                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                         F I L E D
                                                                                           July 28, 2003
                                                   In the
                                                                                     Charles R. Fulbruge III
                          United States Court of Appeals                                     Clerk
                                        for the Fifth Circuit
                                             _______________

                                               m 02-41459
                                             _______________



                                          ANZEL KEON JONES,

                                                                       Petitioner-Appellant,

                                                  VERSUS

                                            JANIE COCKRELL,
         DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

                                                                       Respondent -Appellee.


                                      _________________________

                              Appeal from the United States District Court
                                   for the Eastern District of Texas
                                           m 6:99-CV-660
                                   _________________________




Before HIGGINBOTHAM, SMITH, and                             Anzel Jones appeals the denial of his peti-
  CLEMENT, Circuit Judges.                              tion for writ of habeas corpus sought pursuant
                                                        to the Antiterrorism and Effective Death Pen-
JERRY E. SMITH, Circuit Judge:*                         alty Act of 1996 (“AEDPA”), 28 U.S.C.
                                                        § 2254. We affirm.

   *
                                                                            I.
     Pursuant to 5TH CIR. R. 47.5, the court has           In 1995, Jones entered the residence of
determined that this opinion should not be pub-
                                                        Edith Jones (“the mother”), age 72, and her
lished and is not precedent except under the limited
                                                        daughter Sherry Jones (“the daughter”),
circumstances set forth in 5TH CIR. R. 47.5.4.
age 49.1 Armed with a gun and a knife, Jones             statements made by Dollins claiming no
beat and tortured both women, then confined              knowledge of the crime. After introducing the
the mother in a closet while he continued to             inconsistent statements, counsel asked, “Well,
beat the daughter. The mother escaped from               Mr. Dollins, tell this jury what suddenly caused
the closet and ran for the back door, but Jones          you on the 17th to finally tell the story that
caught her before she could escape. He then              you are now telling us is the truth?”
killed the daughter by stabbing her in the heart
and slitting her throat as her mother watched.              Dollins responded that the police had con-
He raped the mother; then stabbed her in the             fronted him with a letter indicating that Dollins
chest, slit her throat, and set the house on fire.       and Jones had conspired to kill Dollins’s father
The mother survived by crawling outside the              and brother. On redirect, the court allowed
burning house, where a neighbor saw her and              the state to have Dollins read the letter, which
called authorities.                                      described a murder plan in detail, with most of
                                                         the crime to be carried out by Jones. Dollins
   Jones’s fingerprint was found on a bottle of          also testified that he and Jones had discussed
fingernail polish found in the house; his DNA            the plan and that Jones was willing to commit
matched the DNA found in semen swabbed                   the crime.
from the mother’s mouth; the mother’s blood
was found on his clothing; and the daughter’s               In the district court, Jones argued that this
blood was fo und on his shoes. Though the                questioning was ineffective, because counsel
mother could not positively identify Jones be-           could have structured the questions so as to
cause of poor eyesight, she did select his pic-          impeach Dollins without opening the door to
ture from an array of twelve photographs as              the letter, and this prejudiced the verdict. The
most resembling her attacker. Joe Dollins,               court agreed that Jones’s counsel performed
Jones’s best friend, testified that Jones had            deficiently under Strickland v. Washington,
confessed to the crime.                                  466 U.S. 668 (1984), but opined that Jones
                                                         had failed to meet the second prong of Wash-
   Jones was found guilty of capital murder.             ington requiring a showing of prejudice.
At the penalty phase, the jury found that there
was a probability that he would constitute a                Jones asserts that he has demonstrated pre-
continuing threat to society and that there was          judice, because the admission of the letter and
insufficient evidence of mitigating circum-              related testimony eliminated “residual doubt”
stances to preclude a death sentence.                    that Jones was the murderer and supported the
                                                         state’s case that Jones could represent a future
                       II.                               danger, bo th of which might have caused the
   Jones argues that he had ineffective assis-           jury to impose the death sentence. The state
tance of counsel at trial because, in question-          argues that Jones did not raise this argument
ing Dollins, his attorney opened the door to             before the district court, that trial counsel’s
testimony of a collateral offense. Jones’s               performance was not deficient, and that any
counsel tried to impeach Dollins’s testimony             error was not prejudicial.
that Jones had confessed to the murder, using


   1
       Jones was not related to the victims.

                                                     2
                       A.                             about innocence and supported a finding of fu-
   We review the district court’s factual find-       ture dangerousness sufficient to prejudice the
ings for clear error and its determinations of        sentencing.
law de novo. Evans v. Cockrell, 285 F.3d
370, 374 (5th Cir. 2002). Jones’s petition for            The argument Jones now presents is not
habeas relief is governed by the heightened           properly before us. In his state habeas peti-
standard of review provided by AEDPA,                 tion, Jones argued that ineffective cross-exam-
which “‘substantially restricts the scope of          ination of Dollins “deprived Applicant of a fair
federal review of state criminal court proceed-       trial in which the jury was to determine his
ings.’” Id. (quoting Montoya v. Johnson, 226          guilt or innocence of the offense changed in
F.3d 399, 404 (5th Cir. 2000)); Wiggins v.            the indictment.” Jones now contends that al-
Smith, 123 S. Ct. 2527, 2534 (2003). Under            though the petition did not address prejudice
the Act,                                              as it related to sentencing, it also did not “limit
                                                      the effect of that error to the guilt phase ver-
   neither the district court nor this Court          dict.”
   may grant a writ of habeas corpus based
   solely on a finding of error by a state                In his federal habeas petition, Jones again
   court. Rather, a writ may be granted               failed to argue that the prejudice applied to
   only if a state court arrives at a conclu-         sentencing; rather, he asserted that it “under-
   sion opposite to that reached by the Su-           mined the guilt phase theory that the state’s
   preme Court on a question of law or if             evidence failed to establish that Mr. Jones
   the state court decides a case differently         killed Sherry Jones.” None of the words that
   than [sic] the Supreme Court has on a              might imply an argument based on a prejudice
   set of materially indistinguishable facts.         to sentencingSSsuch as sentencing, penalty
   Without such a direct conflict, a writ             phase, residual doubt, or future dangerous-
   will be granted only if the state court            nessSSappears in either petition’s discussion of
   identifies the correct governing legal             the Dollins questioning.2
   principle from the Supreme Court’s de-
   cisions but unreasonably applies that                  Jones’s contention that the issue was raised
   principle to the facts of the prisoner’s           in the district court essentially rests on the no-
   case.                                              tion that his previous argument did not ex-
                                                      pressly contradict the argument he now raises.
Evans, 285 F.3d at 374-75 (citations and              Though this is debatable, we find it beyond
punctuation omitted).                                 question that Jones’s petitions before the state

                      B.
   The state contends that Jones has never be-           2
                                                           In his response to the state’s motion for sum-
fore raised this argument as it relates to the        mary judgment, Jones attempted, unconvincingly,
penalty phase, but rather has argued only that        to recast his argument as relating to “[r]esidual
the questioning prejudiced the guilt/innocence        doubt, or lack of certainty about whether a person
phase. Jones now disclaims any argument that          actually killed the victim of a capital murder,
the Dollins questioning prejudiced the verdict,       [which] is often a powerful basis for a jury to de-
but does claim that it reduced residual doubt         cide not to impose death.” This marked the first
                                                      appearance of this argument.

                                                  3
and district courts did not actually make the              Smithey at the sentencing phase prejudiced his
argument. We are precluded from considering                sentencing and denied him his right to an indi-
the claim, because Jones did not raise it prop-            vidualized sentencing determination required
erly before the district court. Beazley v. John-           under the Eighth Amendment, as explicated in
son, 242 F.3d 248, 271 (5th Cir. 2001) (stat-              Enmund v. Florida, 458 U.S. 782 (1982).
ing that issues not raised in habeas proceedings           Smithey testified that a prisoner in another
before the district court cannot be considered             Texas county, serving a life sentence for a cap-
on appeal).3                                               ital murder conviction, escaped from a work-
                                                           release program. Though the Texas Court of
    Even were we to find that Jones’s response             Criminal Appeals decided that the evidence
to summary judgment was sufficient to raise                was irrelevant to the sentencing determination
the argument in the district court, it was also            and should not have been admitted over
not raised in state court. A claim is procedur-            Jones’s objection, it found the admission
ally defaulted if a petitioner has failed to ex-           harmless. The district court held the denial of
haust all available state remedies, and the state          this claim was “neither contrary to, nor an
court to which he would be required to peti-               unreasonable application of, any clearly es-
tion would now find that the claim is proce-               tablished federal law,” see Wiggins, 123 S. Ct.
durally defaulted. Bledsoe v. Johnson, 188                 at 2534, and granted summary judgment; in
F.3d 250, 254 (5th Cir. 1999). The Texas                   doing so, it addressed Jones’s Eighth Amend-
Code of Criminal Procedure prohibits the filing            ment argument and found it to be without
of subsequent or untimely habeas applications,             merit.
absent a demonstration of cause or actual in-
nocence. See TEX. CODE CRIM. PROC. art                        Jones challenges this decision, arguing that
11.071 § 5(a); Ex parte Davis, 947 S.W.2d                  the decision of the Court of Criminal Appeals
216 (Tex. Crim. App. 1996) (en banc) (up-                  was objectively unreasonable “because it failed
holding the constitutionality of art. 11.071).             to take into account the profound effect the
Jones does not claim that he meets these ex-               prospect of an easy escape would have had on
ceptions; we find that he cannot, and therefore            the jurors’ assessment of Anzel Jones’s future
his claim is procedurally barred.                          dangerousness.” We disagree that the decision
                                                           was objectively unreasonable.
                     III.
   Jones argues that the testimony of Royce                                       A.
                                                               We first consider how Jones’s failure to ex-
                                                           haust this claim affects our review. On direct
   3
                                                           appeal before the Court of Criminal Appeals,
     It is the petitioner’s burden under Washington        Jones’s claim with respect to this evidence was
to show that trial counsel’s errors were so serious
                                                           based entirely on the argument that the ev-
that they rendered the proceedings unfair or the re-
sult unreliable. Hopkins v. Cockrell, 325 F.3d
                                                           idence was not relevant under TEX. R. CRIM.
579, 586 (5th Cir. 2003); see Wiggins, 123 S. Ct.          EVID. 401 and 402 and was prejudicial. His
at 2535. A petitioner who fails even to indicate           arguments did not touch upon the Constitution
that prejudice influenced a given phase of a pro-          generally or the Eighth Amendment par-
ceeding cannot be said to have raised the argument         ticularly, and he did not cite Enmund or any of
with respect to that phase, and much less to have          the other cases he relies on in his argument
met his burden under Washington.

                                                       4
before this court. “[W]here petitioner ad-              exceptions to the non-retroactivity principle.
vances in federal court an argument based on            Id. at 705 (citations omitted). Jones did not
a legal theory distinct from that relied upon in        petition the Supreme Court for a writ of
the state court, he fails to satisfy the                certiorari on direct appeal, so his conviction
exhaustion requirement.” Henry v. Cockrell,             and sentence became final in 1999, after the
327 F.3d 429, 432 (5th Cir. 2003) ) (citations          time for filing such a petition had elapsed.
and quotation marks omitted). “It is not                Fisher v. Texas, 169 F.3d 295, 305 (5th Cir.
enough that all the facts necessary to support          1999).
the federal claim were before the state courts
or that a somewhat similar state-law claim                                     B.
was made.” Anderson v. Harless, 459 U.S.                   Enmund requires, 458 U.S. at 801, that, in
4, 6 (1982) (internal citation omitted)                 death penalty cases, punishment must be tai-
(emphasis added).                                       lored to the offender’s personal responsibility
                                                        and moral guilt.        Enmund forbids the
    Though the state has not addressed Jones’s          imposition of the death penalty for a defendant
failure to exhaust this claim, we raise the issue       “who aids and abets a felony in the course of
sua sponte, because 28 U.S.C. § 2254(b)-                which a murder is committed by others but
(1)(A) precludes granting a habeas petition un-         who does not himself kill, attempt to kill, or
less the state, through counsel, has expressly          intend that a killing take place or that lethal
waived the exhaustion requirement. Although             force will be employed.” Id. at 797. In Booth
the state has not done so here, “[a]n                   v. Maryland, 482 U.S. 496, 504, 509 (1987),
application for a writ of habeas corpus may be          another case cited by Jones, the Court rejected
denied on the merits, notwithstanding the fail-         the requirement of a state statute that the jury
ure of the applicant to exhaust the remedies            consider a victim impact statement, finding
available in the courts of the State.” § 2254-          that it impermissibly took the focus of
(b)(2).                                                 sentencing away from the defendant and
                                                        placed it on “the character and reputation of
    When we consider a claim that has not been          the victim and the effect on his family” and
adjudicated on the merits by a state court, our         their “emotionally charged opinions as to what
review is governed by Teague v. Lane, 489               conclusions the jury should draw from the
U.S. 288 (1989). See Daniel v. Cockrell, 283            evidence . . .”
F.3d 697, 702 (5th Cir.), cert. denied, 123 S.
Ct. 286 (2002). Teague held that a federal                 Jones argues not that Texas’s death penalty
court may not create or apply new                       procedure is inadequate under the Eighth
constitutional rules on habeas review. The              Amendment,4 but rather that the improper ad
Teague analysis involves three determinations:
(1) when the conviction became final; (2)
whether a state court considering the federal              4
                                                              “The Texas capital-sentencing procedure
claim when the conviction became final would            guides and focuses the jury’s objective consid-
have felt compelled by existing precedent to            eration of the particularized circumstances of the
apply the rule the applicant now seeks; and (3)         individual offense and the individual offender be-
if the applicant seeks to apply a new rule,             fore it can impose a sentence of death.” Jurek v.
whether that rule falls within one of the narrow        Texas, 428 U.S. 262, 274 (1976). With the excep-
                                                                                             (continued...)

                                                    5
mission of evidence within that proceeding in-               will not do so today. The Eighth
appropriately influenced the jury’s                          Amendment does not establish a federal
determination of future dangerousness in a                   code of evidence to supersede state
manner unrelated to his personal responsibility              evidentiary rules in capital sentencing
or guilt. This argument is akin to that raised               proceedings.
by the petitioner in Romano v. Oklahoma, 512
U.S. 1, 10-11 (1994), who argued that the                 Id. at 11-12 (emphasis added).
jury’s consideration of irrelevant evidenceSSin
that case the fact that the petitioner had                   Given that the Court found no Eighth
received a death sentence for a prior, separate           Amendment violation in Romano, Jones has
murder convictionSS”rendered his sentencing               not demonstrated an Eighth Amendment claim
proceeding so unreliable that the proceeding              under the facts before us. If anything, the
violated the Eighth Amendment.” The Court                 evidence considered here has even fewer
held “[t]hat the evidence may have been                   Eighth Amendment implications than did that
irrelevant as a matter of state law, however,             considered in Romano.5 A Texas court
does not render its admission federal                     considering Jones’s federal claim in 1999
constitutional error.” Id. at 10. It rejected the         would not have felt compelled by existing pre-
“proposition that the mere admission of                   cedent to find an Eighth Amendment violation,
irrelevant and prejudicial evidence requires the          and accordingly we deny the claim.6
overturning of a death sentence,” affirming the
state appellate court’s determination that the
death penalty was warranted and supported
despite the improper admission. Id. at 11.
Concluding its discussion of the argument, the
Court held:                                                  5
                                                                Though the Court in Romano did weigh the
                                                          prejudice of the remarks against the remaining un-
   Petitioner’s argument, pared down,                     tainted evidence, it did so when considering the pe-
   seems to be a request that we fashion                  titioner’s alternative argument “that the introduc-
   general evidentiary rules, under the                   tion of the evidence in question violated the Due
   guise of interpreting the Eighth                       Process Clause of the Fourteenth Amendment.”
   Amendment, which would govern the                      Romano, 512 U.S. at 12-14. Jones has not raised
   admissibility of evidence at capital                   an argument based on the Due Process Clause, and
   sentencing proceedings. We have not                    therefore we need not engage in such a weighing.
   done so in the past, however, and we                      6
                                                               To the extent that Jones seeks the application
                                                          of a new rule that extends beyond the mandates or
                                                          relevant precedent, it plainly would not meet either
   4
     (...continued)                                       narrow exception to retroactivity laid out in
tion of a modification taken by the Texas legis-          Teague. See Daniel, 283 F.3d at 708 (“The two
lature to respond to Penry v. Lynaugh, 492 U.S.           exceptions are for new rules that: (1) place certain
302 (1989), “Texas’ death penalty scheme sub-             kinds of primary, private individual conduct be-
stantively is the same as the one the United States       yond the power of the criminal law-making au-
Supreme Court upheld in Jurek[.]” Cockrell v.             thority to proscribe; or (2) are implicit in the con-
State, 933 S.W.2d 73, 92-93 (Tex. Crim. App.              cept of ordered liberty.”) (quotation marks
1996).                                                    omitted).

                                                      6
                      IV.                                state habeas counsel failed to raise the
   Jones contends that the death penalty, as             argument Jones wishes to assert here, Jones
applied to a seventeen-year-old, violates the            reasons that Texas failed to meet its burden to
Eighth and Fourteenth Amendments. The                    provide competent counsel, and therefore the
state argues, inter alia, that we should affirm          process was ineffective to protect his rights.
the district court, which found the claim pro-           The district court rejected this argument and
cedurally barred because petitioner did not              found that it is procedurally barred.
present it to the Court of Criminal Appeals.
Jones does not address this holding, and we                  Failure to exhaust under § 2254(b)(1)(B)(i)
find nothing in the record to undermine it.7             cannot be excused by arguing that appointed
                                                         state habeas counsel provided ineffective as-
                          V.                             sistance. Martinez v. Johnson, 255 F.3d 229,
    Jones argues that he had ineffective                 240-41 (5th Cir. 2001). Moreover, “failure to
assistance at trial because counsel failed               provide ‘competent’ counsel for a state habeas
adequately to develop and present evidence of            petition does not fall under the general catchall
mental health problems that could have                   exception provided in 28 U.S.C. § 2254(b)(1)-
mitigated against a death sentence. Jones                (B)(ii).” Id. at 238 n.10.8 Jones argues that
admits that the claim is unexhausted, because            we provided insufficient reasoning in Mar-
he failed to raise it in state habeas proceedings,       tinez, suggesting that perhaps the court mis-
and further concedes that he could not satisfy           understood the contention, and urges that we
the state’s requirements for filing a second             “should fairly address the argument.” But,
habeas application. See TEX. CODE CRIM.                  absent “an intervening contrary or superseding
PROC. art 11.071 § 5(a). He contends,                    decision by this court sitting en banc or by the
however, that counsel’s failure to raise the             United States Supreme Court, a panel cannot
issue in his state habeas application, together          overrule a prior panel’s decision.” Burge v.
with the refusal of the Court of Criminal                Parish of St. Tammany, 187 F.3d 452, 466
Appeals to allow a second filing, meets the              (5th Cir. 1999). Under Martinez, Jones’s
requirements of § 2254(b)(1)(B)(ii), which               claim is procedurally barred.
allows a grant of a writ of habeas corpus
where “circumstances exist that render [state
corrective] process ineffective to protect the
                                                            8
rights of the applicant.”                                      Furthermore, the statutory right created in
                                                         TEX. CODE CRIM. PROC. art. 11.071 § 2(a) relates
   Jones notes that Texas’s 1995 Habeas Cor-             to “habeas counsel’s qualifications, experience, and
pus Reform Act (“Reform Act”) provides that              abilities at the time of his appointment,” not “the
“an applicant shall be represented by                    final product of representation.” Ex parte Graves,
                                                         70 S.W.3d 103, 113-14 (Tex. Crim. App. 2002).
competent counsel unless the applicant has
                                                         Jones’s argument rests entirely on state habeas
elected to proceed pro se . . . .” TEX. CODE             counsel’s inadequate representation in failing to
CRIM. PROC. ART. 11.071 § 2(a). Because                  raise a particular claim; he makes no arguments as
                                                         to counsel’s general competence. Therefore, to the
                                                         extent that Jones’s argument rests on the guar-
   7
    This argument also is foreclosed by precedent.       antees of the Reform Act, his reliance is misplaced,
See Beazley, 242 F.3d at 268-69 (citing Stanford         because we defer to the Court of Criminal Appeals’
v. Kentucky, 492 U.S. 361, 370-73 (1989)).               interpretation of a Texas statute.

                                                     7
AFFIRMED.




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