     Case: 12-70021       Document: 00512421471         Page: 1     Date Filed: 10/28/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 28, 2013

                                       No. 12-70021                        Lyle W. Cayce
                                                                                Clerk

ARTHUR LEE BURTON,

                                                  Petitioner - Appellant

v.

WILLIAM STEPHENS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent - Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CV-1314


Before JONES, SOUTHWICK, and HAYNES, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
       Arthur Lee Burton was convicted and sentenced to death for the 1997
murder of Nancy Adleman. Burton filed a federal habeas petition pursuant to
28 U.S.C. § 2254, asserting, inter alia, a Miranda violation, an Eighth
Amendment claim related to the trial court’s denial of Burton’s request to make
an unimpeached allocution statement, and ineffective assistance of counsel


       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                     No. 12-70021

claims. After careful review, the district court denied the petition and did not
certify any questions for appellate review. Burton now seeks a certificate of
appealability (“COA”) pursuant to 28 U.S.C. § 2253(c)(2). For the following
reasons, we DENY the COA application.
                                     BACKGROUND
1.       Factual
         Nancy Adleman went jogging on the night of July 29, 1997. Her body was
found the next day in a heavily wooded area near Braes Bayou in Houston where
she often ran. Witnesses saw an individual (later identified as Burton) riding
a bicycle along the bayou around the same time that Ms. Adleman was jogging
there.     When he was brought in for questioning, Burton initially denied
involvement in the crime. After being confronted with inconsistencies in his
story, Burton provided the following confession:
         About a week and a half ago I was riding my step mom’s bike on the
         bayou behind my house. I rode around for a while and I seen this
         woman jogging. She was an older white woman wearing some
         shorts and some tennis shoes and a top. I think they were blue. I
         rode up behind her and pushed my bike down the hill into the
         bayou. I ran up behind her and grabbed her and pulled her in the
         woods. I threw her down and she started screaming and I choked
         her with my hands. She went unconscious for a little while. I took
         her shorts off and her panties and I left them there. She came back
         to and I got on top of her and I was trying to have sex with her but
         I got so nervous that I couldn’t do it. Then she started screaming
         again. She was asking me did I know about God. She said I forgive
         you. She told me to just leave. She asked me why was I doing it
         and that I didn’t have to do it and saying that I was a handsome
         man. I got up and I was fixing to leave. She grabbed my ear and
         she started screaming and I choked her until she went unconscious
         again. Then I drug her and we both fell in a hole. I got out and I
         was leaving and I saw somebody a man walking by himself. I went
         back and I took a shoestring out of her shoe. I left her shoe on and
         tied her shoestring around her neck. Then I went and got my bike
         and I went on. . . . I rode back down the bayou to the street . . . . It
         was starting to get dark then. I didn’t tell anybody.

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2.    Procedural
      The state charged Burton with capital murder because the strangling took
place during the commission of, or attempted commission of, a kidnaping or
aggravated sexual assault. The confession and eyewitnesses placing Burton
near the scene of the crime provided the jury with sufficient evidence to convict
on the capital charge.      Following a separate punishment phase, he was
sentenced to death.
      On direct appeal to the Texas Court of Criminal Appeals (“TCCA”),
Burton’s conviction was upheld but his sentence was overturned based on
ineffective assistance of counsel. Burton v. State, No. 73,204 (Tex. Crim. App.
Mar. 7, 2001) (unpublished). TCCA remanded for a second punishment hearing.
      While the direct appeal was pending before TCCA, Burton participated in
a classification interview with a “prison sociologist.” In the interview he stated
that he had killed Adleman because it was “[j]ust something [he] couldn’t help.”
The statement was admitted at the second punishment trial as evidence of
Burton’s continued dangerousness. At that proceeding, the judge also held that
Burton could not make an allocution statement without subjecting himself to
cross-examination.
      The jury answered Texas’s special issues unfavorably to Burton, and he
was again sentenced to death. The TCCA upheld the second sentence on direct
appeal.    Burton v. State, No. 73,204 (Tex. Crim. App. May 19, 2004)
(unpublished). The TCCA next turned to an initial state habeas claim – filed
during the pendency of the first direct appeal – and a second state habeas claim
filed after the second sentence was rendered. The first application was denied
on all points. The second was denied with respect to all claims except whether
Burton’s counsel was ineffective for failing to object to the use of the sociologist’s
statement at the second punishment trial. Ex parte Burton, No. WR 64,360-01
(Tex. Crim. App. Nov. 7, 2007). After additional briefing and oral argument, the

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case was remanded for factual development on the remaining issue. Ex parte
Burton, AP-75,790 (Tex. Crim. App. June 20, 2008). Additional briefing followed
once again, and the state district court found that the interview was not
custodial, and that the sociologist was not an agent of the State such that
Miranda warnings would be required. On appeal, the TCCA declined to adopt
the lower court’s findings, but denied relief nonetheless, stating: “This particular
underlying Fifth Amendment issue is unsettled; therefore, counsel cannot be
found deficient under the facts involved here.” Ex parte Burton, AP-75,790 (Tex.
Crim. App. Apr. 1, 2009).
      Burton next sought habeas review in federal district court. He raised the
following arguments:
      1.    The State elicited testimony in violation of Burton’s Fifth
            Amendment right against self-incrimination and his Sixth
            Amendment right to counsel when the sociologist asked
            Burton, without the benefit of Miranda warnings or counsel,
            why he committed the crime.
      2.    Burton’s Sixth Amendment right to effective assistance of
            counsel was denied by his trial attorney’s failure to preserve
            the error in Claim 1 when that testimony was presented at
            the second trial.
      3.    The court’s denial of Burton’s request to make an allocution
            statement at the second trial without subjecting himself to
            cross-examination violated his Eighth Amendment right to
            present mitigating evidence.
      4.    Burton’s right to effective assistance of counsel was violated
            when his attorney failed to raise Claim 3 on direct appeal.
      5.    Burton’s claim of actual innocence entitles him to habeas
            relief.

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      Applying the appropriate standards of deference, the district court
throughly reviewed the state court proceedings and denied each claim. Burton
now seeks a COA on each of the questions in order to advance the same
arguments to this court.
                             STANDARD OF REVIEW
      Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a
state court prisoner must obtain a COA before appealing a federal district court’s
denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). This is warranted upon a
“substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
When a district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA should issue
when the prisoner shows that reasonable jurists “would find it debatable
whether the petition states a valid claim of the denial of a constitutional right
. . . and whether the district court was correct in its procedural ruling.” Slack
v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000) (emphasis added).
The “threshold inquiry does not require full consideration of the factual or legal
bases adduced in support of the claims. In fact, the statute forbids it.” Miller-El
v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003). In cases involving
the death penalty, “any doubts as to whether a COA should issue must be
resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248
(5th Cir. 2000) (citation omitted).
      AEDPA’s standard for the district court is highly deferential to state-court
decisions and demands that they “be given the benefit of the doubt.” Renico v.
Lett, 130 S. Ct. 1855, 1862 (2010). To prevail, the petitioner must prove that the
adjudication by the state court “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 “resulted in a decision
that was based on an unreasonable determination of the facts in light of the

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evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Under
AEDPA, it is not enough that a federal habeas court would reach a different
conclusion than the state court. Williams v. Taylor, 529 U.S. 362, 411, 120 S. Ct.
1495, 1522 (2000). The question for the appellate court on COA, however, is only
whether “reasonable jurists could debate whether (or, for that matter, agree
that)” the district court should have handled the issues differently. Miller-El,
537 U.S. at 336, 123 S. Ct. at 1039.
                                  DISCUSSION
      Burton advances the same theories here as in his petition to the district
court. We examine each in turn.
1.    Miranda Objection
      Burton first contests the admission of the prison sociologist’s testimony in
his second punishment trial. The prison sociologist asked Burton why he
committed the crime and he responded that it was “[j]ust something [he]
couldn’t help.” The State used this evidence to argue that Burton lacked
remorse and could not stop himself from killing again. Burton contends that the
admission of his statement, made in prison, without Miranda warnings and in
the absence of counsel, violated his Fifth and Sixth Amendment rights.
      The TCCA rejected the Miranda claim on direct appeal. The court did not
address the substance of the claim because Burton did not object to the
statements at trial, and thereby failed to preserve the issue. The claim was
similarly rejected as procedurally barred during state habeas proceedings. The
district court noted the findings of the state court and concluded that a
procedural bar foreclosed federal adjudication. Burton v. Thaler, 863 F. Supp.
2d 639, 653 (S.D. Tex. 2012).
      When a petitioner fails to follow well-established state procedural
requirements for attacking his conviction or sentence, and the state court finds
that he has defaulted consideration of any issues, a procedural bar forecloses

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federal review. Lambrix v. Singletary, 520 U.S. 518, 523, 117 S. Ct. 1517, 1522
(1997); Coleman v. Thompson, 501 U.S. 722, 732, 111 S. Ct. 2546, 2555 (1991).1
In light of the state court’s application of procedural bar, reasonable jurists
would not find the district court’s ruling debatable. Slack, 529 U.S. at 484, 120
S. Ct. at 1604.
2.    Ineffective Assistance of Counsel at Trial (Regarding Miranda
      Objection)
      Burton next asserts that his counsel’s failure to object to the sociologist’s
testimony at the second punishment trial violated his Sixth Amendment right
to effective assistance of counsel. An ineffective assistance of counsel claim
requires a showing that: (1) counsel’s performance was legally deficient; and
(2) that the deficiency prejudiced the defense.          Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).
      The right to receive Miranda warnings extends to “questioning initiated
by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.” Miranda v.
Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). The complicated
procedural history of this case shows that the state courts struggled with the
question whether Burton’s circumstances required Miranda warnings. The
TCCA remanded the issue to the state district court. The state district court
then concluded that Miranda warnings were unnecessary because the prison
sociologist was not a law enforcement officer and the interview did not constitute
custody beyond what was generally present in the prison setting. The state
district court’s decision was appealed once again. On appeal, TCCA found it
unnecessary to decide whether Miranda warnings were required in Burton’s



      1
         But see Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013). Trevino held that an
ineffective assistance of counsel claim may be raised in federal court if there was no
meaningful opportunity for that claim to be heard previously. That is not the case here.

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case because the law is unsettled. Counsel was not constitutionally deficient, the
court held, for failing to raise an objection based on unsettled law.
      The district court reviewed the relevant federal case law and concluded
that “neither the law nor the facts establish that trial counsel could have
successfully lodged a Miranda objection.” Burton, 863 F. Supp. 2d at 654. At the
time of the trial the Supreme Court had not held, as it now has, that
incarceration alone is insufficient to trigger Miranda rights. See Howes v.
Fields, 132 S. Ct. 1181, 1190 (2012). The district court also noted that Burton
had provided no federal authority supporting the claim that the prison
sociologist was a state agent for Miranda purposes, and Texas law would likely
not include the sociologist as an agent of law enforcement to whom Miranda
would apply. Burton, 863 F. Supp 2d at 656 (citing Paez v. State, 681 S. W.2d
34. 37 (Tex. Crim. App. 1984)). Finally, the two cases Burton cites for the
proposition that prison interrogations can trigger Miranda rights, Mathis v.
United States, 391 U.S. 1, 88 S. Ct. 1503 (1968) and Estelle v. Smith, 451 U.S.
454, 101 S. Ct. 1866 (1981), are distinguishable from these facts. Both Mathis
and Estelle involved an active investigation by a government agent, whereas the
questioning here was purely for purposes of inmate classification.
      Given the absence of any state or federal authority applying Miranda to
this situation, we conclude that reasonable jurists would not debate the holdings
of both the district and state courts that failure to object on this issue was not
deficient performance. See Givens v. Cockrell, 265 F.3d 306, 309 (5th Cir. 2011)
(holding that where counsel could reasonably have believed evidence was
permissible under unsettled state law, failure to object was not deficient
performance). The district court applied the doubly deferential standard of
federal review of ineffective counsel claims, see Harrington v. Richter, 131 S. Ct.
770, 788 (2011), and held that the state courts did not act unreasonably in
denying this claim.     No reasonable jurist would find the district court’s

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assessment of the constitutional claim in light of AEDPA’s standards debatable
or wrong. Slack, 529 U.S. at 484, 120 S. Ct. at 1604.
3.    Allocution Statement
      Burton argues that his Eighth Amendment right to present mitigating
evidence was denied at the second trial when the court refused to allow him to
make an allocution statement without being subjected to cross-examination.
Burton raised this claim in his second state habeas petition, but the state court
held the claim procedurally defaulted because it was not raised on direct appeal.
Alternatively, the state court held that there is no right to allocution without
cross-examination.
      This court has held that “a criminal defendant in a capital case does not
possess a constitutional right to make an unsworn statement of remorse before
the jury that is not subject to cross-examination.”        United States v. Hall,
152 F.3d 381, 396 (5th Cir. 1998), abrogated on other grounds, United States v.
Martinez-Salazar, 528 U.S. 304, 120 S. Ct. 774 (2000). Likewise, Texas courts
have not granted a defendant the right to allocute without cross-examination.
Federal courts do not sit to create “new” rules of constitutional law in habeas
corpus. Teague v. Lane, 489 U.S. 288, 316, 109 S. Ct. 1060, 1078 (1989). The
district court’s holding that Burton cannot show that the state habeas court’s
denial of his third claim was either contrary to or an unreasonable application
of federal is beyond reasonable debate. Burton, 863 F. Supp. 2d at 658.
4.    Ineffective Assistance of Counsel on Direct Appeal (Regarding
      Allocution Statement)
      Petitioner’s fourth claim is for ineffective assistance of counsel who failed
to raise the allocution issue on direct appeal. Although the state court held that
the issue was procedurally barred, it went on to reach the merits and reject the
claim. Failure to raise a meritless claim is not deficient performance, nor can it
lead to actual prejudice. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The


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district court’s rejection of this attack on the reasonableness of the state court
ruling is not debatable.
5.     Actual Innocence
       Burton’s final claim asserts, notwithstanding his attempts to apologize to
the victim’s family, that he is actually innocent.2 Burton argues that new
evidence shows that the victim died earlier than the time alleged at trial and
that a key trial witness (Dedrick Vallery) has since recanted his testimony in
part. He also contends that his confession was the result of police coercion.
       The Supreme Court has not recognized actual innocence as an
independent ground for federal habeas corpus relief. McQuiggin v. Perkins,
133 S. Ct. 1924, 1931 (2013) (citing Herrera v. Collins, 506 U.S. 390, 400,
113 S. Ct. 853, 860 (1993)). Further, as the district court noted, even if such a
claim were cognizable, Burton has not made a strong showing of actual
innocence. Burton asserted his actual innocence claim in the state habeas
proceedings, and the state court noted that strong evidence supported the
conviction. The state court found that Vallery’s recantation was not credible,
and it noted forensic evidence linking Burton to the crime and trial testimony
that proved Burton’s confession was voluntary. The state court ultimately
rejected the claim. The district court applied appropriate deference to the state
habeas proceeding under AEDPA.              For these reasons, the district court’s
disposition of Burton’s actual innocence claim is beyond reasonable debate.


       2
         After the trial court delivered the jury’s verdict and all indicia of coercion had
dissipated, Burton asked to address the victim’s family. He stated: “I want to say I’m sorry
for causing y’all so much pain, for taking your daughter away from you, your mother away
from you and your brothers, and taking your wife away from you. And I think about what she
said to me that day, that she forgive (sic) me and did I know God. I couldn’t understand why
she did that, but I didn’t know God then. When she first told me that, I looked for answers.
And I can tell you now that I know God now and I know that I took a special person away from
y’all and I’m so sorry for that.” This statement is clearly inconsistent with his actual
innocence claim. Burton makes no attempt to explain how such a conversation with the victim
could have occurred if he were actually innocent.

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                           Conclusion
  For the foregoing reasons, Petitioner’s COA request is DENIED.




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