Gribble v. Johnson

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________

No. 98-40927 _______________

TIMOTHY L. GRIBBLE, Petitioner-Appellant, VERSUS

GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. _________________________

Appeal from the United States District Court for the Southern District of Texas (98-CV-32) _________________________

September 20, 1999

Before JONES, SMITH, and STEWART, bathrobe, to a secluded field where he Circuit Judges. strangled her and hid her remains.” Gribble v. State (“Gribble I”), No. 71,485, slip op. at 2 PER CURIAM:* (Tex. Crim. App. Feb. 1, 1995) (unpublished). During the investigation of Jones’s Timothy Gribble requests a certificate of disappearance, Gribble was questioned. He appealability (“COA”) from this court, submitted to a polygraph examination by a following the district court's denial of his private investigator, conducted at a police request for a COA and of his petition for writ station on September 21 and 22, 1987. See id. of habeas corpus, in regard to his conviction of at 10-11. He left Texas a few days later, id. capital murder and a resulting sentence of at 11, and was arrested in Tennessee on an death. Finding no substantial showing of the unrelated felony charge from Harris County, denial of a constitutional right, we deny the Texas, id. at 5. request for a COA. Gribble voluntarily returned to Texas and I. confessed to the murder. He drew a map of Gribble “gained entrance into [Elizabeth the location where Jones's body and purse Jones's] home under false pretenses. He took could be found. Id. Law enforcement officers her from her home, in nothing but her tape recorded his confession. See id. at 8-9. Before he guided officers to these locations, he appeared before a state magistrate on or about * Pursuant to 5TH CIR. R. 47.5, the court has October 4, 1987. Id. at 5-6. The magistrate determined that this opinion should not be informed him of his right to counsel, published and is not precedent except under the whereupon he indicated his desire to have limited circumstances set forth in 5TH CIR. R. counsel appointed after he led investigators to 47.5.4.

the body. See id. at 6. was no support for any claim concerning habeas counsel’s assistance, jury instructions, II. or the purported failure to produce In April 1992, a jury found Gribble guilty of exculpatory evidence. capital murder in the course of kidnaping Jones on or about September 9, 1987. See The Court of Criminal Appeals agreed with Gribble I, slip op. at 1; see also TEX. PENAL the trial court ’s findings and conclusions CODE ANN. § 19.03 (West 1987). The jury concerning the claims raised by court- answered in the affirmative the two special appointed counsel. The court assumed, issues set forth in TEX. CODE CRIM. P. ANN. without deciding, that the claims raised pro se art. 37.071(b) (West 1987), and Gribble was were supplemental habeas claims and sentenced to death. Previously, he had been concluded that Gribble had failed to show found guilty of capital murder and sentenced entitlement to relief. to death, but that judgment was reversed, thus requiring retrial, because of Penry error, see Gribble filed another pro se motion, Penry v. Lynaugh, 492 U.S. 302 (1989), in the requesting leave to file an out-of-time habeas jury instructions from the punishment phase. petition, indicating that he intended to assert See Gribble v. State, 808 S.W.2d 65, 75-76 that habeas counsel had rendered ineffective (Tex. Crim. App. 1990). assistance. The Court of Criminal Appeals treated the motion as a second habeas petition Gribble appealed his conviction and and dismissed it as an abuse of the writ. The sentence from the retrial by raising eight state trial court set April 22, 1998, for issues, and the Court of Criminal Appeals execution of the sentence. affirmed. See Gribble I, slip op. at 1. Court- appointed counsel filed a state petition for In January 1998, Gribble moved for the habeas relief. Gribble, pro se, filed a motion to appointment of counsel to assist him in filing strike the habeas petition because it raised his federal habeas application. Appointed issues that had been rejected on direct appeal. counsel filed a motion to stay execution and a Gribble viewed counsel’s petition as habeas application that raised multiple issues. inadequate, and he listed the following issues The court granted the stay of execution. for postconviction consideration: The state filed an amended answer and (1) [T]he jury charge at the guilt phase motion for summary judgment. Gribble relieved the prosecution of its obligation requested a conference, pursuant to FED. R. to prove every element of the crime CIV. P. 16(a), and indicated that he presumed beyond a reasonable doubt; (2) despite that an order would be entered similar to an specific requests, the state failed to earlier order that had relieved him of the duty produce exculpatory evidence related to to file a response to the summary judgment both guilt/innocence and punishment; motion as contemplated by local rule. The [and] (3) the trial court committed court denied the request for a conference. reversal [sic] error by refusing to instruct the jury on mitigating evidence Eight days after the state filed the summary of applicant’s background of childhood judgment motion, the district court granted it, abuse. denied habeas relief on the merits, and lifted the stay of execution. See Gribble v. Johnson, The state trial court made proposed 8 F. Supp. 2d 942, 942-57 (S.D. Tex. 1998). findings of fact and conclusions of law and The court analyzed nine constitutional claims: denied habeas relief, essentially relying on the four issues arising from Gribble’s statements opinion from the direct appeal to conclude that to police, from interrogations, and from no relief was warranted on the claims confessions to the rape, kidnaping, and murder previously raised. The court considered the of Elizabeth Jones, see id., 8 F. Supp. 2d claims raised pro se and concluded that there at 948-52; a Sixth Amendment challenge to

the exclusion, for cause, of a jury venireman, was based on an unreasonable see id. at 952-53; a contention concerning determination of the facts in improper prosecutorial argument, see id. at light of the evidence presented 954-55; challenges to the sufficiency of the in the State court proceeding. evidence proving the kidnaping, proving Gribble’s intent to cause Jones’s death, and proving the deliberateness of his acts, see id. at 955-56; and a due process challenge to the “nullification charge,” the jury instruction used to correct the defect identified by Penry, see id. at 956-57. The court relied on a procedural bar for disposing of only one claim but noted that the state had raised a procedural bar on two other claims. See id. at 950, 954 n.13, 955. After entering final judgment, the court denied a request for a COA.

III. “A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standard is the same as for issuance of a certificate of probable cause. Muñiz v. Johnson, 114 F.3d 43, 44 (5th Cir. 1997), cert. denied, 523 U.S. 1113 (1998). Because Gribble’s habeas application was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), that statute applies to his case. See Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997), cert. denied, 119 S. Ct. 144 (1998).

Under the AEDPA,

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claimSS

(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

(e)(1) In a proceeding instituted by an that he was not in custody when the application for a writ of habeas corpus statements were made. The Court of Criminal by a person in custody pursuant to the Appeals determined that Gribble was neither in judgment of a State court, a custody nor under arrest, because he determination of a factual issue made by voluntarily appeared at the police station and a State court shall be presumed to be voluntarily submitted to the polygraph correct. The applicant shall have the examination. Therefore, the need for the burden of rebutting the presumption of prophylactic warnings of Miranda v. Arizona, correctness by clear and convincing 384 U.S. 436 (1966), were not necessary, and evidence. the exclusionary rule was inapplicable. See Gribble I, slip. op. at 9-13. 28 U.S.C. § 2254. A full and fair adjudication of the claims in state court is a prerequisite for “Miranda set[s] forth rules of police application of AEDPA’s review provisions. procedure appl icable to 'custodial Corwin v. Johnson, 150 F.3d 467, 471 (5th interrogation.' 'By custodial interrogation, [the Cir.), cert. denied, 119 S. Ct. 613 (1998). Court] mean[s] questioning initiated by law enforcement officers after a person has been Pure questions of law are reviewed under taken into custody or otherwise deprived of his the “contrary to” standard; mixed questions of freedom of action in any significant way.'” law and facts are reviewed under the Oregon v. Mathiason, 429 U.S. 492, 494 “unreasonable application” standard. (1977) (quoting Miranda, 384 U.S. at 444). Drinkard v. Johnson, 97 F.3d 751, 767-68 The “in custody” determination is a mixed (5th Cir. 1996).* The application of law to question of fact and law. Thompson v. facts is “unreasonable” only when reasonable Keohane, 516 U.S. 99, 102 (1995). jurists considering the question would view the Therefore, the § 2254(d)(1) standard applies. state court's ruling as incorrect. Id. at 768-69. Habeas relief is thus appropriate only where “a At the suppression hearing conducted on state court decision is so clearly incorrect that April 26, 1988, Mary Wood, the private it would not be debatable among reasonable investigator who conducted the polygraph jurists.” Id. at 769. “State court factual examination on September 21, 1987, testified determinations shall be presumed correct that Gribble was waiting when she arrived at unless rebutted by 'clear and convincing the police station; he had questions about evidence.'” Jackson v. Johnson, 150 F.3d 520, polygraph tests, which she answered; he 524 (5th Cir. 1998) (interpreting signed the test waiver form; she and he § 2254(e)(1)), cert. denied, 119 S. Ct. 1339 conversed quite a long time about Jones’s (1999). disappearance; the test results revealed a problem response to two of the test questions; IV. and Gribble signed two written statements Gribble argues that his statements given to after the test was conducted. Gribble’s private investigators and police on account of his activity with Jones given to the September 21, 1987, and without his being private investigators and police officers on informed of his right to counsel or to remain September 21 was exculpatory. Wood’s silent, should have been suppressed and that testimony indicated that Gribble’s cooperation the state appellate court erred in its conclusion on September 21 was voluntary and that he could have left at any time. Her testimony at the second suppression hearing was consistent * To the extent that Drinkard and its progeny with her earlier testimony. interpreting the provisions of AEDPA do not conflict with Lindh v. Murphy, 521 U.S. 320 Officer Sergio Medina testified that Gribble (1997), they remain controlling precedent for this agreed to come to the police station for the court. Nobles, 127 F.3d at 413 n.4; see Green v. polygraph examination, although Gribble failed Johnson, 116 F.3d 1115, 1119-20 (5th Cir. 1997). to appear for the first scheduled examination.

Gribble became unsure of the polygraph significantly deprived of freedom of action.** examiner, and Medina reassured him about the The Court of Criminal Appeals’s polygraph procedures and told him that he determination that Gribble was not in custody could leave at any time. Gribble was advised was not an unreasonable application of federal of his rights after revealing to the officers, law. See Drinkard, 97 F.3d at 767-68; § following the examination, that the truck he 2254(d)(1); Mathiason, 429 U.S. at 494-96. had been driving to work could have been a stolen vehicle. V. Before he was warned, the officers had Gribble presents two arguments under one accompanied him to his residence, impounded issue: He avers that his comment, requesting the car, and returned to the police department. the stop of the taping of his statement, or the Gribble came back voluntarily to the office and momentary stop of the recording of his cooperated with the investigation of the stolen confession, given to investigating officers truck. during the interrogation on October 3, 1987, was equivalent to the invocation of his right to Gribble testified at the first suppression remain silent, so his Fifth Amendment right to hearing, and his testimony was admitted at the silence was violated. He also contends that his second suppression hearing. He testified that conversation with the officers that followed his Medina pressured him into feeling guilty about request for the stop, in which he indicated his not wanting to cooperate or to take the concern about his wife's hearing the details of polygraph examination; Gribble did not mind what he had done to the victim, demonstrated answering the questions, but he did not want police overreaching through subtle to answer with the monitoring of the psychological persuasion. He argues that this, polygraph machine; and his impression was coupled with the officers’ failure to comply that he had to take the test, or he could not with his request to stop, violated his Fifth leave. Amendment right against self-incrimination.

The findings of fact underlying the Court of The Court of Criminal Appeals affirmed the Criminal Appeals’s determination that Gribble trial court’s conclusion that Gribble’s request was not in custody are supported by the to stop the tape recorder was not an testimony at the suppression hearings, a unequivocal termination of the interview, or portion of which has been summarized above. interrogation, but instead was a request to stop See Gribble I, slip op. at 10-12. Gribble momentarily the recording of the confession, focuses on the lack of warnings he received and thus, his Fifth Amendment right was not compared to the warnings given to another infringed. See Gribble I, slip op. at 13-14. person the investigating officers interviewed The district court concluded that Gribble’s on September 21. He contends that the claim concerning the police officers’ different treatment supports the conclusion overreaching and misleading tactics was that the police had the subjective intent to procedurally barred and was without merit. obtain his signed statements without the benefit of warnings of constitutional rights. The circumstances giving rise to Gribble’s taped co nfession are as follows: He was Any difference in the treatment accorded arrested in Tennessee on September 30, 1987, the two persons interviewed on September 21 pursuant to a Harris County, Texas, warrant does not detract from the ample testimony revealing that a reasonable person in Gribble’s situation would not have viewed himself as ** See Mathiason, 429 U.S. at 494-96; see also being under arrest, in detention, or United States v. Bengivenga, 845 F.2d 593, 597 (5th Cir. 1988) (en banc) (holding that subjective intent of police is irrelevant to the determination whether defendant was in custody).

unrelated to the Jones investigation in Before relating the events surrounding Jones’s Galveston County. Texas Ranger Joe murder, Gribble voiced his concern that his Haralson and Wayne Kessler, an investigator wife, Tammy, would hear the tape. with the Galveston County Sheriff’s Office, traveled to Tennessee, interviewed Gribble, Kessler and Haralson informed Gribble that and accompanied him to Texas. On October he would have a right to a trial; if he made 3, at the Harris County Sheriff’s Office, “suitable arrangements with the State,” it Gribble again received Miranda warnings and might not have to go to trial; they anticipated orally confessed to the rape, kidnaping, and that he would be indicted; if there were a trial, murder of Jones. He drew a map of where the the tape would be used as evidence at an open- body and Jones’s purse could be recovered. court proceeding; and he could ask his wife He agreed to have his confession tape not to be in the courtroom when the tape was recorded. played. After the tape recording ended, Gribble’s wife arrived, and he spoke with her The confession consisted of two tapes, the for approximately one-half hour. first lasting approximately one minute. After Haralson had identified each individual in the A. room during the taping and each person spoke “The Supreme Court has held that if a his name, these comments followed: suspect 'indicates in any manner, at any time prior to or during questioning, that he wishes Mr. Kessler: Tim, you also know that to remain silent, the interrogation must cease.'” about 15 minutes ago at 9:15 we gave Barnes v. Johnson, 160 F.3d 218, 224 (5th you rights before we talked the first Cir. 1998) (quoting Miranda, 384 U.S. time; is that correct. at 474-75), cert. denied, 119 S. Ct. 1768 (1999). Whether a statement is an ambiguous Mr. Gribble: Yes. invocation of a constitutional right is determined by an objective inquiry as to how Mr. Haralson: And I am fixing to again a reasonable police officer would have advise you of your rights. understood the defendant’s comment. Id. at 224-25. What Gribble said to the officers Mr. Gribble: Could we stop this thing? about stopping the tape is a finding of fact viewed under the § 2254(d)(2) standard. The Mr. Haralson: WellSS conclusion by the state appellate courtSSthat the statement was not an invocation of the Mr. Kessler: What’s the problem? right to remain silentSSis reviewed under the reasonable-application-of-federal-law standard Mr. Haralson: We need the tape of § 2254(d)(1). recorder on. The Court of Criminal Appeals stated Mr. Kessler: Do you have a question? Gribble’s “stop” request as follows: “Can we stop for just a second.” Gribble I, slip op. at Mr. Gribble: I don’t feel comfortable. 13. As noted above, Gribble requested, Even after telling you all this, I feel like “Could we stop this thing.” He asserts that shit. Like I said when I told youSSwhen Kessler’s testimony at the first trial indicated youSSyou said that after I told you this that Gribble asked, “Can we stop the tape?” that I would feel better. I don’t feel No matter what the precise phrase was, the better I feel worse. I feel like shit. ultimate fact found by the state appellate courtSSthat in the context of the situation, The confession recorded on the second tape Gribble asked “for a momentary pause to began three minutes after the first recording. recompose himself”SSis presumptively correct. Those in the room again identified themselves, See id. at 13; Jackson, 150 F.3d at 524; § and Gribble again was advised of his rights. 2254(e)(1).

At the first suppression hearing, Gribble confession might be used for or against him.*** testified that it was the concept of recording He argues that the claim presented on direct his confessionSSa recording his wife might appeal was “functionally identical to the hearSSthat precipitated his desire to stop the federal claim” presented in his habeas tape. He was willing to write his confession. application. Haralson testified at the second suppression “The exhaustion requirement is satisfied hearing that Gribble was physically distressed when the substance of the federal habeas claim when he asked for the tape to stop, that he has been fairly presented to the highest state choked but did not vomit, and that the second court.” Whitehead v. Johnson, 157 F.3d 384, tape began once he had recomposed himself. 387 (5th Cir. 1998) (footnote omitted). “A In light of the circumstances surrounding federal court claim must be the 'substantial Gribble’s comment, the conclusion that the equivalent' of one presented to the state courts Fifth Amendment was not implicated by his if it is to satisfy the 'fairly presented' request to stop is not an unreasonable requirement.” Id. (footnote omitted). The application of federal law. See Barnes, 160 claim presented to the state appellate court F.3d at 225; Drinkard, 97 F.3d at 767-68; arose from the state procedural rule § 2254(d)(1). prohibiting the use at trial of a confession if the defendant had been told by the interrogating B. officers that the confession could be used in As we have noted, the district court his favor as well as against him. See Gribble concluded that Gribble’s issue concerning the I, slip op. at 8-9. This issue is a separate legal manner in which the police conducted the theory from the theory underlying the federal October 3 taped interview/confession was habeas claim, although the claims arise from procedurally barred. See Gribble, 8 F. Supp. the same operative facts. The federal claim 2d at 949-50. If a the district court does not was not fairly presented to the state court for address the merits of a particular § 2254 claim satisfaction of the exhaustion requirement.**** but denies relief because the claim is procedurally barred, the constitutional issue is Because Gribble failed to present his claim never reached. In this situation, Gribble first to the state courts, and presentation of the must make a credible showing of error by the claim in state court would result in its district court in its reliance on the procedural dismissal as an abuse of the writ, the claim is bar. See Murphy v. Johnson, 110 F.3d 10, 11 procedurally barred in federal habeas court. (5th Cir. 1997) (applying COA standard to See Sones v. Hargett, 61 F.3d 410, 416 (5th nonconstitutional issue of exhaustion of state Cir. 1995); Fearance v. Scott, 56 F.3d 633, remedies). Only if he makes such a showing 642 (5th Cir. 1995). Gribble does not assert will the court consider whether his underlying an argument of cause and prejudice for this claim satisfies the COA standard. Id. court to overlook his procedural default. He Although the district court alternately has not made a credible showing of error by addressed the merits of the claim, see Gribble, the district court in applying the procedural bar 8 F. Supp. 2d at 950, we do not need to do so unless we determine that Gribble has made the initial showing of error under the standard *** enunciated in Murphy. See Murphy, 110 F.3d See Gribble, No. 71-485, slip op. at 8-9; at 11. TEX. CODE CRIM. P. ANN. art. 38.22; Creager v. State, 952 S.W.2d 852, 854-55 (Tex. Crim. App. 1997) (holding that a warning renders confession Gribble did not raise on direct appeal or in inadmissible if it informs defendant that the his state habeas petition his argument of police confession can be used for or against him). overreaching. He asserted on direct appeal that the recorded confession should have been **** See Nobles, 127 F.3d at 420 (“The suppressed because the interviewing officers exhaustion requirement is not satisfied if the had violated state procedure by misleading him prisoner presents new legal theories or factual about the possible use of his confession: The claims in the federal habeas petition.”).

to this habeas claim. See Murphy, 110 F.3d These prophylactic measures are at 11. implicated, however, only if the suspect is being questioned or interrogated by police. VI. “'[I]nterrogation' under Miranda refers not Gribble argues that the evidence obtained only to express question, but also to any words after he invoked his right to counsel should or actions on the part of the police (other than have been suppressed. Before accompanying those normally attendant to arrest and the police to the physical location of Jones’s custody) that the police should know are body and purse, Gribble was taken before a reasonably likely to elicit an incriminating state magistrate, who informed him of his right response from the suspect.” Rhode Island v. to counsel. When asked whether he desired to Innis, 446 U.S. 291, 301 (1980) (footnotes consult with counsel, Gribble answered in the omitted). affirmative, and the magistrate made the notation that Gribble wanted counsel to be The record supports the state appellate appointed. Haralson then interjected that he court’s assessment of the circumstances believed Gribble had misunderstood the surrounding Haralson’s comment and question. The magistrate continued to query Gribble’s request for counsel. That court Gribble, who said he wanted to maintain his found that Haralson’s comment to the cooperation with authorities before consulting magistrate was “I believe that [Gribble] with an attorney and subsequently led the misunderstood your question.” Gribble I, slip officers to the location of the body. See op. at 6. On the printed warning form, the Gribble I, slip op. at 5-6. Gribble’s argument magistrate indicated Gribble’s affirmative indicates that he views Haralson’s interjection, response to the question “Do you wish to occurring after Gribble essentially requested to consult with your attorney?” and noted next to speak with an attorney, as violative of the Fifth the printed question, “wishes to have atty and Sixth Amendments. appoint 12:22 AM 10/4.”

The Court of Criminal Appeals concluded The magistrate viewed Haralson’s comm ent that Haral son’s comment was not as direct ed to him, not Gribble. After interrogatorial and that, even if it had been Haralson’s comment, the magistrate explained made as part of an interrogation, it was again to Gribble how counsel can be constitutionally permissible, because it assisted appointed, and Boyd told him that an attorney in clarifying Gribble’s qualified invocation of could be there in thirty minutes. Gribble then his right to counsel. See id. at 7-8. After a responded that he wanted counsel later, not suspect has been advised of his rights pursuant immediately; he wished to do some act first. to Miranda and has invoked his right to speak with counsel, all interrogation must cease until Kessler viewed Haralson’s comment as he has conferred with counsel or until made to the magistrate, and he testified that questioning can be done in the presence of Gribble’s “puzzled look” precipitated counsel. Michigan v. Jackson, 475 U.S. 625, Haralson’s comment. Gribble’s suppression- 636 (1986) (Sixth Amendment); Edwards v. hearing testimony concerning the magistrate’s Arizona, 451 U.S. 477, 484-87 (1981) (Fifth recitation and advisement of rights did not Amendment). “[I]f a suspect makes a include any mention by Gribble about reference to an attorney that is ambiguous or Haralson's making a comment. Gribble equivocal in that a reasonable officer in light of testified that he indicated he wanted appointed the circumstances would have understood only counsel for consultation but did not want to that the suspect might be invoking the right to wait thirty to forty minutes, because his wife counsel, . . . precedent[] do[es] not require the was waiting. cessation of questioning.” Davis v. United States, 512 U.S. 452, 459 (1994). “[T]he Gribble does not challenge the magistrate’s suspect must unambiguously request counsel.” explanation and further inquiry concerning Id. Gribble’s request for appointed counsel. The

habeas claim focuses on Haralson’s comment, jurisdictional, so if Gribble did not present to which was not directed to Gribble and the district court a claim as to which he now occurred as a neutral judicial officer was requests a COA, we are without jurisdiction to informing Gribble of his constitutional rights consider it. See Whitehead, 157 F.3d at 388; and was determining whether he understood Muñiz, 114 F.3d at 45. Accordingly, we those rights and wished to waive them. The cannot review Gribble's request for a COA on state appellate court’s determination that this issue. Moreover, a limited remand to the Haralson’s comment was not interrogatorial district court for consideration of a habeas for purposes of the Fifth Amendment, the claim raised for the first time in the COA Sixth Amendment, or Miranda is not contrary motion would be contrary to the statutory to clearly established federal law as determined prohibition against a successive habeas by the Supreme Court. See § 2254(d)(1); application's raising a claim that could have Innis, 446 U.S. at 301-02. been raised earlier. See § 2244(b)(2).

VII. VIII. Gribble argues that the prosecution’s Gribble argues that the evidence fails to challenge for cause of venireman Beverly prove beyond a reasonable doubt his intent to Deaton should have been denied, because the murder Jones or that the murder was done prosecution’s tactics in questioning Deaton with deliberateness. He relies primarily on his about the standard of proof she would apply in taped confession concerning the immediate determining the special questions during the events preceding Jones’s death, and he asserts punishment phase of the trial amounted to that the evidence supports his versionSSthat “prosecutorial browbeating.” Although the murder was unintentional and not done Gribble begins his argument by implying that with deliberationSSas much as it supports the Deaton should not have been excused for prosecution’s version of what happened. cause, he states his issue as follows: On direct appeal, Gribble argued that the [w]hether the prosecutor’s relentless evidence was insufficient to prove that he examination of this potential juror intentionally killed Jones. He asserted that his provided a basis from which [Gribble] confession proved “that he accidently killed could have developed an evidentiary the victim in an attempt to silence her cries for challenge to the state trial court’s help.” Gribble I, slip op. at 1-2. determination, had he been given that opportunity, because the state court The Court of Criminal Appeals held that a unreasonably accepted the fruits of rational juror could find the evidence sufficient prosecutorial browbeating as a genuine to establish that Gribble intentionally killed expression of her disqualification to Jones. Id. at 2. The state appellate court’s serve. assessment of the evidence focused on the manner in which Gribble carried out the This is not the claim raised by Gribble in his kidnaping and murder of JonesSSincluding federal habeas application, in which he Gribble’s hiding of the bodySSand on the asserted that Deaton was qualified to serve on medical examiner’s testimony about the jury and that granting the challenge for strangulation taking several minutes before cause was erroneous. The district court death occurs. That court’s conclusion, under denied this claim on the merits, concluding that the federal standard of review of a sufficiency the trial court’s decision to exclude Deaton for claim, is not an unreasonable application of cause was presumptively correct, and Gribble federal law. See Drinkard, 97 F.3d at 769; § presented no evidence to rebut the 2254(d)(1); Jackson v. Virginia, 443 U.S. presumption. See Gribble, 8 F. Supp. 2d at 307, 319 (1979). 952-53. As for Gribble’s sufficiency argument The requirement for a COA is concerning the evidence supporting the jury’s

affirmative answer to one of the two special Gribble argues that by urging the jury to questions in determining punishment, Gribble consider the question of future dangerousness notes that the district court viewed this portion in terms that included the possibility of his of his habeas claim as being procedurally being out on the streets and in the community, barred, because Gribble had failed to exhaust the prosecution improperly commented, in the claim in state court. See Gribble, 8 F. closing argument during the penalty phase, on Supp. 2d at 955. To obtain a COA on this the possibility of parole or pardon. In arguing portion of his sufficiency claim, Gribble must for the answer “no” to special issue 2 make a credible showing of error. See concerning Gribble’s future dangerousness, his Murphy, 110 F.3d at 11. attorney asked the jury to consider whether there was any evidence to indicate that he Gribble did not raise this sufficiency claim would be raping or killing people in prison. focusing on special issue 1 in his direct appeal During closing argument, the prosecutor made or in the state habeas proceedings. He the following comments: concedes the lack of exhaustion and contends that the issue is properly before the federal Second special issue, again probability habeas court because he raised it in his first he would commit continuing acts of direct appeal, which resulted in retrial of the violence and be a future threat to guilt and punishment phases. Gribble cites no society, again very strong. And I think authority for his novel interpretation of the we proved those not beyond a fair-presentment requirement of the doctrine of reasonable doubt, but beyond any doubt. exhaustion. He is not in custody pursuant to He did that when he went out and a judgment of conviction and sentence from sexually assaulted Mary Kate O’Grady. his first trial. His assertion of exhaustion is When you answer that, I think you take legally frivolous. in consideration conduct in the penitentiary but I think you also take in Gribble also asserts that his lack of consideration conduct that the exhaustion should be excused because Defendant may have on the street in the attempting to exhaust now would be futile. community as a whole when you answer He cites Layton v. Carson, 479 F.2d 1275, that special issue. 1276 (5th Cir. 1973), for the proposition that futility will excuse exhaustion. Supreme Court The defense objected to the comment as authority defeats this assertion.***** being “clearly outside of what’s going on. If he gets a life sentence that’s obviouslySSthat’s Because any attempt to exhaust the claim in improper argument.” The court overruled the state court would result in the claim’s objection, noting that “[t]he issue is whether dismissal as an abuse of the writ, the claim is or not he will be a continuing threat to procedurally barred. See Fearance, 56 F.3d at society.” 642. Gribble fails to make a credible showing of error in the district court’s determination During deliberations, the jury asked the concerning this portion of his sufficiency following question: “As per Mr. Abbington’s claim. See Murphy, 110 F.3d at 11. statement of 'life in prison' does that mean he will spend the rest of his normal natural life in IX. prison or does that equate into years.” The court answered by referring to the following paragraph in the general charge: ***** See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (holding claim procedurally barred With regard to the effect of your from federal habeas review if “the petitioner would answers to the Special Issues in this case be required to present his claims in order to meet you are not to discuss or consider any the exhaustion requirement [and] would now find possible actions of the Governor or the the claims procedurally barred”). Pardons and Paroles Division of the

Texas Department of Criminal Justice. Green v. Johnson, 160 F.3d 1029, 1045 (5th During your deliberations in this case, Cir. 1998), cert. denied, 119 S. Ct. 1107 you must not consider, discuss, or relate (1999). any matters not in evidence before you. You should not consider or mention any Under Texas law, the jury may not consider personal knowledge or information you parole or parole eligibility. See Colburn v. may have about any fact or person State, 966 S.W.2d 511, 519 (Tex. Crim. App. connected with this case which is not 1998). The prosecutor did not use the word shown by the evidence. “parole,” and Gribble’s speculation that the comment was an indirect challenge to defense Gribble contends that the Eighth counsel’s argument, which incorrectly Amendment was violated by the comment, presumed that Gribble would be in prison for because the sentence was arbitrarily imposed: his natural life if given a life sentence, is The prosecutor placed before the jury that life baseless. The jury showed, by its question, in prison could be less than Gribble’s natural that its possible consideration of parole was a life. He also contends that the comment result of the comment of defense counsel, not amounted to a Fourteenth Amendment the prosecutor. The court answered the violation, because it made his death sentence question by directing the jury to the general fundamentally unfair: The jury impermissibly instruction to disregard consideration of parole considered the possibility of parole if a life or pardon in the deliberations. sentence was imposed. The record does not support Gribble’s The Court of Criminal Appeals held that the contention that the prosecutor’s comments prosecutor’s comment was not improper, misled t he jury as to its role in determining because “[t]he possibilities of escape or some sentence or as to the proper boundaries of other release from prison are legitimate future dangerousness. See Sawyer v. Butler, concerns in determining the future 881 F.2d 1273, 1285 (5th Cir. 1989) (en dangerousness of a defendant.” Gribble I, slip banc), aff’d sub nom. Sawyer v. Smith, 497 op. at 14. Although the state asserted that the U.S. 227 (1990). The Constitution does not constitutional claims based on the prosecutor’s prohibit a jury's consideration of the actual comment were not raised on direct or state length of a life sentence. See Simmons, 512 habeas review and thus were procedurally U.S. at 163. The state appellate court barred, the district court gave Gribble the concluded that the prosecutor’s comment was benefit of the doubt that the constitutional not improper under state law. See Gribble I, claim had been sufficiently raised on direct slip op. at 14. The state court’s conclusion is appeal and thus had been exhausted. The not “contrary to . . . clearly established Federal court addressed the merits. See Gribble, 8 F. law, as determined by the Supreme Court.” § Supp. 2d at 954-55. 2254(d)(1).

Gribble relies on Simmons v. South X. Carolina, 512 U.S. 154, 169 (1994), and Gribble argues that the nullification charge, Caldwell v. Mississippi, 472 U.S. 320, 328-29 given in response to the Penry error****** from (1985) (reasoning that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for ****** Penry requires the jury to receive, in determining the appropriateness of the addition to the instructions on the art. 37.071 defendant’s death rests elsewhere”), for his special issues, special instructions about mitigation due process and Eighth Amendment evidence if the defendant introduces evidence arguments. Simmons is inapplicable, because reflecting reduced culpability and the jury cannot Texas does not provide the jury the option to give mitigating force to the evidence under the art. impose a sentence of life without parole. See 37.071 special issues. See Penry, 492 U.S. at 318-

the first trial, was confusing and cumbersome court committed reversal [sic] error by and insufficient to make the sentence a refusing to instruct the jury on mitigating reasoned consideration, as required by the evidence of [Gribble]’s background of Constitution, of all the mitigating evidence. childhood abuse.” The Court of Criminal The general charge included the following: Appeals assumed, without deciding, that the pro se claims could be treated as supplemental When you deliberate about the habeas claims and denied relief because the questions posed in the Special Issues, claims were conclusional. you are to consider any mitigating circumstances supported by the evidence The state asserted in the district court that presented in both phases of the trial. Gribble’s nullification charge claim was Mitigating circumstances may include, unexhausted and could not then be exhausted, but are not limited to, any aspects of the and thus the claim was procedurally barred defendant’s background, character, from federal habeas review. The court noted record, or circumstances of the crime the state’s assertion of the procedural bar but which you believe makes a sentence of exercised its discretion under § 2254(b)(2) and death inappropriate in this case. If you reviewed the merits. See Gribble, 8 F. Supp. find there are any mitigating 2d at 957. circumstances you must decide how much weight they deserve, if any; and The court concluded that to grant relief on give them the consideration and effect Gribble’s nullification charge claim, it would they deserve, if any, when you answer have to announce a new rule of constitutional the Special Issues. law, which is prohibited by Teague v. Lane, 489 U.S. 288, 305-08 (1989). See Gribble, If you determine, in consideration 8 F. Supp. 2d at 957. Gribble argues that of this mitigating evidence, t hat a life Teague is inapplicable, because his habeas sentence rather than a death sentence, is claim is based on Penry, 492 U.S. at 318-19, an appropriate response to the personal and Roberts v. Louisiana, 428 U.S. 325, moral culpability of the defendant, you 334-35 (1976). are instructed to answer at least one of the Special Issues under consideration “Unless they fall within an exception to the “no.” If you have made such a general rule, new constitutional rules of determination, an answer of “no” should criminal procedure will not be applicable to be given independently of whether such those cases which have become final before mitigating evidence is relevant to either the new rules are announced.” Teague, 489 Special Issue, and regardless of what U.S. at 310. The exceptions are “if the new you find the answers to the Special rule (1) puts certain kinds of primary, private Issues to be. individual conduct beyond the power of the criminal law-making to proscribe or (2) is a Gribble challenges the constitutionality of the rule of procedure that is implicit in the concept second paragraph, which he refers to as the of ordered liberty . . . . The second exception “nullification charge.” is reserved for watershed rules of criminal procedure.” Muñiz v. Johnson, 132 F.3d 214, Gribble failed to challenge the nullification 225 (5th Cir. 1998) (internal quotations and charge on direct appeal, and it was not raised citations omitted). in his state habeas petition. He listed the following contention in his pro se motion to Roberts was one of five opinions issued by strike the state habeas petition: “The trial the Court on the same day. The Court essentially applied the Gregg v. Georgia, 428 U.S. 153, 195 (1976), rationale to the (...continued) Louisiana death penalty statute, which directed 19. the use of a responsive-verdict procedure, and

held the statute to be violative of the Eighth made a substantial showing of the denial of a Amendment, because it failed to channel the constitutional right”). Thus, for a COA to jury’s judgment or provide an adequate check issue, Gribble first must show error in the on the possible arbitrary imposition of the granting of summary judgment. See Murphy, death penalty. See Graham v. Collins, 950 110 F.3d at 11. F.2d 1009, 1018 (5th Cir. 1992) (en banc), aff’d, 506 U.S. 461 (1993). The Court has To show harm, Gribble contends that upheld the Texas death penalty sentencing evidence from the first trial would have shown scheme, see Graham v. Collins, 506 U.S. 461, a different factual context of the taped 474 (1993); Jurek v. Texas, 428 U.S. 262, confession. He does not specify the precise 268-75 (1976), and, as we have noted, Penry factual context, but we presume he is referring requires that the mitigating evidence not be to the different phrases in the record as to the beyond the effective reach of the jury, see precise wording he used in asking that the Robinson v. Johnson, 151 F.3d 256, 263 (5th recording of his confession be stopped or Cir. 1998), cert. denied, 119 S. Ct. 1578 paused. (1999). Gribble avers that the lack of an Gribble does not contend that any specific opportunity to respond to the state’s amended mitigating evidence was beyond the jury’s summary judgment motion/answer denied him reach. A review of the charge confirms that the opportunity to assert that presentation of the jury could consider mitigating evidence, if issues on the initial direct appeal was sufficient any, in its consideration of the special issues exhaustion to overcome the state’s assertion of and beyond the scope of those issues. Thus, the lack of exhaustion and of procedural bar to grant relief on Gribble's nullification charge on some of his claims. As we have noted, claim, we would need to apply a new rule of Gribble cites no authority to support his novel constitutional law, because Gribble seeks relief interpretation of t he fair-presentment beyond the purview of Jurek, Penry, and requirement. Graham. See Graham, 506 U.S. at 475-77. Gribble’s claim is barred by Teague. See Gribble complains that the truncated Lucas v. Johnson, 132 F.3d 1069, 1083 procedures impaired his right to have counsel (5th Cir.), petition for cert. dismissed, present the habeas claims to the district court 141 L. Ed. 2d 765 (1998). with factual specificity and citation to authority. A review of the state’s amended XI. summary judgment/answer and of the district Gribble argues that the district court erred court’s memorandum opinion reveals that in ordering him to refrain fro m filing a Gribble’s habeas application was sufficient for response to the state's summary judgment consideration of the habeas claims. See motion and by denying his motion for a FED. Gribble, 8 F. Supp. 2d at 945-57. Any error R. CIV. P. 16 conference, which he asserts in the procedures surrounding the grant of would have provided the opportunity to summary judgment was harmless.******* address the merits of his habeas claims. He asserts that the truncation of the rule 56 Even assuming Gribble has made a credible procedures impermissibly impaired his right to showing of error, thus satisfying the first of the habeas counsel, pursuant to 21 U.S.C. § two-part Murphy standard for a COA, the 848(q)(B), to research and present the habeas claims. ******* See Resolution Trust Corp. v. Sharif- Gribble’s appeal is before us on motion for Munir-Davidson Dev. Corp., 992 F.2d 1398, 1403 COA. His contentions concerning procedural (5th Cir. 1993) (concluding that summary irregularities, if any, in the district court are judgment without sufficient notice to the non-constitutional in nature. See § 2253(c)(2) nonmoving party was harmless); FED. R. CIV. P. (stating that a COA issues if “applicant has 61.

second part of the standard is the § 2253(c)(2) standardSSmaking a substantial showing of the denial of a constitutional right. See Murphy, 110 F.3d at 11. As we have stated, Gribble fails to meet the standard warranting the issuance of a COA on any of his habeas claims. See § 2253(c)(2). Thus, he is not entitled to a COA on his claim concerning procedural error in the district court.

The application for a COA is DENIED.