     Case: 15-70023    Document: 00513660621     Page: 1   Date Filed: 08/31/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                  No. 15-70023                   United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
CHRISTOPHER YOUNG,                                                August 31, 2016
                                                                   Lyle W. Cayce
             Petitioner - Appellant                                     Clerk

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

             Respondent - Appellee




                 Appeal from the United States District Court
                      for the Western District of Texas


Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Christopher Young awaits execution in a Texas prison. He challenged
the constitutionality of his confinement and sentence in federal district court,
but the district court rejected his claims. He now seeks a certificate of
appealability (COA) in order to contest the district court’s ruling. We GRANT
the COA in part and DENY it in part.
                                        I
      On November 21, 2004, an intoxicated Young forced his way into a
woman’s apartment, sexually assaulted her in the presence of her children,
stole her car, drove it to a convenience store, and tried to rob the store’s owner
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                                        No. 15-70023
at gunpoint. The owner resisted, and Young shot him to death. 1 In February
2006, Young was convicted of capital murder and sentenced to die. On
automatic appeal to the Texas Court of Criminal Appeals (TCCA), he alleged
fifteen points of error in the prior proceedings. The appeals court rejected each
as meritless, 2 and the U.S. Supreme Court denied his subsequent petition for
writ of certiorari. 3
       Young filed a state habeas corpus petition in September 2009. The state
trial court held a hearing and issued an order recommending rejection of each
of Young’s twenty claims for relief. 4 The TCCA adopted the recommendation. 5
       In 2014, Young filed a federal habeas petition in the Western District of
Texas. The petition, as later amended, 6 argued (among other things) that the



       1   See Young v. State, 283 S.W.3d 854, 860-61, 863-65 (Tex. Crim. App. 2009) (per
curiam).
       2  Id. at 860.
       3  See 558 U.S. 1093 (2009). All subsequent references to the “Supreme Court” denote
the U.S. Supreme Court.
        4 See Findings of Fact & Conclusions of Law, Ex parte Young, No. 2005-CR-1183-W1

(187th Dist. Ct., Bexar County, Tex. Nov. 28, 2012) (hereinafter “187th District Court
Opinion”).
        5 Ex parte Young, No. WR-70,513-01, 2013 WL 2446428 (Tex. Crim. App. June 5, 2013)

(unpublished).
        6 Young filed an initial petition on March 18, 2014, an amended petition on May 16,

and a subsequent petition, which he styled a “first amended petition,” on June 27. On appeal,
the parties dispute which of these petitions is the operative one and which, if any, were
untimely under the district court’s scheduling orders and the applicable statute of
limitations. However, each of the claims now before us was present either in his March 18
petition, which was undisputedly timely under the court’s scheduling orders, or in his May
16 petition, which was untimely under the scheduling orders but timely under the statute of
limitations. The district court chose to consider each of the claims on the merits, and did not
assert that any of them were barred for failure to comply with the court’s scheduling orders.
Therefore, we may consider them on appeal. See Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 58 (1st Cir. 2000) (magistrate judge did not abuse his discretion in
entertaining a motion entered after the judge’s deadline for dispositive motions); Edwards v.
Cass Cty., Tex., 919 F.2d 273, 275 (5th Cir. 1990) (The district court has broad discretion in
controlling its own docket. This includes the ambit of scheduling orders and the like.”); Yates
v. Mobile Cty. Pers. Bd., 658 F.2d 298, 300 (5th Cir. Unit B 1981) (per curiam) (a district court
effectively allows a litigant leave to amend an earlier pleading when it allows the litigant to
present a defense after a court-imposed deadline expires).
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                                       No. 15-70023
state’s use of a peremptory strike against venire member Myrtlene Williams
during his initial trial was discriminatory, that his trial counsel was
ineffective, and that the trial court’s jury instructions were constitutionally
deficient insofar as they a) did not inform the jury of the potential effect of a
single holdout juror and b) did not include all of the elements required by the
Texas Code of Criminal Procedure. The district court denied all of Young’s
claims, denied his request for an evidentiary hearing, and denied a certificate
of appealability (COA). Young appealed.
                                              II
       On appeal, Young seeks a COA for four of his federal habeas claims. As
we recently explained:
       This court may issue a COA only if the applicant has “made a
       substantial showing of the denial of a constitutional right.” . . . To
       make a substantial showing, a petitioner must show that
       “reasonable jurists could debate whether . . . the petition should
       have been resolved in a different manner or that the issues
       presented were adequate to deserve encouragement to proceed
       further.” 7
       Although a petitioner seeking a COA must demonstrate “‘something
more than the absence of frivolity’ or the existence of mere ‘good faith,’” 8 our
analysis of a COA application entails only a “limit[ed],” “threshold inquiry,”
and “[w]here the petitioner faces the death penalty, ‘any doubts as to whether
a COA should issue must be resolved’ in the petitioner's favor.” 9


       7 Allen v. Stephens, 805 F.3d 617, 624-25 (5th Cir. 2015) (quoting 28 U.S.C. § 2253(c)(2)
and Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)); see Miller-El, 537 U.S. at 336 (“We look
to the District Court's application of AEDPA to petitioner's constitutional claims and ask
whether that resolution was debatable amongst jurists of reason.”).
       8 Miller-El, 537 U.S. at 338 (quoting Barefoot v. Estelle, 460 U.S. 880, 893 (1983)).
       9 Id. at 327; Allen, 805 F.3d at 625 (quoting Medellin v. Dretke, 371 F.3d 270, 275 (5th

Cir. 2004)). See generally Miller–El, 537 U.S. at 337-38 (“It is consistent with [AEDPA] that
a COA will issue in some instances where there is no certainty of ultimate relief. . . . [and
where] every jurist of reason might agree, after the COA has been granted and the case
received full consideration, that the petitioner will not prevail.”).
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                                    No. 15-70023
      The federal district court denied Young’s habeas petition pursuant to 28
U.S.C. § 2254(d), which provides that
      [a]n 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
      claim--
             (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 was based on an unreasonable
             determination of the facts in light of the evidence presented
             in the State court proceeding.
      We “review pure questions of law under the ‘contrary to’ standard of sub-
section (d)(1), mixed questions of law and fact under the ‘unreasonable
application’ standard of sub-section (d)(1), and pure questions of fact under the
‘unreasonable determination of facts’ standard of sub-section (d)(2).” 10
                                          III
      We begin with Young’s first issue on appeal, in which he asserts that the
state violated the Constitution in striking a potential juror on the purported
basis of her work with a prison ministry group. Venire member Myrtlene
Williams, an African-American woman, was called for questioning on January
17, 2006, the fifth day of individual voir dire interviews for Young’s initial
trial. 11 Her initial questionnaire and interview revealed that she was a
member of Calvary Baptist Church, and participated in the church’s outreach
ministry program; that other participants in that program ministered to




      10  Simmons v. Epps, 654 F.3d 526, 534 (5th Cir. 2011) (quoting Murphy v. Johnson,
205 F.3d 809, 813 (5th Cir. 2000)).
       11 8 R.R. 114.

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                                      No. 15-70023
prisoners, although she had not; 12 and that two of her children had had legal
trouble, although she did not know the specifics. 13 The state exercised a
peremptory strike, and the defense raised a Batson challenge, commenting, “of
course we recognize the fact she’s a Black female.” 14 The state justified its
strike on the basis of Williams’s involvement with the church outreach group
and her daughter’s criminal history. 15 The judge denied the Batson challenge
without explanation and excused Williams. 16
       Young challenged Williams’s exclusion in the state and federal district
courts. However, the nature of his challenge has changed over time. On direct
appeal to the TCCA, Young argued that in striking Williams and two other
African-American venirewomen, the state “purposeful[ly] use[d] peremptory
strikes in a racially discriminatory manner,” violating the federal Constitution
and the Texas Code of Criminal Procedure. He labeled the state’s explanation
that it struck Williams because of her participation in the outreach ministry




       12  See id. at 116:
        Q. And I’ve had some individuals in the past who have been associated with some
things that they called Outreach Ministries, so they've dealt with going to the jails and the
prisons and helping them.
        A. I have not done that, no.
        Q. Do the people in your group do that?
        A. Yes some of them do that.
        Q. And tell me, what's the purpose that, the people in your group who do that?
        A. Well, I guess, trying to get them you know to understand -- I guess to understand
about getting closer to God, you know, maybe help them through what they are going through
in the jail, I guess.
        Q. So, an attempt to try to rehabilitate them while they're incarcerated?
        A. Yes.
        Q. And that is something that Outreach Ministry does do?
        A. Yes. Uh-huh.
        13 Id. at 118.
        14 Id. at 118, 120; see Batson v. Kentucky, 476 U.S. 79 (1986) (forbidding racial

discrimination in the use of peremptory challenges).
        15 Id. at 118-19.
        16 Id. at 120.

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                                       No. 15-70023
program “specious” and “an artifice calculated to keep a black person off of the
jury.” 17
       In Young’s subsequent state habeas petition, he did not mention
Williams or Batson at all. Then, in his federal habeas petitions, he shifted
gears, claiming both (1) that the state’s ministry-group explanation was a
pretext for racial discrimination and, in the alternative (and for the first time),
that (2) the state’s ministry-group explanation was genuine and evinced
unconstitutional religious discrimination. 18 The district court found the latter
argument defaulted. We agree.
       “[P]rocedural default . . . occurs when a prisoner fails to exhaust
available state remedies and the court to which the petitioner would be
required to present his claims in order to meet the exhaustion requirement
would now find the claims procedurally barred.” 19 “‘To exhaust, a petitioner
must have fairly presented the substance of his claim to the state courts.’ It is
not enough that the facts applicable to the federal claim were all before the
State court . . . . The federal claim must be the ‘substantial equivalent’ of the
claim brought before the State court.” 20
       Young’s unambiguously and solely race-based Batson claim in the state
courts was not the “substantial equivalent” of the religion-based claim he
presents on appeal. Accordingly, Young’s religion-based claim is defaulted, and




       17 Id. at 46.
       18 This two-pronged argument was present in varying form in each of Young’s three
petitions filed with the federal district court. Young re-urges both prongs on appeal, but he
heavily emphasizes the religion-based argument.
       19 Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir. 2004) (quoting Nobles v. Johnson, 127

F.3d 409, 420 (5th Cir. 1997)).
       20 Riley v. Cockrell, 339 F.3d 308, 318 (5th Cir. 2003) (citations omitted) (quoting

Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001), and Fisher v. Texas, 169 F.3d 295, 303
(5th Cir. 1999)).
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                                        No. 15-70023
a COA is not merited, unless he could still present the claim in state court. 21
To do so, Young would have to file a successive habeas petition. In Texas, such
petitions are barred absent certain special circumstances. 22 But Young does
not argue that any of these circumstances are present. Thus, his religion-based
claim is unmistakably defaulted. 23 In turn, reasonable jurists could not debate




       21  Young’s default could also be excused on a showing of cause and prejudice or of
fundamental miscarriage of justice, see Coleman v. Thompson, 501 U.S. 722, 750 (1991), but
he does not argue either exception applies.
        22 See Williams v. Thaler, 602 F.3d 291, 306 (5th Cir. 2010). To summarize, the three

circumstances are (1) the factual or legal basis of the successive claim was not previously
available; (2) no rational juror could have found the petitioner guilty; and (3) no rational juror
could have answered a capital sentencing special issue in the state’s favor. Id. (citing TEX.
CODE CRIM. PROC. ANN. art 11.071 § 5(a)(1)-(3) (Vernon 2007)).
        23 Given this, we need not reach the district court’s alternative holding that Young’s

religion-based claim is barred under the Supreme Court’s decision in Teague v. Lane, 489
U.S. 288, 306, 310 (1989). See Blue v. Thaler, 665 F.3d 647, 670 (5th Cir. 2011) (explaining
that under Teague, “[n]ew rules of constitutional criminal procedure cannot be announced on
federal habeas review,” with certain exceptions not applicable here, and that “‘a case
announces a new rule when it breaks new ground or imposes a new obligation on the States
or the Federal Government,’ which is to say, when its ‘result was not dictated by precedent
existing at the time the defendant's conviction became final’” (quoting Teague, 489 U.S. at
301)). Young correctly notes that by the time his conviction became final in December 2009,
the Second Circuit had opined that the Constitution forbids striking jurors on the basis of
religion, as had two Justices of the Supreme Court and various state courts. See Davis v.
Minnesota, 511 U.S. 1115, 114 S. Ct. 2120, 2120-22 (1994) (Thomas, J., joined by Scalia, J.,
dissenting from the denial of certiorari); United States v. Brown, 352 F.3d 654, 669 (2d Cir.
2003); Highler v. State, 854 N.E.2d 823, 829-30 (Ind. 2006); State v. Hodge, 726 A.2d 531,
552-53 (Conn. 1999); State v. Purcell, 18 P.3d 113, 120 (Ariz. Ct. App. 2001), review denied
(Oct. 3, 2001); People v. Martin, 75 Cal. Rptr. 2d 147, 151 (Cal. Ct. App. 1998); see also United
States v. Stafford, 136 F.3d 1109, 1114 (7th Cir.), modified, 136 F.3d 1115 (7th Cir. 1998)
(suggesting a similar view in dicta); State v. Fuller, 862 A.2d 1130, 1140-42 (N.J. 2004)
(same). But see State v. Davis, 504 N.W.2d 767, 771 (Minn. 1993); Casarez v. State, 913
S.W.2d 468, 495 (Tex. Crim. App. 1994). We note in passing that these authorities generally
address strikes made on the basis of religious affiliation, whereas it is at least arguable that
the state’s explanation for striking Williams related to her religious activity (i.e., her
participation in a prison outreach group). Thus, even if these authorities “dictate” a
constitutional rule against peremptory strikes motivated by jurors’ religious affiliation, they
may not be apposite to Young’s case. See Brown, 352 F.3d at 669 (“Differentiating among
prospective jurors on the basis of their activities does not plainly implicate the same
unconstitutional proxies as distinctions based solely on religious identity.”); United States v.
DeJesus, 347 F.3d 500, 510 (3d Cir. 2003) (accepting as constitutional peremptory strikes
based on “jurors’ heightened religious involvement”).
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                                        No. 15-70023
the district court’s rejection of this claim, nor does it deserve encouragement
to proceed further. 24 We deny a COA for Young’s first claim.
                                              IV
       Second, Young claims that the trial court caused the jurors to
misapprehend the proper mechanics of the punishment-phase voting process.
Article 37.071 of the Texas Code of Criminal Procedure set forth two special
issues for the jury to consider during this process. First, the jury had to
consider “whether there [was] a probability that [Young] would commit
criminal acts of violence that would constitute a continuing threat to society.” 25
The jury could only answer “yes” if every one of its 12 members agreed, and it
could only answer “no” if 10 or more members agreed. If the jury answered
“no,” or could not reach the specified thresholds for a “yes” or “no” answer,
Young would be sentenced to life in prison without parole. 26 If it answered
“yes,” the jury would then have to consider
       [w]hether, taking into consideration all of the evidence, including
       the circumstances of the offense, [Young’s] character and
       background, and [Young’s] personal moral culpability . . . there
       [was] a sufficient mitigating circumstance or circumstances to


       24  In his COA application and in filings in the district court, Young appears to briefly
argue in the alternative that the state’s religion-based justifications were merely pretextual,
and that Williams was really struck because of her race. Young’s presentation of this
alternative claim was sufficiently fleeting that the district court did not notice he was making
it, and his discussions of race discrimination in this court have been cryptic at best. To the
extent Young has articulated a solely race-based Batson claim, it is waived due to inadequate
argument. See United States v. Brace, 145 F.3d 247, 255 (5th Cir. 1998) (en banc) (“[W]e
review only those issues presented to us; we do not craft new issues or otherwise search for
them in the record.”); F.D.I.C. v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994) (“[I]f a litigant
desires to preserve an argument for appeal, the litigant must press and not merely intimate
the argument during the proceedings before the district court. If an argument is not raised
to such a degree that the district court has an opportunity to rule on it, we will not address
it on appeal.”).
        25 TEX. CODE CRIM. PROC. ANN. art 37.071 § 2(b)(1) (West). Another issue under § 2(b)

was not relevant in Young’s case, and the jury did not consider it. See id. § 2(b)(2) (addressing
guilt as a party); 18 R.R. 68-70.
        26 Id. § 2(d)(2), (g).

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                                       No. 15-70023
       warrant that a sentence of life imprisonment without parole rather
       than a death sentence be imposed. 27
       The jury could only answer “no” if every member agreed, and it could
only answer “yes” if 10 or more members agreed. 28 If the jury answered “yes,”
or could not reach the specified thresholds for a “yes” or “no” answer, Young
would be sentenced to life in prison without parole. 29 If the jury answered “no,”
Young would be sentenced to death. 30
       The trial judge instructed the jury on the special issues, the voting
thresholds (which are collectively known as “the 12/10 rule”), 31 and the
consequences of “yes” and “no” answers. 32 However, he did not tell the jury that
if it could not reach a specified voting threshold for one or both of the issues –
that is, if more than zero but less than 10 jurors voted “no” as to Young’s future
dangerousness or “yes” as to the presence of sufficient mitigating evidence –
then Young would receive a life sentence. 33 Article 37.071 did not require such
an instruction. Nevertheless, Young argues that the jury charge was
misleading without one and that he was entitled to one under the Supreme
Court’s decision in Simmons v. South Carolina. 34 He offers affidavits from four
jurors in which each claimed to have erroneously believed that he or she could
not compel a life sentence on his or her own.




       27 Id. § 2(e)(1).
       28 Id. § 2(f)(2).
       29 Id. § 2(g).
       30 Id.
       31 See, e.g., Reed v. Stephens, 739 F.3d 753, 779 & n.17 (5th Cir.), cert. denied, 135 S.

Ct. 435 (2014).
       32 18 R.R. 68-70.
       33 TEX. CODE CRIM. PROC. ANN. art 37.071 § 2(g) (West).
       34 512 U.S. 154 (1994).

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                                        No. 15-70023
       The district court correctly found this claim defaulted. Young did not
raise his Simmons claim or anything like it on direct appeal to the Texas Court
of Criminal Appeals. 35 Because of this, the claim is barred. 36
       The district court further examined Young’s claim on the merits and
found it wanting, holding that “[t]here is simply no ‘clearly established’ federal
law, as enunciated by the United States Supreme Court, holding the
Fourteenth Amendment’s Due Process Clause requires capital sentencing
juries at the time of [Young’s] capital murder trial to be informed of the impact
of a single holdout juror on any of the Texas capital sentencing special issues.”
Again, this is correct. In Jones v. United States, the Supreme Court disavowed
the notion that “the Eighth Amendment requires a jury be instructed as to the
consequences of a breakdown in the deliberative process.” 37 Consistent with
this view, we have repeatedly rejected arguments similar to Young’s at the
COA stage. 38 The only apparently novel element of his version of the argument




       35  It is also uncertain whether Young adequately raised the claim in his subsequent
state habeas petition. The federal district court noted that while Young had presented a
somewhat similar argument in that petition, that argument did not invoke Simmons, so
Young “did not fairly present the state habeas court with the same legal arguments he has
presented to this Court.” See, e.g., Baldwin v. Reese, 541 U.S. 27, 29-32 (2004); Wilder v.
Cockrell, 274 F.3d 255, 259 (5th Cir. 2001) (“[W]here petitioner advances in federal court an
argument based on a legal theory distinct from that relied upon in the state court, he fails to
satisfy the exhaustion requirement.” (quoting Vela v. Estelle, 708 F.2d 954, 958 n.5 (5th Cir.
1983))). But even if Young “fairly presented” his claim for state habeas review, he did not
present it on direct appeal, so it is defaulted.
        36 See Dorsey v. Quarterman, 494 F.3d 527, 532 (5th Cir. 2007) (“The Texas Court of

Criminal Appeals has held that record based claims not raised on direct appeal will not be
considered in habeas proceedings. . . . This procedural rule [is] firmly established . . . [and]
sets forth an adequate state ground capable of barring federal habeas review.” (citations
omitted)). Young’s default could be excused on a showing of cause and prejudice or of
fundamental miscarriage of justice, see Coleman v. Thompson, 501 U.S. 722, 750 (1991), but
he does not argue either exception applies, and because Young’s Simmons argument is
meritless (as explained below), there is no prejudice.
        37 527 U.S. 373, 382 (1999).
        38 See, e.g., Reed v. Stephens, 739 F.3d 753, 779 (5th Cir.), cert. denied, 135 S. Ct. 435

(2014), and cases cited therein; Hughes v. Dretke, 412 F.3d 582, 594 (5th Cir. 2005); Alexander
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                                      No. 15-70023
is the citation to Simmons. However, the Supreme Court has never suggested
that Simmons requires informing jurors of the consequences of a breakdown
in deliberations. Rather, Simmons held that if state law does not allow parole
from a life sentence, a capital defendant is entitled to have the jury notified of
that fact. 39 Nothing in the Supreme Court’s or our subsequent interpretation
of Simmons indicates that that decision qualifies Jones or is otherwise relevant
to jury instructions concerning voting thresholds, nor does Young cite
authority to that effect. Simmons is irrelevant, and Young’s argument fails on
the merits.
       In his appeal brief, Young does not contest the district court’s analysis of
Simmons, but instead attacks that court’s decision to exclude the juror
affidavits. “Under Rule 606(b) of the Federal Rules of Evidence, jurors’
affidavits are inadmissible ‘regarding . . . [among other things] the effect of any
particular thing upon an outcome in the deliberations . . . and . . . the testifying
juror's own mental process during the deliberations.’” 40 Young argues that
Rule 606(b) does not exclude the affidavits because his habeas challenge
implicates “the legality of his confinement and state court judgment,” whereas
the rule applies only “upon an inquiry into the validity of either the verdict or
indictment.” 41 At bottom, however, Young’s habeas claim relies on the notion
that the jury’s penalty phase verdict was invalid because the jurors were
misled by faulty instructions. 42 The affidavits are meant to show as much, so




v. Johnson, 211 F.3d 895, 897 & n.5 (5th Cir. 2000) (per curiam) (addressing the Eighth and
Fourteenth Amendments).
       39 512 U.S. 154, 169, 171 (1994).
       40 Summers v. Dretke, 431 F.3d 861, 873 (5th Cir. 2005) (quoting Pyles v. Johnson, 136

F.3d 986, 991 (5th Cir. 1998)).
       41 FED. R. EVID. 606(b); Young’s Brief at 25-26.
       42 See Jones v. United States, 527 U.S. 373, 381-82 (1999) (“[A] jury cannot be

‘affirmatively misled regarding its role in the sentencing process.’”) (quoting Romano v.
Oklahoma, 512 U.S. 1, 9 (1994)).
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                                        No. 15-70023
Rule 606(b) applies to them. 43 In any event, we have repeatedly held that Rule
606(b) forbids consideration of juror affidavits in federal habeas cases. 44 And
the claim the affidavits support is both defaulted and meritless. We deny a
COA for Young’s second issue.
                                               V
       Third, Young claims the trial court violated his constitutional rights by
omitting a statutorily required jury instruction. Article 37.071 § 2(f)(3) requires
a trial judge to “charge the jury that [it] need not agree on what particular
evidence” constituted mitigating evidence sufficient to justify a life sentence. 45
Young’s trial judge failed to do so. 46 Young did not object to the incomplete jury
charge, 47 but on direct appeal, he claimed the omission amounted to a denial
of his Eighth and Fourteenth Amendment rights, because it “impermissibly
limited the jurors’ ability not only to consider, but to give unilateral effect to
the mitigation evidence before them, and therefore violated the same principle
as the instructions held to be unconstitutional in Mills [v. Maryland].” 48 The
TCCA disagreed, reasoning that
       even when presented with the circumstances in Mills, the
       Supreme Court did not go so far as to say it is a constitutional
       requirement that every jury deliberating punishment in a capital
       case should be explicitly instructed that the jurors need not agree
       on the particular mitigating circumstances. . . . [The jurors]
       unanimously found that no sufficient mitigating circumstance or

       43 For the same reason, the affidavits are inadmissible to support Young’s other issues
on appeal.
       44 See Summers, 431 F.3d at 873 (in a capital habeas appeal, refusing to consider a

juror affidavit alleging that certain purportedly false testimony was “the most influential
testimony from the penalty phase” (quotation omitted)); United States v. Jones, 132 F.3d 232,
245-56 (5th Cir. 1998), aff'd, 527 U.S. 373 (1999).
       45 TEX. CODE CRIM. PROC. ANN. art 37.071 § 2(f) (West).
       46 This was indisputably error, as the TCCA recognized. See Young v. State, 283

S.W.3d 854, 879 (Tex. Crim. App. 2009) (per curiam); id. at 886 (Price, J., dissenting).
       47 At Young’s state habeas hearing, his trial counsel testified that the failure to object

was inadvertent and not a strategic choice. State Habeas Hearing Transcript at 16-17.
       48 TCCA Brief at 108 (referring to Mills v. Maryland, 486 U.S. 367 (1988)).

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                                      No. 15-70023
       circumstances warranted that a life sentence be imposed. . . .
       [Therefore,] there was no possibility that the jurors would be
       confused about a need to agree on a particular circumstance or
       circumstances. Although the trial court erred in failing to give the
       statutory instruction, in this case, the appellant was not deprived
       of the constitutional guarantee of a unanimous verdict . . . . [n]or
       was the appellant denied a fair trial. 49
       Judge Price dissented, arguing that even though the jury’s mitigating-
circumstances finding was unanimous, the jurors could still have reasonably
construed their instructions, taken as a whole, to allow a particular
circumstance to be taken into account only if every juror agreed it existed and
was sufficient. 50
       Young re-raised this claim in his state habeas petition. The state district
court recommended denying it, and the TCCA summarily adopted the state
district court’s recommendation. 51 Young raised the claim again in his original
and amended federal habeas petitions, to no avail. 52 He now offers it again on
appeal. We have reviewed the Supreme Court’s relevant decisions and the
discussions of this claim in the state and federal district courts, including
Judge Price’s firm dissent. We find that the claim is adequate to deserve
encouragement to proceed further. Accordingly, we grant a COA for Young’s
Mills claim.
                                             VI
       Fourth, and finally, Young claims that his counsel was ineffective in
failing to object to the trial court’s incomplete jury instructions. Having found




       49 Young, 283 S.W.3d at 879.
       50 Id. at 886-89 (Price, J., dissenting).
       51 Ex parte Young, No. WR-70,513-01, 2013 WL 2446428 (Tex. Crim. App. June 5,

2013) (unpublished); 187th District Court Opinion at 7-19.
       52 Young again sought to introduce juror affidavits to demonstrate that the jurors had

been confused by the instructions given. Those affidavits are inadmissible under Rule 606(b),
as explained above.
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    Case: 15-70023        Document: 00513660621          Page: 14      Date Filed: 08/31/2016



                                        No. 15-70023
that the trial court’s incomplete instruction could not have misled the jury, the
state and federal district courts concluded that even if counsel’s failure to
object amounted to deficient performance, Young was not prejudiced. 53
However, given our grant of a COA as to the harm Young suffered from the
faulty instruction, the issue of prejudice is adequate to deserve encouragement
to proceed further. Nor do we find strong evidence in the record before us that
Young’s counsel’s performance was not deficient (thus foreclosing Young’s
claim regardless of prejudice). 54 Accordingly, we grant a COA for Young’s
fourth issue.

                                        CONCLUSION

       We GRANT a COA for Young’s third issue, relating to the incomplete
jury instructions, and his fourth issue, relating to his counsel’s purportedly
ineffective assistance. We DENY a COA for Young’s first and second issues.




       53 187th District Court Opinion at 9-10.
       54 The record is sparse on this point. It is undisputed that the omission of the § 2(f)(3)
instruction was in error, and at Young’s state habeas hearing, his trial counsel admitted that
the omission was significant and that he did not notice it at the time. See 187th District Court
Opinion at 13-14. Nevertheless, neither side has briefed the “performance” prong of
Strickland in any detail and no court has addressed it.
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