UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-11113
JACK WADE CLARK,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
January 28, 2000
Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Petitioner Jack Wade Clark, a Texas death row inmate, whose
petition for habeas corpus relief and request for a Certificate of
Appealability (“COA”) from the denial thereof were both denied by
the federal district court below, now seeks a COA from this Court
pursuant to 28 U.S.C. § 2253(c)(2). For all of the reasons set
forth below, we deny the request for a COA.
I. BACKGROUND
According to his own written confession, which was admitted at
trial, Clark observed the decedent, Melisa Ann Garcia, making a
telephone call at a public telephone in the early morning hours of
October 15, 1989. He approached her, asked her for a light, walked
around the corner to wait for her to finish her call, and then
stabbed her in the shoulder as she completed her call. He then
forced her into her own car, drove it away, and subsequently
sexually assaulted her. All the while, the decedent was passing in
and out of consciousness. After sexually assaulting her, he
stabbed her again in the heart, drove her car and parked it near
his house, cleaned the knife, and hid it in the attic.
Clark's confession was also supported by the testimony of a
high school honor roll student, who was incarcerated with Clark
while he was in the Lubbock County Jail, and in whom Clark had
confided regarding his involvement in the murder. The witness
testified that Clark, in a bragging tone, described how he had
asked the victim for a lighter, stabbed her, forced her into the
car, drove her somewhere, and “screwed her through her mouth, her
ass, and her pussy.” Clark further explained to the witness that
he stabbed her again so that she could not identify him, and that
he had ground the knife down so that it could not be identified as
the murder weapon. There was no evidence that the witness received
any benefit for coming forward with Clark's jailhouse confession
some six weeks after the witness was released from jail.
2
The state's pathologist confirmed both of the stab wounds as
well as the injuries which were indicative of sexual assault, i.e.
traumatized external genitalia, a laceration on the remainder of
the hymen, and abrasions, contusions, and swelling of the vaginal
area. Additionally, the pathologist testified that the decedent's
anus was dilated, indicating post mortem distention. The evidence
presented at trial also included testimony that the knife later
retrieved from Clark showed evidence of recent grinding.
The defense presented no evidence whatsoever during the guilt
phase of the trial and waived argument.
II. PROCEDURAL HISTORY
Clark pleaded not guilty and was tried before a jury on the
charge of capital murder in the course of committing or attempting
to commit sexual assault. On February 15, 1991, the jury returned
a guilty verdict and on February 21, 1991, during the sentencing
phase, the same jury returned answers in the affirmative to the two
special issues in the applicable version of article 37.071 of the
Texas Code of Criminal Procedure. Accordingly, the trial court
imposed upon Clark the sentence of death.
Clark's conviction and sentence were automatically appealed to
the Texas Court of Criminal Appeals. On March 9, 1994, that court
affirmed Clark's conviction and sentence. See Clark v. State, 881
S.W.2d 682 (Tex. Crim. App. 1994) (en banc). And on February 21,
1995, the Supreme Court denied Clark's petition for writ of
certiorari. See Clark v. Texas, 115 S. Ct. 1114 (1995).
3
Clark then filed an application for state habeas relief. The
same judge who had presided over Clark's criminal trial entered
findings of fact and conclusions of law recommending denial of
Clark's state habeas petition. On June 10, 1998, the Texas Court
of Criminal Appeals adopted the trial judge's findings of fact and
conclusions of law and denied Clark's application for state habeas
corpus relief. Clark then filed his petition for habeas corpus
relief in federal district court. The Texas Attorney General
answered Clark's federal petition and moved for summary judgment.
On August 25, 1998, the district court granted the motion for
summary judgment and dismissed Clark's petition for writ of habeas
corpus with prejudice. On September 25, 1998, the district court
denied Clark's request for a COA on each of the issues raised
herein.
III. DISCUSSION
Clark seeks a COA from this Court on each of the following
issues: (1) whether summary judgment is an appropriate mechanism
for the disposition of petitions for habeas corpus relief filed
pursuant to 28 U.S.C. § 2254; (2) whether Clark was afforded an
adequate opportunity to develop the factual basis underlying his
claims for relief, i.e. whether he was entitled to discovery and an
evidentiary hearing before summary judgment would have been
appropriate; (3) whether the district court erred in deferring to
state court findings regarding his claims A, B, C, E, and F,
because he had not been afforded the opportunity to develop the
4
underlying factual basis for those claims at an evidentiary
hearing; (4) whether the district court erred in failing to grant
a continuance so as to permit Clark to develop the underlying
factual basis of his claims; (5) whether the district court erred
in denying Clark the appointment of an expert in forensic pathology
to help develop his claims; (6) whether the district court erred in
deferring to as reasonable the state habeas court's findings
regarding his claims that a juror failed to disclose the extent of
her relationship with the prosecutor thus violating his due process
rights; and (7) whether the trial court's failure to define
“mitigating evidence” in the punishment charge to the jury
unconstitutionally denied Clark an appropriate vehicle for
consideration of such evidence.
Clark's petition for writ of habeas corpus was filed on June
22, 1998, and is thus governed by the provisions of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Lindh
v. Murphy, 117 S. Ct. 2059, 2068 (1997); United States v. Carter,
117 F.3d 262 (5th Cir. 1997). Under AEDPA, before an appeal from
the dismissal or denial of a § 2254 habeas petition can proceed,
the petitioner must first obtain a COA, which will issue “only if
the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). We have held that
a petitioner makes a “substantial showing” when he demonstrates
that his petition involves issues which are debatable among jurists
of reason, that another court could resolve the issues differently,
or that the issues are suitable enough to deserve encouragement to
5
proceed further. See Drinkard v. Johnson, 97 F.3d 751, 755 (5th
Cir. 1996) overruled in part on other grounds, Lindh, 117 S. Ct.
2059 (1997). The same standards which governed issuance of the
pre-AEDPA version of the COA, the certificate of probable cause
(“CPC”), apply to requests for a COA. See id. at 756.
The post-AEDPA version of 28 U.S.C. § 2254(d) provides as
follows:
(d) An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to any claim
that was adjudicated on the merits in State
court proceedings unless the adjudication of
the claim–
(1) 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; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d). We review pure questions of law under the
“contrary to” standard of subsection (d)(1), mixed question of law
and fact under the “unreasonable application” standard of
subsection (d)(1), and pure questions of fact under the
“unreasonable determination of facts” standard of subsection
(d)(2). See Lamb v. Johnson, 179 F.3d 352, 356 (5th Cir. 1999)
(citing Drinkard, 97 F.3d at 767-69), cert. denied, 1999 WL 754407
(U.S. Nov. 15, 1999) (No. 99-6272).
An application of law to facts will not be deemed
unreasonable, unless reasonable jurists “would be of one view that
6
the state court ruling was incorrect.” Drinkard, 97 F.3d at 769.
And under this standard, we will grant habeas relief “only if a
state court decision is so clearly incorrect that it would not be
debatable among reasonable jurists.” Id. Additionally, under
§ 2254(e)(1), a state court's determination of a factual issue must
be presumed correct, and the habeas petitioner bears the burden of
rebutting the presumption by clear and convincing evidence. The
presumption is especially strong when the state habeas court and
the trial court are one in the same. See Amos v. Scott, 61 F.3d
333, 347 (5th Cir. 1995); James v. Collins, 987 F.2d 1116, 1122 (5th
Cir. 1993) (citing Buxton v. Lynaugh, 879 F.2d 140, 146 (5th Cir.
1989)).
And while the nature of the penalty in a capital case is an
appropriate consideration for determining whether to issue a COA,
the severity of the penalty at issue does not, in and of itself,
require the issuance of a COA. See Lamb, 179 F.3d at 356.
However, in capital cases, doubts as to whether a COA should issue
must be resolved in favor of the petitioner. See id.; see also
Buxton v. Collins, 925 F.2d 816, 819 (5th Cir. 1991). Bearing the
foregoing principles in mind, we turn to consider those issues
raised by Clark in his request for a COA.
A.
Clark first contends that he is entitled to a COA on the basis
that summary judgment is not contemplated by 28 U.S.C. § 2254 or
the Rules Governing § 2254 Cases. He contends that the Texas
7
Attorney General cited no cases, statutes, or rules in the original
motion for summary judgment which hold that summary judgment is
appropriate in § 2254 cases. Yet in his own briefings, Clark cites
no authority for the opposite proposition.
As a general principle, Rule 56 of the Federal Rules of Civil
Procedure, relating to summary judgment, applies with equal force
in the context of habeas corpus cases. See Rule 11 of the Rules
Governing § 2254 Cases; Fed. R. Civ. P. 81(a)(2). We have
previously recognized the appropriateness of summary judgment in
habeas corpus proceedings. See e.g., Barnes v. Johnson, 160 F.3d
218, 222 (5th Cir. 1998), cert. denied, 119 S. Ct. 1768 (1999);
Harris v. Johnson, 81 F.3d 535, 539 (5th Cir. 1996) (both applying
summary judgment standard in a § 2254 case). And nothing in
Clark's briefing convinces us that summary judgment is not
otherwise appropriate in habeas corpus cases filed pursuant to 28
U.S.C. § 2254. We find that this issue would not be debatable
among jurists of reason, and Clark has thus failed to make a
substantial showing of the denial of a constitutional right.
Accordingly, we deny Clark's request for a COA on this issue.
B.
Clark's second, third, and fourth issues are related, and
revolve around the district court's alleged error in refusing to
allow Clark discovery, an evidentiary hearing, and a continuance,
all of which he requested in an effort to investigate and develop
the underlying factual basis of his claims, specifically, his
8
claims related to a juror's alleged failure to fully disclose the
extent of a personal relationship with the prosecutor and the
State's alleged use of testimony from a subsequently discredited
pathologist. He contends that his claims required extensive
investigation because the pertinent facts are “usually hidden,”
and that he would have needed a few more months to “continue to
develop a claim.” According to Clark, summary judgment was
inappropriate in the face of his undeveloped claims.
With regard to discovery, an evidentiary hearing, and a
continuance for more time to conduct an investigation of his
claims, Clark exhausted all of the funds provided by the state
court for investigation, and his request for additional funds was
denied. He again requested discovery, an evidentiary hearing, a
continuance, and the appointment of a pathologist expert in his
federal habeas case in order to develop his juror bias and
discredited pathologist claims. His requests were denied by the
district court.
Under AEDPA, a habeas petitioner's entitlement to an
evidentiary hearing when he has failed to develop the factual basis
of a claim is restricted to the narrow exceptions of 28 U.S.C.
§ 2254(e)(2), which provides:
(2) If the applicant has failed to develop
the factual basis of a claim in State court
proceedings, the court shall not hold an
evidentiary hearing on the claim unless the
applicant shows that--
(A) the claim relies on--
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable; or
9
(ii) a factual predicate that could not
have been previously discovered through the
exercise of due diligence; and
(B) the facts underlying the claim would be
sufficient to establish by clear and
convincing evidence that but for
constitutional error, no reasonable fact-
finder would have found the applicant guilty
of the underlying offense.
28 U.S.C. § 2254(e)(2). These exceptions apply only where the
failure to develop the factual basis is directly attributable to a
decision or omission of the petitioner. See McDonald v. Johnson,
139 F.3d 1056, 1059 (5th Cir. 1998).
Relying on McDonald, Clark argues that § 2254(e)(2) does not
apply to preclude an evidentiary hearing here because the failure
to fully develop the record below is not attributable to any fault
of his own, but rather to the state court's failure to permit him
additional discovery. While we agree that § 2254(e)(2) does not
apply to Clark's situation, as we stated in McDonald, overcoming
the preclusive effect of § 2254(e)(2) does not guarantee an
evidentiary hearing, it only opens the door for one. See
McDonald, 139 F.3d at 1059-60. Pursuant to Rule 8 of the Rules
Governing § 2254 Cases, the district court retains discretion over
the decision to grant an evidentiary hearing once a petitioner
overcomes the barriers presented by § 2254(e)(2). See id. at 1060.
The district court's decision to deny Clark's request for an
evidentiary hearing will thus be reviewed by us on appeal for an
abuse of discretion. See id. Likewise, the district court's
decision regarding the availability of discovery is also committed
to the sound discretion of the district court, and is reviewed
10
under the abuse of discretion standard. See Rule 6(a) of the Rules
Governing § 2254 Cases; Campbell v. Blodgett, 982 F.2d 1356 (9th
Cir. 1993). Our pre-AEDPA jurisprudence is instructive in
evaluating whether the district court's denial of discovery and an
evidentiary hearing was an abuse of discretion.
Prior to the enactment of AEDPA, we consistently held that
when there is a factual dispute which “‘if resolved in the
petitioner's favor, would entitle [the petitioner] to relief and
the state has not afforded the petitioner a full and fair hearing,’
a federal habeas corpus petitioner is entitled to discovery and an
evidentiary hearing.” Perillo v. Johnson, 79 F.3d 441, 444 (5th
Cir. 1996) (quoting Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir.
1994); see also Moawad v. Anderson, 143 F.3d 942, 947-48 (5th Cir.),
cert. denied, 119 S. Ct. 383 (1998). To find an abuse of
discretion which would entitle Clark to discovery and an
evidentiary hearing to prove his contentions, we would necessarily
have to find that the state did not provide him with a full and
fair hearing and we must be convinced that if proven true, his
allegations would entitle him to relief. See Moawad, 143 F.3d at
948.
With respect to whether Clark was afforded a full and fair
hearing by the state court, Clark contends that he requested
additional funds (once he exhausted those provided by the state
court) and an evidentiary hearing to develop the record, but that
the state court denied his requests. The state court then denied
his request for state habeas relief based upon the pleadings and
11
affidavits which had been submitted and without holding a live
evidentiary hearing, i.e. Clark was given only a "paper hearing."
See Perillo, 79 F.3d at 446 n.7.
A full and fair hearing does not necessarily require live
testimony. Indeed, we have repeatedly found that a paper hearing
is sufficient to afford a petitioner a full and fair hearing on the
factual issues underlying the petitioner's claims, especially
where, as here, the trial court and the state habeas court were one
in the same. See id. at 446-47 (listing cases where the
presumption of correctness, which attached to factual
determinations made after a full and fair hearing under the pre-
AEDPA version of § 2254(d), was established with only a paper
hearing before the same state judge who presided over the criminal
trial). We conclude that the state habeas court, after first
presiding over Clark's criminal trial, after providing Clark with
state-funded exploration of his claims, though not to the extent
Clark may have liked, and after considering the pleadings and
affidavits before it, provided Clark with a full and fair hearing.
In evaluating whether the district court abused its discretion
in denying Clark discovery and an evidentiary hearing, we next
consider whether there is a factual dispute which, if resolved in
Clark's favor, would entitle him to relief. Based upon our review
of the record, including all of the affidavits submitted by Clark
in support of his petition, we find that Clark has alleged no fact
which if proved, would entitle him to relief on his habeas claims.
Clark's allegations with respect to the State's testifying
12
pathologist, Dr. Erdmann, do not involve specifics. Rather, Clark
contends that “many problems [were] discovered in autopsies
conducted by Dr. Erdmann.” Clark presented no specific evidence of
misconduct in the performance of the victim's autopsy in this case.
In his request for the appointment of an expert forensic
pathologist, Clark did advise the district court that a Dr. Glen
Groben, after reviewing Dr. Erdmann's testimony, initially opined
that Dr. Erdmann's procedures and conclusions may be false or
misleading. However, the cited passages of Dr. Groben's initial
opinion reference only differences of opinion and allegations of
the lack of other physical evidence to support Dr. Erdmann's
conclusions as to the sequence of the victim's injuries. No
specific errors are cited. We previously examined a nearly
identical allegation involving the same Dr. Erdmann in Boyle v.
Johnson, 93 F.3d 180 (5th Cir. 1996), cert. denied, 117 S. Ct. 968
(1997). In Boyle, the petitioner presented evidence by other
experts who disagreed with Dr. Erdmann's conclusions, but since
Erdmann's testimony was consistent with the overwhelming physical
evidence, we found that the presumption of correctness owed to the
state habeas court's findings, which findings rejected the claim
that Erdmann testified falsely or mislead the jury, had not been
overcome. See Boyle, 93 F.3d at 186-87.
Here as well, the overwhelming evidence, including Clark's
unassailed confession, comports with Dr. Erdmann's conclusions as
to the sequence and extent of the victim's injuries, the sexual
assault, and the cause of death. Indeed, the record clearly
13
reveals that even without Dr. Erdmann's testimony, each of his
conclusions had been independently established by other evidence
and testimony. Furthermore, while Clark refers to evidence that
Dr. Erdmann was accused of misconduct in other cases, he has
presented no evidence that Dr. Erdmann did so in this case. Simply
put, Clark has failed to present clear and convincing evidence
sufficient to rebut the presumption of correctness to which the
state habeas court's factual findings are entitled, and he has
failed to establish that even if resolved in his favor, the factual
dispute as to Dr. Erdmann's credibility would entitle him to
relief.
With respect to Clark's claims that a juror failed to disclose
the extent of her relationship with the prosecutor, Clark claims
the facts underlying this claim are hidden and that he needed both
time and more resources to complete his investigation and to
develop a claim. His request is tantamount to a request for an
impermissible fishing expedition. See Perillo, 79 F.3d at 444
(noting that Rule 6 of the Rules Governing § 2254 Cases “‘does not
authorize fishing expeditions.’”) (quoting Ward v. Whitley, 21 F.3d
1355, 1367 (5th Cir. 1994)). Discovery must relate solely to a
specifically alleged factual dispute, not to a general allegation.
See Ward, 21 F.3d at 1367.
In its order granting summary judgment and dismissing Clark's
petition, the district court noted that Clark has failed to
demonstrate by “clear and convincing” evidence that the state
court's dispositive factual findings regarding his juror disclosure
14
claims are incorrect, and based upon our own review of the record,
we agree. Clark is not entitled to relief as these claims were
adequately developed below, and as the district court noted, he has
failed to demonstrate anything more than was disclosed at voir
dire. He seeks merely to cast a line in the hopes of hooking
additional evidence which might support his claims, and has not
sought discovery or an evidentiary hearing with respect to a
specific factual allegation which would entitle him to relief. The
discovery provisions of Rule 6 do not contemplate the type of
fishing trip on which Clark seeks to embark.
Related to his alleged need to more fully develop his claims
prior to the entry of summary judgment, Clark lastly contends that
the district court erred in denying his request for a continuance
of the habeas proceedings in order to afford him more time to
develop the factual basis of his juror and pathologist claims. A
district court's denial of a motion to continue in habeas cases is
governed by the abuse of discretion standard. See Spinkellink v.
Wainwright, 578 F.2d 582, 590-91 n.11 (5th Cir. 1978) (citing United
States v. Mendoza, 574 F.2d 1373 (5th Cir. 1978)). For the reasons
discussed above, we find that Clark was not entitled to any
additional discovery or an evidentiary hearing, and thus he was
likewise not entitled to additional time to develop those claims
which the district court determined had already been adequately
developed.
In sum, because Clark was provided a full and fair hearing by
the state court on his claims, and because there is no factual
15
dispute which if proven true, would entitle Clark to relief, we
find that he was not entitled to, and the district court did not
abuse its discretion in denying him additional discovery, a
continuance, or an evidentiary hearing. The issues had been
sufficiently developed below such that the district court was able
to decide as a matter of law whether, when construing all of the
facts, both developed and allegedly undeveloped, in a light most
favorable to Clark, he was not entitled to habeas relief.
Accordingly, the district court did not err in deferring to factual
determinations of the state court and summary judgment was
appropriately entered. We thus find that Clark has failed to
demonstrate that his petition involves issues which are debatable
among jurists of reason, that another court could resolve the
issues differently, or that the issues are suitable enough to
deserve encouragement to proceed further, and accordingly we deny
a COA on Clark's second, third, and fourth issues.
C.
In his fifth issue, Clark contends that he is entitled to a
COA on the basis of the district court's failure to grant his
motion for the assistance of an expert in forensic pathology. As
with his requests for additional discovery and an evidentiary
hearing, the basis for Clark's request for the assistance of an
expert in forensic pathology was to help him develop his claim that
Dr. Erdmann, the state's pathologist, may have testified falsely at
his trial.
16
Clark's request for expert assistance was filed pursuant to 21
U.S.C. §§ 848(q)(4)(B) and (q)(9).1 The most pertinent provisions
of § 848(q) provide as follows:
(9) Upon a finding that investigative, expert, or
other services are reasonably necessary for the
representation of the defendant, whether in
connection with issues relating to guilt or the
sentence, the court may authorize the defendant's
attorneys to obtain such services on behalf of the
defendant and, if so authorized, shall order the
payment of fees and expenses therefor under
paragraph (10).
21 U.S.C. § 848(q)(9). Claimants under this section “need only
show indigence and that the services requested are 'reasonably
necessary.'” Fuller, 114 F.3d at 502.
That Clark was indigent is without dispute. However, because
we find that Clark has failed to establish that he had a
substantial need for the assistance of an expert forensic
pathologist under the statute, he was not denied a constitutional
right that would require the issuance of a COA. As discussed
above, the state trial court, in reviewing Clark's state habeas
petition made specific findings which rejected Clark's contention
that Dr. Erdmann perjured himself in Clark's case. Those factual
findings are entitled to a presumption of correctness, especially
whereas here the trial judge and state habeas judge were the same.
See Boyle, 93 F.3d at 186. And Clark has failed to present clear
and convincing evidence sufficient to overcome the presumption of
1
We note that while a COA is required for habeas appeals,
there is no such requirement for appeals brought under
§ 848(q)(4)(B). See Fuller v. Johnson, 114 F.3d 491, 501 n.4 (5th
Cir.), cert. denied, 118 S. Ct. 399 (1997).
17
correctness to which those state court factual findings are
entitled.
We note again, as the district court did, that the state
presented a great deal of other evidence, including Clark's two
confessions, all of which overwhelmingly established Clark's
involvement, the nature and extent of the victim's injuries, the
sexual assault, and the cause of death, as well as those
conclusions to which Dr. Erdmann testified. Indeed, the record
clearly reveals that even without Dr. Erdmann's testimony, each of
his conclusions had been independently established by other
evidence and testimony, and that irrespective of this fact, his
testimony was consistent with the physical evidence which the state
presented. As a result, we cannot conclude that the assistance of
an expert in forensic pathology was substantially necessary since,
in light of the strength of the case presented against Clark,
impeachment of Dr. Erdmann's credibility would have been futile.
The district court did not abuse its discretion in failing to grant
Clark's request for the assistance of an expert forensic
pathologist, and because he has failed to make a substantial
showing of the denial of a constitutional right, we deny Clark's
request for a COA on this issue.
D.
In his sixth issue, Clark argues that he is entitled to a COA
because the district court erred in deferring to as not being
unreasonable those state habeas court fact findings used to defeat
18
his claims that a juror failed to disclose the extent of her
relationship with the prosecutor thus violating his due process
rights. Clark contended that venire member, Sondra Kay Jones,
failed to disclose the extent of her “close relationship” with the
district attorney and that he was consequently denied the right to
be tried by an impartial jury. For primarily the same reasons
given by the district court, and based upon our own review of the
record, we find that Clark has not made a substantial showing of
the denial of a constitutional right on this issue. The same
evidence which Clark presented to the district court was presented
to the state habeas court, which as we have noted above, was the
same court which conducted Clark's criminal trial. Therefore, the
state habeas court's factual findings are entitled to a presumption
of correctness, and Clark has failed to rebut the presumption of
correctness with “clear and convincing” evidence that such factual
findings are incorrect. The evidence presented established nothing
more than that Ms. Jones had a strictly professional working
relationship with the district attorney.
Furthermore, under AEDPA, the state court's adjudication of
this issue is dispositive unless it involved an unreasonable
application of clearly established federal law or was based on an
unreasonable determination of the facts in light of the evidence
presented. Based on Clark's failure to put forth anything more
than what was disclosed during voir dire and based upon the
affidavits and proffers presented to it, the state court's factual
determination that Ms. Jones answered truthfully regarding the
19
extent of her relationship with the district attorney, as well as
its conclusion that there was no constitutional violation, were
both reasonable and without error. Clark has failed to demonstrate
that this issue would be debatable among jurists of reason, that
another court could resolve the issue differently, or that the
issue is suitable enough to deserve encouragement to proceed
further. We therefore deny Clark's request for a COA on this
issue.
E.
In his final issue, Clark argues that he is entitled to a COA
because the trial court's punishment phase jury instruction failed
to define mitigating evidence in violation of the Eighth Amendment
and the due process clause of the Constitution. Clark contends
that the jury instruction given at the punishment phase of his
trial was devoid of a proper definition of mitigating evidence and
failed to focus the jury on his personal and moral culpability or
blameworthiness.
The jury in this case was instructed as follows:
When you deliberate about the questions posed
in the Special Issues, you must consider any
mitigating circumstances raised by the
evidence present in both phases of the trial.
You are instructed that any evidence which, in
your opinion, mitigates against the imposition
of the death penalty, may cause you to have a
reasonable doubt as to whether or not the
death penalty should be imposed in this case.
Even if you find and believe beyond a
reasonable doubt that the conduct of the
defendant which caused the death of the
deceased was committed deliberately and with
the reasonable expectation that the death of
20
the deceased, [the named decedent], would
result; and even if you find and believe
beyond a reasonable doubt that there is a
probability that the defendant would commit
criminal acts of violence that would
constitute a continuing threat to society; if
you have a reasonable doubt based upon the
mitigating evidence that has been presented in
this case as to whether the death penalty
should be imposed in this case, then you will
answer the Special Issues propounded to you
herein “No.”
We find that Clark has failed to make a substantial showing of
the denial of a constitutional right with respect to this issue.
The district court noted that the relevant question with respect to
this issue is whether there was a reasonable likelihood the jury
interpreted the given instruction as precluding their consideration
of constitutionally relevant mitigating evidence. See Johnson v.
Texas, 509 U.S. 350, 367 (1993). The district court concluded, and
we agree that the jury was in no way hindered or limited in their
consideration of mitigating evidence. The decisions of the state
courts, both on direct criminal appeal and on state habeas review,
denying relief on this ground were neither contrary to clearly
established Supreme Court precedent nor based on an unreasonable
application thereof, and are thus dispositive of the issue. Here
again, Clark has failed to demonstrate that this issue would be
debatable among jurists of reason, that another court could resolve
the issue differently, or that the issue is suitable enough to
deserve encouragement to proceed further, and accordingly we deny
a COA on this issue as well.
IV. CONCLUSION
21
Having carefully reviewed the record, we conclude that Clark
has failed to make a substantial showing of the denial of a
constitutional right with respect to any of the issues raised in
his request for COA, and accordingly we DENY his request for COA on
all issues raised therein.
22
Clark v. Johnson
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