Woods v. Cockrell

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-50193

BOBBY WAYNE WOODS,

Petitioner - Appellant,

VERSUS

JANIE COCKRELL, Director,
Texas Department of Criminal Justice,
Institutional Division,

Respondent - Appellee.

Appeal from the United States District Court
For the Western District of Texas, Austin Division
September 24, 2002

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Petitioner Woods, a Texas state death penalty inmate, requests

a certificate of appealability (“COA”) under 28 U.S.C. §§ 2253 -

2254 on two issues. First, whether the standard of review used by

the Texas Court of Criminal Appeals when reviewing the sufficiency

of the evidence relating to the jury’s determination of the special

issue of future dangerousness, and whether its refusal to review

1
the trial jury’s determination of the sufficiency of mitigating

evidence at all, violates constitutional due process and equal

protection. Second, whether the Texas trial court, upheld by the

appellate court, erred in refusing to instruct the jury pursuant to

Simmons v. South Carolina, 512 U.S. 154 (1994). We deny Woods’s

request on each issue.

I. Background.

In the early morning hours of April 30, 1997, Woods went to

the house of his former girlfriend, Schwana Patterson, in Granbury,

Texas. Though they had previously lived together, the two had

split up. Woods later admitted to having used drugs before going

to the house, including “crank” and PCP. Schwana was not at home

when Woods arrived, but he found an open window into the bedroom

where Schwana’s two children, Sarah, 11, and Cody, nine, were

sleeping. He grabbed Sarah by the foot; Cody awoke to Sarah’s

screams as Woods beat her chest.

He forced the two children to leave through the window in

their nightclothes. Later investigation found Woods’s semen on

Sarah’s bedcover, indicating that he had had sexual contact with

her. This was borne out in other evidence, including statements by

Woods himself, Sarah’s friends, notes she had left in her diary

indicating that she hated Woods and wanted him gone, and that she

had contracted the sexually-transmitted disease Human Papilloma

Virus (“HPV”). Woods was also infected with HPV. When Sarah’s

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body was later found, forensic evidence including larvae

development in her traumatized genitals also indicated that she had

been sexually molested.

Woods took the children in his car to a cemetery. Enroute,

Cody, in the back seat, noticed a black-handled knife in the back

of the car. At the cemetery, Woods took Cody out of the car and

asked him if his mother was seeing anyone else. He hit Cody and

commenced strangling him in front of the car. Cody later testified

that he thought he was going to die. He awoke later, crawled over

a fence, and attracted the attention of a horseback rider who

called the police.

The police later found Woods and told him that they had the

“whole story” from Cody. They asked him to tell them where to find

Sarah, hoping that she was still alive. Woods told them, “You will

not find her alive. I cut her throat.” He then led the police to

Sarah’s body and gave them two written statements. In the

statements, he admitted to having had sexual contact with Sarah

before leaving the house, that he had taken drugs, and that after

Cody fell unconscious in the cemetery, Sarah had started screaming.

He left with her in the car toward a bridge on highway 144. She

continued to yell that she would tell the police that he had hit

Cody. He attempted to quiet her by holding a knife to her throat.

According to his statement, Sarah jerked and the knife cut her

throat.

Her body was clothed in an inside-out shirt, a sports bra, and

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a pair of shorts, without panties. Her throat had been deeply cut,

severing her larynx and several major arteries and veins, causing

massive external bleeding that was the cause of her death.

In addition to finding Woods’s semen on Sarah’s blanket,

investigators found a large butcher knife, stained with Sarah’s

blood, inside a trash bag that Woods had borrowed from a neighbor

the morning after he abducted Sarah and Cody. The bag also

contained a pawn ticket bearing Woods’s signature and address for

items he admitted stealing from the Patterson home. Sarah’s blood

was on Woods’s jersey, which was in the back of his car; her

panties were on the car’s floorboard. There was evidence that

Woods had scratches on his face and arms on the day after the

murder that were not there the day before.

Woods was arrested and charged with, inter alia, capital

murder and was so indicted on June 4, 1997, in Hood County, Texas.

The indictment charged him with the murder of Sarah Patterson in

the course of committing or attempting to commit the kidnaping of

Sarah and Cody Patterson, or in the alternative, the murder of

Sarah in the course of committing or attempting to commit the

aggravated sexual assault of Sarah. He was also indicted for the

attempted capital murder of Cody, arising out of the same criminal

transaction.

On Woods’s motion, venue was changed to Llano County, where he

pleaded not guilty. At trial, Woods testified on his own behalf

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and admitted to the general contours of that morning’s events,

including the abductions, but not to the murder. Instead, he

offered a version which tended to implicate his cousin. He was

found guilty by the jury on May 21, 1998. Following a punishment

hearing, the jury returned affirmative answers on May 28 on the

issues relating to Woods’s future dangerousness and intent to

commit murder, and a negative answer on the existence of mitigating

circumstances to justify a life sentence. The Llano County trial

court sentenced Woods to death.

Woods appealed the conviction and sentence to the Texas Court

of Criminal Appeals, and concurrently filed a state application for

writ of habeas corpus. The Court of Criminal Appeals affirmed in

an unpublished opinion. Woods v. State, No. 73,136 (Tex. Crim.

App. June 14, 2000). His motion for rehearing was denied and the

court entered a mandate on September 13, 2000. The Court of

Criminal Appeals also denied Woods’s habeas petition in an

unpublished opinion based on the findings of the trial court. Ex

parte Woods, No. 44,856-01 (Tex. Crim. App. Sept. 13, 2000). The

United States Supreme Court denied certiorari on February 21, 2001.

Woods v. Texas, 531 U.S. 1155 (2001). Woods petitioned for federal

habeas relief in the United States District Court for the Northern

District of Texas on December 11, 2000. That court transferred the

case to the Western District of Texas, which entered its ruling on

summary judgment on February 8, 2002. Pursuant to 28 U.S.C. §

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2253(c), which provides that a prisoner may not appeal the denial

of a petition for habeas corpus under § 2254 without first

obtaining a COA from a circuit judge, Woods now seeks a COA on

these issues from us in a petition filed April 25, 2002.

II. Standard of Review.

Woods’s federal habeas petition was filed after the effective

date of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”). Thus, the AEDPA applies to his COA application. Lindh

v. Murphy, 521 U.S. 320, 335-36 (1997); Nobles v. Johnson, 127 F.3d

409, 412-13 (5th Cir. 1997). To prevail on an application for a

COA, a petitioner must make a “substantial showing of the denial of

a constitutional right, a demonstration that . . . includes showing

that reasonable jurists could debate whether. . . the petition

should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed

further.” Moore v. Johnson, 225 F.3d 495, 500 (5th Cir. 2000),

cert. denied, 121 S. Ct. 1420 (2001), quoting Slack v. McDaniel,

529 U.S. 473, 483 (2000).

In assessing whether a petitioner has demonstrated a

substantial showing of the denial of a constitutional right, we

must keep in mind the deference scheme laid out in 28 U.S.C. §

2254(d). See Moore, 225 F.3d at 501.

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

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 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). “Section 2254(d)(1) provides the standard of

review for questions of law and mixed questions of law and fact.”

Caldwell v. Johnson, 226 F.3d 367, 372 (5th Cir. 2000). The court

may grant habeas relief under the “unreasonable application” clause

“if the state court identifies the correct governing legal

principle but applies it incorrectly, or expands a legal principle

to an area outside the scope intended by the Supreme Court.” Id.

Furthermore, the state court’s application “must be ‘unreasonable’

in addition to being merely ‘incorrect.’ ” Id. In other words,

the appropriate inquiry is “ ‘whether the state court’s application

of clearly established federal law was objectively unreasonable.’”

Id. (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)). With

respect to the “contrary to” clause of § 2254(d)(1), “a federal

court may grant the writ if the state court has arrived at a

conclusion opposite to that reached by the Supreme Court on a

question of law, or if the state court decides the case differently

than the Supreme Court on a set of materially indistinguishable

facts.” Id.

We review a district court’s grant of summary judgment in a

habeas proceeding de novo. Soffar v. Johnson, 237 F.3d 411, 449

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(5th Cir. 2000). “When reviewing summary judgment on a petition

for habeas corpus, consistent with the provisions of 28 U.S.C. §

2254(d), we ‘presume all state court findings of fact to be correct

in the absence of clear and convincing evidence.’ ” Id.; Caldwell,

226 F.3d at 372.

“Because the present case involves the death penalty, any

doubts as to whether a COA should issue must be resolved in [the

petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th

Cir. 2000).

III. Analysis.

As a preliminary matter, we must address the scope of Woods’s

petition. He “submits that a certificate of appealability should

issue herein to consider all of the issues raised by the Petitioner

. . . and [] that the following matters merit issuance of a

certificate of appealability by way of example only[.]” Woods then

briefed in some detail the two issues we now review. In the

district court, Woods raised 28 issues on federal habeas review.

Several of them overlapped the two issues presented before us. The

district court denied all 28 in an order dated February 8, 2002.1

1
In his later petition for COA to the district court, Woods
also asserted that a COA “should issue herein to consider all of
the issues raised by the Petitioner before the court herein and the
following matters by way of example only.” He then briefed three
issues. On April 12, 2002, the district court considered only
those three issues, although noting that some number of Woods’s
original habeas grounds were incorporated into them, and granted a
COA on one, that being the admissibility of Woods’s confession. As
to the other two, the same issues now raised before us, the

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To the extent that Woods’s petition might be construed to embrace

any of his prior issues beyond those that we now address, they are

denied as inadequately briefed and waived. Martin v. Cain, 246

F.3d 471, 475 n.1 (5th Cir.), cert. denied, 122 S. Ct. 194 (2001)

(issues not briefed will not be considered); Dardar v. Lafourche

Realty Co., 985 F.2d 824, 831 (5th Cir. 1993)(“[q]uestions posed

for appellate review but inadequately briefed are considered

abandoned”).

A. Texas appellate review of the sufficiency of the evidence.

Woods contends that the Texas Court of Criminal Appeals

violates constitutional due process using the standard under which

it reviews evidence of future dangerousness for sufficiency and by

refusing to review the sufficiency of mitigating evidence. He also

makes the unsupported contention that such reviews are a violation

of constitutional equal protection, but did not brief that

assertion and does not seriously argue it. We will address the due

process issue and treat the equal protection issue as abandoned.

Woods first argues that the Texas appellate court applies the

standard of Jackson v. Virginia, 443 U.S. 301 (1979) to the

determination of the sufficiency of the evidence to support the

jury’s finding of his future dangerousness. He contends that the

more stringent standard of Clewis v. State, 922 S.W.2d 126 (Tex.

Crim. App. 1996) should be applied instead.

district court denied a COA.

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 The Texas Court of Criminal Appeals has ruled that the Texas

constitution imposes a requirement for an appellate court to review

the factual sufficiency of the elements of an offense that is more

stringent than that imposed under the United States Constitution’s

due process clause. Id. at 129-30. In that regard, a Texas court

of appeals “views all the evidence without the prism of ‘in the

light most favorable to the prosecution’ . . . [and] sets aside the

verdict only if it is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust.” Id. at 129. In so

doing, the Court of Criminal Appeals rejected the use of Jackson as

the appropriate standard in noncapital cases. Id. Jackson

requires only “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt.” Jackson, 443 U.S. at 319.

The Court of Criminal Appeals does not, however, apply the

Clewis standard to determining whether a finding of future

dangerousness in a capital murder case has met federal

constitutional due process. See, e.g., Chamberlain v. State, 998

S.W.2d 230, 232-33 (Tex. Crim. App. 1999). Instead, it explicitly

applies the Jackson standard. Woods attempts to convince us that

the Clewis standard should have been used by the state and that the

Texas state standard should be that adopted on federal review. We

refuse.

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 The Clewis standard is rooted in the Texas constitution.

Clewis, 922 S.W.2d at 130. It applies to the power to review

questions of fact when proving the elements of an offense in

criminal cases. Id. Jackson, on the other hand, reflects the

federal constitutional due process standard. We apply that

standard in our review of federal habeas petitions. See, e.g.,

Santellan v. Cockrell, 271 F.3d 190, 193 (2001). We note that the

state appellate court observed the federal standard of review on

the question of future dangerousness -- as distinct from a finding

on the elements of an offense -- in a capital murder case. It did

so knowing that we would do so on federal habeas review. We cannot

impose a Texas constitutional standard for the factual review of

the elements of a crime on the state’s courts of appeals when

reviewing the issue of a defendant’s future dangerousness. Neither

do we adopt other than the federal standard.

During the punishment phase of the trial, the jury was

presented with evidence of Woods’s future dangerousness, including

toxicology evidence rebutting Woods’s claims that he was under the

influence of drugs at the time of the murder and witnesses who

testified regarding Woods’s affinity for knives and his propensity

to taunt people with them. There was psychiatric testimony that

Woods had an antisocial personality disorder. When combined with

his violent tendencies, he posed a continuing threat to commit

future acts of criminal violence. Additionally, there was evidence

11
regarding the opportunities that life-sentenced capital offenders

had to commit violence in a prison environment. Woods countered

with evidence from jailers that he had not caused any problems

while incarcerated before and during the trial and that he had

become suicidal after his conviction. He also presented evidence

of borderline mental retardation and the ability of the Texas penal

system to control such prisoners. A defense psychologist disagreed

that Woods had an antisocial personality disorder and that Woods

would probably not commit criminal acts of violence in a prison

environment. A family physician also offered testimony challenging

whether Woods was the source of the HPV infection found in Sarah.

On the balance, the jury returned a finding of future

dangerousness. On review under Jackson, the Texas Court of

Criminal Appeals’s decision to deny relief was not unreasonable and

we will not disturb it.

Woods next argues that the Texas appellate court’s refusal to

review the jury’s determination of whether special mitigating

factors existed to sentence a criminal otherwise fully qualified

for death instead to life in prison, is a violation of due process.

This is precisely the issue we answered in Moore v. Johnson as a

pure question of law. See Moore, 225 F.3d at 505.

A capital murder trial in Texas proceeds in a bifurcated

process. In the first, or “guilt-innocence,” phase, a defendant’s

eligibility for consideration of the death penalty is determined.

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Once that eligibility is determined, the trial proceeds to the

second, or “punishment,” phase, wherein the defendant is either

selected for death or for the alternative sentence of life

imprisonment. In that phase, the state presents the jury with

evidence of certain aggravating factors, including the manner of

the offense and future dangerousness. The defendant also presents

the jury with mitigating evidence. The jury is then asked to

determine whether the aggravating factors have been shown beyond a

reasonable doubt, thus qualifying the defendant for selection for

the death penalty. If so, the jury is then asked whether the

defendant’s mitigating evidence is sufficient to warrant the

imposition of a life sentence rather than the death penalty. The

Texas Court of Criminal Appeals has explained that:

[i]n Texas, this mitigating evidence is admissible at the
punishment phase of a capital murder trial. Once
admitted, the jury may then give it weight, if in their
individual minds it is appropriate, when answering the
questions which determine sentence. However, “[t]he
amount of weight that the factfinder might give any
particular piece of mitigating evidence is left to ‘the
range of judgment and discretion’ exercised by each
juror.”

See Colella v. State, 915 S.W.2d 834, 844 (Tex. Crim. App.

1995)(quoting Banda v. State, 890 S.W.2d 42, 54 (Tex. Crim. App.

1994); Johnson v. State, 773 S.W.2d 322, 331 (Tex. Crim. App.

1989), aff’d, Johnson v. Texas, 509 U.S. 350 (1993)). No burden of

proof exists for either the state or the defendant to disprove or

prove the mitigating evidence. Colella, 915 S.W.2d at 844. Thus,

13
each juror individually and subjectively determines what evidence,

if any, is sufficient to mitigate against the imposition of the

death penalty.

The Texas Court of Criminal Appeals has consistently refused

to review such a subjective determination on the part of individual

jurors. See Colella, 915 S.W.2d at 845 (“[b]ecause the weighing of

‘mitigating evidence’ is a subjective determination undertaken by

each individual juror, we decline to review the evidence for

sufficiency”).

We held in Moore that Texas is within the ambit of federal law

as interpreted by the United States Supreme Court. See Moore, 225

F.3d at 507. We did so in view of Tuilaepa v. California, 512 U.S.

967 (1994), in which the Supreme Court distinguished between a

jury’s “eligibility decision” and its “selection decision.” It is

the eligibility decision that must be made with maximum

transparency to “make rationally reviewable the process for

imposing a sentence of death.” Moore, 225 F.3d at 506 (quoting

Tuilaepa, 512 U.S. at 973). On the other hand, a jury is free to

consider a “myriad of factors to determine whether death is the

appropriate punishment. Indeed, the sentencer may be given

unbridled discretion in determining whether the death penalty

should be imposed after it has found that the defendant is a member

of the class made eligible for that penalty.” 225 F.3d at 506

(quoting 512 U.S. at 979-80). It is the jury’s subjective and

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“narrowly cabined but unbridled discretion to consider any

mitigating factors,” 225 F.3d at 507, that Texas refrains from

independently reviewing. We continue to hold that Texas may

correctly do so.

Woods argues that the approach taken by the Court of Criminal

Appeals conflicts with the Supreme Court’s ruling in Johnson v.

Texas, 509 U.S. 350 (1993). He characterizes Johnson as imposing

a requirement on a reviewing court to balance a defendant’s

capacity for rehabilitation using the mitigating evidence of his

character and background against the circumstances of the murder

and any other violent acts to review the sufficiency of evidence.

We disagree. Johnson was, at the time it was decided, the “latest

in [the Supreme Court’s] series of decisions in which the Court has

explained the requirements imposed by the Eighth and Fourteenth

Amendments regarding consideration of mitigating circumstances by

sentencers in capital cases.” Id. at 359 (emphasis added). The

Court then reviewed its decisions on the role and availability of

mitigating evidence to juries, from the earliest in Furman v.

Georgia, 408 U.S. 238 (1972), through Greg v. Georgia, 428 U.S. 153

(1976), Proffitt v. Florida, 428 U.S. 242 (1976), Jurek v. Texas,

428 U.S. 262 (1976), Woodson v. North Carolina, 428 U.S. 280

(1976), Roberts v Louisiana, 428 U.S. 325 (1976), Lockett v. Ohio,

438 U.S. 586 (1978), Eddings v. Oklahoma, 455 U.S. 104 (1982),

Franklin v. Lynaugh, 487 U.S. 164 (1988), Penry v. Lynaugh, 492

15
U.S. 302 (1989), and Boyde v. California, 494 U.S. 370 (1990),

among others.

Some of those decisions specifically examined aspects of the

Texas capital crime special issues as they applied to giving a jury

a meaningful way to give effect to mitigating evidence. In

particular, the Court distinguished the facts in Johnson, regarding

the jury’s ability to give effect to the defendant’s youth at the

time of the crime, from those in Penry v. Lynaugh, regarding the

jury’s ability to give effect to the defendant’s evidence of mental

retardation and childhood abuse. Johnson, 509 U.S. at 364-73. The

only apparent reference to the duty of a reviewing court is that

the Court had “held that a reviewing court must determine ‘whether

there is a reasonable likelihood that the jury has applied the

challenged instruction in a way that prevents the consideration of

constitutionally relevant evidence.’” Id. at 367, quoting Boyde,

494 U.S. at 380.

We decline to read Johnson as Woods propounds. We instead

reiterate our previous holding on this issue in Moore and rule that

Woods has not made a substantial showing of the denial of a

constitutional right and that the Texas Court of Criminal Appeals

is not unreasonable in its refusal to review the sufficiency of

mitigating evidence.

Finally, we note that if Woods had successfully argued on

either of these two sufficiency-of-review issues, he still could

16
not apply the result to his case. His reading of either Clewis or

Johnson, or both, would impose a new rule of law not made

retroactive by the Supreme Court. Therefore, he would be barred

from its use under the non-retroactivity doctrine of Teague v.

Lane, 489 U.S. 288 (1989).

B. The Simmons issue.

Woods finally attempts to extend the jury instruction

requirement of Simmons v. South Carolina, supra, to cover his

circumstance, citing only that “[s]uch an instruction is required

to comport with due process.” By that statement, we infer that

Woods raises this argument under color of the Fourteenth Amendment.

Woods argues that Simmons, Skipper v. South Carolina, 476 U.S.

1 (1990), and O’Dell v. Netherland, 521 U.S. 151 (1997) hold that

where future dangerousness is at stake, a jury must be told of the

fact that the prisoner, if given a life sentence rather than a

death sentence, would serve a significant period of incarceration

before he could be released on parole. He blatantly misstates the

meaning of those decisions.

Simmons requires 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 parole-ineligible. 512 U.S. at 171 (“[t]he

State may not create a false dilemma by advancing generalized

arguments regarding the defendant’s future dangerousness while, at

17
the same time, preventing the jury from learning that the defendant

never will be released on parole”). The pertinent aspect of that

ruling as it applies to Woods’s case is that publishing such

information to the jury is required only where state law provides

for life imprisonment without possibility of parole as an

alternative to the death penalty.

Skipper held that a state’s refusal to admit a defendant’s

evidence of good behavior in prison during the punishment phase of

his capital trial prevented the presentation of relevant mitigating

evidence to the jury in violation of the Eighth, 476 U.S. at 4, and

Fourteenth, id. at 5 n.1, Amendments.

In O’Dell, the Court held that the rule of Simmons was not a

“new rule” within the meaning of Teague v. Lane, supra. Neither

did it fall within one of the exceptions to Teague because it was

not a “watershed rule of criminal procedure.” It therefore was

inapplicable retroactively on collateral review, even for a

defendant who six years earlier had been sentenced to death while

prevented from informing his jury that if sentenced to life, he

would have been parole-ineligible. 521 U.S. at 165-66.

Under his misreading of these cases, Woods would analogize his

situation to that of Simmons. He argues that the alternative

sentence to the death penalty in Texas is life imprisonment with

parole-eligibility after 40 years and that such a “significant

period of incarceration” should be treated identically to life

18
imprisonment without possibility of parole for the purposes of

informing the jury. In addition to the language of Simmons itself,

we have recognized that parole eligibility in a life sentence fails

to trigger its rule. We interpret Simmons to require that a jury

be informed about the defendant’s parole eligibility only when (1)

the state argues that a defendant represents a future danger to

society, and (2) the defendant is legally ineligible for parole.

See Miller v. Johnson, 200 F.3d 274, 290 (5th Cir.), cert. denied,

531 U.S. 849 (2000). That is not the case here.

Even if Simmons could be read as Woods asserts, it would be a

new rule of constitutional criminal procedure and thus Teague-

barred. O’Dell, 521 U.S. at 165-66; Wheat v. Johnson, 238 F.3d

357, 361-62 (5th Cir.), cert. denied, 532 U.S. 1070 (2001) (holding

that extending the Simmons rule to the Wheat facts would establish

a new rule of constitutional law, which is barred on collateral

review by Teague).

Therefore, Woods cannot make a substantial showing of the

denial of a constitutional right.

IV. Conclusion.

For the reasons stated herein, find that the state court’s

application of clearly established federal law was neither

objectively unreasonable nor opposite to the conclusions of the

Supreme Court. We therefore DENY Woods’s petition for COA on all

issues.

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