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
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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
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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.
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