United States Court of Appeals
Fifth Circuit
F I L E D
In the May 30, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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m 05-70031
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JAMES LEWIS JACKSON,
Petitioner-Appellant,
VERSUS
DOUG 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 DAVIS, SMITH, and DENNIS, constitutional right, we deny a COA.
Circuit Judges.
I.
JERRY E. SMITH, Circuit Judge: The evidence presented at trial established
that Jackson murdered his wife and her two
James Jackson seeks a certificate of appeal- daughters because his wife intended to divorce
ability (“COA”) from the denial of his petition him. Jackson confessed to strangling each vic-
for writ of habeas corpus pursuant to 28 tim. The jury found him guilty of capital
U.S.C. § 2254. Because he cannot make a murder for murdering more than one person
substantial showing of the denial of a federal during the same criminal transaction. He was
sentenced to death. II.
Our review on a request for a COA is con-
During the sentencing phase, Jackson filed strained by statute. Absent a COA, we have
a “Motion To Introduce the Testimony of De- no jurisdiction to entertain the merits of Jack-
fendant’s Family and Friends Regarding Their son’s claims on appeal. Miller-El v. Cockrell,
Feelings on the Prospect of a Death Sentence 537 U.S. 322, 336 (2003). Under the Anti-
and the Impact an Execution Would Have on Terrorism and Effective Death Penalty Act of
Them.” The motion asked the court to allow 1996 (“AEDPA”), a petitioner must show that
Jackson to question his friends and family on the state courts’ resolution of his case was ei-
(1) whether they wanted him to die and ther “contrary to, or involved an unreasonable
(2) what the impact on them would be if he application of, clearly established federal law,
were executed. The trial court denied the as determined by the Supreme Court of the
motion. United States” or “resulted in a decision that
was based on an unreasonable determination
The conviction was affirmed on direct ap- of the facts in light of the evidence presented
peal. Jackson v. State, 33 S.W.3d 828 (Tex. in the State court proceeding.” 28 U.S.C.
Crim. App. 2000), cert. denied, 532 U.S. 1068 § 2254(d).1 To grant a COA, we need not de-
(2001). Jackson filed a state petition for writ cide the ultimate merits of the underlying issue
of habeas corpus. The trial court entered find- in the petitioner’s favor, but rather we ask only
ings and conclusions recommending that relief whether he has made “a substantial showing of
be denied; the Court of Criminal Appeals the denial of a constitutional right.” Id. §
adopted those findings and conclusions. Ex 2253(c)(2).
parte Jackson, No. 52,904-01 (Tex. Crim.
App. Sept. 11, 2002). “A petitioner satisfies this standard by dem-
onstrating that jurists of reason could disagree
Jackson filed a federal habeas petition al- with the district court’s resolution of his con-
leging, inter alia, that the refusal to allow the stitutional claim or that jurists could conclude
“execution impact” testimony violated his the issues presented are adequate to deserve
Eighth and Fourteenth Amendment right to encouragement to proceed further.” Miller-
present any evidence that might lead a juror to El, 537 U.S. at 327. Our role is to determine
conclude that a sentence less than death was not whether Jackson is entitled to relief, but
warranted. The district court granted sum- whether the district court’s conclusion that the
mary judgment for the state on that claim, state court adjudication was not contrary to or
holding that the refusal to allow execution im- an unreasonable application of clearly estab-
pact testimony was not an unreasonable appli- lished federal law is one about which jurists of
cation of Supreme Court precedent. The dis- reason could disagree or as to which jurists
trict court rejected Jackson’s other constitu- could conclude that the issues presented are
tional claims and declined to issue a COA.
On appeal, Jackson abandons all claims ex- 1
See also Yarborough v. Gentry, 540 U.S. 1,
cept for his challenge to the exclusion of exe-
5 (2003) (“Where, as here, the state court’s appli-
cution impact testimony. He seeks a COA
cation of governing federal law is challenged, it
from this court based on that claim. must be shown to be not only erroneous, but ob-
jectively unreasonable.”).
2
adequate to deserve encouragement to pro- Fourteenth Amendments require that the sen-
ceed further.2 tencer . . . not be precluded from considering,
as a mitigating factor, any aspect of a defen-
III. dant’s character or record and any of the cir-
A. cumstances of the offense that the defendant
In Lockett v. Ohio, 438 U.S. 586, 604 proffers as a basis for a sentence less than
(1978) (plurality opinion), the Court an- death.” This rule has been applied by the Su-
nounced that the “Eighth Amendment and preme Court in a number of cases.3 “[A] de-
fendant has wide latitude to raise as a miti-
gating factor ‘any aspect of [his or her] char-
2
See Thacker v. Dretke, 396 F.3d 607, 612 acter or record and any of the circumstances of
(5th Cir.), cert. denied, 126 S. Ct. 80 (2005); see the offense that the defendant proffers as a
generally Pippin v. Dretke, 434 F.3d 782 (5th Cir. basis for a sentence less than death.’”4
2005). Because the issue before us was not pre-
sented in Jackson’s state habeas petition, the ap-
propriate state court decision for review is the
To obtain habeas relief, Jackson must sat-
Texas Court of Criminal Appeals’ decision on isfy the standards of AEDPA. We have most
direct review. See Bledsue v. Johnson, 188 F.3d recently described the means by which a peti-
250, 255 n.8 (5th Cir. 1999) (“[A]t no time have tioner in Jackson’s circumstance may proceed:
we suggested that pursuing relief in the Court of
Criminal Appeals in both a petition for discre- The Supreme Court has determined that
tionary review and in an application for a writ of section 2254(d)(1) affords a petitioner two
habeas corpus is necessary to satisfy the exhaus- avenues, “contrary to” and “unreasonable
tion requirement . . . . Only one avenue of post- application,” to attack a state court applica-
conviction relief need be exhausted.”); see also tion of law. Under the first clause:
Myers v. Collins, 919 F.2d 1074, 1076 (5th Cir.
1990); RANDY HERTZ & JAMES S. LIEBMAN, FED- a state court decision is “contrary to
ERAL HABEAS CORPUS PRACTICE AND PROCEDURE
. . . clearly established Federal law, as
§ 23.3(b) (4th ed. 2001) (“Generally, a petitioner
determined by the Supreme Court” if
satisfies the exhaustion requirement if she prop-
erly pursues a claim (1) throughout the entire
(1) “the state court applies a rule that
direct appellate process of the state, or contradicts the governing law set forth
(2) throughout one entire judicial postconviction in [the Supreme Court’s] cases,” or
process available in the state.”). (2) “the state court confronts a set of
facts that are materially indistinguish-
The Court of Criminal Appeals held that it able from a decision of [the Supreme]
was not an abuse of discretion for the trial court Court and nevertheless arrives at a re-
to deny Jackson’s request to introduce testimony
about the emotional impact his execution would
have on his family and friends. See Jackson v. 3
See Eddings v. Oklahoma, 455 U.S. 104
State, 33 S.W.3d 828, 834 (Tex. Crim. App. (1982); Skipper v. South Carolina, 476 U.S. 1
2000). That court relied on Fuller v. State, 827 (1986); McKoy v. North Carolina, 494 U.S. 433
S.W.2d 919, 935-36 (Tex. Crim. App. 1992), (1990); Tennard v. Dretke, 542 U.S. 274 (2004).
which affirmed the denial of a similar request on
4
the ground that the evidence did not pertain to Roper v. Simmons, 543 U.S. 551, 568 (2005)
the appellant’s background, character, record, or (ellipses and second brackets in original) (quoting
the circumstances of the offense. Lockett, 438 U.S. at 604 (plurality opinion)).
3
sult different from [Supreme Court] idence reflecting on the defendant’s back-
precedent.” ground or character, or on the circum-
stances surrounding the crime . . . . Jack-
Under the second clause, “a state court son cites no case holding that evidence un-
decision is ‘an unreasonable application of related to his character or background or
clearly established’ Supreme Court prece- the circumstances of the crime falls within
dent if the state court ‘correctly identifies the scope of Lockett [v. Ohio, 438 U.S. 586
the governing legal rule but applies it un- (1978),] and its progeny . . . .
reasonably to the facts of a particular pris-
oner’s case.’” The Supreme Court provid- Because the Supreme Court has never includ-
ed further guidance: ed friend/family impact testimony among the
categories of mitigating evidence that must be
First, the Court indicated that the in- admitted, the district court was correct in de-
quiry into unreasonableness is an ob- ciding that Jackson failed via the first avenue.
jective one. Second, the Court empha-
sized that “unreasonable” does not 2.
mean merely “incorrect”: an applica- The state court decision is not unreasonable
tion of clearly established Supreme under the second possible avenue for a habeas
Court precedent must be incorrect and petitioner under AEDPA. If we consider that
unreasonable to warrant federal habeas Lockett and its progeny announce the govern-
relief. ing Supreme Court rule, so that the question
of the admissibility of the friends/family impact
Only if a state court’s application of federal evidence requires application of this existing
constitutional law fits within this paradigm rule to the facts, we agree that the state
may this court grant relief. court’s determination is not unreason-
ableSSthat is, the determination that Jackson’s
Summers v. Dretke, 431 F.3d 861, 868-69 (5th evidence has no mitigating value and therefore
Cir. 2005) (citations omitted). does not meet even the low relevance thresh-
old.
B.
We now examine whether Jackson has Evidence of impact on friends and family
made an adequate showing for a COA under does not reflect on Jackson’s background or
either of the “two avenues” this court has de- character or the circumstances of his crime, so
scribed. We conclude that he has not. Jackson’s proffer of that evidence does not
satisfy the second avenue available to him to
1. obtain habeas relief. As the district court put
The state court’s decision does not plainly it,
contradict Supreme Court governing law. As
the federal district court in this case carefully The testimony Jackson wished to present
explained, . . . is not relevant either to the degree of
harm Jackson’s crime caused or to Jack-
[Various Supreme Court] cases have con- son’s moral culpability for the crime. Ac-
sistently held . . . that the scope of constitu- cordingly, this evidence does not fall within
tionallyprotected mitigating evidence is ev- the scope of Payne [v. Tennessee, 501 U.S.
4
808 (1991),] or Lockett. At a minimum,
the Texas courts’ conclusion that Jackson
was not entitled to present this evidence is
not an unreasonable application of Supreme
Court precedent . . . .
This reasoning also is consistent with our re-
jection, in Summers, 431 F.3d at 882-83, of
the notion that “any mitigating evidence” must
be allowed to be presented.
IV.
In sum, it was not objectively unreasonable
for the state court to decide that extant Su-
preme Court holdings should not be extrapo-
lated to include testimony as to the impact of
a death sentence on family and friends. It fol-
lows that the district court’s determination that
the state court ruling was not unreasonable is
not debatable by jurists of reason, and jurists
could not conclude that the issues presented
are adequate to deserve encouragement to
proceed further, because there is no indication
that a more plenary inquiry reasonably could
yield a contrary result.
The application for COA, accordingly, is
DENIED.
5
DENNIS, Circuit Judge, dissenting:
Because I disagree with the majority’s application of Miller-El
to the standard of review in this case, and because I disagree with
the district court’s conclusion that the state court did not
violate clearly established federal law in excluding execution
impact evidence and believe the issues presented are adequate to
deserve encouragement to proceed further, I respectfully dissent.
Initially, I note that the majority, while correctly stating the
standard of review from Miller-El v. Cockrell, has partially
ignored the mandate of the Supreme Court in applying this standard.
537 U.S. 322, 327 (2003). The majority correctly notes that under
Miller-El, we must ask whether “jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Id. at 327. The majority opinion concludes that the
issues do not deserve encouragement to proceed further because
there is no indication that a full inquiry would result in the
petitioner succeeding on his claims. However, to short-circuit the
inquiry in this way is precisely what Miller-El forbids. It is not
required of the defendant to prove that “some jurists would grant
the petition for habeas corpus.” Id. at 338. “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 consider-
ation, that petitioner will not prevail.” Id. The majority
interprets Miller-El as a fairly restrictive standard of review
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when it was intended to be applied as an unrestrictive one. In
fact, the language of Miller-El suggests this lack of restric-
tion by stating that the habeas petitioner faces only a
“threshold” inquiry and “need only” demonstrate a substantial
showing of the denial of a constitutional right. Id. at 327.
This is especially important in death penalty cases, which have
a uniquely severe penalty. Pippin v. Dretke, 434 F.3d 782, 786-
87 (5th Cir. 2005)(recognizing the limited restrictions of
Miller-El and holding that in the Fifth Circuit “any doubt as
to whether a COA should issue in a death-penalty case must be
resolved in favor of the petitioner”); Clark v. Collins, 956
F.2d 68, 71 (5th Cir. 1992) (noting that the severity of a
death penalty sentence is a proper consideration in weighing
whether to grant a COA).
As to the substance of this request for a COA, I believe that
the issues presented are adequate to deserve encouragement to
proceed further. At the time of the Texas Court of Criminal
Appeals decision in this case, Jackson v. State, 33 S.W.3d 828
(Tex. Crim. App. 2000), the applicable clearly established
Federal law determined by the Supreme Court’s decisions were
the general principles of relevance underlying F.R.E. 401-403.
See McKoy v. North Carolina, 494 U.S. 433, 440-441 (1990)
-7-
(citing and quoting New Jersey v. T.L.O., 469 U.S. 325, 345
(1985)). These principles mandated that the execution impact
evidence offered by the defendant be admitted.
The most important Supreme Court decision to this case is
Payne v. Tennessee, a case that dealt with the admissibility
of victim impact evidence, or evidence of the effect of the
crime on the victim. 501 U.S. 808 (1991). In Payne, the Court
overruled Booth v. Maryland, 482 U.S. 496 (1987) and South
Carolina v. Gathers, 490 U.S. 805 (1989). In those cases the
Court had held that the Eighth and Fourteenth Amendments
disallowed the State’s introduction of victim impact testimony
because: (1) in capital sentencing, which must focus on the
defendant as a uniquely individual human being, victim-impact
evidence is wholly unrelated to the defendant’s moral blame-
worthiness and would impermissibly divert the jury’s attention
away from its constitutionally mandated inquiry into the
defendant’s background and record; and (2) the introduction of
victim-impact evidence would lead to a disproportionate number
of death sentences in cases in which victims’ family members
are willing and able to express their grief, which the Court
characterized as an arbitrary basis for the imposition of the
death penalty.
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The reason the Texas CCA gave for affirming the exclusion of
execution-impact evidence in this case was very similar to the
first reason the Supreme Court held in Booth that the Eighth
Amendment excluded victim-impact evidence. See Jackson v.
State, 33 S.W.3d 828 (Tex. Crim. App. 2000). The Texas CCA
rejected the admissibility of execution impact evidence for the
reasons stated in Fuller v. State, which held that:
“The contention here focuses on whether a witness felt
that appellant should live or die. Since that specific
desire does not pertain to appellant's background, charac-
ter, or record, or the circumstances of the offense, the
trial court did not err in prohibiting it.” 827 S.W.2d 919,
935-36 (Tex. Crim. App. 1992).
Like Booth, both the Texas CCA and the majority here rely upon
the idea that there are only a limited set of aggravating or
mitigating factors to which evidence in capital sentencing
proceedings may be relevant. Payne expanded the scope of these
factors to include the amount of harm caused by the crime, an
element that the Court impliedly conceded has no relevance to
those traditional factors. The Supreme Court has required the
liberal admission of mitigating evidence in death cases that
may be relevant to the deathworthiness or “culpability” of
-9-
defendants, and these holdings conflict with the idea that
there are limited categories of admissible evidence in death
cases to which evidence can be neatly fitted. Penry v. Lynaugh,
492 U.S. 302, 319 (1989).
The idea that evidence relevant to individualized capital
sentencing must be constrained to these limited categories is
belied by past Supreme Court jurisprudence. For example, in one
of the cases we have frequently struggled with, Jurek v. Texas,
428 U.S. 262 (1976), the Court approved an examination into
whether the defendant would be a danger in the future as a
basis for declining to impose the death penalty - an inquiry
that does not necessarily focus on evidence fitting into any
of those categories. The Court defined the sentencer’s inquiry
to be much broader there, holding that “[a] jury must be
allowed to consider on the basis of all relevant evidence not
only why the death penalty should be imposed, but also why it
should not be imposed.” Id. at 271. In Skipper v. South
Carolina, the Court held that it was appropriate to inquire
into the behavior of a defendant during prison because a jury
could be convinced that he should be spared the death penalty
because he “could lead a useful life behind bars if sentenced
to life imprisonment.” 476 U.S. 1, 7 (1986). Testimony that
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a defendant is beloved and valued by family and friends outside
of prison is directly relevant to the question of whether he
can lead a “useful life” if sentenced to life imprisonment
because it tends to show that other people consider the
defendant valuable as a human being and would benefit from the
defendant’s survival.
The Payne Court has noted that “States cannot limit the
sentencer’s consideration of any relevant circumstance that
could cause it to decline to impose the [death] penalty.”
Payne, 501 U.S. at 824, quoting McKleskey v. Kemp, 481 U.S.
279, 305-06 (1987). It has long been established by Supreme
Court jurisprudence that an individualized determination of
deathworthiness requires that the jury be allowed to consider
any evidence if “the sentencer could reasonably find that it
warrants a sentence less than death.” McKoy v. North Carolina,
494 U.S. 433, 441 (1990). Execution impact testimony easily
satisfies this sentencing relevance test - it is testimony as
to the value of the defendant’s life and cost of his death to
family and friends, and this value or cost could serve as a
basis for the sentencer to determine that the death penalty
should not be imposed.
There is also a further difficulty in this particular case in
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that victim impact testimony was introduced. In Jackson’s case,
the State introduced potent evidence of the effects of the
murders on the victims' relatives, including evidence that the
father of the victims was driven to extreme psychological
problems by the murders, moaning throughout the night, rolling
around on the ground, and standing around in a dining room all
night turning in circles. Jackson, 33 S.W.3d at 840. In fact,
the original rationale in Payne for allowing this sort of
dramatic testimony was that “virtually no limits are placed on
the relevant mitigating evidence a capital defendant may
introduce concerning his own circumstances....” Payne, 501 U.S.
at 822. The point of allowing victim impact evidence was to
avoid “unfairly weighting the scales in a capital trial” by
allowing the defendant unlimited discretion to introduce
evidence of his own mitigated culpability and blameworthiness
without allowing the prosecution a chance to respond. Id. at
822-23. The decision of the state court to bar the defendant
from introducing similar evidence thus undercuts the constitu-
tional rationale for allowing the introduction of victim impact
evidence.
In a case in which the prosecution introduces no victim
impact evidence it might be reasonable and fair for the trial
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court to exclude execution-impact evidence because of Federal
Rule of Evidence 403 concerns. If the value of the victim’s
life is permitted to be brought before the jury, however, then
I see no option under Supreme Court jurisprudence but to permit
the defendant to counter this evidence with evidence of the
value of his own life. The principles of relevance underlying
F.R.E. 403 as well as the fundamental guarantees of due process
and fairness require the admission of the defendant's counter-
vailing evidence of a similar nature in order to prevent unfair
prejudice to the defendant’s case. The discussion in Payne
demonstrates that this due process analysis is fundamental to
the admissibility of execution impact evidence. Justice
O’Connor stated in her concurring opinion that:
We do not hold today that victim impact evidence must be
admitted, or even that it should be admitted. We hold
merely that if a State decides to permit consideration of
this evidence, “the Eighth Amendment erects no per se bar.”
Ante, at 2609. If, in a particular case, a witness'
testimony or a prosecutor's remark so infects the sentenc-
ing proceeding as to render it fundamentally unfair, the
defendant may seek appropriate relief under the Due Process
Clause of the Fourteenth Amendment.
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Payne, 501 U.S. at 831. Justice Souter emphasized “the trial
judge’s authority and responsibility to control the proceedings
consistently with due process, on which ground defendants may
object and, if necessary, appeal.” Id. at 836 (Souter, J.,
concurring).
Furthermore, Justice O’Connor’s concurrence demonstrated the
due process analysis by which she, Justice White and Justice
Kennedy, determined that there was no due process violation in
that particular case. Under their rationale two factors served
to alleviate the effect of the victim impact evidence in Payne
and to prevent if from being unfairly prejudicial: its brevity,
in that the grandmother of the three year old son of one victim
testified that he cried for his mother and baby sister and
could not understand why they did not come home; and its
redundance, because the jury was fully informed in the guilt
phase that the three year old was also stabbed but survived in
the same criminal transaction that took the lives of his mother
and sister. The fact that the victim impact testimony was
redundant and cumulative decreased its prejudicial effect in
the sentencing hearing. Payne, 501 U.S. at 833. Here, as
discussed above, the victim impact testimony was dramatic and
was not redundant, requiring the ability of the defense to
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respond in kind with evidence of its own on the impact of the
execution on the defendant’s family.
Because the petitioner has made a substantial showing of the
denial of his constitutional rights by the state court’s
exclusion of his execution impact evidence, and because the
majority short-circuited its inquiry into whether the issues
are adequate to deserve encouragement to proceed further in
direct conflict with the Supreme Court’s admonitions in Miller-
El, I respectfully dissent.
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