United States Court of Appeals
Fifth Circuit
F I L E D
In the March 12, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 06-70017
_______________
CARLTON AKEE TURNER,
Petitioner-Appellant,
VERSUS
NATHANIEL QUARTERMAN,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:04-CV-2232-D
_________________________
Before SMITH, GARZA, and PRADO, 28 U.S.C. § 2254. Because he cannot make a
Circuit Judges. substantial showing of the denial of a federal
constitutional right, we deny a COA.
JERRY E. SMITH, Circuit Judge:
I.
Carlton Turner applies for a certificate of The evidence presented at trial established
appealability (“COA”) from the denial of his that Turner shot and killed his parents in their
petition for writ of habeas corpus pursuant to home and placed the bodies in the garage. He
confessed, and his claim of self-defense contra- Amendments. The district court rejected Tur-
dicted previous claims that he had nothing to ner’s constitutional claims and declined to
do with the murders. A jury found him guilty grant a COA.
of capital murder and sentenced him to death.
On appeal, Turner raises all seven issues
During voir dire, the prosecutor discussed asserted in the district court, seeking a COA.1
with prospective jurors the issue of parole eli- First, he claims he was denied his right to a fair
gibility. During interviews with at least six and impartial trial by the prosecutor’s state-
prospects, after stating that the court would ments. Second, he claims that he was denied
not allow the jury to consider parole eligibility his right to effective assistance of counsel
in deciding punishment, the prosecutor specu- when his lawyer failed to object to the
lated that parole consideration was barred be- prosecutor’s statements during voir dire.
cause the legislature could change the parole Third, he claims that the court’s instructions to
laws at any time, thereby making it inapplica- the jury that it was not to consider parole
ble to Turner. The prosecutor went on to at- eligibility deprived him of his right to a fair
test that he had seen several parole law chang- trial. Fourth, he asserts that the court’s in-
es during his tenure. Turner’s trial counsel did structions at sentencing contained vague and
not object. undefined terms that violated his right to a fair
trial. Fifth, he claims that the Texas death
In the sentencing phase, the court instruct- penalty statute violates his right to a fair trial
ed the jury that Texas parole law required Tur- by not informing jurors that failure to reach a
ner to serve at least forty years before being unanimous verdict on any issue will lead to life
eligible for parole, but that the jury was not to imprisonment. Sixth, he claims that the Dallas
consider Turner’s parole eligibility in deter-
mining his sentence. The court did not specu-
late on whether the parole law might change. 1
Throughout his briefing, Turner asserts that he
“incorporates by reference the arguments previ-
Turner’s conviction was affirmed on direct ously made relevant to his claim in his brief in sup-
appeal. Turner v. State, 87 S.W.3d 111 (Tex. port of his original federal suit.” We do not con-
Crim. App. 2002), cert. denied, 538 U.S. 965 sider issues that are not adequately briefed. See,
(2003). Turner timely filed a state petition for e.g., Summers v. Dretke, 431 F.3d 861, 870 (5th
writ of habeas corpus. Deciding that a hearing Cir. 2005) (“Summers directs this court to the
was unnecessary, the state habeas court en- briefing before the district court for support of his
tered findings of fact and conclusions of law request for a COA as to these claims. We decline
this request. By failing to adequately brief these
recommending that all relief be denied. The
issues, Summers has waived them.”), cert. denied,
Texas Court of Criminal Appeals denied relief
127 S. Ct. 353 (2006); Hughes v. Dretke, 412 F.3d
in an unpublished order based on those find- 582, 597 (5th Cir. 2005) (“Federal Rule of Appel-
ings and conclusions and its own review of the late Procedure 28(a)(4) requires that the appel-
record. Ex parte Turner, No. 59,908-01 (Tex. lant’s argument contain the reasons he deserves the
Crim. App. 2004). Turner filed a federal habe- requested relief with citation to the authorities,
as petition based on seven grounds, including statutes and parts of the record relied on.”) (in-
that the prosecutor’s comments violated his ternal citations omitted), cert. denied, 126 S. Ct.
rights under the Sixth, Eighth, and Fourteenth 1347 (2006). Turner waives the arguments he has
not briefed.
2
County venire selection process violates his but whether the district court’s conclusion that
right to an impartial jury containing a the state court adjudication was not contrary
representative cross-section ofthe community. to or an unreasonable application of clearly
Seventh, he asserts that the cumulative effect established federal law is one about which
of these violations denied him due process. jurists of reason could disagree or as to which
jurists could conclude that the issues presented
II. are adequate to deserve encouragement to
In ruling on a request for a COA, we are proceed further.
constrained by statute. Absent a COA, we
have no jurisdiction to entertain the merits of III.
Turner’s claims on appeal. Miller-El v. Cock- A.
rell, 537 U.S. 322, 336 (2003). Under the An- Turner argues that the prosecutor’s state-
ti-Terrorism and Effective Death Penalty Act ments to jurors during voir direSSwhich sug-
of 1996 (“AEDPA”), a petitioner must show gested that Turner might not serve forty years
that the state court’s resolution of his case was before becoming eligible for paroleSSwere a
either “contrary to, or involved an unreason- violation of his rights under the due process
able application of, clearly established Federal clause of the Fifth Amendment. He relies on
law, as determined by the Supreme Court of Simmons v. South Carolina, 512 U.S. 154
the United States,” or “resulted in a decision (1994), in which the Court ruled that due pro-
that was based on an unreasonable determina- cess affords a criminal defendant the right to
tion of the facts in light of the evidence pre- answer future dangerousness allegations by
sented in the State court proceeding.” 28 asserting that he will not be eligible for parole.
U.S.C. § 2254(d).2 To grant a COA, we need Turner asserts that Simmons recognizes a due
not decide the ultimate merits of the underly- process right to provide the jury with accurate
ing issue in the petitioner’s favor, but rather information regarding parole eligibility, which
we ask only whether he has made “a substan- cannot be undermined by inaccurate informa-
tial showing of the denial of a constitutional tion from the state.
right.” Id. § 2253(c)(2).
The district court rejected Turner’s claim,
“A petitioner satisfies this standard by dem- noting that the state habeas court had found
onstrating that jurists of reason could disagree that the factual basis for the claim was incor-
with the district court’s resolution of his rect. The state habeas court found that the
constitutional claim or that jurists could con- prosecution’s statements actually reinforced
clude the issues presented are adequate to de- the instruction that Turner would serve at least
serve encouragement to proceed further.” forty years, and that the prosecutor confirmed
Miller-El, 537 U.S. at 327. Our role is to de- to the jurors that the minimum period applied.
termine not whether Turner is entitled to relief, State Hab. Find. Nos. 9, 22-23. On habeas re-
view, federal courts must presume that the
state court’s factual findings are correct, and
2
See also Yarborough v. Gentry, 540 U.S. 1, 5 Turner has not attempted to present clear and
(2003) (“Where, as here, the state court’s applica- convincing evidence that the findings were er-
tion of governing federal law is challenged, it must
be shown to be not only erroneous, but objectively
unreasonable.”).
3
roneous.3 Alternatively, the district court not- jury to be able to consider a defendant’s parole
ed that the state habeas court had concluded eligibility only where the alternative pun-
that Simmons applies only in situations in ishment is life without parole.
which a defendant is statutorily ineligible for
parole, and the district court found that this The state court found that Turner’s argu-
conclusion was not an unreasonable applica- ment was not factually correct and that the
tion of clearly established federal law as deter- prosecutor’s statement that the law might
mined by the Supreme Court. change merely confirmed the trial court’s in-
struction that Turner would not be released for
In Simmons, a majority, in two separate forty years. Because Turner has not demon-
plurality opinions, held that a defendant must strated that this factual finding is clearly er-
be allowed to rebut a state’s showing of future roneous, we deny a COA.
dangerousness with accurate information re-
garding his ineligibility for parole, at least Alternatively, even if Turner could show
where the only alternative sentence is life with- that the state court’s finding was erroneous, he
out parole. See Simmons, 512 U.S. at 171; id. would need to demonstrate that the state court
at 178 (O’Connor, J., concurring in the unreasonably applied clearly established fed-
judgment). Three of the seven Justices who eral law as determined by the Supreme Court.
concurred in the judgment noted, however, As discussed above, under the Supreme
that “the State may also (though it need not) Court’s precedents, a defendant has a due pro-
inform the jury of any truthful information cess right to present parole eligibility to the
regarding the availability of commutation, jury only where he is not eligible for parole at
pardon, and the like.” See id. at 177 (O’Con- the time of sentencing. The Court intended to
nor, J., concurring in the judgment). limit Simmons’s application to states that allow
sentences of life without parole. See Green v.
Several years later the Court revisited the Johnson, 160 F.3d 1029, 1045 (5th Cir. 1998).
issue in the context of a defendant who was Because Turner is eligible for parole, jurists of
eligible for parole at the time of sentencing. In reason would have to agree that it is not a
Ramdass v. Angelone, 530 U.S. 156 (2000), a violation of clearly established federal law for
majority, in two plurality opinions, concurred the state court to find that the protections of
in the judgment that Simmons applies only Simmons are not applicable. We decline to
where there is no possibility of parole if the issue a COA on this issue.
jury decides the appropriate sentence is life in
prison. Id. at 169; id. at 181 (O’Connor, J., B.
concurring in the judgment). Thus, the current Turner protests his attorney’s failure to ob-
state of federal law as elaborated by the ject to the prosecutor’s statements. He rea-
Supreme Court is that due process requires a sons that under Texas law, see, e.g., Valencia
v. State, 946 S.W.2d 81 (Tex. Crim. App.
1997), a prosecutor cannot argue contrary to
3
See Summers, 431 F.3d at 868 (“A state the law contained in the jury instructions and
court’s factual findings are presumed to be correct. may not invite jurors to disregard the law.
Before a federal court, a petitioner has the burden Turner suggests that his counsel’s failure to
of rebutting this presumption with clear and con- object to the statements amounted to ineffec-
vincing evidence.”) (internal citations omitted).
4
tive assistance of counsel under the Sixth the Texas Court of Criminal Appeals conclud-
Amendment. ed, after reviewing several of the prosecutor’s
comments, that Turner had quoted them “out
The state habeas court found that Turner of context” and that “we cannot say that coun-
was unable to demonstrate ineffective assis- sel was ineffective for failing to object to the
tance, because he was unable to show that his prosecutor’s voir dire comments since, viewed
counsel’s objection would have been improp- in the context of the entire voir dire, they were
erly overruled or that the prosecutor’s state- not objectionable.” Turner v. State, 87
ment was an inappropriate explanation of the S.W.3d 111, 115-16 (Tex. Crim. App. 2002)
parole law instruction. State Hab. Find. No. (emphasis added).
11. The court concluded that Turner’s
counsel was not deficient for failing to proffer This is an authoritative statement from the
meritless objections to the statements. state’s highest criminal court that Turner’s
proposed objection would have been meritless.
To succeed on a claim of ineffective assis- Turner’s counsel cannot have rendered
tance, a defendant must make two showings: ineffective assistance of counsel by failing to
make an objection that would have been mer-
First, the defendant must show that coun- itless.4 Turner cannot make a substantial
sel’s performance was deficient. This re- showing under Washington, so a COA on this
quires showing that counsel made errors so issue is denied.
serious that counsel was not functioning as
the “counsel” guaranteed the defendant by C.
the Sixth Amendment. Second, the defen- Turner avers that the state trial court vio-
dant must show that the deficient perfor- lated Simmons and his right to due process by
mance prejudiced the defense. This re- informing jurors that they were not to consider
quires showing that counsel’s errors were the possibility of parole. Turner acknowledges
so serious as to deprive the defendant of a that in Ramdass the Court held that defendants
fair trial, a trial whose result is reliable. who are eligible for parole have no due
process right to a Simmons instruction inform-
Strickland v. Washington, 466 U.S. 668, 687 ing the jury about the defendant’s ineligibility
(1984). “If a state court has already rejected for parole. Nonetheless, Turner argues that in
an inefficient-assistance claim” and “the state this case, where the state court did inform the
court’s application of governing federal law is jury that Turner would not be eligible for par-
challenged, it must be shown to be not only er- ole for forty years, it was a violation of due
roneous, but objectively unreasonable.” Yar- process and Simmons for the court then to in-
borough, 540 U.S. at 5. form the jury not to consider parole eligibility.
To satisfy the first step of Washington, Tur- The state habeas court rejected this claim,
ner must demonstrate that his counsel’s per-
formance was deficient; he is unable to make
that showing. For Turner’s counsel to be de- 4
See Green, 160 F.3d at 1037 (“[F]ailure to
ficient in failing to object, the objection must make a frivolous objection does not cause cou-
have merit under Texas law. On direct appeal, nsel’s performance to fall below an objective level
of reasonableness.”).
5
finding that the protections of Simmons do not fusal to define these terms poses no constitu-
apply where a defendant is parole eligible and tional problems.6
that Texas courts have long held that parole
eligibility is not a matter for capital jury con- In Tuilaepa v. California, 512 U.S. 967
sideration. State Hab. Find. Nos. 75-76. The (1994), the Court distinguished two determi-
court also concluded that Turner could not nations made by capital juries: eligibility for
show harm, because in deciding future danger- the death penalty and selection of the death
ousness in Texas the jury is allowed to con- penalty. Id. at 971. The Court noted that at
sider dangerousness to the prison population the eligibility step, the jury must find at least
and thus parole eligibility is irrelevant. State one “aggravating circumstance (or its equiva-
Hab. Find. No. 82. lent)” and that this circumstance must not be
“unconstitutionally vague.” Id. at 972. By
It is undisputed that the due process right comparison, at the selection step, the jury must
to inform the jury about parole ineligibility rec- be allowed to make “an individualized deter-
ognized in Simmons does not apply where a mination” and to consider “relevant mitigating
defendant is eligible for parole.5 Simmons evidence of the character and record of the de-
does not establish a right to inform the jury ac- fendant and the circumstances of the crime.”
curately about a defendant’s expected parole Id. In this second step, the jury may even be
eligibility, but rather a right to inform that he given “unbridled discretion in determining
is ineligible for parole. Turner is unable to whether the death penalty may be imposed.”
make a substantial showing that the state ha- Id. at 979-80 (citations omitted).7 As the
beas court’s conclusion was contrary to or an district court recognized, this court has re-
unreasonable application of clearly established jected claims alleging the vagueness of these
federal law as determined by the Supreme very terms when applied to selection deci-
Court, and a COA is denied. sions.8
D.
Turner urges that the jury instructions were 6
State Hab. Find. No. 93 (citing Cantu v. State,
unconstitutionally vague, depriving him of a 842 S.W.2d 667, 691 (Tex. Crim. App. 1992);
fair trial, because they failed to define “proba- Caldwell v. State, 818 S.W.2d 790, 798 (Tex.
bility,” “criminal acts of violence,” and “con- Crim. App. 1991)).
tinuing threat to society.” The state habeas
7
court rejected this challenge, noting that these See also Buchanan v. Angelone, 522 U.S.
terms apply not to the aggravating factors that 269, 276 (1998) (“[O]ur decisions suggest that
determine death eligibility, but rather to the complete jury discretion is constitutionally per-
special punishment issues that determine missible.”)
whether the death penalty is appropriate. 8
See, e.g., Hughes v. Johnson, 191 F.3d 607,
State Hab. Find. Nos. 91-92. The court cited 615 (5th Cir. 1999) (“We similarly have rejected
several state cases that demonstrate that a re- contentions that ‘probability’ and other terms in-
cluded in the statutory special issues are unconsti-
tutionally vague.”) (citations omitted); James v.
5
See Ramdass, 530 U.S. at 169; id. at 181 Collins, 987 F.2d 1116, 1120 (5th Cir. 1993)
(O’Connor, J., concurring in the judgment); Woods (holding that terms used in special issues, including
v. Cockrell, 307 F.3d 353, 361-62 (5th Cir. 2002). (continued...)
6
Turner claims that Ring v. Arizona, 536 ther review.9 We deny a COA.
U.S. 584 (2002), which he cites for the propo-
sition that any fact that must be proved to ren- F.
der a defendant eligible for the death penalty Turner argues that the Dallas venire selec-
must be proved beyond a reasonable doubt, tion process disproportionately represented
compels a different result. This argument mis- (1) Hispanics, (2) persons between the ages of
construes the Texas capital penalty frame- 18 and 34, and (3) persons from households
work. with incomes under $35,000.10 Turner claims
that he was prejudiced by the under-represen-
Texas capital juries make the eligibility de- tation of these groups, which deprived him of
cision at the guilt-innocence phase. See, e.g., a jury venire composed of a fair cross-section
Johnson v. Texas, 509 U.S. 350, 362 (1993). of the community.
The terms about which Turner complains are
not invoked until after the defendant has been The state habeas court found that Turner
judged death-eligible and the jury is being in- had failed to raise his venire objection at trial
structed how to decide whether selection of and therefore had waived the error for collat-
the death penalty is appropriate. Ring is inap- eral review. State Hab. Find. Nos. 109-10
posite to any discussion of the constitutional (citing Ex Parte Dietzman, 851 S.W.2d 304,
requirements of the selection phase. Because 305-06 (Tex. Crim. App. 1993)). Alternative-
Turner is unable to point to any clearly estab- ly, the court found that Turner’s claims are
lished federal law under which the terms of the meritless.
Texas sentencing instructions could be un-
constitutionally vague, he is unable to make a With regard to the latter two categories, the
substantial showing of the denial of a federal court found that Turner had failed to demon-
constitutional right, and we deny a COA. strate that they constitute distinctive groups in
the community. State Hab. Find. Nos. 120-25.
E. With regard to Hispanics, the court found that
In this court, Turner has not briefed his Turner had failed to demonstrate that there
claim that his Eighth Amendment and due pro- was a disparity between the percentage of His-
cess rights are violated by the Texas death panics in the jury pool and the percentage of
penalty statute’s failure to inform jurors that Hispanics who were eligible for jury service.
the effect of a failure to reach a unanimous State Hab. Find. No. 129. The court also
verdict is to impose life imprisonment. In- found that Turner had failed to demonstrate
stead, he concedes that this argument is that members of any of these groups were sys-
squarely foreclosed by circuit precedent; he tematically excluded from jury service. State
maintains it only to preserve the error for fur-
9
See Alexander v. Johnson, 211 F.3d 895, 897
n.5 (5th Cir. 2000) (per curiam) (rejecting identical
Eighth and Fourteenth Amendment arguments).
8
(...continued)
10
‘probability,’ ‘criminal acts of violence,’ and ‘con- In support of this proposition, Turner cites a
tinuing threat to society,’ “are not so vague as to series of newspaper articles in the Dallas Morning
require clarifying instructions.”). News by Mark Curriden.
7
Hab. Find. Nos. 132-39. strictly or regularly applied evenhandedly to
the vast majority of similar claims, and is
The federal district court noted that the therefore an adequate procedural bar.” Dow-
state court had determined that Turner’s claim thitt v. Johnson, 230 F.3d 733, 752 (5th Cir.
was procedurally defaulted under Texas’s 2000). In federal district court, Turner made
“contemporaneous objection” rule. The feder- no attempt to show cause or prejudice in re-
al court found that the state habeas court had gard to the procedural fault, nor did he allege
clearly and expressly declined to review Tur- a fundamental miscarriage of justice. The dis-
ner’s venire claim because of the procedural trict court correctly ruled that his venire claim
bar; the court noted that the rule is well estab- is procedurally barred. Because jurists of rea-
lished and applied evenhandedly by Texas son would have to agree with the district
courts. Therefore, the rule is an independent court’s procedural reasoning, we cannot reach
and adequate state ground for decision, pre- the merits of Turner’s claim, and a COA is
cluding federal review. Because Turner failed denied.
to allege cause and prejudice in federal court,
and there was no evidence suggesting that fail- G.
ure to consider the claims would result in a Turner argues that the cumulative effect of
fundamental miscarriage of justice, the court the afore-mentioned constitutional violations
found that Turner’s venire claim was proce- denied him due process of law. “[F]ederal ha-
durally defaulted. beas corpus relief may only be granted for
cumulative errors in the conduct of a state trial
“When the district court denies a habeas pe- where (1) the individual errors involved mat-
tition on procedural grounds without reaching ters of constitutional dimension rather than
the prisoner’s underlying constitutional claim, mere violations of state law; (2) the errors
a COA should issue when the prisoner shows, were not procedurally defaulted for habeas
at least, that jurists of reason would find it de- purposes; and (3) the errors ‘so infected the
batable whether the petition states a valid entire trial that the resulting conviction violates
claim of the denial of a constitutional right and due process.’” Derden v. McNeel, 978 F.2d
that jurists of reason would find it debatable 1453, 1454 (5th Cir. 1992) (en banc) (quoting
whether the district court was correct in its Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
procedural ruling.” Slack v. McDaniel, 529 As is apparent from this standard, and as this
U.S. 473, 484 (2000). Turner must make a court has stated explicitly, where individual al-
substantial showing that the district court’s legations of error are not of constitutional stat-
procedural ruling was incorrect before we can ure or are not errors, there is “nothing to
consider the merits of his underlying venire cumulate.”11
claim.
Where a prisoner procedurally defaults his 11
See Yohey v. Collins, 985 F.2d 222, 229 (5th
federal claim in the state habeas court, federal Cir. 1993); see also Miller v. Johnson, 200 F.3d
habeas review is barred unless he can demon- 274, 286 n.6 (5th Cir. 2000) (“Miller has not dem-
strate cause and prejudice. Coleman v. onstrated error by trial counsel; thus, by definition,
Thompson, 501 U.S. 722, 750 (1991). “[T]he Miller has not demonstrated that cumulative error
Texas contemporaneous objection rule is of counsel deprived him of a fair trial.”); United
(continued...)
8
Turner has failed to make a substantial
showing of the denial of a federal constitution-
al right regarding his first four claims, and his
final two claims are procedurally defaulted.
Because he has pointed to no errors that in-
volve matters of constitutional dimension and
that are procedurally preserved for review, he
has presented nothing to cumulate. A COA is
denied.
In summary, Turner has not shown that any
of his claims is debatable among jurists of
reason, that a court could resolve them in a
different manner, or that the questions are
adequate to deserve encouragement to
proceed further. Because he has failed to make
a substantial showing of the denial of a con-
stitutional right, his request for a COA is
DENIED.
11
(...continued)
States v. Hall, 455 F.3d 508, 520 (5th Cir. 2006)
(“Our clear precedent indicates that ineffective as-
sistance of counsel cannot be created from the ac-
cumulation of acceptable decisions and actions.”),
petition for cert. filed (Nov. 30, 2006) (No. 06-
8178).
9