Rowell v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 25, 2005

Charles R. Fulbruge III
Clerk
No. 04-70013

ROBERT DALE ROWELL,

Petitioner-Appellant,

versus

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

Respondent-Appellee.

Appeal from the United States District Court
For the Southern District of Texas

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

DeMOSS, Circuit Judge:

Petitioner Robert Dale Rowell (“Rowell”) was convicted and

sentenced to death in Texas state court for the capital murder of

Raymond David Mata. Rowell filed a petition for writ of habeas

corpus in the United States District Court for the Southern

District of Texas pursuant to 28 U.S.C. § 2254. The district court

denied Rowell’s petition. Rowell now requests a certificate of

appealability (“COA”) from this Court pursuant to 28 U.S.C. §

2253(c)(2), seeking to appeal the district court’s denial of habeas
relief. To begin, this Court GRANTS Rowell’s motion for leave to

file a reply to Respondent’s opposition to request for COA and

further GRANTS Rowell’s motion for leave to file oversize reply.

For the reasons detailed below, we DENY Rowell’s application

for COA because he has failed to make a substantial showing of the

denial of a constitutional right as to his claims: (1) that his

constitutional rights were violated when the trial court refused to

define for the jury the term “society” in the future dangerousness

special issue of the punishment charge; and (2) that Texas law is

unconstitutional because it fails to assign a proper burden of

proof on the special issues and fails to provide for appellate

review of the mitigating evidence.

BACKGROUND

Rowell was convicted and sentenced to death in April 1994 for

the capital offense of murdering Raymond David Mata while in the

course of committing or attempting to commit robbery. On direct

appeal in December 1996, the Texas Court of Criminal Appeals

(“TCCA”) affirmed Rowell’s conviction and sentence. In October

1997, the Supreme Court denied Rowell’s petition for writ of

certiorari.

Thereafter, in April 1998, Rowell filed a state application

for writ of habeas corpus. The trial court entered findings of

fact and conclusions of law recommending the denial of relief. In

September 2002, the TCCA adopted the trial judge’s findings and

2
conclusions and denied Rowell habeas relief. Rowell then filed a

federal habeas petition in the district court in September 2003.

Respondent filed an answer and a motion for summary judgment. In

February 2004, the district court granted Respondent’s motion,

dismissed Rowell’s petition, entered a final judgment, and denied

Rowell a COA on his claims. Rowell timely filed the instant

application for COA.

DISCUSSION

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

after the effective date of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). Therefore, his petition is subject

to the procedures imposed by AEDPA; Rowell’s right to appeal is

governed by the COA requirements of § 2253(c). See Slack v.

McDaniel, 529 U.S. 473, 478 (2000).

Under AEDPA, a petitioner must obtain a COA before an appeal

can be taken to this Court. 28 U.S.C. § 2253(c); see also Miller-

El v. Cockrell, 537 U.S. 322, 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.”). When a habeas

petitioner requests permission to seek appellate review of the

dismissal of his petition, this Court limits its examination to a

“threshold inquiry into the underlying merit of his claims.”

Miller-El, 537 U.S. at 327. “This threshold inquiry does not

require full consideration of the factual or legal bases adduced in

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support of the claims. In fact, the statute forbids it.” Id. at

336.

A COA will be granted if the petitioner makes “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). Meeting this standard requires a petitioner to

demonstrate that “reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to

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

336 (internal quotation marks and citation omitted). At issue is

the debatability of the underlying constitutional claim, but not

the resolution of that debate. Id. at 342. “[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.

When the district court denies a petitioner’s petition on

procedural grounds without reaching the underlying constitutional

claim, a COA should issue if the petitioner demonstrates both that

reasonable jurists would find it debatable whether the district

court was correct in its procedural ruling and that reasonable

jurists would find it debatable whether the petition states a valid

claim of the denial of a constitutional right. Slack, 529 U.S. at

478. In death penalty cases, doubts on whether a COA should issue

are resolved in the petitioner’s favor. Hernandez v. Johnson, 213

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

Whether the district court’s procedural determination as to
Rowell’s claim based on the trial court’s refusal to define
“society” for the jury is debatable.

Rowell challenges the trial court’s refusal to define the term

“society” used in issue no. 1 of the special issues submitted to

the jury during the penalty phase of his trial.1 Rowell argues the

1
Special issue no. 1 stated:

Do you find from the evidence beyond a reasonable doubt that
there is a probability that the Defendant, Robert Dale Rowell,
would commit criminal acts of violence that would constitute
a continuing threat to society?

During the jury’s deliberations, it sent out the following note
asking for clarification on the use of the term “society” in
special issue no. 1:

Is the “society” we consider in Special Issue No. 1, only the
one in which the Defendant will live, or does it include the
society in which he will not live (considered as if he were
living in the broader society)?

ie – Can we receive further instruction or definition re:
“society”?

The trial judge answered the jury:

Ladies and Gentlemen:

I am prohibited by law from expanding on the Court’s charge.

Joe Kegans.

The jury answered special issue no. 1 with “yes.” Special issue
no. 2 asked:

Do you find from a preponderance of the evidence, taking into
consideration all of the evidence, including the circumstances
of the offense, the Defendant’s character and background, and
the personal moral culpability of the Defendant, Robert Dale
Rowell, that there is a sufficient mitigating circumstance or

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trial court should have responded to the jury’s note by instructing

them to consider the interests of both the prison population and

free society when answering special issue no. 1. Rowell contends

the trial judge instead erroneously informed the jury that he was

prohibited by law from expanding the jury charge. Rowell asserts

the judge’s ex parte and contradictory post-argument jury

instruction violated Texas procedural law and his Sixth, Eighth,

and Fourteenth Amendment rights. Rowell relies on Bollenbach v.

United States, 326 U.S. 607 (1946), and United States v. Stevens,

38 F.3d 167 (5th Cir. 1994), for the proposition that a trial court

has a constitutional duty to “expand on the charge” in response to

a jury note.

In addition, Rowell challenges the interaction of the judge’s

alleged unconstitutional reply with the instruction that the jury

could not consider how long Rowell could be confined if they

sentenced him to life imprisonment.2 Rowell argues there is no way

of knowing in what way jurors were confused about the definition of

circumstances to warrant that a sentence of life imprisonment
rather than a death penalty be imposed?

The jury answered special issue no. 2 with “no.”
2
The given parole law instruction disallowed jury consideration
and discussion of “any possible action of the Board of Pardons and
Paroles Division of the Texas Department of Criminal Justice or of
the Governor, or how long the Defendant would be required to serve
to satisfy a sentence of life imprisonment.” Texas law now allows
the trial court to instruct capital juries on the parole
implications of a life sentence. TEX. CRIM. PROC. CODE ANN. art.
37.071 § (e)(2)(Vernon Supp. 2004).

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“society” in the context of the parole law instruction; they may

have excluded prison society from their definition of “society.”

Rowell also challenges the TCCA’s standard of review used to

assess the trial court’s reply to the jury’s question. Rowell

argues a COA should issue because the district court failed to

address this issue. Rowell relies on Boyde v. California, 494 U.S.

370 (1990), and contends full briefing would allow him to show

there is a reasonable possibility that the trial court’s incorrect

reply prevented consideration of the constitutionally relevant

evidence that he is not a danger to prison society.

Rowell argues that despite any procedural default related to

the jury instruction issue, the federal courts should intervene

when state courts interpret state law so as to evade consideration

of a federal issue. Rowell alternatively contends his default

should be excused because he did not have an opportunity to object

to the trial court’s answer to the jury note due to the court’s

communication to the jury being made ex parte and in secret.

Rowell stresses he was prejudiced by the trial court’s response

because there is no way to know what a jury properly instructed on

the definition of “society” would have done.

Respondent replies that the district court correctly

determined that Rowell’s challenge to the trial court’s refusal to

define “society” is procedurally defaulted because he objected to

the trial court’s response for the first time in his state habeas

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petition. Respondent argues the state habeas court properly

concluded that Rowell defaulted his claim based on the Texas

contemporaneous objection rule. See Barrientes v. Johnson, 221

F.3d 741, 779 (5th Cir. 2000) (noting that the failure to timely

object waives any error in jury instructions unless so prejudicial

no instruction could cure the error). Respondent maintains this

Court has consistently upheld this Texas procedural rule as an

independent and adequate state ground that procedurally bars

federal habeas review of a petitioner’s claims. See Sharp v.

Johnson, 107 F.3d 282, 285-86 (5th Cir. 1997); Nichols v. Scott, 69

F.3d 1255, 1280 n.48 (5th Cir. 1995).

Respondent contends Rowell cannot show cause to excuse his

procedural default for three reasons. First, Rowell presented no

evidence showing the trial judge did not follow the typical

procedure of addressing the matter in open court. TEX. CODE CRIM.

PROC. art. 36.27.3 Second, Rowell at essence is arguing that the

3
Article 36.27 provides, in part:

When the jury wishes to communicate with the court, it shall
so notify the sheriff, who shall inform the court thereof.
Any communication relative to the cause must be written,
prepared by the foreman and shall be submitted to the court
through the bailiff. The court shall answer any such
communication in writing, and before giving such answer to the
jury shall use reasonable diligence to secure the presence of
the defendant and his counsel, and shall first submit the
question and also submit his answer to the same to the
defendant or his counsel or objections and exceptions, in the
same manner as any other written instructions are submitted to
such counsel, before the court gives such answer to the jury,
but if he is unable to secure the presence of the defendant

8
state court incorrectly interpreted Texas procedural law by finding

he defaulted his claim; it is not the role of the federal habeas

court to reexamine state-court determinations of state-law

questions. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

Finally, Rowell had a duty to preserve any error in the proposed

charge’s definition of “society” in writing before the charge was

read to the jury. See TEX. CODE CRIM. PROC. arts. 36.14, 36.15. In

addition, Respondent stresses Rowell cannot establish prejudice and

has not alleged actual innocence of capital murder or of his death

sentence for miscarriage of justice.

The district court here noted that the state court explicitly

found that Rowell had defaulted his jury instruction claim under

Texas’s contemporaneous-objection rule. The court relied on this

Circuit’s clear and consistent statement “that the Texas

contemporaneous objection rule constitutes an adequate and

independent state ground that procedurally bars federal habeas

review of a petitioner’s claims.” Fisher v. Texas, 169 F.3d 295,

300 (5th Cir. 1999); see also Cotton v. Cockrell, 343 F.3d 746, 754

(5th Cir. 2003). The district court then continued on to a cause

and prejudice analysis of Rowell’s circumstances. The court

and his counsel, then he shall proceed to answer the same as
he deems proper. The written instruction or answer to the
communication shall be read in open court unless expressly
waived by the defendant.

TEX. CODE CRIM. PROC. art. 36.27.

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concluded that Rowell made no argument that cause and prejudice

existed to overcome the state procedural bar; he only disputed,

based on the silent record, whether he in fact defaulted his claim

under state procedural law. The court cited Estelle for the

proposition that reexamining state court determinations of state

law issues is not proper on federal habeas. 502 U.S. at 67-68.

The district court then considered the merits of Rowell’s jury

instruction claim, apart from the procedural bar, coming to the

conclusion that it was bound by Supreme Court and Fifth Circuit

caselaw allowing Texas to withhold parole eligibility information

from its capital juries and by this Court’s specific holding that

Texas’s use of the language “continuing threat to society” in the

future dangerousness special issue is “not so vague as to require

clarifying instructions.” James v. Collins, 987 F.2d 1116, 1120

(5th Cir.), cert. denied, 114 S. Ct. 30 (1993). The court thus

found no reason to disturb Texas’s use of the “continuing threat to

society” special issue.

Here, our Circuit’s caselaw forecloses us from reviewing

Rowell’s barred jury instruction claim. See, e.g., Sharp, 107 F.3d

at 285-86 (explaining that petitioner’s “argument that the Texas

contemporaneous objection rule is not an independent and adequate

state ground upon which to base a procedural bar to federal review”

was foreclosed by Amos v. Scott, 61 F.3d 333 (5th Cir. 1995)).

Based upon the two-prong threshold inquiry this Court performs

10
under Slack, we find reasonable jurists could not debate whether

the district court was correct in its ruling of procedural default

based on the independent and adequate state bar under the Texas

contemporaneous objection rule, and in its findings of no cause and

prejudice to excuse the default. We therefore do not need to

address the possible validity of Rowell’s claims related to the

jury instruction as he has not met one of the required prongs under

Slack. 529 U.S. at 485 (encouraging courts to analyze the

procedural prong first where possible).

Whether the district court’s denial of relief based on Rowell’s
challenges to the mitigation special issue is debatable.

Rowell also objects on appeal to Texas’s use of special issue

no. 2, the mitigation special issue. Rowell argues this special

issue is unconstitutional because Texas law fails to assign a

burden of proof. Rowell also contends this special issue is

unconstitutional because it is not subject to appellate review of

the sufficiency of the mitigating evidence. Rowell also made the

argument (now foreclosed by Schriro v. Summerlin, 124 S. Ct. 2519

(2004)) that Ring v. Arizona, 536 U.S. 584 (2002), is a new

substantive rule of criminal law that should be given retroactive

effect on collateral review. Rowell insists that just as Ring

should be construed to require Texas to provide for some burden of

proof on whether a sufficient mitigating circumstance has been

proven, the Constitution also entitled him to have the TCCA review

whether there was evidence to support the jury’s answer.

11
 Respondent replies that there is no doubt Texas’s special

issues are constitutional. See Jurek v. Texas, 428 U.S. 262, 268-

71 (1976). Respondent stresses that here the jury at the guilt-

innocence phase first found beyond a reasonable doubt that Rowell

was guilty of the intentional murder of Raymond Mata and that the

murder occurred in the course of Rowell’s committing or attempting

to commit robbery. During the punishment phase, the jury then

answered “yes” to the question of whether Rowell would pose a

continuing threat to society, thereby finding that the State had

met its burden of proving Rowell’s future dangerousness to society

beyond a reasonable doubt.4 Consistent with Supreme Court

precedent, Respondent argues this determination – whether a

defendant falls within the narrowed class of death-eligible

defendants – is properly subject to review by the TCCA. See, e.g.,

4
The State presented evidence pertaining to the wanton and
callous disregard for human life Rowell exhibited through the facts
of his crime, as related by the district court:

[Rowell] came to the home of people with whom he was
supposedly friends in search of drugs and money. While he
probably could have gotten what he wanted with very little
resistance from Wright due to his size, [Rowell] chose instead
to beat him in the head with a claw hammer. Then, still
receiving no resistance from any of the victims, [Rowell]
marched all three into the bathroom and shot them. One of the
victims also had signs of continued beatings after he was
shot. [Rowell] then proceeded to take a shower and clean
himself up.

The State also presented evidence that Rowell killed a fellow
inmate while in the penitentiary by stabbing him multiple times in
the chest with a homemade knife.

12
Swearingen v. State, 101 S.W.3d 89, 95-98 (Tex. Crim. App. 2003)

(reviewing sufficiency of evidence on conviction); Guevara v.

State, 97 S.W.3d 579, 581 (Tex. Crim. App. 2003) (reviewing

sufficiency of evidence on future dangerousness). Respondent

contends the mitigation special issue satisfies the Eighth

Amendment’s requirements for the individualized selection decision

because it allows the jury to “consider relevant mitigating

evidence of the character and record of the defendant and the

circumstances of the crime.” Tuilaepa v. California, 512 U.S. 967,

972 (1994); see also Franklin v. Lynaugh, 487 U.S. 164, 182 (1988)

(noting Texas’s special issues sufficiently allow for jury

discretion to consider mitigating aspects).5

In addition, Respondent maintains Ring has no application to

Rowell’s case because there the Supreme Court did not contemplate

the Sixth Amendment’s “reasonable doubt” requirement to a capital

sentencing jury’s findings regarding mitigating factors; Ring

focused exclusively on certain judicial findings regarding

aggravating factors. 536 U.S. at 597 n.4; see also Apprendi v. New

5
Here, the jury was presented testimony by Rowell’s brother, a
psychiatrist, two Texas Department of Criminal Justice employees,
and two prison ministry counselors. They testified that: Rowell
was a good brother, son, and grandson; he was a good employee; he
had, with one exception of killing while incarcerated, a relatively
clear prison record; he found religion while incarcerated; he was
depressed and introverted; and he was previously a chronic drug
user who would not be violent when free from the influence of
drugs.

13
Jersey, 530 U.S. 466, 490 n.16 (2000) (noting distinction between

“facts in aggravation of punishment and facts in mitigation”).

Respondent argues Rowell cannot rely on Ring because that case did

not address the constitutional issue he presents. Respondent

contends that unlike the sentencing schemes challenged in Ring and

Apprendi, the Texas mitigation special issue does not operate as

“the functional equivalent of an element of a greater offense.”

Apprendi, 530 U.S. at 494 n.19. Moreover, the trial judge has no

fact-finding role in a capital murder case under Texas law. TEX.

CRIM. PROC. CODE ANN. art. 37.071 § 2(e). Respondent also stresses

the Supreme Court does not require the jury to make its

individualized determination of the defendant’s moral culpability

in any particular way, as long as it is allowed to judge what is

mitigating and in what way. See, e.g., Franklin, 487 U.S. at 179.

Respondent argues the Texas mitigation special issue serves its

constitutionally mandated function and Rowell’s reading of Ring

would present the absurd circumstance of requiring prosecutors to

prove the absence of mitigating circumstances beyond a reasonable

doubt. Respondent also emphasizes this Court has consistently

rejected the claim that a capital defendant is entitled to

appellate review of the mitigating evidence. See Woods v.

Cockrell, 307 F.3d 353, 359-60 (5th Cir. 2002); Johnson v.

Cockrell, 306 F.3d 249, 256 (5th Cir. 2002), cert. denied, 538 U.S.

926 (2003).

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 Moreover, Respondent argues that Rowell’s claims related to

the mitigation special issue (lack of burden of proof and of

appellate review) are barred from federal habeas review under

Teague v. Lane, 489 U.S. 288, 310 (1989), because he argues for new

rules of constitutional law. Moreover, to the extent Rowell relies

on Ring for his claims, the Supreme Court has held Ring is not

retroactive. Summerlin, 124 S. Ct. at 2526.

In Apprendi, the Supreme Court held the Sixth Amendment and

due process require: “Other than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” 530 U.S. at 490. The Court

thus invalidated as a violation of the Fourteenth Amendment a New

Jersey state hate crime statute that authorized an increase in the

defendant’s maximum prison sentence based on the judge's finding by

a preponderance of evidence that the defendant acted with the

purpose to intimidate the victim based on particular

characteristics of the victim. Id. at 491-93.

The Supreme Court relied on Apprendi in Ring to overrule part

of Arizona’s capital sentencing scheme, which had provided that

trial judges determine the presence or absence of aggravating

factors required by Arizona law for imposition of the death

penalty, and which had been previously upheld by Walton v. Arizona,

497 U.S. 639 (1990). Ring, 536 U.S. at 609. The Sixth Amendment

15
requires that “[c]apital defendants, no less than noncapital

defendants . . . are entitled to a jury determination of any fact

on which the legislature conditions an increase in their maximum

punishment.” Id. at 589. However, the Supreme Court underscored

that Ring had made no Sixth Amendment claim with respect to

mitigating circumstances. Id. at 597 n.4. Recently, the Supreme

Court in Summerlin, definitively held that Ring announced a new

procedural rule which does not apply retroactively to cases already

final on direct review. 124 S. Ct. at 2526.

The district court explained that no burden of proof exists

for either the defendant or the State to prove or disprove

mitigating evidence at the punishment phase. This is because the

Supreme Court recognizes an important distinction between “facts in

aggravation of punishment and facts in mitigation.” Apprendi, 530

U.S. at 490 n.16. The court concluded that Texas’s death penalty

practice does not violate Apprendi or its extension by Ring because

the jury in Texas is the entity that determines death eligibility

beyond a reasonable doubt, not a judge. Moreover, no Supreme Court

or Fifth Circuit authority requires the State to prove the absence

of mitigating circumstances beyond a reasonable doubt. The

district court also noted (pre-Summerlin) that it could not rule

otherwise except by creating a new rule of constitutional law in

violation of Teague. The court thus determined that the TCCA’s

decision to summarily dismiss Rowell’s burden of proof complaint

16
was not contrary to, or an unreasonable application of, federal

law. See 28 U.S.C. § 2254(d)(1). The court also determined Rowell

had not distinguished significant Fifth Circuit caselaw repeatedly

rejecting his argument that the Constitution requires the TCCA to

review mitigating evidence. See, amongst others, Woods, 307 F.3d

at 359-60; Beazley v. Johnson, 242 F.3d 248, 261 (5th Cir.), cert.

denied, 122 S. Ct. 329 (2001). Thus, the district court concluded

the state court’s refusal to subject Rowell’s mitigation evidence

to appellate review withstood AEDPA review. See 28 U.S.C. §

2254(d)(1).

Here, based upon the limited threshold inquiry this Court

performs under the mandate of Miller-El, we find reasonable jurists

would not be able to debate whether this issue should have been

resolved in a different manner by the district court. No Supreme

Court or Circuit precedent constitutionally requires that Texas’s

mitigation special issue be assigned a burden of proof. Circuit

precedent has specifically rejected the argument that there is a

constitutional requirement that mitigation special issue evidence

be subject to appellate review by the state. Woods, 307 F.3d at

359-60 (continuing to hold that the TCCA’s refusal to review

mitigating evidence is “within the ambit of federal law as

interpreted by the Supreme Court”). In addition, we find that any

argument premised upon an application of Ring is foreclosed as to

Rowell because his conviction was final upon direct review in

17
October 1997 before Ring was announced in June 2002, see 28 U.S.C.

§ 2244(d)(1)(A), and because Summerlin has further clarified the

nonretroactivity of Ring, 124 S. Ct. at 2526.

Whether the due process argument raised by Rowell’s recently
granted reply to Respondent’s opposition to COA renders his special
issue claims debatable.

We now address Rowell’s argument, first raised in his reply to

Respondent’s opposition to COA, that the post-COA decisions in

Blakely v. Washington, 124 S. Ct. 2531 (2004), and Summerlin compel

the conclusion that special issue no. 1 is fatally defective.

Rowell also argues that in light of Blakely, it is at least

debatable that the “probability of a continuing threat” factor

violates the reasonable doubt standard required by the due process

clause of the Fourteenth Amendment.

The Supreme Court in Blakely held that the Washington state

trial court’s sentencing of a defendant for more than three years

above the 53-month statutory maximum of the standard range for his

offense, on the basis of the sentencing judge's finding that

defendant acted with deliberate cruelty, violated the defendant's

Sixth Amendment right to trial by jury. 124 S. Ct. at 2537, 2543.

“When a judge inflicts punishment that the jury’s verdict alone

does not allow, the jury has not found all the facts which the law

makes essential to the punishment, and the judge exceeds his proper

authority.” Id. at 2537 (internal quotation marks and citation

omitted). Blakely was a further clarification of the Court’s

18
longstanding “commitment to Apprendi.” 124 S. Ct. at 2539.

The Supreme Court in Blakely did not address in any way the

due process implications of Texas’s special issues on future

dangerousness and mitigation. Blakely directly addressed how

Washington’s sentencing scheme in the context of judge-made factual

findings violated the Sixth Amendment. 124 S. Ct. at 2537, 2543.

Texas’s use of special issue no. 1 in the punishment phase of

Rowell’s capital case, which required the jury to answer “yes” only

if the State had proven “beyond a reasonable doubt that there is a

probability that [Rowell] would commit criminal acts of violence

that would constitute a continuing threat to society,” does not

violate Blakely, Apprendi, or Ring. Accepting Rowell’s argument

that special issue no. 1 is unconstitutional because the term

“probability” swallows the reasonable doubt standard under an

extension of Apprendi and Ring by Blakely would be a violation of

Teague. See 489 U.S. at 316. Moreover, nothing in Blakely

requires that special issue no. 2 be subjected to the “beyond a

reasonable doubt” burden of proof. Accepting such an argument also

would create a new constitutional rule violating Teague. See 489

U.S. at 316. Therefore, we find that reasonable jurists could not

debate the following: Rowell’s petition has not stated a valid

claim of the denial of a constitutional right on this issue. See

28 U.S.C. § 2253(c)(2); Slack, 529 U.S. at 478.

CONCLUSION

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 Having carefully reviewed the record of this case and the

parties’ respective briefing, for the reasons set forth above, we

conclude Rowell has failed to satisfy this Court that reasonable

jurists would find the district court’s resolution of the issues

debatable. Rowell has also failed to show it is debatable that his

additional due process claims adequately stated the denial of any

constitutional right. Therefore, we DENY Rowell a COA.

Motions GRANTED. COA DENIED.

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