Hughes v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 10, 2005

Charles R. Fulbruge III
Clerk
No. 04-70014

TOMMIE COLLINS HUGHES

Petitioner-Appellant

v.

DOUGLAS DRETKE, Director, Texas Department of Criminal Justice,
Correctional Institutions Division

Respondent-Appellee

--------------------
Appeal from the United States District Court
for the Northern District of Texas
--------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

BENAVIDES, Circuit Judge:

Petitioner Tommie Collins Hughes was convicted in Texas

state court of capital murder and sentenced to death. Hughes

filed a petition for a writ of habeas corpus in the United States

District Court for the Northern District of Texas pursuant to 28

U.S.C. § 2254. The district court subsequently denied the

petition. The district court also denied Petitioner a

certificate of appealability (“COA”). Petitioner now requests a

COA from this Court pursuant to 28 U.S.C. § 2253(c)(2). For the

reasons that follow, Petitioner’s Application for a Certificate

of Appealability from Denial of a Petition for Writ of Habeas

1
Corpus is denied.

I. BACKGROUND

On August 13, 1997, Petitioner robbed and killed two women

in the parking lot of a theater in north Dallas, Texas. After

Petitioner was convicted of this crime and his sentence was

imposed, the Texas Court of Criminal Appeals affirmed the

conviction and sentence on direct appeal, and the United States

Supreme Court denied certiorari review.

Petitioner subsequently filed a state application for a writ

of habeas corpus. Without holding an evidentiary hearing on

Petitioner’s claims, the state trial-level habeas court entered

findings of fact and conclusions of law and recommended to the

Texas Court of Criminal Appeals that Petitioner’s application be

denied. The Texas Court of Criminal Appeals adopted the trial

judge’s findings and conclusions and denied Petitioner’s

application.

Petitioner then filed a federal petition for a writ of

habeas corpus in March 2001. The federal district court denied

relief and also denied Petitioner’s application for a COA.

Petitioner filed a timely notice of appeal. Petitioner now

appeals the district court’s denial of a COA.

Petitioner raises eight issues in twelve separate grounds

for relief. Succinctly stated, Petitioner complains that: (1)

the trial court allowed the state to exercise a peremptory strike

against a prospective juror who already had been accepted by the

2
defense (Ground 2); (2) the trial court refused to allow voir

dire, evidence, or argument regarding parole eligibility (Ground

3); (3) evidence of an unadjudicated extraneous offense was

admitted during the sentencing phase of trial, despite the lack

of timely notice by the state of its intention to use evidence of

an unadjudicated extraneous offense and its failure to prove the

unadjudicated extraneous offense beyond a reasonable doubt

(Grounds 4, 5, and 6); (4) the Texas death penalty scheme is

unconstitutional (Grounds 7 and 8); (5) the trial court deprived

him of the opportunity to investigate possible jury misconduct

(Ground 9); (6) the trial court failed to suppress certain

evidence seized without a warrant or probable cause (Ground 10);

(7) he received ineffective assistance of counsel (Grounds 1, 4,

6, and 11); and (8) the cumulative effect of these constitutional

errors violated his right to a fair trial (Ground 12).

II. STANDARD FOR GRANTING A CERTIFICATE OF APPEALABILITY

Hughes filed his § 2254 petition for a writ of habeas corpus

after the effective date of the Antiterrorism and Effective Death

Penalty Act ("AEDPA"). The petition, therefore, is subject to

the procedures imposed by AEDPA. See Lindh v. Murphy, 521 U.S.

320, 336 (1997).

Under AEDPA, a petitioner must obtain a COA before he can

appeal the district court’s denial of habeas relief. See 28

U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322,

3
336 (2003) ("[U]ntil a COA has been issued federal courts of

appeals lack jurisdiction to rule on the merits of appeals from

habeas petitioners.").

The COA determination under § 2253(c) requires an
overview of the claims in the habeas petition and a
general assessment of their merits. We look to the
District Court's application of AEDPA to petitioner's
constitutional claims and ask whether that resolution was
debatable amongst jurists of reason. This threshold
inquiry does not require full consideration of the
factual or legal bases adduced in support of the claims.
In fact, the statute forbids it.

Miller-El, 537 U.S. at 336.

A COA will be granted only if the petitioner makes "a

substantial showing of the denial of a constitutional right." 28

U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the

district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to

deserve encouragement to proceed further." Miller-El, 537 U.S.

at 327. "The question is the debatability of the underlying

constitutional claim, not the resolution of that debate." Id. at

342. "Indeed, a claim can be debatable even though every jurist

of reason might agree, after the COA has been granted and the

case has received full consideration, that petitioner will not

prevail." Id. at 338. Moreover, "[b]ecause the present case

involves the death penalty, any doubts as to whether a COA should

issue must be resolved in [petitioner's] favor." Hernandez v.

4
Johnson, 213 F.3d 243, 248 (5th Cir. 2000).

We further note that when reviewing the district court's

assessment, we must be mindful of the deferential standard of

review of 28 U.S.C. § 2254(d). Under § 2254(d), a federal court

cannot grant habeas corpus relief with respect to any claim that

was adjudicated on the merits in state court proceedings unless

the adjudication of that claim either (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). With respect to the review of factual

findings, AEDPA significantly restricts the scope of federal

habeas review. Factual findings are presumed to be correct, and

a petitioner has the burden of rebutting this presumption with

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

III. ANALYSIS

A. Appointment of trial counsel claim

In his first ground for relief, Petitioner contends that his

trial counsel were not qualified or certified to represent

defendants in death penalty cases. Specifically, Petitioner

argues that his lawyers were presumptively unqualified,

ineffective, and incompetent because the standards for

5
appointment in death penalty cases, together with a list of

qualified attorneys, were not posted in the district clerk’s

office as required by Article 26.052 of the Texas Code of

Criminal Procedure.1

To prevail on a claim of ineffective assistance of counsel,

Petitioner must show (1) that his counsel’s performance was

deficient, and (2) that the deficient performance prejudiced his

defense. See Strickland v. Washington, 466 U.S. 668, 689-94

(1984). Regarding the first prong, “[t]o establish deficient

performance, a petitioner must demonstrate that counsel’s

representation ‘fell below an objective standard of

reasonableness.’” Wiggins v. Smith, 539 U.S. 510, 521 (2003)

(quoting Strickland, 466 U.S. at 688). Regarding the second

prong, “to establish prejudice, a ‘defendant 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 534

(quoting Strickland, 466 U.S. at 694).

1
Article 26.052 ensures that indigent defendants accused
of capital murder are appointed counsel who are qualified under
standards adopted by a specially designated committee in each
administrative judicial region. Once these standards are
promulgated, Article 26.052 requires the committee to
“prominently post the standards in each district clerk’s office
in the region with a list of attorneys qualified for
appointment.” Tex. Code Crim. Proc. Ann. art. 26.052(d)(3)
(Vernon Supp. 2003).

6
 In the instant case, the district court found Petitioner’s

argument “specious” and we agree. Notwithstanding the state’s

technical violation of Article 26.052, the Texas Court of

Criminal Appeals held that any error in this regard was harmless:

[T]he record reflects [appellant] was represented by
fully qualified and capable counsel. Both men were trial
attorneys possessing extensive experience in criminal
matters, including capital murder litigation. Their
actions at appellant’s trial capably demonstrate this
experience. Additionally, the list of qualified counsel
that was eventually posted in compliance with [Article
26.052] contained the names of both appellant’s appointed
counsel, and the trial judge, in his findings of fact and
conclusions of law on this issue, asserted that, if the
list had been available, he would have chosen both
attorneys to represent appellant in this case.

Hughes v. State, 24 S.W.3d 833, 837-38 (Tex. Crim. App. 2000).

Because Petitioner failed to show that the finding of harmless

error was incorrect, the district court overruled this ground for

relief.

By complaining only of a state statutory violation,

Petitioner has failed to allege a constitutional violation. See

Lawrence v. Lensing, 42 F.3d 255, 258 (5th Cir. 1994) (“A state

prisoner seeking federal court review of his conviction pursuant

to 28 U.S.C. § 2254 must assert a violation of a federal

constitutional right.”). Petitioner alleges only that because

his trial attorneys were not appointed pursuant to Article

26.052, counsel were presumptively deficient. No clearly

established federal law supports such a conclusion, and we have

never adopted such a per se rule. See United States v. Maria-

7
Martinez, 143 F.3d 914, 916 (5th Cir. 1998) (“This court has

never applied a per se ineffectiveness rule; accordingly, whether

and when we may apply such a rule is res nova in this circuit.”);

United States v. McKinney, 53 F.3d 664, 675 (5th Cir. 1995)

(stating that even where an attorney was not duly licensed to

practice law because of a failure to meet the substantive

requirements for the practice of law, there is no Sixth Amendment

violation where the attorney was adequately credentialed to

practice law before the federal court). Accordingly, we find

that reasonable jurists could not debate the district court’s

conclusion that Petitioner’s first ground for relief is without

merit, nor could jurists conclude that this claim deserves

encouragement to proceed further, and we decline to issue a COA

on this claim.

B. Peremptory strike claim

In his second ground for relief, Petitioner contends that

the trial court violated his right to due process under the

Eighth2 and Fourteenth Amendments by allowing the state to

improperly exercise a peremptory strike against a prospective

juror who already had been accepted by the defense for service on

the jury. At trial, Petitioner objected to the state’s exercise

of a peremptory strike against the prospective juror in question

2
We note that the Eighth Amendment does not contain a due
process requirement; however, Petitioner attempts to incorporate
due process protections into the Eighth Amendment.

8
on the ground that, in a capital case, Texas state law requires

the state to exercise its peremptory strike before defense

counsel accepts a prospective juror. See Tex. Code Crim. Proc.

Ann. art. 35.13 (Vernon Supp. 2003).

The district court determined that the United States Supreme

Court has never held that the order in which parties exercise

their peremptory strikes in a death penalty case violates due

process or any other federal constitutional right. See, e.g.,

Georgia v. McCollum, 505 U.S. 42, 57 (1992) (“[P]eremptory

challenges are not constitutionally protected fundamental rights

. . . [and] may be withheld altogether without impairing the

constitutional guarantee of an impartial jury and a fair

trial.”); Pointer v. United States, 151 U.S. 396, 410 (1894)

(“[T]he order in which peremptory challenges shall be exercised

is in the discretion of the court.”). The district court also

found that Petitioner’s complaint was based on state procedural

law alone and that Petitioner did not allege a constitutional due

process violation on direct appeal. Accordingly, the district

court concluded that any extension of federal constitutional

principles to Petitioner’s second claim was foreclosed by the

non-retroactivity doctrine established in Teague v. Lane, 489

U.S. 288 (1989). Teague prohibits the retroactive application of

new constitutional rules of criminal procedure on collateral

review. Id. at 310. Under Teague, a new rule is one which

9
either breaks new ground, imposes a new obligation on the states

or the federal government, or was not dictated by precedent

existing at the time the defendant’s conviction became final.3

See Graham v. Collins, 506 U.S. 461, 467 (1993) (quoting Teague,

489 U.S. at 301). Unless reasonable jurists hearing the

defendant’s claim at the time his conviction became final would

have felt compelled by existing precedent to rule in his favor, a

federal habeas court is barred from doing so on collateral

review. Id. (quoting Saffle v. Parks, 494 U.S. 484, 488 (1990)).

There are two exceptions to the non-retroactivity principle

announced in Teague: (1) where the new rule of criminal

procedure places certain kinds of conduct beyond the power of the

government to proscribe; or (2) if the rule requires the

observance of procedures that are “implicit in the concept of

ordered liberty.” Teague, 489 U.S. at 307 (citations omitted).

“[U]nless the Supreme Court has clearly established that the new

rule falls within one of the exceptions to the non-retroactivity

principle of Teague v. Lane, that new rule could not be

considered with regard to petitions governed by [] AEDPA.”

3
A conviction becomes final for purposes of retroactivity
analysis when the availability of direct appeal to the state
courts has been exhausted and the time for filing a petition for
a writ of certiorari has elapsed or a timely filed petition has
been finally denied. Caspari v. Bohlen, 510 U.S. 383, 390
(1994). Petitioner’s timely filed petition for a writ of
certiorari was denied by the Supreme Court on November 6, 2000.
See Hughes v. Texas, 531 U.S. 980, 980 (2000).

10
Cockerham v. Cain, 283 F.3d 657, 660 (5th Cir. 2002).

Petitioner does not cite any authority in existence as of

the date his conviction became final for Teague purposes,

November 6, 2000, which would have compelled reasonable jurists

on that date to accept Petitioner’s second claim for relief.

Moreover, neither of the two exceptions to the non-retroactivity

principle announced in Teague applies to Petitioner’s claim.

In addressing Petitioner’s second claim “for a grant of COA

based on the irregularity in the sequence of challenges during

voir dire, we [also] note that violations of state law are not

generally cognizable on habeas review unless the error renders

the trial as a whole fundamentally unfair.” Bigby v. Cockrell,

340 F.3d 259, 278 (5th Cir. 2003). To be entitled to the grant

of a COA on this claim, Petitioner must show that the tactical

disadvantage he purportedly suffered as a result of the trial

court’s action resulted in a fundamentally unfair trial. See id.

By complaining only of a violation of state procedure, Petitioner

has failed to show that the panel eventually seated was

constitutionally biased or that the trial was fundamentally

unfair. Accordingly, we find that reasonable jurists could not

debate the district court’s conclusion that Petitioner’s second

claim for relief is without merit, nor could jurists conclude

that this claim deserves encouragement to proceed further, and we

decline to issue a COA on this claim.

11
 C. Parole eligibility claim

In his third ground for relief, Petitioner contends that his

rights under the Fifth, Eighth, and Fourteenth Amendments were

violated when the trial court refused to allow voir dire,

evidence, or argument regarding minimum parole eligibility.

The district court concluded that Petitioner’s parole

eligibility claim was Teague-barred on the basis of this Court’s

decision in Woods v. Cockrell, 307 F.3d 353 (5th Cir. 2002). In

Woods, we declined to extend the Supreme Court’s decision in

Simmons v. South Carolina, 512 U.S. 154 (1994), which holds that

where a defendant’s future dangerousness is at issue and state

law prohibits his release on parole after being sentenced to life

imprisonment, the jury must be informed that the defendant is

legally ineligible for parole. Id. at 361. We concluded that

under Simmons, providing the jury with information regarding

parole eligibility “is required only where state law provides for

life imprisonment without possibility of parole as an alternative

to the death penalty.” Id. Where a defendant sentenced to life

imprisonment as an alternative to the death penalty is parole

eligible, as Petitioner here is, Simmons does not require that

the jury be informed of minimum parole eligibility. Id.

Moreover, in Woods, we determined that even if Simmons were to

apply, it would be a new rule of constitutional criminal

procedure and thus Teague-barred. See id.; see also O'Dell v.

12
Netherland, 521 U.S. 151, 165-66 (1997) (holding that extending

the rule of Simmons would establish a new rule of constitutional

law not within one of the exceptions to Teague and therefore

inapplicable retroactively on collateral review).

Accordingly, we find that reasonable jurists could not

debate the district court’s conclusion that Petitioner’s third

claim for relief is Teague-barred, nor could jurists conclude

that this claim deserves encouragement to proceed further, and we

decline to issue a COA on this claim.

D. Introduction of extraneous offense evidence claims

In his fourth ground for relief, Petitioner alleges that he

was denied effective assistance of counsel and due process of law

under the Sixth, Eighth, and Fourteenth Amendments when the trial

court allowed the introduction of evidence of an unadjudicated

capital murder during the sentencing phase of trial, despite the

state’s untimely notice. In his sixth ground for relief,

Petitioner contends that Article 37.071 of the Texas Code of

Criminal Procedure, which does not require the state to notify

capital murder defendants of its intent to use extraneous offense

evidence at the sentencing phase of trial, violates his right to

due process and effective assistance of counsel, as guaranteed by

the Sixth, Eighth, and Fourteenth Amendments.

Regarding Petitioner’s due process claims, the district

court found that although Petitioner’s trial counsel sought to

13
exclude evidence linking Petitioner to another murder, he never

objected on federal constitutional grounds. The district court

then noted that the state habeas court had determined that these

constitutional claims were waived. The district court further

determined that the failure to preserve error at the state court

level is an adequate state procedural bar for purposes of federal

habeas review. See Fisher v. Texas, 169 F.3d 295, 300 (5th Cir.

1999).

Although the state habeas court went on to address the

merits of Petitioner’s claim regarding the introduction of an

unadjudicated extraneous offense, “[t]he rule in this circuit is

that, when a state court bases its decision upon the alternative

grounds of procedural default and a rejection of the merits, a

federal court must, in the absence of good ‘cause’ and

‘prejudice,’ deny habeas relief because of the procedural

default.” Cook v. Lynaugh, 821 F.2d 1072, 1077 (5th Cir. 1987).

Here, Petitioner offers no explanation for the procedural default

of his extraneous offense evidence claims. Consequently, we find

that reasonable jurists could not debate the district court’s

conclusion that Petitioner’s due process claims are procedurally

barred for purposes of federal habeas review, nor could jurists

conclude that these claims deserve encouragement to proceed

further, and we decline to issue a COA on these claims.

Regarding Petitioner’s ineffective assistance of counsel

14
claims, the district court determined that Petitioner did not

articulate how the actual performance of counsel was deficient.

The district court also determined that Petitioner was merely

reurging his lack-of-notice complaint under the guise of an

ineffective assistance complaint in a “transparent attempt to

circumvent the procedural bar” that precluded federal habeas

review on the merits. Because Petitioner fails even to plead

counsel deficiency or prejudice, see Strickland v. Washington,

466 U.S. 668, 687 (1984), we find that reasonable jurists could

not debate the district court’s conclusion that Petitioner’s

ineffective assistance of counsel claims are without merit, nor

could jurists conclude that these claims deserve encouragement to

proceed further, and we decline to issue a COA on these claims.

E. Proof of extraneous offense evidence claim

In his fifth ground for relief, Petitioner contends that his

right to due process under the Eighth and Fourteenth Amendments

was violated when the jury was allowed to consider evidence of an

unadjudicated capital murder at the sentencing phase of trial

without requiring the state to prove the offense beyond a

reasonable doubt.

In reviewing Petitioner’s fifth ground for relief, the

district court concluded that this claim is foreclosed by Teague

because the Supreme Court has never held that the federal

constitution requires a state to prove an extraneous offense

15
beyond a reasonable doubt. See Harris v. Johnson, 81 F.3d 535,

541 (5th Cir.) (“[T]he use of evidence of unadjudicated

extraneous offenses, at the sentencing phase of Texas capital

murder trials, does not implicate constitutional concerns.”),

cert. denied, 517 U.S. 1227 (1996). Petitioner does not cite any

authority in existence as of the date his conviction became final

for Teague purposes, November 6, 2000, which would have compelled

reasonable jurists on that date to accept Petitioner’s fifth

ground for relief. Moreover, neither of the two exceptions to

the non-retroactivity principle announced in Teague applies to

Petitioner’s claim. Therefore, we find that reasonable jurists

could not debate the district court’s conclusion that

Petitioner’s fifth ground for relief is Teague-barred, nor could

jurists conclude that this claim deserves encouragement to

proceed further, and we decline to issue a COA on this claim.

F. Future dangerousness special issue claim

In his seventh ground for relief, Petitioner complains that

the Texas death penalty scheme violates his Fourteenth Amendment

right to due process and his Eighth Amendment right to be free

from cruel and unusual punishment. Specifically, Article 37.071

of the Texas Code of Criminal Procedure states that all twelve

jurors must answer the future dangerousness issue affirmatively

before the trial court may impose the death penalty. See Tex.

Code Crim. Proc. Ann. art. 37.071 (Vernon Supp. 2003). At least

16
ten jurors, however, must answer the special issue negatively in

order for a life sentence to be imposed. See id. If a capital

jury does not unanimously answer the future dangerousness issue

affirmatively, or garner ten “no” votes, the result is a life

sentence. See id. Petitioner argues that the future

dangerousness special issue question may confuse jurors in that

jurors inclined to vote “no” may be persuaded to change their

votes to “yes” in the mistaken belief that unless at least ten

jurors vote “no,” the defendant will receive the death penalty.

The district court determined that this claim advocates an

extension of the Supreme Court’s decision in Mills v. Maryland,

486 U.S. 367 (1988), and that such an extension has been

consistently rejected by this Court. In Mills, the Supreme Court

rejected a state death penalty scheme in which jurors likely

believed that they were required to agree unanimously on the

existence of a specific mitigating circumstance. Mills, 486 U.S.

at 384. As the district court noted, we have consistently held

that we are barred by Teague from extending Mills. See Miller v.

Johnson, 200 F.3d 274, 288 (5th Cir.) (stating that Mills is not

applicable to the Texas capital sentencing scheme), cert. denied,

531 U.S. 849 (2000); Jacobs v. Scott, 31 F.3d 1319, 1328-29 (5th

Cir. 1994) (same), cert. denied, 513 U.S. 1067 (1995). Because

we are barred by Teague from extending Mills, no clearly

established federal law calls into doubt the Texas death penalty

17
statute. Accordingly, we find that reasonable jurists could not

debate the district court’s conclusion that Petitioner’s seventh

ground for relief is Teague-barred, nor could jurists conclude

that this claim deserves encouragement to proceed further, and we

decline to issue a COA on this claim.

G. Jury discretion claim

In his eighth ground for relief, Petitioner alleges that he

was denied the right to due process and to be free from cruel and

unusual punishment, as guaranteed by the Fifth, Eighth, and

Fourteenth Amendments, because the Texas capital sentencing

statute restricts the discretion of jurors to impose the death

penalty while allowing them unrestricted discretion to consider

all mitigating evidence.

We find Petitioner’s argument to be entirely without merit.

Moreover, the district court determined that Petitioner’s claim

advocates the adoption of Justice Blackmun’s dissenting opinion

in Callins v. Collins, 510 U.S. 1141 (1994). The district court

concluded that because the Supreme Court has never adopted that

minority view, Petitioner’s claim was foreclosed by Teague.

We agree with the district court that Petitioner’s argument

is Teague-barred. Accordingly, we find that reasonable jurists

could not debate the district court’s conclusion that

Petitioner’s eighth ground for relief is without merit, nor could

jurists conclude that this claim deserves encouragement to

18
proceed further, and we decline to issue a COA on this claim.

H. Jury misconduct claims

In his ninth ground for relief, Petitioner contends that he

was denied due process in violation of the Eighth and Fourteenth

Amendments when the state trial court failed to conduct an in

camera examination of the jurors to determine whether the state

had engaged in improper jury communication.

Although Petitioner challenged the state trial court’s

ruling, the district court found that Petitioner did not do so on

federal constitutional grounds. The district court further found

that because Petitioner failed to present his constitutional

claims to the Texas Court of Criminal Appeals, his constitutional

claims remain unexhausted. See Duncan v. Henry, 513 U.S. 364,

366 (1995) (“If a habeas petitioner wishes to claim that an

evidentiary ruling at a state court trial denied him the due

process of law guaranteed by the Fourteenth Amendment, he must

say so, not only in federal court, but in state court.”). Under

Article 11.071 of the Texas Code of Criminal Procedure, a

petitioner is prohibited from filing a second habeas petition in

a death penalty case if the petitioner urges grounds therein that

could have been, but were not, raised in a timely initial

petition. See Tex. Code Crim. Proc. Ann. art. 11.071, § 5

19
(Vernon Supp. 2003).4 The district court determined that this

statute constitutes an adequate state procedural bar for purposes

of federal habeas review. See Fearance v. Scott, 56 F.3d 633,

642 (5th Cir.), cert. denied, 515 U.S. 1153 (1995). The district

court further determined that the procedural bar doctrine also

applies to unexhausted claims if the state court likely would

4
Article 11.071 of the Texas Code of Criminal Procedure
provides in pertinent part:

(a) 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
initial application or in a previously considered
application filed under this article or Article 11.07
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 applicant’s trial under Article 37.071 or
37.0711.

Tex. Code Crim. Proc. Ann. art. 11.071, § 5(a) (Vernon Supp.
2003).

20
dismiss a successive habeas petition under Article 11.071. See

Beazley v. Johnson, 242 F.3d 248, 264 (5th Cir.) (citing Coleman

v. Thompson, 501 U.S. 722, 735 n.1 (1991)) (noting that

procedural default occurs when a petitioner fails to exhaust

available state remedies and “the court to which the petitioner

would be required to present his claims in order to meet the

exhaustion requirement would now find the claims procedurally

barred”), cert. denied, 534 U.S. 945 (2001). The district court

found that a Texas court, if presented with Petitioner’s claim in

a successive habeas petition, would find it barred and,

therefore, procedurally defaulted.

Under Article 11.071, a Texas court may not consider the

merits of, or grant relief based on, a second habeas petition

unless, inter alia, “the . . . claims and issues have not been

and could not have been presented previously in a timely initial

application . . . because the factual or legal basis for the

claim was unavailable on the date the applicant filed the

previous application.” Tex. Code Crim. Proc. Ann. art. 11.071, §

5(a)(1). In the instant case, Petitioner’s constitutional claim

could have been, but was not, raised in his initial state habeas

petition. Therefore, we agree with the district court’s

conclusion that a Texas court, if presented with Petitioner’s

claim in a successive habeas petition, would find it barred.

Accordingly, we find that reasonable jurists could not debate the

21
district court’s conclusion that Petitioner’s ninth ground for

relief is procedurally barred, nor could jurists conclude that

this claim deserves encouragement to proceed further, and we

decline to issue a COA on this claim.

I. Denial of motion to suppress claim

In his tenth ground for relief, Petitioner complains that he

was denied due process under the Eighth and Fourteenth Amendments

when the trial court failed to grant his motion to suppress.

Specifically, Petitioner argues that the trial court should have

suppressed certain evidence, including the murder weapon, blood-

stained clothing, and stolen items belonging to the murder

victims, as the fruits of an illegal arrest.

The district court determined that Petitioner’s suppression-

related claim was barred from federal habeas review by the

doctrine set forth in Stone v. Powell, 428 U.S. 465 (1976). The

Stone doctrine states that a federal court may not grant habeas

relief based on a Fourth Amendment violation where the state has

provided an opportunity for full and fair litigation of the

issue. See Stone, 428 U.S. at 494; Williams v. Collins, 16 F.3d

626, 637-38 (5th Cir.), cert. denied, 512 U.S. 1289 (1994). This

rule applies to all claims arising under the Fourth Amendment.

See, e.g., Cardwell v. Taylor, 461 U.S. 571, 572 (1983) (per

curiam) (arrest); Williams, 16 F.3d at 637-38 (search and

seizure). In order to obtain post-conviction relief in federal

22
court, a petitioner must plead and prove that the state court

proceeding was inadequate. See Davis v. Blackburn, 803 F.2d

1371, 1372 (5th Cir. 1986) (per curiam).

The district court found that Petitioner was afforded a full

and fair opportunity to litigate his search and seizure claim at

trial and on direct appeal. According to the district court, the

Texas Court of Criminal Appeals reviewed the record and

determined that the warrantless arrest of Petitioner was

justified because the “police had satisfactory proof to believe

that the occupants of the car they were pursuing had just

committed a double murder/robbery and that their escape was

imminent.” Hughes v. State, 24 S.W.3d 833, 840 (Tex. Crim. App.

2000). Accordingly, the district court concluded that evidence

seized incident to Petitioner’s lawful arrest was properly

admissible.

We agree with the district court that Petitioner was

afforded a full and fair opportunity at trial to challenge his

arrest, the search of the car, and the seizure of evidence.

Because the state court proceeding was not inadequate, the

doctrine set forth in Stone dictates that Petitioner is barred

from obtaining federal habeas relief on his Fourth Amendment

claim. Therefore, we find that reasonable jurists could not

debate the district court’s conclusion that Petitioner’s tenth

ground for relief is barred by the Stone doctrine, nor could

23
jurists conclude that this claim deserves encouragement to

proceed further, and we decline to issue a COA on this claim.

J. Ineffective assistance of counsel claims

In his eleventh ground for relief, Petitioner contends that

his trial counsel were ineffective in mishandling certain aspects

of the state court trial and failing to preserve error for

appellate and post-conviction review. Specifically, Petitioner

contends that he was denied effective assistance of counsel for

the following reasons: (1) his counsel were rendered ineffective

by the state’s failure to give timely notice of its intent to use

extraneous offense evidence; (2) his counsel were not qualified

or certified to represent defendants in death penalty cases under

Article 26.052 of the Texas Code of Criminal Procedure; (3) his

counsel failed to present evidence in support of his jury

misconduct claim; (4) his attorneys failed to prove that in

connection with the litigation of his motion to suppress,

Petitioner had a reasonable expectation of privacy and standing

to assert his Fourth Amendment claim; (5) his attorneys were

ineffective in conducting voir dire; (6) his counsel failed to

object to the racial composition of the jury; (7) his attorneys

argued in error that he was eligible for parole after thirty-five

years rather than after forty years; and (8) his trial attorneys

failed to cooperate with his state habeas counsel.

Regarding Petitioner’s eleventh ground for relief, we

conclude that Petitioner has waived his third through eighth

24
ineffective assistance of counsel complaints through inadequate

briefing.5 Federal Rule of Appellate Procedure 28(a)(4)

“requires that the appellant’s argument contain the reasons he

deserves the requested relief ‘with citation to the authorities,

statutes and parts of the record relied on.’” Weaver v. Puckett,

896 F.2d 126, 128 (5th Cir.) (citations omitted), cert. denied,

498 U.S. 966 (1990); see also Lookingbill v. Cockrell, 293 F.3d

256, 263 (5th Cir. 2002) (“Where a habeas petitioner fails to

brief an argument adequately, [this Court] consider[s] it

waived.”). In his petition to this Court, Petitioner merely

lists his ineffective assistance complaints in summary fashion,

without discussing the legal and factual basis for each

complaint. In failing to brief his ineffective assistance of

counsel complaints adequately, Petitioner has waived those

claims.

K. Cumulative error claim

In his twelfth and final ground for relief, Petitioner

contends that the cumulative effect of the alleged violations of

his federal constitutional rights outlined in his petition

violated his right to a fair trial. The district court noted

that the cumulative error complaint raised on federal habeas

5
Petitioner has not waived his first two ineffective
assistance of counsel complaints because Petitioner adequately
briefed those complaints elsewhere in his petition to this Court.
The merits of these complaints are discussed in Parts III.A and
III.D, infra.

25
review includes alleged errors that had never been presented to

the state courts for review. The district court concluded that

because those underlying claims are procedurally barred from

federal habeas review, Petitioner’s twelfth ground is likewise

barred due to procedural default.

We agree with the district court that Petitioner’s

cumulative error claim is barred from federal habeas review.

“Meritless claims or claims that are not prejudicial [or claims

that are procedurally barred] cannot be cumulated.” See Westley

v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996). Accordingly, we

find that reasonable jurists could not debate the district

court’s conclusion that Petitioner’s claim is procedurally

defaulted, nor could jurists conclude that this claim deserves

encouragement to proceed further, and we decline to issue a COA

on this claim.

IV. CONCLUSION

Petitioner has not shown that reasonable jurists could

disagree with the district court’s denial of any of his claims,

nor could jurists conclude that any of Petitioner’s claims

deserve encouragement to proceed further. Accordingly, we deny

Petitioner’s Application for a Certificate of Appealability from

Denial of a Petition for Writ of Habeas Corpus.

DENIED.

26