Busby v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED FEBRUARY 25, 2004
February 4, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk

_____________________

No. 03-40492
_____________________

JASEN SHANE BUSBY

Petitioner - Appellant

v.

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

Respondent - Appellee

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________

Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.

KING, Chief Judge:

Petitioner-appellant Jasen Shane Busby has been convicted of

capital murder in the Texas state courts and sentenced to death.

The district court denied Busby’s petition for a writ of habeas

corpus but granted Busby a certificate of appealability (COA) on

several issues. This court later denied Busby’s request for a

COA on additional claims. We now address the issues for which

Busby was granted a COA. Finding them without merit under the
governing standards, we affirm the district court’s denial of

habeas relief.

I. FACTUAL AND PROCEDURAL BACKGROUND

The basic facts of the crime are no longer disputed at this

stage of the proceedings. Busby, his friend Christopher Kelley,

and Kelley’s girlfriend Brandy Gray lived together in a cabin in

Maydelle, Texas. On Sunday, April 16, 1995, they spent the night

in a trailer in Antioch with Tenille Thompson, an acquaintance.

The next morning, Busby drove Kelley’s truck to buy donuts for

the group for breakfast. When Busby returned, he was accompanied

by Darrell Smith. The group made several trips to various places

that day, and at one point some members of the group, including

Busby, took turns shooting an assault rifle outside of the

Maydelle cabin. During the course of the day they also purchased

some marijuana, which some of the group, including Busby, smoked

later that night at the Antioch trailer.

Around ten o’clock that night, Busby and Smith went outside

the trailer. Kelley, who was still inside the trailer, heard

them loading a gun and talking about how many bullets were in it.

Kelley started to open the door but found that someone else was

already opening it from the other side. Busby then shot Kelley,

Gray, and Thompson and drove off in Kelley’s truck with Smith.

The two women were dead. Kelley, with a gunshot wound in the

neck, went to a neighboring house for help. He described Busby

2
and the truck to the police. Kelley survived the wound and would

testify at Busby’s trial, providing many of the details recounted

above.

The police took Busby and Smith into custody on the night of

the shootings after an officer spotted Kelley’s truck on the

highway. Busby had a clip of bullets in his pocket.

Investigators spoke to both men late that night and into the next

morning. After being read his rights, Busby gave a taped

confession, which he would later claim was the product of drug

intoxication. Smith told investigators that Busby had hidden the

murder weapon, and Smith showed them where to find it. The

authorities recovered the gun, which was later linked to shells

found at the scene of the killings. Busby was indicted for

capital murder.

The legal claims in this appeal arise from two sets of

circumstances that occurred while Busby was awaiting trial.

First, Busby claims that pretrial publicity poisoned the

atmosphere in Cherokee County, the site of the trial. At the

time, Cherokee County had a population of approximately 42,000

people. The only local daily newspaper was the Jacksonville

Daily Progress, with a paid circulation of around 5,500. The

paper ran at least a dozen articles about the murders on its

front page, including articles and photographs that identified

Busby as the only suspect, cited evidence against him, referred

to a confession, pictured him in handcuffs, and reported an

3
allegation that he was a Satanist. The Cherokeean Herald, a

weekly paper with a circulation of about 3,500, gave the case

less prominent coverage but also ran articles about the case,

including stories concerning the amount of fees that Busby’s

court-appointed lawyers were incurring at the taxpayers’ expense.

Busby filed a motion to change venue. During a hearing on

the motion, the court heard testimony from several prominent

citizens who opined, based on their reading of community

sentiment, that many residents of the county had already decided

that Busby was guilty. The county sheriff testified that there

were threats against Busby’s life; he stated that he had opposed

the defense team’s request to visit the crime scene because he

feared violence. Other citizens who testified at the hearing,

including some of those called by Busby, said that there had been

relatively little discussion of the case in the community and

that many people had not heard of Busby. The trial judge denied

the motion to change venue.

The second set of facts relevant to this appeal involves

certain letters that Busby wrote to friends and family while in

pretrial detention. The jail’s policy manual stated that all

outgoing non-privileged inmate mail could be inspected and read,

and it regularly was. Pursuant to this policy, jail staff came

across letters in which Busby admitted to and described the

killings, made what appeared to be threats against others, and

suggested that a correspondent send him drugs. (This was after

4
Busby had already admitted to the killings in the taped

confession, mentioned above.) Before sending the letters off to

their addressees, the jailers copied them and turned the copies

over to investigators.

At trial, Busby objected to the state’s use of the letters

against him. He pointed out that no warrant had been issued to

search Busby’s mail, and he contended that reading the letters

constituted an illegal interrogation. Relevant to this appeal,

Busby also claimed that the jail’s policy violated the First

Amendment, although that was not the primary basis for his

objection. In deciding whether to admit the letters, the trial

judge heard testimony from the county sheriff and the jail

administrator, who testified regarding the jail’s mail policies.

They stated that jail staff read mail in order to watch for

suicide risks, escape plans, threats of violence, and other

dangers to jail safety and security. It does not appear from the

record that Busby was targeted in particular for surveillance,

nor does it appear that the mail policy, which accorded with

state jail regulations,1 was directed at detecting inculpatory

1
In 1994, the Texas Commission on Jail Standards adopted
new regulations concerning inmates’ mail privileges. The
regulations provided, regarding non-privileged mail: “Outgoing
correspondence may be opened and read. Correspondence may be
censored provided a legitimate penological interest exists. A
copy of the original correspondence should be retained.” 19 Tex.
Reg. 9880 (Dec. 13, 1994) (codified as amended at 37 TEX. ADMIN.
CODE § 291.2(3)(B) (West 2003)).

5
communications. The jail administrator testified that inmates

were not given copies of the jail’s policy manual, which

explicitly authorized the reading of inmates’ non-privileged

mail. The inmates instead received a brief inmate handbook,

which did not explicitly warn inmates that their mail would be

read. The inmate handbook did, however, instruct inmates not to

seal outgoing envelopes unless the envelope contained privileged

mail; according to the handbook, sealed non-privileged mail would

be rejected. Accordingly, the practice within the jail was that

non-privileged mail was given to jailers unsealed. Some of

Busby’s letters, including his early letters, suggest that Busby

suspected that jailers could read his mail. The trial judge

overruled Busby’s objections to using the letters at trial.

During the guilt phase of the trial, the state called Mark

Oppen, a friend who had received some of the letters the jailers

had read and copied. Through Oppen, the state introduced two

letters in which Busby described the killings. On cross-

examination, the defense introduced another letter that Busby

wrote to Oppen in which Busby denied committing the murders and

told Oppen to throw away the previous letters.

The state introduced dozens more letters in the punishment

phase of the trial. Some of these letters showed Busby as

remorseless and revealed violent thoughts directed at Kelley and

the judge. Other letters——including some of those introduced by

the state as well as letters put into evidence by the

6
defense——were more sympathetic in that they showed Busby’s love

for his family and his newfound devotion to the Bible; many of

the letters were arguably mitigating because they suggested that

Busby had been in a marijuana- and LSD-induced daze on the night

of the killings. Apart from the letters, the state’s case in the

punishment phase included testimony from people to whom Busby had

made arguably threatening remarks, testimony from an inmate who

had overheard Busby saying that he would go on a shooting

“rampage” if he got out, and expert testimony from a psychologist

who opined that there was a significant risk that Busby would

commit future acts of violence. The defense called a dozen

witnesses in the punishment phase, including jail employees who

testified to Busby’s good behavior in jail, two medical experts,

and ministers, friends, and family who spoke of Busby’s non-

violent character.

Busby was sentenced to death on July 27, 1996. The

conviction was automatically appealed to the Texas Court of

Criminal Appeals. His direct appeal asserted eleven points of

error, but the state’s use of the letters was not among them.

The Court of Criminal Appeals affirmed Busby’s conviction and

sentence on March 31, 1999. Busby v. Texas, 990 S.W.2d 263 (Tex.

Crim. App. 1999). Busby unsuccessfully sought certiorari from

the United States Supreme Court. Busby v. Texas, 528 U.S. 1081

(2000).

7
 On November 20, 1998, Busby filed an application for

post-conviction relief in state court. Following an evidentiary

hearing, the trial court entered findings of fact and conclusions

of law and recommended that Busby’s request for habeas relief be

denied.2 In a brief order, the Texas Court of Criminal Appeals

adopted the lower court’s findings, conclusions, and

recommendation without further comment. Ex parte Busby, No.

28,761-01 (Tex. Crim. App. Sept. 13, 2000).

On September 12, 2001, Busby filed a petition for federal

habeas corpus relief in the United States District Court for the

Eastern District of Texas. The district court granted the

state’s motion for summary judgment in an unpublished order and

accompanying memorandum opinion. Busby v. Cockrell, No.

5:02cv264 (E.D. Tex. Mar. 31, 2003). The district court did,

however, grant a COA on the following issues:

1. Whether Busby’s appellate attorney’s decision not
to appeal the trial court’s denial of Busby’s
motion to exclude the letters constituted
ineffective assistance of counsel?

2. Whether the trial court’s denial of Busby’s motion
to suppress the letters violated the First
Amendment?

3. Whether the trial court’s denial of Busby’s motion
for a change of venue deprived him of a fair trial?

2
Both sides submitted proposed findings and conclusions
to the court. The findings and conclusions issued by the court
are in all material respects the same as those proposed by the
state.

8
 4. Whether the change of venue/fair trial issue was
exhausted?3

As we have already denied Busby’s request for a COA on additional

issues, Busby v. Cockrell, No. 03-40492, 2003 WL 21954211 (5th

Cir. Aug. 15, 2003), today’s decision considers only the three

issues listed above.

II. DISCUSSION

A. Standard for Granting Relief

In a habeas corpus appeal, we review the district court’s

findings of fact for clear error and its conclusions of law de

novo, applying the same standards to the state court’s decision

as did the district court. Martinez v. Johnson, 255 F.3d 229,

237 (5th Cir. 2001). Busby’s habeas petition is governed by the

standards established by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214

(1996).

Under AEDPA, we may not grant relief on a claim that the

state courts have adjudicated on the merits “unless the

adjudication of the claim . . . resulted in a decision that was

3
Busby’s habeas petition, and his brief here, phrase the
issues somewhat differently, as we explain later. We recognize
that the question whether Busby’s change of venue claim was
properly exhausted is not itself a ground for relief; it is not
an issue that raises “a substantial showing of the denial of a
constitutional right.” See 28 U.S.C. § 2253(c)(2) (2000). But
the lack of exhaustion can be a barrier to relief on the
underlying substantive claim, and so our opinion must address
exhaustion in that context.

9
contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of

the United States.” 28 U.S.C. § 2254(d)(1) (2000). A state

court’s decision is deemed “contrary to” clearly established

federal law if it relies on legal rules that directly conflict

with prior holdings of the Supreme Court or if it reaches a

different conclusion than the Supreme Court on materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-

06 (2000). A state court’s decision runs afoul of the

“unreasonable application” prong of § 2254(d)(1) “if the state

court correctly identifies the governing legal principle from our

decisions but unreasonably applies it to the facts of the

particular case.” Bell v. Cone, 535 U.S. 685, 694 (2002). The

Supreme Court has made it clear that an unreasonable application

is different from an incorrect application. Id. Finally, we

presume that the state court’s factual determinations are

correct, and we may grant relief only if a factual determination

is unreasonable based on the evidence presented to the state

court. 28 U.S.C. § 2254(d)(2), (e)(1).

B. Ineffective Assistance of Appellate Counsel

Busby claims that the attorney appointed to represent him in

his direct appeal was constitutionally ineffective for failing to

argue that the trial court erred in admitting the jailhouse

10
letters into evidence, over Busby’s objection, in both the guilt

phase and the punishment phase of the trial.

The state habeas court, after holding an evidentiary

hearing, rejected Busby’s ineffective assistance of counsel

claim. The court did not set forth its reasoning in a formal

opinion but instead produced a list of numbered findings of fact

and conclusions of law. This does not mean that § 2254(d)’s

deferential standard of review is inapplicable, however: as we

have made clear in past cases, this court “review[s] only a state

court’s ‘decision,’ and not the written opinion explaining that

decision.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002)

(en banc) (per curiam), cert. denied sub nom. Neal v. Epps, 537

U.S. 1104 (2003); see also Early v. Packer, 537 U.S. 3, 8 (2002)

(per curiam) (holding that AEDPA standards apply to state court

decisions even when the state court does not cite governing

Supreme Court cases).

To make out a claim of ineffective assistance of counsel,

Busby must show both that his counsel’s performance was deficient

(i.e., that it “fell below an objective standard of

reasonableness”) and that he was prejudiced by his counsel’s

deficient performance. Strickland v. Washington, 466 U.S. 668,

687-88 (1984). Regarding the first prong, we must be “highly

deferential” when evaluating counsel’s performance; “the

defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound

11
trial strategy.” Id. at 689 (internal quotation marks omitted).

Regarding the second prong, Busby “must show that there is a

reasonable probability that, but for counsel’s unprofessional

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

A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694.

The familiar Strickland framework applies to a prisoner’s

claim that his appellate counsel was ineffective for failing to

raise a certain issue on appeal. See Smith v. Robbins, 528 U.S.

259, 285 (2000); Smith v. Murray, 477 U.S. 527, 535-36 (1986).

Regarding the operation of the deficient performance prong in

this context, we have stated that “[c]ounsel does not need to

raise every nonfrivolous ground of appeal available.

Nonetheless, a reasonable attorney has an obligation to research

relevant facts and law, or make an informed decision that certain

avenues will not prove fruitful.” United States v. Williamson,

183 F.3d 458, 462 (5th Cir. 1999) (citations, footnotes, and

internal quotation marks omitted).

At the evidentiary hearing, the state habeas court received

testimony from Busby and from the attorney appointed to represent

Busby in the direct appeal, Forrest Phifer. Busby testified that

he asked Phifer to raise the issue regarding the admission of the

letters in his appellate brief. According to Busby, Phifer said

that including the issue would detract from other, more promising

12
grounds for reversal. Phifer himself took the stand at the

hearing and said that as he was formulating his issues for

appeal, he received a slip opinion from the Court of Criminal

Appeals regarding a pretrial detainee’s privacy rights, in

particular whether a drawing could be seized from the detainee’s

cell and admitted against him. He could not remember the style

of the case but, when given the name Soria v. State, it was

familiar; Phifer said that Soria was “probably” the slip opinion

that deterred him from appealing the use of the letters, though

he could not be sure.

In Soria, the state’s presentation to the jury in the

punishment phase of the defendant’s trial included a self-

portrait, seized from the defendant’s cell, in which the

defendant drew himself holding a bloody knife. 933 S.W.2d 46, 50

(Tex. Crim. App. 1996). The Court of Criminal Appeals cited the

United States Supreme Court’s decision in Hudson v. Palmer, 468

U.S. 517 (1984), for the proposition that an inmate has no Fourth

Amendment expectation of privacy in his cell, and it cited the

decision in Block v. Rutherford, 468 U.S. 576 (1984), for the

proposition that a shakedown search of a pretrial detainee’s cell

does not violate the Fourth Amendment or due process. Soria, 933

S.W.2d at 60. The Court of Criminal Appeals therefore rejected

the defendant’s Fourth Amendment challenge to the admission of

the drawing. Id.

13
 At the evidentiary hearing, Phifer testified to the

“disappointment” he felt when he saw the Soria slip opinion. He

continued:

I mean, [the slip opinion] was talking specifically on
right of privacy of an inmate and it talked about some
kind of writing, I don’t know if it was pictures or
letters, it was something in writing that was objected to
on the grounds of privacy, invasion of privacy. And I
said, well, this point would go in front of [the] same
Court, in front of the same judges, fairly soon after
this opinion and I have no reason to believe that the
Court would look at it differently. I said if I did this
it would be futile, that it would simply diminish my
other points and I wanted to go with the strongest points
I had.

Phifer testified that since he already had ten or eleven points

of error, he feared that adding this issue would give the appeal

a “shot gun” character. He therefore made the “strategical [sic]

decision” not to include this point of error.

Strategic decisions of the sort to which Phifer testified

can rarely constitute ineffective assistance of counsel, so long

as they are based on reasonable investigations of the applicable

law and facts. Strickland, 466 U.S. at 691. Phifer was

apparently well aware of the facts regarding the letters, but

Soria dissuaded him from raising a legal challenge to their use.

Soria itself cited two United States Supreme Court cases, Hudson

v. Palmer and Block v. Rutherford, that, while not directly on

all fours with Busby’s case, further tended to show that Busby’s

privacy claims lacked merit. It is true, as Busby now argues in

this appeal, that Phifer might have tried to distinguish the

14
above cases on the grounds that they involved intrusions into an

inmate’s cell, rather than reading a prisoner’s mail. But any

Fourth Amendment argument would be hampered by the need to

establish that Busby had a legitimate expectation of privacy in

the unsealed letters that he gave to prison officials, a

difficult argument to make.4 Indeed, if Phifer had investigated

this particular matter further, he would have found that the

leading case on the use of inculpatory jailhouse letters is still

Stroud v. United States, 251 U.S. 15 (1919). In Stroud, the

Supreme Court held that there was no violation of the Fourth

Amendment when an inmate’s letters, read by jailers pursuant to

jail practice, were introduced against him at trial. Id. at 21-

22.5

4
The Seventh Circuit has rejected a similar Fourth
Amendment challenge to the use of jailhouse letters, observing as
follows:
The record affirmatively shows that the prison requires
inmates to leave their letters unsealed and that [the
defendant] had left unsealed the two letters at issue in
this case. It is therefore clear that he had no
expectation of privacy with respect to their contents.
Because [the defendant] demonstrated an expectation that
his mail was being inspected, we have no difficulty
agreeing with the district court’s refusal to suppress
[the defendant’s] letters.
United States v. Whalen, 940 F.2d 1027, 1035 (7th Cir. 1991).
5
Later cases involving the same fact pattern——prisoners’
or pretrial detainees’ letters being read by jailers and then
used against them——generally reach the same result, though the
more recent cases sometimes require that the jail at least
present a justification for its mail policy. See, e.g., Whalen,
940 F.2d at 1034-35; United States v. Kelton, 791 F.2d 101, 102-
03 (8th Cir. 1986). See generally Gary D. Spivey, Annotation,
Censorship and Evidentiary Use of Unconvicted Prisoners’ Mail, 52

15
 Although any appellate challenge to the admission of the

letters would have been difficult and almost certainly

unsuccessful, it would not have been a frivolous issue for

counsel to raise.6 A point of error involving the letters,

despite its weakness, might have been a stronger issue than some,

but by no means all, of the issues that Phifer did raise on

appeal. And given that the issue could be barred on later

collateral review if not raised on direct appeal,7 a reasonable

appellate advocate could certainly have decided to pursue the

issue despite its low likelihood of success. But, at the same

time, we do not believe that Phifer’s decision not to pursue the

A.L.R.3d 548 (1973 & Supp. 2003).
6
Although the prevailing view is to the contrary, see
supra note 5, challenges like Busby’s have in some cases
prevailed. In State v. Ellefson, 224 S.E.2d 666 (S.C. 1976), the
South Carolina Supreme Court found that the exclusionary rule
barred the use of a pretrial detainee’s outgoing letters that
were read by a jailer and then turned over to a detective. A
Texas appellate court, in an unpublished disposition, has
distinguished Ellefson on the ground that the activities in
Ellefson were “unrelated to jail security and . . . done at the
request of a detective who was not connected with jail operations
and whose efforts were ‘entirely investigatory,’ ‘exploratory,’
and ‘indiscriminate.’” Miller v. State, No. 01-94-01040-CR, 1995
WL 632066, at *1 (Tex. App.—Houston [1st Dist.] Oct. 26, 1995)
(quoting Ellefson, 224 S.E.2d at 668, 670), denying motion for
reh’g in 1995 WL 569670 (Tex. App.—Houston [1st Dist.] Sept. 28,
1995, pet. ref’d).
7
Indeed, in the federal habeas proceedings the state has
asserted that any challenge to the letters is barred from federal
review because Busby defaulted the issue in the state courts.
The district court did not apply the procedural default, however.
As explained later in this opinion, we do not rely on the default
either. See infra II.C.1.

16
issue was “outside the wide range of professionally competent

assistance,” Strickland, 466 U.S. at 690, to which a criminal

defendant is entitled. Soria was similar enough to be persuasive

authority in the Court of Criminal Appeals against Busby’s

position, and Phifer simply cannot be said to have failed to

discover controlling authority that would have shown that the

letters should have been suppressed; on the contrary, as we have

observed, the prevailing view is that there is no constitutional

violation in cases like this one. Whether or not Phifer’s choice

of issues on appeal was the best decision, we believe it was

within the range of decisions that a reasonably informed attorney

could make.

Even more to the point, given that AEDPA governs this case,

Busby’s ineffective assistance of counsel claim cannot satisfy

§ 2254(d)’s exacting standards for granting habeas relief. As we

stated in a previous case,

It bears repeating that the test for federal habeas
purposes is not whether [the petitioner made the showing
required under Strickland]. Instead, the test is whether
the state court’s decision——that [the petitioner] did not
make the Strickland-showing——was contrary to, or an
unreasonable application of, the standards, provided by
the clearly established federal law (Strickland), for
succeeding on his [ineffective assistance of counsel]
claim.

Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003), cert.

denied sub nom. Schaetzle v. Dretke, No. 03-7511, 2004 WL 76777

(Jan. 20, 2004). Here, the state habeas court’s findings of fact

and conclusions of law stated, inter alia, that Busby had no

17
legitimate expectation of privacy in unsealed non-privileged

mail, that Phifer was not deficient for failing to raise the

issue of the letters, and that a point of error on the issue

would not have resulted in reversal. This last finding is

especially difficult for us to assail given that the Texas state

courts, in a decision rendered shortly after Busby filed his

briefs in the direct appeal, rejected an effort to suppress an

inculpatory outgoing letter read by jailers pursuant to the

state’s inmate mail policy. See Merritt v. State, 982 S.W.2d

634, 635 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d,

untimely filed).8

While an objection to the use of the letters would most

naturally be framed as a Fourth Amendment claim, Busby also

claims in this appeal that the jail’s policy violated the First

Amendment. It is true, as Busby argues, that neither Soria nor

the cases it cites involved a First Amendment challenge to

reading and using an inmate’s mail. We do not believe, however,

that Busby’s attorney can be deemed constitutionally deficient

for failing to raise such a challenge. As we explain in greater

8
The decision in Merritt appears to rest in part on the
fact that the inmate handbook notified inmates that non-
privileged mail could be opened and read. See 982 S.W.2d at 635.
It is unclear from the opinion what exactly the handbook said; in
this case, as described earlier, the handbook given to Busby did
not explicitly say that mail would be read, but it did tell
inmates to leave their non-privileged mail unsealed or else it
would not be accepted. Merritt also relied on the broader
principle that “numerous court cases have allowed prison mail to
be censored.” Id.

18
detail below, the jail’s policy did not violate the First

Amendment under prevailing standards and, even if it did, Busby

would need to explain why material so obtained must be suppressed

at trial. Busby’s appellate attorney was not constitutionally

deficient in this particular case for failing to ask the Court of

Criminal Appeals to reject the weight of established authority.

Cf. Lucas v. Johnson, 132 F.3d 1069, 1078-79 (5th Cir. 1998)

(stating that the habeas petitioner “failed to demonstrate

deficient performance because counsel is not required to

anticipate subsequent developments in the law”). A fortiori, the

state court’s decision that counsel’s performance was not

deficient is not an unreasonable application of the governing

law.

We conclude that Busby is not entitled to relief on his

ineffective assistance of counsel claim.

C. First Amendment

In his state habeas application, and again in his federal

petition, Busby claimed that the jailhouse letters were obtained

in violation of the First Amendment and therefore that the trial

court denied him his constitutional rights in admitting the

letters into evidence over his objection. In ruling on the First

Amendment issue, the state habeas court noted in one of its

findings of fact that Busby failed to raise the issue on direct

appeal, and it stated in one of its conclusions of law that Busby

19
was therefore “procedurally barred from raising it by writ of

habeas corpus.” The state urges us to dispose of Busby’s First

Amendment claim on the ground that it has been procedurally

defaulted in the state courts. We therefore first address this

threshold issue.

1. Procedural default

The general rule is that the federal habeas court will not

consider a claim that the last state court rejected on the basis

of an adequate and independent state procedural ground. Coleman

v. Thompson, 501 U.S. 722, 729-32 (1991); Fisher v. Texas, 169

F.3d 295, 300 (5th Cir. 1999). In this case, the state habeas

court expressly stated that Busby’s claim was procedurally barred

because he did not raise it on direct appeal. The court then

went on to make several further conclusions of law to the effect

that the claim was substantively meritless. That the court

reached these additional conclusions does not undermine the

explicit invocation of the procedural bar. See Harris v. Reed,

489 U.S. 255, 264 n.10 (1989); Fisher, 169 F.3d at 300 (“A state

court expressly and unambiguously bases its denial of relief on a

state procedural default even if it alternatively reaches the

merits of a defendant’s claim.”).

The general rule that we will not consider claims that were

ruled procedurally barred in the state courts is subject to a

number of limitations. A procedural default will be excused, for

instance, if “the prisoner can demonstrate cause for the default

20
and actual prejudice as a result of the alleged violation of

federal law” or if the default would work “a fundamental

miscarriage of justice.” Coleman, 501 U.S. at 750; see also

Haley v. Cockrell, 306 F.3d 257, 263 (5th Cir. 2002).

Ineffective assistance of counsel is sufficient “cause” for a

procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986).

As we have already seen, Busby does in fact argue that his

counsel in his direct appeal was constitutionally ineffective for

failing to pursue the issue regarding the letters. We rejected

that contention above, and so this method of excusing a default

is unavailable.9

To produce a federally cognizable default, the state

procedural rule “must have been ‘firmly established and regularly

followed’ by the time as of which it is to be applied.” Ford v.

Georgia, 498 U.S. 411, 424 (1991); see also Stokes v. Anderson,

9
Busby also argues that there was cause for any default
because his First Amendment claim is novel. “[W]here a
constitutional claim is so novel that its legal basis is not
reasonably available to counsel, a defendant has cause for his
failure to raise the claim in accordance with applicable state
procedures.” Reed v. Ross, 468 U.S. 1, 16 (1984). But Busby’s
First Amendment claim, while admittedly unusual, is not “novel”
in the requisite sense; that is, its legal building blocks were
not unavailable to counsel at the time of the direct appeal. On
the contrary, Busby’s First Amendment argument relies on decades-
old Supreme Court cases, as will appear below. The “novelty”
argument for excusing a procedural default is not available in
such circumstances. See id. at 19-20 (citing Engle v. Isaac, 456
U.S. 107, 131-32 (1982)); Landry v. Lynaugh, 844 F.2d 1117, 1120
(5th Cir. 1988) (rejecting novelty as an excuse for default when
the habeas petitioner relied on constitutional standards “that
were already in place at the time of his trial”).

21
123 F.3d 858, 860 (5th Cir. 1997). In this case, the district

court found that the state procedural rule——that record-based

claims not raised on direct appeal will not be considered in

habeas proceedings——was not yet regularly applied at the relevant

time. For the district court, the relevant time was apparently

April 1998, when Busby filed his brief in his direct appeal.

According to the state, the state procedural rule relied

upon herein was firmly established by the Texas courts in the

case of Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App.

1996, clarified on reh’g Feb. 4, 1998). See Rojas v. State, 981

S.W.2d 690, 691 (Tex. Crim. App. 1998) (Baird, J., concurring)

(“In my opinion, based on Gardner, the Court now bars every

record claim not raised on direct appeal as procedurally

defaulted.”). Although Gardner was originally issued in 1996, it

is the opinion on rehearing, issued in February 1998, that

purportedly firmly entrenched the procedural rule upon which the

state relies.10 In March 2000, we issued a decision in which we

held, though with little comment, that the Gardner rule set forth

an adequate state ground capable of barring federal habeas

review. See Soria v. Johnson, 207 F.3d 232, 249 (5th Cir. 2000);

10
Gardner called the rule “well-settled” and cited
previous cases that had invoked it. 959 S.W.2d at 199. Other
pre-Gardner cases of fairly recent vintage did not invoke the
rule, however. See, e.g., Ex parte Goodman, 816 S.W.2d 383, 385
(Tex. Crim. App. 1991). Since the state does not contend that
the rule was regularly followed before Gardner, we need not look
into the pre-Gardner history of the rule.

22
see also Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001)

(likewise invoking Gardner). The state habeas court, which

invoked the bar, rendered its decision in April 2000.

Although the state procedural rule was apparently firmly

established and regularly followed by the time the state habeas

court invoked it to bar Busby’s new claims in April 2000, the

district court evidently believed that the legally relevant time

period came earlier, namely in the months leading up to April

1998, when Busby’s attorney was completing and filing Busby’s

brief in the direct appeal. Moreover, although the opinion on

rehearing in Gardner was issued in February 1998, shortly before

Busby’s main brief in his direct appeal was filed, the district

court did not think that the rule was sufficiently entrenched

until Judge Baird’s concurring opinion in Rojas, issued in

December 1998. Since the district court decided that the rule

was not being consistently applied when Busby’s appellate counsel

was preparing and filing his briefs, the court concluded that it

would be unfair to invoke the procedural default.

As stated above, a state procedural rule “must have been

‘firmly established and regularly followed’ by the time as of

which it is to be applied.” Ford, 498 U.S. at 424. This court

has not yet decided whether the relevant date for application of

the Gardner rule is the time at which the state habeas court

imposes the bar (here, April 2000) or instead the time at which

the litigant engages in the conduct that produces the bar (here,

23
April 1998 and perhaps a few months before). We have held, in

the related context of the Texas abuse of the writ doctrine, that

the controlling date for purposes of that procedural bar is the

date on which the state court dismisses the application as an

abuse of the writ, not the date on which the prior application

(which triggers the doctrine) is filed. See Barrientes v.

Johnson, 221 F.3d 741, 759-61 (5th Cir. 2000). But when faced

with the same question that is before us today——i.e., the

triggering date for a state procedural rule that bars state

habeas review of claims that could have been raised on direct

appeal——the Ninth Circuit has squarely held that the relevant

time is the date of the direct appeal, which is when the claims

should have been raised. See Fields v. Calderon, 125 F.3d 757,

760-61 (9th Cir. 1997). The court reasoned that “the procedural

default, though announced by the [state court] when the habeas

petition is denied, technically occurs at the moment the direct

appeal did not include those claims that should have been

included for review.” Id. at 761. The court stated, moreover,

that using the date of the direct appeal as the trigger date

served the purpose of ensuring that counsel in the direct appeal

had notice that failure to raise an issue would forfeit it. Id.

Although the question of procedural default “should

ordinarily be considered first,” we need not do so “invariably,”

especially when it turns on difficult questions of state law.

Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997); see also

24
Glover v. Hargett, 56 F.3d 682, 684 (5th Cir. 1995). In order to

determine whether Busby’s claim is procedurally defaulted, we

would have to decide (1) when precisely the state procedural rule

became firmly entrenched and (2) when the rule was triggered. In

this case, we believe that Busby’s First Amendment claim can be

resolved more easily by looking past any procedural default.

Accordingly, we shall assume that the claim is not defaulted.

2. Whether Busby is entitled to relief

There is some confusion over the precise nature of Busby’s

First Amendment claim.11 The district court’s decision granting

the COA described the issue as “[w]hether the trial court’s

denying [Busby’s] motion to suppress the letters violated his

rights under the First Amendment.” It may be that the district

court was merely making a shorthand reference to the somewhat

longer version of the claim set forth in Busby’s petition.

Busby’s habeas petition and his brief here both cast the claim as

whether Busby was denied his fundamental due process, due course

11
In part, this is because Busby’s claim would more
naturally be thought of as essentially involving a violation of
the Fourth Amendment’s exclusionary rule, applicable against the
states under Mapp v. Ohio, 367 U.S. 643 (1961). Indeed, Busby’s
habeas petition filed in the district court asserted not only the
First Amendment claim at issue here but also, inter alia, a claim
that the letters should have been excluded because they were
obtained in violation of the Fourth Amendment’s limitations on
search and seizure. The district court properly denied this
claim under the rule of Stone v. Powell, 428 U.S. 465 (1976). As
we will note later, the state contends that Busby’s First
Amendment claim is really no more than a Fourth Amendment claim
in disguise and should likewise be barred under Stone.

25
of law, and fair trial rights under the Fourteenth Amendment when

the trial court admitted into evidence, over his objection,

copies of personal letters obtained in violation of the First

Amendment. That is, as Busby describes it, the claim essentially

involves a Fourteenth Amendment due process violation predicated

upon the use of evidence obtained in violation of the First

Amendment.

Whatever the precise manner of phrasing the claim, its

necessary predicate is that the jailers’ actions somehow violated

the First Amendment. This court has addressed this issue before.

In Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978), Texas

inmates brought a comprehensive challenge to the state

correctional system’s policies regarding inmates’ mail

privileges. We recognized that inmates’ correspondence with the

media and with attorneys carried special constitutional weight;

we therefore held that inmates’ letters to reporters and

attorneys should be mailed out without being opened and read by

prison officials and that inmates should have a right to be

present when incoming mail from such persons was opened and

inspected for contraband. Id. at 758-59.12 But we found that

inmates’ other correspondence could properly be subjected to much

greater control. In particular, we decided that legitimate

12
Our more recent cases have responded to subsequent
Supreme Court decisions by overruling some of Guajardo’s
protections. See Brewer v. Wilkinson, 3 F.3d 816, 824-25 (5th
Cir. 1993).

26
penological concerns regarding security, order, and

rehabilitation permitted prison officials to read all incoming

and outgoing general correspondence. Id. at 755 n.4, 756-57.

The Cherokee County Jail’s mail policies, as gleaned from the

policy manual introduced in evidence at Busby’s trial, track

quite closely the rules laid out in Guajardo. The state habeas

court’s findings of fact and conclusions of law stated that the

jailers’ actions served a valid penological purpose and complied

with state regulations.13

Given that jail officials could legitimately read Busby’s

mail, we do not think that the First Amendment would bar them

from turning letters over to the prosecutors if the jailers

happened to find valuable evidence during their routine

monitoring. See Gassler v. Wood, 14 F.3d 406, 408-10 (8th Cir.

1994). What has happened here is essentially that agents of the

state “overheard” a damaging admission during the course of their

duties. Whatever other legal challenges may exist regarding the

13
We can assume that the prisoners in Guajardo were aware
that their mail was being read, but Busby’s assertion that he was
never explicitly told about this practice does not lead to a
different result. (The inmate handbook given to Busby did advise
him that non-privileged mail should be turned over to jailers
unsealed.) The principal harm in reading inmates’ outgoing mail,
from the point of view of the First Amendment, is presumably that
it chills inmates’ speech and impairs their ability to convey
their true thoughts to outsiders. See Procunier v. Martinez, 416
U.S. 396, 423 (1974) (Marshall, J., concurring). If Busby were
truly unaware that jailers were reading his mail, that might
strengthen claims rooted in the Fourth Amendment or Miranda, but
it would weaken Busby’s First Amendment claim.

27
jailers informing investigators of what they learned, we do not

see how the First Amendment would prevent them from passing that

information along. The state officials are not punishing Busby

for his speech, and while it is true that his speech had damaging

consequences, that is true of all admissions and confessions.

Even if we were able to reach a different result on the

merits of the First Amendment question, the more important point

in a habeas case governed by AEDPA is that we may not grant

relief unless the state’s adjudication of Busby’s claim “resulted

in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

In this case, the state habeas court concluded that the jail’s

policy of reading outgoing non-privileged correspondence served

valid penological purposes and that “the reading and copying of a

county jail inmate’s outgoing non-privileged mail does not

violate the First and Fourteenth Amendments to the United States

Constitution.”14

14
That the state habeas court also invoked a procedural
bar as an alternative basis to deny relief does not deprive the
state of the benefit of AEDPA’s deferential standard. Based on
the state court record, it is clear that the state courts have
rejected the substance of Busby’s claim; the rejection of his
First Amendment claim is therefore “an adjudication on the
merits” within the meaning of § 2254(d). See Mercadel v. Cain,
179 F.3d 271, 274 (5th Cir. 1999); see also Johnson v. McKune,
288 F.3d 1187, 1192 (10th Cir. 2002).

28
 The state’s determination is not contrary to or an

unreasonable application of Supreme Court precedent. The Supreme

Court has never held that reading inmate mail violates the First

Amendment. The primary case relied upon by Busby is Procunier v.

Martinez, 416 U.S. 396 (1974), a § 1983 case involving First

Amendment limitations on censorship of inmate mail. The Martinez

Court held that jailers could censor (i.e., redact or reject) an

inmate’s outgoing and incoming mail only if the jail policies

furthered a substantial governmental interest and limited First

Amendment freedoms no more than necessary to protect that

governmental interest. Id. at 413. Later Supreme Court cases

have given authorities greater leeway in restricting inmates’

rights regarding mail, and Martinez has been overruled at least

in part. See Brewer, 3 F.3d at 822-25 (tracing the impact of

Wolff v. McDonnell, 418 U.S. 539 (1974), Turner v. Safley, 482

U.S. 78 (1987), and Thornburgh v. Abbott, 490 U.S. 401 (1989)).

Even without those later cases, Martinez on its own terms does

not hold that reading an inmate’s mail violates the First

Amendment. As the Court observed in a case decided shortly after

Martinez, “freedom from censorship is not equivalent to freedom

from inspection or perusal.” McDonnell, 418 U.S. at 576.15

15
The McDonnell Court concluded that a policy whereby
prison officials could open mail from the inmate’s attorney in
the inmate’s presence passed constitutional muster. 418 U.S. at
577. This court has subsequently determined that opening and
inspecting an inmate’s incoming legal mail outside of his
presence does not violate the Constitution. See Brewer, 3 F.3d

29
Highlighting the contrast, Justice Marshall’s concurring opinion

in Martinez noted that the Court had reserved the issue of the

First Amendment implications of reading inmate mail; he would

have gone further and held that prison officials do not have a

general right to open and read inmate mail. 396 U.S. at 422

(Marshall, J., concurring). Indeed, as one of our sister

circuits has stated, Martinez’s holding that certain types of

mail can be censored implies that mail can be read. Altizer v.

Deeds, 191 F.3d 540, 548 (4th Cir. 1999) (“Otherwise, a prison

official would never know that a letter contained the very type

of material that, according to the Supreme Court, could

rightfully be censored . . . .”). Finally, the only Supreme

Court case that actually addresses the evidentiary use of

inculpatory jailhouse letters is Stroud, which, while not

addressing the First Amendment, found that there was no violation

of the Fourth or Fifth Amendments in such a situation. 251 U.S.

at 21-22. The state court’s decision is thus not contrary to

Supreme Court precedent, nor does it apply the governing law to

the facts of this case unreasonably.

Even if the jailers’ actions were improper under the First

Amendment, Busby would still need to explain why items so

obtained must be suppressed. The state argues that such a “First

Amendment exclusionary rule” would be a new rule of criminal

at 825.

30
procedure, which we may not announce on habeas review. See

Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality opinion).

Additionally, the state contends that Busby’s argument——though

nominally invoking the First Amendment——is at bottom essentially

a Fourth Amendment claim in that it seeks the exclusion of

improperly obtained evidence. Although Busby’s complaint about

the letters is probably strongest as a Fourth Amendment argument,

such claims are of course not cognizable in federal habeas corpus

proceedings. See Stone v. Powell, 428 U.S. 465, 494-95 (1976).

Given our conclusion above, we need not address these arguments

further.

D. Pretrial Publicity

Busby’s habeas petition also claims that media coverage of

his case poisoned the atmosphere, depriving him of the right to

an impartial jury and due process of law.

The district court concluded that this claim had not been

exhausted in the state courts. Rather than dismissing the

petition, as is generally required under Rose v. Lundy, 455 U.S.

509 (1982), the district court recognized that it has the

authority to retain jurisdiction and instead deny the claim on

the merits, which it did. See 28 U.S.C. § 2254(b)(2) (2000);

Mercadel, 179 F.3d at 276.

Habeas petitioners must exhaust state remedies by pursuing

their claims through one complete cycle of either state direct

31
appeal or post-conviction collateral proceedings. See Orman v.

Cain, 228 F.3d 616, 620 & n.6 (5th Cir. 2000); Bledsue v.

Johnson, 188 F.3d 250, 254 n.8 (5th Cir. 1999). The exhaustion

requirement means that a habeas petitioner “must fairly present

the substance of his claim to the state courts.” Finley, 243

F.3d at 219 (citing Picard v. Connor, 404 U.S. 270, 275-76

(1971)).

Before trial, Busby moved for a change of venue. His motion

was supported by affidavits from two people who stated that Busby

could not receive a fair trial in Cherokee County. The state

opposed the motion with two affidavits that controverted Busby’s.

Busby’s legal arguments in support of the motion focused largely

on the technical requirements of the state statute providing for

changes of venue, but Busby also invoked Sixth Amendment fair

trial rights and Fourteenth Amendment due process considerations

when the motion was orally argued to the trial judge. On direct

appeal, Busby did not raise the federal constitutional claim he

is now raising in his federal habeas petition. He instead

argued, in his third point of error, that the trial court should

have granted his motion to change venue as a matter of law under

the state statute because the state’s affidavits were (Busby

argued) legally insufficient to controvert his supporting

affidavits. In his fourth point of error, he did raise federal

and state constitutional challenges to the trial court’s denial

of the motion, but the legal arguments were very different from

32
those asserted here. The argument of the fourth point of error

was that the trial court violated due process and equal

protection by permitting the state to controvert Busby’s

affidavits with affidavits that were patently not credible. That

is, the challenge went to the constitutionality of the court’s

recognition of the state’s controverting affidavits, not to the

merits of the underlying motion or to the pretrial atmosphere

itself. The brief accordingly did not cite any of the evidence

of prejudicial media coverage developed in the hearing in the

trial court. Therefore, since Busby’s claim here involves a

wholly different legal claim, and a factual basis not argued to

the state appellate court, he did not fairly present the

substance of his claims to the state courts as generally required

under the exhaustion doctrine. Nor did Busby raise his pretrial

publicity claim in his state habeas case.16

Nonetheless, a habeas petitioner who has failed to properly

present his federal constitutional claims to the state courts can

still be considered to have exhausted his state remedies if the

state courts are no longer open to his claim because of a

16
At oral argument in this court, Busby’s counsel
conceded that the venue-related claims raised in the state courts
differed from the claim being raised here. He stated that he
would prefer to abandon this claim rather than have the habeas
petition dismissed as partially unexhausted. As we explain in
the next paragraphs in the text, the claim is technically
exhausted because the state courts are no longer available to
Busby; the failure to raise the claim in the state courts is thus
a basis for holding the claim procedurally defaulted, as the
state urges.

33
procedural bar. “A habeas petitioner who has defaulted his

federal claims in state court meets the technical requirements

for exhaustion; there are no state remedies any longer

‘available’ to him.” Coleman, 501 U.S. at 732. However, the

same procedural bar that satisfies the exhaustion requirement at

the same time provides an adequate and independent state

procedural ground to support the state judgment “and thus

prevents federal habeas corpus review of the defaulted claim,

unless the petitioner can demonstrate cause and prejudice for the

default.” Gray v. Netherland, 518 U.S. 152, 162 (1996); see also

Coleman, 501 U.S. at 735 n.*.

The state asserts that if Busby tried to return to the state

courts to present his claim in a habeas application, his

application would be dismissed as an abuse of the writ. This

court has previously held that the Texas abuse of the writ

doctrine is an adequate ground for considering a claim

procedurally defaulted. Nobles v. Johnson, 127 F.3d 409, 422-23

(5th Cir. 1997); Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.

1995). As the doctrine is currently codified for capital cases,

it provides as follows:

If a subsequent application for a writ of habeas
corpus is filed after filing an initial application, a
court may not consider the merits of or grant relief
based on the subsequent application unless the
application contains sufficient specific facts
establishing that:

(1) the current claims and issues have not been and
could not have been presented previously in a timely

34
 initial application or in a previously considered
application [for habeas relief] because the factual or
legal basis for the claim was unavailable on the date the
applicant filed the previous application;

(2) by a preponderance of the evidence, but for a
violation of the United States Constitution no rational
juror could have found the applicant guilty beyond a
reasonable doubt; or

(3) by clear and convincing evidence, but for a
violation of the United States Constitution no rational
juror would have answered in the state’s favor one or
more of the special issues that were submitted to the
jury in the [penalty phase of the trial].

TEX. CODE CRIM. PROC. ANN. art. 11.071, § 5(a) (Vernon Supp. 2004).

There is no indication that the factual or legal basis for

Busby’s claim was previously unavailable, as required under

paragraph (1). On the contrary, the issue was raised at Busby’s

trial. Nor can Busby show that he could satisfy the tests in

paragraphs (2) and (3). Given the strong evidence of both guilt

and future dangerousness, rational jurors who were totally

unaffected by pretrial publicity certainly could have found Busby

guilty and answered the special issues as they did. When the

result of filing a second habeas application in the state courts

is so clear, it is appropriate to consider the petitioner’s claim

barred rather than first requiring the state court to deny a

successive writ. See Teague, 489 U.S. at 297-98; Horsley v.

Johnson, 197 F.3d 134, 136-37 (5th Cir. 1999); Nobles, 127 F.3d

at 422-23.

When a habeas petitioner’s claims are procedurally

defaulted, we may excuse the default only if the petitioner shows

35
cause for the default and prejudice resulting therefrom, or if

the default would work a fundamental miscarriage of justice.

Coleman, 501 U.S. at 750; Finley, 243 F.3d at 220. Busby has not

attempted to establish any cause for the default, nor does he

assert the miscarriage of justice exception, such as by claiming

that he is innocent. We are therefore unable to grant relief as

Busby’s claim is defaulted.

Moreover, if we were to reach the merits, we would find that

Busby’s claim fails. Busby does not attempt to show that the

particular jurors selected for service in his case were biased

against him, as one usually must do. See Mayola v. Alabama, 623

F.2d 992, 996 (5th Cir. 1980). His argument, and the evidence

adduced at the pretrial hearing, instead refers to the general

environment in Cherokee County. That is, he would have us

presume that the jury was prejudiced against him by virtue of the

press coverage described earlier in this opinion. The Supreme

Court addressed a similar argument in Dobbert v. Florida, 432

U.S. 282, 303 (1977), where it said the following:

Petitioner’s argument that the extensive coverage by
the media denied him a fair trial rests almost entirely
upon the quantum of publicity which the events received.
He has directed us to no specific portions of the record,
in particular the voir dire examination of the jurors,
which would require a finding of constitutional
unfairness as to the method of jury selection or as to
the character of the jurors actually selected. But under
[Murphy v. Florida, 421 U.S. 794 (1975)], extensive
knowledge in the community of either the crimes or the
putative criminal is not sufficient by itself to render
a trial constitutionally unfair. Petitioner in this case
has simply shown that the community was made well aware

36
 of the charges against him and asks us on that basis to
presume unfairness of constitutional magnitude at his
trial. This we will not do in the absence of a “trial
atmosphere . . . utterly corrupted by press coverage,”
Murphy[, 421 U.S. at 798].

The leading case in which the Supreme Court found that a

change of venue was necessary without any showing as to the

jurors’ biases is Rideau v. Louisiana, 373 U.S. 723 (1963).

There, a local television station broadcast on three straight

days a twenty-minute film of the defendant’s jailhouse

interrogation, in which he admitted in detail to the bank

robbery, kidnapping, and murder with which he was charged. The

parish had a population of 150,000, and the three broadcasts were

seen by 24,000, 53,000, and 29,000 of the parish’s residents,

respectively. Id. at 724.17 Under those circumstances, the

Court reversed the conviction “without pausing to examine a

particularized transcript of the voir dire examination of the

members of the jury.” Id. at 727.

As should be clear from the lengthy quotation from Dobbert

set out above, Rideau’s rule of presumed prejudice is applicable

only in the most unusual cases. “[T]he Rideau principle of

presumptive prejudice is only rarely applicable and is confined

to those instances where the petitioner can demonstrate an

extreme situation of inflammatory pretrial publicity that

17
As the dissent in Rideau pointed out, it was unclear to
what extent the viewership on these three occasions overlapped.
373 U.S. at 731-32 (Clark, J., dissenting).

37
literally saturated the community in which his trial was held.”

Mayola, 623 F.2d at 997 (citations and internal quotation marks

omitted). Busby’s case does not satisfy that standard. Though

Cherokee County is small, with a population of around 42,000

according to the record, it was not saturated with inflammatory

coverage. The Jacksonville Daily Progress, which ran at least a

dozen articles on the case, had a paid circulation of

approximately 5,500; the local weekly paper, which gave the case

much less prominent coverage, had a circulation of around 3,500.

The two local papers’ coverage of the killings was “largely

factual in nature,” Murphy, 421 U.S. at 802, tracing developments

in the case rather than engaging in sensationalism.18 It is also

relevant that the coverage of the case, heaviest right after the

killings, tailed off markedly in the months preceding trial.

Most of the articles admitted into evidence were from April and

early May 1995. Only three appeared after July 1995. Voir dire

did not begin until May 1996 and the opening statements were not

18
This characterization is true even of the article that
mentioned an allegation that Busby was a Satanist. The article,
which ran in the Daily Progress on May 3, 1995, under the
headline “Defense enters appeal for evidence,” ticked off a list
of revelations from a pretrial hearing at which Kelley identified
Busby as the shooter. The list included a sentence that referred
to “[t]he allegation the defendant was a Satanic worshiper.”
Later in the story, the reader finds a sentence reporting that
Kelley testified at the hearing that three days before the
shootings Busby said that he had sold his soul to the devil.
These types of allegations certainly present a great potential
for prejudice, but here the allegation simply was not given the
prominent, recurring attention that could irretrievably poison
the jury pool.

38
heard until July 1996. Cf. id. at 802-03 (holding that pretrial

publicity did not prejudice the defendant and observing that most

of the newspaper articles at issue were run seven months before

the jury was selected).

The testimony at the hearing on the change of venue motion

confirms that the atmosphere in Cherokee County was not “utterly

corrupted” by unfavorable publicity. While several of the

defense’s witnesses said that the case had been a major topic of

conversation and opined that Busby could not get a fair trial in

Cherokee County, the state showed on cross-examination that some

of these witnesses had connections to Busby’s family. Most of

the witnesses who testified at the trial, including most of those

called by the defense, said that the case had not provoked a

great deal of discussion in the community, at least not since the

period immediately following the killings. Several witnesses

testified that they did not read the Daily Progress but instead

read newspapers from Tyler or Lufkin, which newspapers were

apparently more popular than the Daily Progress in parts of

Cherokee County. In sum, we do not believe that the atmosphere

was so biased against Busby that we can presume that voir dire

would be incapable of producing a proper jury. As we have

already said, there is no contention here that the actual jurors

selected for the case were biased.

III. CONCLUSION

39
 For the foregoing reasons, the district court’s judgment

denying habeas relief is AFFIRMED.

40