opinion on Direct Appeal, at 32. We agree and conclude that ShisInday is not
entitled to a COA on this issue.
VII.
Estoppel
ShisInday argues that the district court erred in rejecting his estoppel
claim in which he alleges that the prosecution should have been barred from

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relying on a party theory in the second trial that the prosecution abandoned in
his first trial. The state’s theory in ShisInday’s first trial was that he was the
shooter. In the second trial, the state proceeded under the theory that if
ShisInday was not the shooter, then he was at least a party to the crime.
ShisInday argues that the prosecution abandoned the “party” theory in the first
trial because the state dismissed the case against his co-defendant for
insufficient evidence. He argues that the state should be estopped from relying
on the party theory in the second trial. The Fifth Circuit has rejected judicial
estoppel as a ground for habeas relief. Nichols v. Scott, 69 F.3d 1255, 1272 (5th
Cir. 1995). ShisInday is not entitled to COA on this issue.
VIII.
Fourth Amendment Claims
In his sixth ground for COA, ShisInday argues that COA should issue on
whether his Fourth Amendment claims were properly dismissed. ShisInday
argued at trial that his arrest was unlawful. After the jury was sworn and
jeopardy had attached, the trial court held a hearing on the issue and overruled
the challenge. The district court dismissed the claim under Stone v. Powell, 428
U.S. 465 (1976). Stone bars habeas review of Fourth Amendment claims when
the state has provided an opportunity for full and fair litigation of the claim.
ShisInday argues that full and fair consideration of the merits of his Fourth
Amendment claim was thwarted because of the timing of the hearing. He argues
that because the hearing was held after the jury was selected and jeopardy had
attached, the trial court was put in the position of almost being required to
overrule the motion. ShisInday’s argument about the timing of the hearing does
not alter the correctness of the district court’s decision. He has not identified
any law that requires a trial court to consider the admissibility of evidence
before the jury is seated and sworn. The Fifth Circuit applies the bar as long as
the state gives the defendant an opportunity to litigate the issue, whether or not

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the defendant takes advantage of the opportunity. Janecka v. Cockrell, 301 F.3d
316, 320-21 (5th Cir. 2002). ShisInday was given an opportunity to have his
Fourth Amendment claims litigated. Therefore the Stone bar applies. He is not
entitled to COA on this issue.
IX.
Compulsory Process Claim
ShisInday argues that a certificate of appealability should issue on
whether it was a violation of his right to due process and compulsory process to
allow the state to threaten his co-defendant, Zendal Peels, with prosecution if he
were to testify and to allow Peels to assert his Fifth Amendment right after the
state dismissed the case against him over 17 years ago. ShisInday wanted to
call his co-defendant to testify and wanted him to assert his Fifth Amendment
rights in front of the jury. The case against the co-defendant had been dismissed
by the state for insufficient evidence after Peels’ statement was ruled
inadmissible against him. ShisInday claims that the prosecutor intimidated
Peels into invoking his Fifth Amendment rights to interfere with ShisInday’s
right to compulsory process, in violation of Brown v. Cain, 104 F.3d 744, 749 (5th
Cir. 1997). However, because there is no statute of limitations on murder, the
case against Peels could be reopened at any time. Peels had a reasonable fear
of danger of prosecution and there is no Brown violation on these facts.
ShisInday is not entitled to COA on this issue.
X.
Improper Argument
ShisInday’s next argument is that the prosecutor engaged in improper
argument when he argued in closing that ShisInday had raped the victim before
her murder. During the trial, testimony had been admitted regarding the
presence of semen in the victim’s body, and other circumstances related to the
condition of the victim’s body giving the impression a rape had occurred. This

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evidence came in without objection. ShisInday objected to the prosecution’s
remarks in closing as being outside the evidence. ShisInday had originally been
charged with rape and four members of the trial jury were in the courtroom
when the rape charges were read before trial began. The rape charge was later
dropped. ShisInday argues that the argument deprived him of due process and
allowed him to be tried for a crime not contained in the indictment.
The state trial court found that ShisInday was procedurally barred from
challenging the admission of the evidence because he did not object at trial. The
state habeas court agreed and also concluded that the testimony was admissible
because it was relevant to establish a motive for killing the victim, burning her
apartment and disposing of her body. The claim related to the prosecution’s
argument was also rejected on direct appeal and on state habeas review - first
because the error was not preserved and alternatively because rape was a
reasonable inference from the evidence and suggested a motive for the killing.
We agree with the state courts and the district court that ShisInday’s
claims as to the admission of the evidence are procedurally barred for failure to
object at trial. We also agree with the state court that the prosecutor’s argument
is not a basis for relief. Although there was no direct evidence of rape before the
jury, the district court properly found that rape was a reasonable inference from
the evidence. COA is not appropriate on this issue.
XI.
Prolonged Stay on Death Row is Cruel and Unusual
ShisInday has been on death row for 25 years and argues that he is
entitled to a COA on the issue of whether his prolonged stay on death row
violates his right to be free from cruel and unusual punishment under the
Eighth Amendment to the Constitution. There is no established law supporting
this claim and clear Fifth Circuit precedent against it. Felder v. Johnson, 180
F.3d 206, 215 (5th Cir. 1999)(rejecting argument that executing petitioner after

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20 years on death row was unconstitutional and stating that the claim bordered
on being legally frivolous.) ShisInday is not entitled to COA on this issue.
XII.
For the foregoing reasons, ShisInday’s Application for Certificate of
Appealability is DENIED.

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