Jackson v. Dretke

United States Court of Appeals Fifth Circuit

In the FILED May 11, 2006 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________

m 05-70014 ______________

DONELL O’KEITH 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 m H-02-CV-2601 _________________________

Before DAVIS, SMITH, and DENNIS, Donell Jackson requests a certificate of ap- Circuit Judges. pealability (“COA”) from the denial of his claim for federal habeas corpus relief under 28 JERRY E. SMITH, Circuit Judge:* U.S.C. § 2254. We deny a COA as to all but two of Jackson’s claims on which a COA is required, because jurists of reason would not * Pursuant to 5TH CIR. R. 47.5, the court has de- termined that this opinion should not be published * and is not precedent except under the limited (...continued) (continued...) circumstances set forth in 5TH CIR. R. 47.5.4.

find the rejection of them debatable. As for II. the claim on which we grant a COA, and the This case is governed by the Antiterrorism claim for which no COA is required, we affirm and Effective Death Penalty Act of 1996 on the merits. (“AEDPA”), which requires, as a jurisdictional prerequisite to appeal, that Jackson obtain a I. COA. Miller-El v. Cockrell, 537 U.S. 322, Jackson was charged with killing his victim 335-36 (2003). A COA will issue if Jackson for remuneration. The victim had previously makes “a substantial showing of the denial of testified before a grand jury in its investigation a constitutional right.” 28 U.S.C. § 2253- of Jackson’s friend, David Smith. Smith in- (c)(2). The prevailing standard requires Jack- dicated in a taped statement that he did not son to demonstrate that “reasonable jurists know Jackson was going to shoot the victim. could debate whether (or, for that matter, When the police played Smith’s statement for agree that) the petition should have been re- Jackson during interrogation, Jackson alleg- solved [by the district court] in a different edly replied that Smith had paid him to commit manner or that the issues presented were ‘ade- the murder. Jackson then made a taped con- quate to deserve encouragement to proceed fession. To shift the blame, Jackson at trial further.’” Slack v. McDaniel, 529 U.S. 473, claimed the police had told him to say that 484 (2000) (quoting Barefoot v. Estelle, 463 Smith had paid him. U.S. 880, 893 n.4 (1983)).

Jackson was convicted by a jury of capital Although the COA determination requires murder. At sentencing, the state introduced a threshold inquiry into the merits of a peti- evidence of prior offenses, and Jackson pre- tioner’s claim, it does not involve a full can- sented evidence of a favorable home life and a vassing of the factual or legal bases for relief. learning disability. The jury sentenced him to See Miller-El, 537 U.S. at 336-37. We do not death, finding that he posed a threat of future inquire whether Jackson will succeed on ap- dangerousness and that the mitigating evidence peal, or even whether any reasonable jurist was inadequate to warrant a life sentence. would ultimately grant Jackson’s petition. Rather, we ask only whether the federal dis- The Texas Court of Criminal Appeals af- trict court’s resolution of Jackson’s claims is firmed the conviction and sentence on direct debatable among jurists of reason.1 appeal. Jackson filed a concurrent petition for writ of habeas corpus in the trial court, which When assessing whether jurists of reason entered findings of fact and conclusions of law could debate the denial of Jackson’s habeas that were adopted by the Court of Criminal petition, we are mindful of the deferential stan- Appeals in an order denying habeas relief. dard of review the district court must apply under AEDPA. See Miniel v. Cockrell, Jackson filed a federal habeas petition under § 2254, alleging twenty-two points of error. The district court granted summary judgment 1 Miller-El, 537 U.S. at 338 (stating that “a denying Jackson’s claims, and denied sua claim can be debatable even though every jurist of sponte a COA as to each claim. Jackson filed reason might agree, after the COA has been grant- a notice of appeal and request for a COA. ed and the case has received full consideration, that petitioner will not prevail”).

339 F.3d 331, 336 (5th Cir. 2003). The dis- F.3d 190, 193 (5th Cir. 2001). Finally, trict court must defer to the state court’s ad- AEDPA presumes that the state court’s factual judication of a defendant’s claims on the merits findings are correct; the defendant has the bur- unless the state court’s decision was “contrary den of proving otherwise by “clear and con- to, or involved an unreasonable application of, vincing evidence.” 28 U.S.C. § 2254(e)(1). clearly established Federal law, as determined by the Supreme Court of the United States, or III. . . .was based on an unreasonable determina- Jackson makes eight separate arguments for tion of the facts in light of the evidence pre- a COA. We deal with each of these in turn. sented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). A. Jackson argues that his confession was in- A state court’s decision is “contrary to” voluntary and the product of police miscon- clearly established federal law if it reaches a duct. Specifically, he maintains that, to shift result in direct conflict with Supreme Court blame to Smith, police told him to say that he precedent, either by drawing a contrary legal received money for the victim’s murder; Jack- conclusion or basing a contrary judgment on son alleges that discrepancies between the de- materially indistinguishable facts. Miniel, tails of his confession and statements made by 339 F.3d at 337 (citing Williams v. Taylor, Smith compel the conclusion that police co- 529 U.S. 362, 405 (2000)). A state court’s erced a confession. decision is based on an “unreasonable applica- tion” of clearly established federal law if it is The Fifth Amendment provides that no “objectively unreasonable.” Id. Therefore, it person “shall be compelled in any criminal case is not enough for the reviewing court to be- to be a witness against himself.” U.S. CONST. lieve that the state court applied Supreme amend. V. “[A] confession, in order to be Court precedent incorrectly;2 rather, the appli- admissible, must be free and voluntary: that is, cation must be outside the range of reasonable must not be extracted by any sort of threats or judgment permitted by the particular rule.3 violence, nor obtained by any direct or implied promises, however slight, nor by the exertion It is the ultimate legal conclusion reached of any improper influence.” Bram v. United by the state court, not every step of its reason- States, 168 U.S. 532, 542-43 (1897) (quoting ing process, that should be tested for unrea- 3 RUSSELL ON CRIMES 478 (6th ed.)). sonableness. See Santellan v. Cockrell, 271 As the district court noted, the admissibility of Jackson’s confession might be in doubt if 2 the facts he alleges were true. The jury, how- Woodford v. Visciotti, 537 U.S. 19, 24-25 ever, considered the evidence presented by (2002). Jackson and the police at trial, and found that 3 Yarborough v. Alvarado, 541 U.S. 652, 664 no promises were made to Jackson in (2004) (explaining that “the range of reasonable exchange for his confession. This credibility judgment can depend in part on the nature of the determination is squarely within the province relevant rule . . . . The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.”).

of the jury,4 and AEDPA tells us to presume ing disability and other psychological prob- that this finding is correct unless rebutted by lems, to diminish the probative value of his “clear and convincing evidence.” 28 U.S.C. confession. He seeks only to remove the § 2254(e)(1). Because Jackson did not pres- evidentiary basis of the jury’s conclusion that ent any new evidence in his habeas petition he committed capital murder; i.e., murder-for- that would satisfy this rigorous standard, hire. Because this is a free-standing actual in- reasonable jurists could not disagree with the nocence claim, no reasonable jurist could dis- denial of a COA on this issue. agree that Jackson failed to make “a substan- tial showing of the denial of a constitutional B. right.” 28 U.S.C. § 2253(c)(2). Therefore, a Jackson contends that the alleged discrep- COA for this claim is denied. ancies between his confession and Smith’s statements prove that the confession is false, C. so there was no evidence to establish that 1. Jackson killed the victim for remuneration. Jackson urges that the state exercised its Hence, Jackson maintains that he is actually peremptory challenges in a racially discrimina- innocent of capital murder. tory manner, in violation of his Fourteenth Amendment rights under Batson v. Kentucky, A claim of actual innocence based on newly 476 U.S. 79 (1986). The Batson Court held discovered evidence is not cognizable for that a defendant must first make a prima facie purposes of federal habeas corpus absent an showing that the prosecutor is exercising his independent constitutional violation. Herrera strikes based on the prospective juror’s race. v. Collins, 954 F.2d 1029, 1034 (5th Cir. See id. at 96-97. 1992), aff’d, 506 U.S. 390 (1993). This rule recognizes that the purpose of federal habeas “Once the defendant makes a prima facie corpus is “to ensure that individuals are not showing, the burden shifts to the State to imprisoned in violation of the Constitu- come forward with a neutral explanation for tionSSnot to correct errors of fact.” Herrera, challenging [minority] jurors.” Id. at 97. If 506 U.S. at 399. A petitioner may prove actu- the state is unable to offer a race-neutral ex- al innocence to overcome a procedural default, planation, the defendant’s sentence should be allowing a federal habeas court to reach the reversed. See id. at 100. If the state advances merits of an otherwise barred constitutional putatively neutral reasons, the defendant bears claim. Schlup v. Delo, 513 U.S. 298, 316 the ultimate burden of proving that those rea- (1995). sons are pretextual. See id. at 94 n.18.

Jackson does not allege actual innocence In Miller-El, the Court reversed this court’s to remove a procedural bar to a separate con- denial of a COA on a Batson claim, finding stitutional claim. Rather, he submits evidence, that it was debatable among jurists of reason consisting of testimonial discrepancies and whether Miller-El would succeed in his federal expert opinion that he may suffer from a learn- habeas case. Miller-El, 537 U.S. at 348. The Court noted that deference to the state court is often appropriate for Batson claims, because 4 See United States v. Cathey, 259 F.3d 365, whether the defendant has carried his burden 368 (5th Cir. 2001).

of proof will often turn on the credibility of the tor’s credibility; prosecutor exercising the strikes, and “a re- viewing court, which analyzes only the tran- (3) the race-neutral reasons provided for scripts from voir dire, is not as well positioned striking certain black jurors applied equally as the trial court is to make credibility determi- well to white jurors who went unchal- nations.” Id. at 339. Such deference, how- lenged; ever, does not mean that a COA shall never issue; rather, “[a] federal court can disagree (4) the State used disparate questioning for with a state court’s credibility determination white and black jurors, prefacing its ques- and, when guided by AEDPA, conclude the tions to more than half the prospective decision was unreasonable or that the factual black jurors with an explicit description of premise was incorrect by clear and convincing Texas’s execution procedures (compared to evidence.” Id. at 340. 6% of whites), and informed 94% of whites of the statutory minimum sentence (com- Miller-El, therefore, did not alter the stan- pared to 12.5% of blacks); dards for evaluating requests for a COA under AEDPA, nor did it articulate a new test for (5) the State requested a jury shuffle when reviewing Batson claims; rather, it spoke only a predominant number of African-Ameri- to “the type and quantum of record evidence” cans sat at the front of the panel; and needed to establish eligibility for a COA. Mur- phy v. Dretke, 416 F.3d 427, 439 (5th Cir. (6) evidence suggested that, historically, a 2005) (describing Miller-El v. Dretke, 125 S. culture of bias against African-American Ct. 2317 (2005) (“Miller-El II”)), cert. de- jurors suffused the District Attorney’s of- nied, 126 S. Ct. 1028 (2006). fice, including the formal training of assis- tant district attorneys on how to exclude In Miller-El, the Court found a number of minorities from juries. circumstances in the record that supported the Batson claim. To succeed on a Batson claim, Miller-El, 537 U.S. at 342-47. however, a petitioner need not submit each type of evidence addressed by Miller-El. A pe- To support his Batson claim, Jackson pre- titioner is also not limited to the types of evi- sents two types of evidence that are similar to dence considered by the Court in Miller-El. the first and third circumstances examined in There, the Court found the following factual Miller-El. First, he points out that 5 of the 11 circumstances persuasive in determining that a (or 45%) of the peremptory strikes were COA should issue: against black venire members.5 Second, he

(1) the State used 10 of its 14 peremptory strikes against African-Americans, and only 5 Although statistical evidence alone may raise one ultimately served on the jury; some debate as to whether the prosecution acted with a race-based reason for striking prospective (2) the trial court conducted a Batson jurors, Miller-El, 537 U.S. at 342, Jackson fails to hearing two years after voir dire, so the present this court with sufficient statistical infor- court had no occasion to judge the prosecu- mation to make that determination. He contends (continued...)

asserts that some of the race-neutral reasons habeas relief, finding the state habeas court’s provided for striking certain black venire mem- determinations to be consistent with federal bers applied equally to white venire members law as established by the Supreme Court. who went unchallenged and were selected for the jury. He also contends that the prosecu- 2. tor’s reasons for striking the five black venire Jackson objects to the strikes of five black members were pretextual because the prof- jurorsSSMaria Brooks, Lee Davis, Myrtle Gib- fered reasons did not accurately reflect the voir son, Ingrid Poindexter, and Laverne Reid. We dire testimony of the members. consider each of these briefly in turn.

The Court in Miller-El stated that, when a. the prosecution’s reasons for striking black The state indicated it struck Brooks be- jurors could apply equally well to white jurors cause she stated she would have difficulty de- who were ultimately empaneled, “the applica- ciding that the state had proved future danger- tion of these rationales to the venire might ousness;6 she expressed opposition to the have been selective and based on racial consid- death penalty; she said her religion taught her erations.” Id. at 343. In particular, the Court not to sit in judgment of another person. noted that similarly-situated white and black Though Jackson cites Terry Arnold as an ex- potential jurors expressed ambivalence about ample of a white juror who was empaneled de- the death penalty. Id. spite expressing similar reservations about sitting in judgment of another,7 Arnold’s res A COA determination under § 2253(c) re- quires “an overview of claims in the habeas petition and a general assessment of the mer- 6 When asked about predicting Jackson’s future its.” Miller-El, 537 U.S. at 336. This thresh- dangerousness, Brooks stated, “I can’t predict the old inquiry, however, “does not require full future for anything. We just don’t know the consideration of the factual or legal bases ad- future.” When pressed further by the state, she re- duced in support of a claim.” Id.. sponded that “no one can see into the future of an individual.” After our threshold inquiry into the merits 7 of Jackson’s claim, we conclude that reason- Arnold’s questionnaire stated, “I do not par- able jurists could debate whether the state’s ticularly care to stand in judgment of someone else, use of peremptory strikes against black venire but if necessary, will do so.” The following ex- members was race-based and thus in violation change occurred between the Court and Arnold on of Batson. We therefore grant a COA on this this subject: claim. After reviewing the briefs and record in Q. Do you have any convictions that would full, however, we deny Jackson’s claim for prevent you from being able to stand in judg- ment? 5 (...continued) A. Not from a religious standpoint or anything. that 5 of the 11 peremptory strikes were used It’s just a personal feeling I have as an against black members of the venire, but without individual. other information concerning the composition of the jury pool this statistic has little meaning. (continued...)

ervations in this respect were less serious than empaneled white juror, but rather argues that were Brooks’s. Arnold also did not express Davis’s answers suggest he would be able to hesitancy about being able to find future dan- apply the correct burden of proof fairly in a gerousness. capital case. Even though Davis softened his statement that he would require proof of guilt b. to a certainty, the state was entitled to con- The state’s reason for striking Davis was clude that he might require it to prove guilt by his apparent opposition to the death penalty an elevated standard even if that burden were and his indication that he would hold the pro- something less than metaphysical certainty. secution to an elevated standard in capital cas- es.8 Jackson does not compare Davis to an c. The state claims it struck Gibson because she stated she believed that black people were 7 (...continued) treated unfairly by the criminal justice system, Q. Well, and it doesn’t have a religious basis . because she thought she might know the de- . . . I need for you to have looked inside fendant personally, and because she was un- yourself, whether it’s a religious basis or just sure about her feelings on the death penalty. personal convictions. Do you feel like you would be able to make the decision in a case if 8 you were in that position? (...continued) there is a possibility that someone else could A. I can make a decision, yes, I could. have done it orSS

8 During voir dire the state asked Davis how he Q. Is that beyond, I mean, in your mind, any felt about the possibility of serving on a jury in a doubt? case involving the death penalty. He replied, “I would have to really believe that a hundred percent, A. What’s reasonable? What’s reasonable to have no doubt that the actual crime was committed me? by a person for me to . . . render a decision of . . . death in a situation like this. I’d have to be a Q. Right. And I guess that’s what the ques- hundred percent convinced.” Later the state again tionSSI mean, what’s reasonable to you seems asked Davis about the burden of proof he would to be a hundred percent. require the state to carry in a death penalty case: A. Okay. It maySSmaybeSSmaybe a hundred Q. Do you feel like if the State didn’t prove percent is being a little critical, but I have to [the offense] to you a hundred percent or be- beSSthe balanceSSI have to be convinced in the yond all doubt, that you could find the defen- balance and maybeSSmaybe a hundred dant guilty if you didn’t know a hundred per- percentSSI don’t know if you actually mean to cent? give you a percentage, you know, I don’t know if that’s fair or not. But I have to be thoroughly A. I’d have to be convincedSSI’d have to be convinced enough, and that’s notSSmaybe more convinced that the person did commit this. saying a hundred percent is not the right way I have to be convinced enough to the point for me to say that, but I have to beSSthe where I don’t feel like there is a possibility that balance, I have to be more convinced that they the State could have been mistaken or maybe did it than not and I can’t really give a (continued...) percentage on that.

Besides challenging these contentions on the e. merits, Jackson argues that Gibson’s comment Reid’s testimony suggested that she about the unfair treatment of black people is thought that to prove future dangerousness, substantially similar to white empaneled juror the state would have to demonstrate that the Kevin Chapman’s comment that the justice defendant would commit murder in the fu- system treats marihuana users unfairly.9 ture.12 She also expressed confusion over the special issues. Jackson argues that Reid equiv- d. ocated in her testimony, that the state rushed As for Poindexter, the state points to strong Reid through her voir dire, and that empaneled language10 in her questionnaire opposing the juror Brian Summers indicated similar confu- death penalty and stating that life imprison- sion on the special issues.13 ment is a worse punishment than death. Jack- son again points to Chapman, who initially stated he would hold the state to a higher bur- 11 (...continued) den of proof in capital cases but later clarified burden of proof: “SoSSand you can correct if I’m that he understood that the applicable burden wrongSSin a capital case you would want to raise of proof was beyond a reasonable doubt in all the burden of proof, raise the threshold of what a cases.11 reasonable doubt is?” Chapman responded, “I said something similar to that, but that’s not what I was saying. I can’t remember exactly my words. I 9 We disagree with Jackson’s contention that opened up before I said that, it’s a reasonable Chapman’s statement that marihuana users are doubt no matter what kind of case you’re doing.” treated unfairly in the criminal justice system is We agree with the district court that Chapman equivalent. Therefore, the fact that Chapman ulti- made it plain that he did not intend to say that he mately served on the jury despite making such a would hold the state to a higher burden of proof. statement lends no support to Jackson’s Batson 12 claim. As stated by the federal habeas court, When asked whether she thought it was pos- “[t]here is no evidence that the prosecution would sible to predict whether someone will be dangerous not have struck a white juror expressing the same in the future, Reid stated, “No, I don’t think that’s sentiment” as Gibson, and “the selection of Chap- predictable.” She also said that “the State could man and rejection of Gibson as jurors does not prove it if that person actually did commitSSdid do demonstrate any racially motivated action by the it, did repeat it. But if the person didn’t repeat it, State.” then I don’t see how the State could prove it.” 13 10 In her questionnaire, Poindexter stated that After being asked a lengthy question by the she did not believe in the death penalty and thought state concerning Special Issue No. 2, Summers it is “the most hideous practice of our time.” She asked, “Do ISScould you take some of the words also stated that “[w]e can’t call ourselves civilized out in that and condense it?” Jackson contends that as long as we have capital punishment.” These this statement indicates Summers’s confusion with statements alone are justification for the state to Issue No. 2. But, after the state condensed its want Poindexter excused from the jury, even question and asked, “Do you think that the system though she later said she would have no problem that Texas has in place right now is an appropriate imposing the death penalty in certain cases. way, in your own mind, to determine who should get the death penalty and who should get life in 11 The state pressed Chapman on raising the prison?”, Summers responded, “Yes, I do.” (continued...) (continued...)

Jackson also contends that the prosecutor’s extended Apprendi to capital cases. Jackson’s reason for striking Reid based on the fact that claim is barred by the non-retroactivity princi- she did not know that murder-for-hire was a ples of Teague v. Lane, 489 U.S. 288 (1989), capital offense, was similar to statements made and at any rate, the state court’s refusal to de- by empaneled juror Chapman. Given the ny a special instruction is not contrary to clear- strong statements made by Reid concerning ly established federal law as articulated by the her reluctance to find future dangerousness, Supreme Court. See 28 U.S.C. § 2254(d)(1). the state certainly had a valid race-neutral Therefore, we deny his request for a COA on reason to use a peremptory challenge for Reid. that issue.

3. Under Teague, the relevant inquiry is AEDPA requires that the trial court’s de- “whether a state court considering [the defen- cision be an “unreasonable application” of dant’s] claim at the time his conviction became clearly established federal law or based on an final would have felt compelled by existing “unreasonable determination” of the facts in precedent to conclude that the rule [he] seeks light of the trial record. 28 U.S.C. § 2254- was required by the Constitution.” Goeke v. (d)(1), (2). Jackson does not present substan- Branch, 514 U.S. 115, 118 (1995) (internal tial evidence of racial bias in jury selection be- quotations omitted).14 Apprendi and Ring yond questionable distinctions in juror testi- create new rules of constitutional law that are mony. The trial court’s decision to permit the not retroactively applicable to cases under state to exercise its peremptory strikes as it did federal habeas review.15 Therefore, the only falls well within the “the range of reasonable question left to answer is when Jackson’s judgment” afforded by AEDPA. See Yarbor- conviction became final. ough, 541 U.S. at 664. Therefore, Jackson’s request for habeas relief on this issue is denied. “A state conviction and sentence become final for purposes of retroactivity analysis D. when the availability of direct appeal to the Jackson contends that the trial court should state courts has been exhausted and the time have instructed the jury that any unadjudicated for filing a petition for a writ of certiorari has extraneous offenses introduced during the elapsed or a timely filed petition has been punishment phase needed to be proven beyond finally denied.” Caspari v. Bohlen, 510 U.S. a reasonable doubt. Jackson relies on Appren- di v. New Jersey, 530 U.S. 466, 490 (2000), 14 which held that “[o]ther than the fact of prior The Teague rule is subject to limited excep- conviction, any fact that increases the penalty tions not applicable here. See Gilmore v. Taylor, for a crime beyond the prescribed statutory 508 U.S. 333, 345 (1993). maximum must be submitted to a jury, and 15 See United States v. Brown, 305 F.3d 304, proved beyond a reasonable doubt,” and Ring 310 (5th Cir. 2002) (“Apprendi creates a new rule v. Arizona, 536 U.S. 548, 609 (2002), which of criminal procedure which is not retroactively applicable to initial petitions under § 2255.”); Schriro v. Summerlin, 542 U.S. 348, 358 (2004) 13 (...continued) (“Ring announced a new procedural rule that does Contrary to what Jackson contends, Summers’s not apply retroactively to cases already final on statement does not show confusion on Issue No. 2. direct review.”).

383, 390 (1994). Jackson’s motion for rehear- prisonment without parole.18 ing was denied on June 9, 1999, so he had ninety days from that date to file a certiorari Therefore, Jackson invites us to answer the petition. See SUP. CT. R. 13. On Septem- unresolved question whether Ring and Ap- ber 7, 1999, therefore, Jackson’s conviction prendi apply to any fact found by a jury that became final, the year before Apprendi was bears on its ultimate decision to impose death, decided. Therefore, Teague bars Jackson’s or merely those facts that increase the autho- claim.16 rized punishment to death. Because the trial court’s decision not to require such an instruc- We note that even if Teague did not apply tion is not contrary to clearly established Su- here, Apprendi and Ring would not provide preme Court precedent, we would in any event Jackson with a legal basis for a COA. Ring deny a COA. states only that “[i]f a State makes an increase in a defendant’s authorized punishment contin- E. gent on the finding of a fact, that factSSno Similarly, Jackson asserts that the mere ad- matter how the State labels itSSmust be found mission of evidence of unadjudicated, extrane- by a jury beyond a reasonable doubt.” Ring, ous offenses violates his rights under the 536 U.S. at 602 (emphasis added). Eighth and Fourteenth Amendments and jus- tifies a COA. Because Jackson cites no au- The onlyfact capable of elevating Jackson’s thority specifically for this proposition, the ar- charge to capital murder was proof of remu- gument is waived for inadequate briefing.19 neration.17 The state introduced evidence of unadjudicated offenses only to prove future Even if the argument were not waived, dangerousness in the sentencing phase, where Jackson would not be entitled to a COA. If he the jury must exercise its discretion to decide cannot prove that a COA should issue as to whether to impose a death sentence or life im- whether unadjudicated extraneous offenses need to be proven beyond a reasonable doubt, then a fortiori he cannot prove that a COA should issue as to whether such offenses are per se inadmissible. Because he does not point to any Supreme Court precedent foreclosing 16 Jackson appears to concede that Teague bars the trial court’s decision to permit evidence of his claim. His brief states that “[p]etitioner’s issue unadjudicated extraneous offenses, he cannot rests not on Apprendi alone, but on Eighth and make a substantial showing of a denial of a Fourteenth Amendment protections which are not barred by Teague.” Because Jackson nowhere de- scribes what these protections might be, we assume this issue presents only a claim under Apprendi and Ring, which is procedurally barred. 18 See T EX. CODE CRIM. PROC. art. 37.071 17 See TEX. PENAL CODE § 19.03(a)(3) (“A per- § 2(b)(1). son commits [capital murder] if the person commits 19 murder as defined under [the relevant statute] and See L & A Contracting Co. v. S. Concrete . . . the person commits the murder for re- Servs., 17 F.3d 106, 113 (5th Cir. 1994) (stating muneration.”). that failure to cite authority constitutes waiver).

constitutional right.20 jury about the consequences of deadlock. The Court noted that the Eighth Amendment re- F. quires that a death sentence not be arbitrarily Jackson claims that he deserves a COA be- imposed, id. at 381, but rejected the argument cause the trial court refused, in violation of his that “a death sentence is arbitrary within the Eighth and Fourteenth Amendment rights, to meaning of the Eighth Amendment if the jury instruct the jury that failure to reach a verdict is not given any bit of information that might on either of two special issues would automat- possibly influence an individual juror’s voting ically result in a life sentence. The Texas Code behavior,” id. at 382. Because Jones con- of Criminal Procedure provides that if the jury trols, reasonable jurists would not disagree is unable to answer a special issue unanimously with the district court’s resolution of this issue. in the affirmative or negative, “the court shall We deny a COA on this question. sentence the defendant to confinement in the institutional division of the Texas Department G. of Criminal Justice for life imprisonment with- Jackson alleges the trial court violated his out parole.” TEX. CODE CRIM. PROC. art. Eighth Amendment rights by failing to instruct 37.071 § 2(g). The Code also provides, how- the jury that it could consider mitigating evi- ever, that “[t]he court, the attorney represent- dence even if it did not relate to moral blame- ing the state, the defendant, or the defendant’s worthiness. Specifically, Jackson argued at counsel may not inform a juror or a prospec- the punishment phase that the jury should tive juror of the effect of a failure of a jury to receive the following instruction: agree on [special] issues[.]” Id. at § 2(a). Jackson maintains that this provision violates The term “mitigating” evidence or “mitigat- the Eighth and Fourteenth Amendments by ing” factor as used herein means any type failing to inform a capital sentencing jury of of evidence relating to the defendant’s relevant state sentencing law. background, character or the circumstances of the crime that would militate in favor of This claim is without merit. In Jones v. a life sentence rather than a death sentence. United States, 527 U.S. 373, 381-82 (1999), Evidence may be mitigating even if it does the Court held that the Eighth Amendment not relate in any way to the defendant’s does not require a court to instruct a capital moral culpability or moral blameworthiness for the capital murder listed in the indict- ment. 20 See Brown v. Dretke, 419 F.3d 365, 376 (5th Cir. 2005) (denying a COA on this issue because Instead, the court gave the following in- “there is no constitutional prohibition on the intro- struction (in relevant part): duction at a trial’s punishment phase of evidence showing that the defendant has engaged in extrane- ous, unadjudicated, criminal conduct”), cert. de- A mitigating circumstance may include, but nied, 126 S. Ct. 1434 (2006); see also Williams v. is not limited to, any aspect of the defen- Lynaugh, 814 F.2d 205, 208 (5th Cir. 1987) dant’s character, background, record, (holding that “the admission of unadjudicated emotional instability, intelligence or circum- offenses in the sentencing phase of a capital trial stance of the crime which you believe could does not violate the [E]ighth and [F]ourteenth make a death sentence inappropriate in this amendments”).

case . . . . In answering Special Issue No. al response to the defendant’s background, 2 you shall consider mitigating evidence to character, and crime.” Penry v. Johnson, 532 be evidence that a juror might regard as U.S. 782, 788 (2001) (internal quotations reducing the defendant’s moral blamewor- omitted). The sentencing instructions must thiness, including evidence of the defen- provide the jury with an adequate vehicle to dant’s background, character, record, consider Jackson’s evidence and come to a emotional instability, intelligence, or the reasoned moral conclusion. See id. at 800. circumstance of the offense that mitigates against the imposition of the death penalty. The trial court’s determination that the in- structions were constitutionally adequate is not Jackson apparently reasons that, by merely “contrary to” clearly established federal law as including background, character, and circum- articulated by the Supreme Court. In fact, in stances of the offense as modifiers of the gen- Johnson the Court approved of a mitigating eral category of moral blameworthiness, in- instruction under the predecessor statute to the stead of expressing these criteria in the con- current provisions of the Texas Code that was junctive, the state unconstitutionally limited less specific in its articulation of the relevant the scope of the mitigating instruction for mitigating factors: Special Issue 2. In determining each of these [Special] Is- The Texas Code of Criminal Procedure sues, you may take into consideration all provides that the court shall instruct the jury the evidence submitted to you in the trial of (should the jury make certain preliminary find- this case, whether aggravating or mitigating ings) that it shall consider “all of the evidence, in nature, that is, all the evidence in the first including the circumstances of the offense, the part of the trial when you were called upon defendant’s character and background, and the to determine the guilt or innocence of the personal moral culpability of the defendant,” in Defendant and all the evidence, if any, in determining whether a defendant should re- the second part of the trial wherein you are ceive life without parole instead of death. called upon to determine the answers to the TEX. CODE CRIM. PROC. art. 37.071 § 2(e)(1). Special Issues. Later, however, the Code defines “mitigating evidence” for purposes of this section as Johnson, 509 U.S. at 355. “evidence that a juror might regard as reducing the defendant’s moral blameworthiness.” Id. Neither was the instruction an “unreason- § 2(f)(4). able application” of clearly established federal law. In Beazley v. Johnson, 242 F.3d 248, Relevant mitigating evidence must be with- 260 (5th Cir. 2001), we held that the current in the “effective reach” of the jury during pun- statute “does not unconstitutionally ‘pre- ishment. Johnson v. Texas, 509 U.S. 350, 368 clude[] [the jury] from considering, as a miti- (1993) (internal quotation omitted). “[I]n a gating factor, any aspect of a defendant’s capital case, the sentencer must . . . be able to character or record and any of the circum- consider and give effect to [mitigating] evi- stances of the offense that the defendant prof- dence in imposing [a] sentence, so that the fers as a basis for a sentence less than death’” sentence imposed . . . reflects a reasoned mor- (citing Lockett v. Ohio, 438 U.S. 586, 604

(1978)). We noted that the definition of issue. mitigating evidence in § 2(f)(4) does not put any relevant evidence beyond the effective H. reach of the jury, because “[v]irtually any Jackson avers that he is entitled to a COA mitigating evidence is capable of being viewed because the district court denied his motion for as having some bearing on the defendant’s appointment of an expert in false confessions ‘moral culpability’ apart from its relevance to to support his claim that his confession was the particular concerns embodied in the Texas coerced and therefore inadmissible. Where special issues.” Id. (citing Graham v. Collins, expert services are “reasonably necessary” to 506 U.S. 461, 476 (1993)). mount a defense in a post-conviction proceed- This circuit has declined to articulate a pre- ing, the district court may authorize the de- cise test for what qualifies as “objectively un- fense attorneys to obtain such services and reasonable” under AEDPA.²¹ Where, how- shall pay the relevant expenses. 21 U.S.C. § ever, a state court reaches a conclusion consis- 848(q)(9).22 Jackson argues that expert assis- tent with this circuit’s precedent, it presump- tance was reasonably necessary because the tively falls within the broad discretion afforded circumstances surrounding the police inter- the state court under § 2254(d)(1), because we views of Jackson and Smith raised a question presumably would consider our own case law as to the existence of remuneration. Specifi- as within “the range of reasonable judgment” cally, when the police first interviewed Smith, afforded by Supreme Court decisions. See he made no mention of paying Jackson for the Yarborough, 541 U.S. at 664. murder. Only after Jackson confessed were police able to establish remuneration by further Furthermore, the trial court could reason- questioning Smith. ably have concluded that the mitigating evi- dence offered by JacksonSSthat he was loved The state responds by noting that ruling on and admired by his family, assisted his grand- a motion to provide expert assistance is within mother, and provided help at his church and the discretion of the district court. Hill v. Sunday schoolSSall sufficiently related to his Johnson, 210 F.3d 481, 487 (5th Cir. 2000). “moral blameworthiness” as to come within Also, the state argues that any testimony ren- the effective reach of the jury. Therefore, rea- dered by the expert would be procedurally sonable jurists could not disagree with the dis- barred in a federal habeas proceeding because trict court’s application of AEDPA’s deferen- it was never presented in state court. Finally, tial “unreasonable application” standard to because the jury’s credibility determination is Jackson’s claim. We deny a COA on this entitled to a presumption of correctness, Jack-

son has not presented evidence to rebut that affirm the denial of Jackson’s motion for presumption and make necessary the appoint- expert assistance. ment of an expert. For the above reasons, Jackson’s request A COA is not required to appeal the denial for a COA is GRANTED in part and DENIED of funds for expert assistance. Hill, 210 F.3d in part. The judgment on the issue on which at 487 n.3. Therefore, we may review the we grant a COA, and on the claim for which claim on direct appeal for abuse of discretion. no COA is required, is AFFIRMED. Id. at 487. We will uphold a denial of funding where the petitioner has “(a) failed to supple- ment his funding request with a viable consti- tutional claim that is not procedurally barred, or (b) when the sought-after assistance would only support a meritless claim, or (c) when the sought after assistance would only supplement prior evidence.” Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005) (internal citations omitted).

The district court did not abuse its discre- tion. At trial, Jackson testified that the police told him to confess that Smith paid him for murder in exchange for a lesser charge. The defense also presented two expert witnesses who testified that Jackson had a learning dis- ability and was below average in intelligence, and that Jackson was prone to self-deprecation and other antisocial behaviors. Therefore, the testimony of a false confession expert would merely have supplemented other evidence al- ready available to and considered by the jury. See id. at 288-89 (finding no abuse where ex- pert testimony would merely reinforce testi- mony already given by defendant). 23 Even if we were inclined to agree as an ini- (...continued) may authorize the defendant’s attorneys to obtain tial matter that a false confession expert’s tes- such services on behalf of the defendant”) (em- timony was reasonablynecessaryfor Jackson’s phasis added). See also Smith, 422 F.3d at 289 defense, the relevant statute vests discretion (noting that change in AEDPA from the mandatory squarely in the district court.23 Therefore, we “shall” to discretionary “may” language in § 848(q)(9) “can only reasonably be construed as changing a mandatory granting of funds to a dis- 23 21 U.S.C. § 848(q)(9) (stating that “the court cretionary granting of funds even if the reasonable (continued...) necessity language is complied with”).

DENNIS, Circuit Judge, state court under § concurring: 2254(d)(1)[.]" The statute

cited simply provides that

I respectfully concur in the (d) An application for a writ of habeas corpus on judgment only. I cannot behalf of a person in custody pursuant to the subscribe fully for several judgment of a State court shall not be granted with reasons. respect to any claim that was adjudicated on the First, I respectfully merits in State court proceedings unless the disagree with the majority’s adjudication of the claim--(1) resulted in a broad, not clearly or decision that was contrary to, or involved an immediately qualified, unreasonable application of, clearly established suggestions that AEDPA requires Federal law, as determined by the Supreme Court of the that federal courts apply a United States[.]

"deferential standard of The statute says nothing review," "defer to the state about deference, a deferential court's adjudication of a standard, circuit court defendant's claims," and precedent, presumptions of presume that a state court's correctness, or broad conclusion "consistent with discretion. Although Justice t h i s c i r c u i t ' s Stevens has spoken of AEDPA as precedent...falls within the having "plainly sought to broad discretion afforded the ensure a level of 'deference to

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the determinations of state error. As Judge Easterbrook noted with respect to the courts,' provided those phrase “contrary to”: “Section 2254(d) requires determinations did not conflict us to give state courts' opinions a respectful with federal law or apply reading, and to listen carefully to their federal law in an unreasonable conclusions, but when the state court addresses a way[,]," Williams v. Taylor, legal question, it is the law ‘as determined by the 529 US 362, 386 (2000)(Stevens, Supreme Court of the United States' that prevails." J.), he makes clear that AEDPA Lindh, 96 F.3d, at 869.

does not intend for us to Williams, 529 US at 386-7. accord deference in the Justice Stevens further states ordinary and commonly

understood sense. As Judge Easterbrook has noted, the statute surely [I]t is significant that does not require the kind the word “deference” does of “deference” appropriate not appear in the text of in other contexts: “It does the statute itself. Neither not tell us to ‘defer’ to the legislative history nor state decisions, as if the the statutory text suggests Constitution means one any difference in the thing in Wisconsin and so-called “deference” another in Indiana. Nor depending on which of the does it tell us to treat two phrases is implicated. state courts the way we Whatever “deference” t r e a t f e d e r a l Congress had in mind with administrative agencies. respect to both phrases, it Deference after the fashion surely is not a requirement of Chevron U.S.A. Inc. v. that federal courts Natural Resources Defense actually defer to a Council, Inc., 467 U.S. state-court application of 837, 104 S.Ct. 2778, 81 the federal law that is, in L.Ed.2d 694 (1984), depends the independent judgment of on delegation. See Adams the federal court, in Fruit Co. v. Barrett, 494

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U.S. 638, 110 S.Ct. 1384, appropriate in other contexts" 108 L.Ed.2d 585 (1990). Congress did not delegate )Lindh v. Murphy, 96 F.3d 856, either interpretive or executive power to the 868 (7th Cir. 1996)); rather, state courts. They exercise powers under their domestic they dispute his law, constrained by the Constitution of the United interpretation of the phrase States. ‘Deference’ to the jurisdictions bound by “contrary to, or an those constraints is not sensible.” Lindh v. Murphy, unreasonable application of.” I 96 F.3d 856, 868 (C.A.7 1996) (en banc), rev'd on believe that the majority's other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 treatment of deference in L.Ed.2d 481 (1997). connection with AEDPA, without Id. at n.13. needed explanation and Although these observations qualification, is unnecessary appear in part II of Justice and tends to be misleading and Stevens' opinion in Williams v. confusing. Taylor, which did not carry a Second, § 2254(e)(1) of AEDPA majority, Justice O'Connor, who provides: wrote part II for the majority, In a proceeding instituted and Chief Justice Rehnquist, by an application for a writ of habeas corpus by a the only other Justice to write person in custody pursuant to the judgment of a State separately, did not disagree court, a determination of a factual issue made by a with Justice Stevens’ statement State court shall be presumed to be correct. The that AEDPA "surely does not applicant shall have the burden of rebutting the require the kind of 'deference' presumption of correctness

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by clear and convincing court’s determination was evidence. reasonable in light of all the This provision has nothing to evidence presented at the state do with fact-finding by the court habeas proceeding. The jury at the guilt or penalty case the majority cites for the phases of a capital murder proposition, United States v. trial. This section relates Cathey, 259 F.3d 365, 368 (5th only to fact-finding by a state Cir. 2001), discusses the issue court in a state habeas in a case heard on direct proceeding. The applicant here appeal and, I believe, is simply did not carry his inapposite here. burden; he failed to present Third, the jury instruction any new evidence in his habeas given by the Texas trial court petition on this point. If he at the capital sentencing had done so, I do not believe proceeding required the jury to that AEDPA authorizes the consider essentially any factor federal courts to erect a "that mitigates against the presumption against the imposition of the death petitioner in habeas penalty." Under the proceedings based solely on the circumstances and in the jury verdict at trial. Rather, context of this case, the Texas this court would still be bound courts' denial of habeas relief to determine whether the state

-18-because of the arguable lack of complete perfection in this instruction was not contrary to or an unreasonable application of federal law as clearly established by the Supreme Court's decisions. The discussion of Johnson v. Texas, 509 U.S. 350,(1993), which presented a different issue and was decided with respect to a superseded sentencing regime, is unnecessary and may lead to confusion. For the reasons given, I respectfully concur in the judgment only.

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Footnotes

[21] 22 See Neal v. Puckett, 286 F.3d 230, 246 n.14 An indigent defendant is entitled to the provi- (2002) (en banc) (“To the extent that a nuanced, sion of all reasonably necessary services under, contextual interpretation of ‘objectively unrea- inter alia, § 848(q)(9). 21 U.S.C. § 848(q)(4)(B); sonable’ emerges from [the] process [of applying Fuller v. Johnson, 114 F.3d 491, 502 (5th Cir. the standard in individual cases] over time, this 1997). Jackson does not claim indigence, but in elaboration will be more useful and meaningful any event he would still need to demonstrate, under than any definition we might choose to impose ab this section, that provision of a confession expert is initio.”). “reasonably necessary.”