                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 8, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 01-41437


BILLY FRANK VICKERS,

                                               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
                           (6:98-CV-643)
                       --------------------

Before HIGGINBOTHAM, WIENER, AND BARKSDALE, Circuit Judges.

PER CURIAM:*

     Petitioner Billy Frank Vickers, Texas Prisoner #99087, seeks

a Certificate of Appealability (COA) from this court following the

district court’s refusal to grant his application for COA and its

denial of habeas relief pursuant to 28 U.S.C. § 2254.    For reasons

we explain below, we deny COA.




     *
        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this opinion should not be published and is not precedent except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.
                                          I

                             FACTS AND PROCEEDINGS

     Vickers was charged by indictment under TEX. PENAL CODE ANN. §

19.03(a)(2), which states that a person commits capital murder if

he commits murder during the commission of another felony – in this

case,   the     aggravated     robbery        of    Phillip    Kinslow.      At    the

guilt/innocence phase, the jury found Vickers guilty as charged.

At the sentencing phase, the jury answered the two special issues

in the affirmative:       There was a probability that Vickers would

constitute a continuing threat to society; and Vickers caused

Kinslow’s death, intended to kill Kinslow, or anticipated the loss

of a human life.       As the jury did not find sufficient mitigating

circumstances to warrant a sentence of life imprisonment, the trial

court imposed a sentence of death.

     On direct appeal, Vickers raised 56 points of error.                          The

Texas   Court    of   Criminal   Appeals           affirmed    his    conviction   and

sentence, and the United States Supreme Court denied certiorari.

Vickers v. Texas, 522 U.S. 913 (1997).

     Vickers then filed two state postconviction applications. The

first raised issues not relevant to this federal petition and was

denied without written order.             In his second state application,

Vickers   asserted,     in     relevant        part,    that    the    evidence    was

insufficient to establish that he shot Kinslow, acted with the

intent to cause death, or had sufficient culpability to support the


                                          2
aggravating factor at the sentencing phase; and that the trial

court improperly instructed the jury on the law of conspiracy,

thereby allowing the jury to find Vickers guilty of capital murder

without the requisite intent to kill.       The Texas Court of Criminal

Appeals dismissed this second application as abuse of the writ,

pursuant to TEX. CRIM. P. CODE ANN. art. 11.071 § 5(a).

     Vickers filed his federal habeas petition pursuant to 28

U.S.C. § 2254, asserting that (1) the evidence was insufficient to

establish that he shot Kinslow or that the shooter acted with the

intent to cause death; (2) the lack of evidence of intent rendered

the death sentence unconstitutional; (3) the jury instructions on

conspiracy allowed Vickers to be sentenced to death under a lower

standard than that required by the Supreme Court; (4) the jury

instructions on conspiracy denied Vickers the right to know the

nature of   the   charge   against   him;   and   (5)    appellate   counsel

rendered ineffective assistance by not raising these issues on

direct appeal. The district court denied habeas relief and granted

the respondent’s motion for summary judgment.           The court concluded

that Vickers had procedurally defaulted his challenges to the

sufficiency of the evidence to show his intent to kill or the

“highly culpable mental state” needed to impose the death penalty.

The district court elected to address the merits of Vickers’s

challenge to the sufficiency of the evidence to establish that he

was shooter, because the relevant facts had been raised by Vickers

on direct appeal in conjunction with a sentencing issue.             Without

                                     3
applying the deferential standards of § 2254(d), the district court

held that the evidence was sufficient to establish that Vickers had

in fact shot Kinslow. The court concluded that Vickers’s challenge

to the jury instructions and to the assistance of appellate counsel

were also procedurally defaulted. Finally, the court held that any

ineffective assistance of appellate counsel did not establish cause

for the procedural default of the other claims.

     Vickers filed a timely motion to alter or amend the judgment

pursuant to FED. R. CIV. P. 59(e).       Id. at 112-41; FED. R. CIV.

P. 6(a).   The district court denied the motion, concluding that the

Texas Court of Criminal Appeals regularly applies the abuse-of-the-

writ doctrine, that Vickers could not establish cause through the

ineffectiveness of appellate counsel, and that he had not shown

that he was “actually innocent” of conduct giving rise to the death

penalty. Vickers filed a timely notice of appeal and a request for

a COA, after which the district court denied COA.

                                 II

                              ANALYSIS

     A.    Applicable Law

     Vickers’s § 2254 petition was filed in July 1999, and is

therefore subject to the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA).     See Penry v. Johnson, 532 U.S. 782, 792

(2001).    Under the AEDPA, Vickers must obtain a COA before he can




                                  4
appeal the district court’s denial of habeas relief.           28 U.S.C.

§ 2253(c)(1); Slack v. McDaniel, 529 U.S. 473, 478 (2000).

     To obtain a COA for any of his claims, Vickers must make a

“substantial showing of the denial of a constitutional right.”

§ 2253©(2); Slack, 529 U.S. at 483.           When a district court has

rejected a constitutional claim on the merits, a COA will be

granted only if the petitioner “demonstrate[s] that reasonable

jurists    would   find   the   district    court’s   assessment   of   the

constitutional claims debatable or wrong.” Slack, 529 U.S. at 484;

see also Miller-el v. Cockrell, 123 S. Ct. 1029, 1039-40 (2003).

If the denial of relief is based on procedural grounds, the

applicant must show that (1) “jurists of reason would find it

debatable whether the petition states a valid claim of the denial

of a constitutional right” and (2) “jurists of reason would find it

debatable whether the district court was correct in its procedural

ruling.”    Slack, 529 U.S. at 484.      Each prong of the test is part

of a threshold inquiry, and a court may dispose of the application

by resolving the issue with the answer that is more apparent from

the record and arguments.       Id. at 485.

     B.     Sufficiency of the Evidence – Vickers as Shooter

     Vickers contends that the evidence was insufficient to support

a finding that he shot Kinslow.            The standard for testing the

sufficiency of the evidence in federal habeas review of a state

court conviction “is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact

                                     5
could have found the essential elements of the crime beyond a

reasonable   doubt.”     Jackson    v.   Virginia,   443   U.S.   307,   319

(1979)(emphasis in original).       This “standard must be applied with

explicit reference to the substantive elements of the criminal

offense as defined by state law.”         See id. at 324 n.16.       Under

Texas law, an individual commits murder if he “intentionally or

knowingly causes the death of an individual.”         TEX. PENAL CODE ANN.

§ 19.02(b)(1). The individual commits capital murder if he commits

murder as defined under § 19.02(b)(1) and another aggravating

factor is present, such as the defendant’s intentional commission

of the murder during the course of another felony.         § 19.03(a)(2).1

     At Vickers’s trial, Jason Martin testified that he, Vickers,

and Tommy Perkins planned to rob the Arthur City Superette, which

was run by Kinslow.    On the day of the murder, the three men met at

Vickers’s home.   Perkins had a .38 caliber handgun and Vickers had

a .22 caliber handgun.      The threesome spent the day drinking,

“casing” Kinslow’s home and the Superette, and following Kinslow

about his daily activities.        Perkins and Vickers decided that if

Kinslow left his vehicle to open or close one of the gates around

his home, they would rush him, bind him with duct tape, take his

money, and steal his pickup.       The three men left Vickers’s home in

possession of duct tape, a police scanner, and ski masks.

     1
        The State asserts that, contrary to the district court’s
findings, this issue was procedurally defaulted.      We will not
address this assertion, as Vickers’s argument fails on the merits.
See Slack, 529 U.S. at 485.

                                     6
     On the way to the Kinslow residence, Vickers put the .22

caliber handgun on the dashboard of the truck.     Martin let Perkins

and Vickers out of the truck; Vickers was carrying the duct tape

and the .22 caliber handgun.   Martin, the getaway driver, was aware

that if Kinslow resisted, he would suffer physical force or injury.

Martin drove around for a short while, then went to the agreed

meeting point.    After Martin turned off the engine of his truck, he

heard a gunshot and Vickers yelling.         Martin then the scene,

learning later that Kinslow had been shot and killed.         Martin then

went home and passed out.

     The next morning, Perkins came to Martin’s residence where he

told Martin that Vickers had been shot in the knee.              Perkins

related that he and Vickers had waited by the gate and that, as

Kinslow got out of his truck, Perkins saw that Kinslow had a gun.

Vickers rushed Kinslow, a struggle ensued, and gunshots were fired.

After the shooting, Kinslow got back in his truck and drove down

the driveway.

     A medical examiner had previously testified that Kinslow had

a gunshot wound in his chest and that the bullet had gone through

his right lung and into his spinal column, causing death.            The

bullet recovered from Kinslow’s spinal column was a .22 caliber.

     Latricia    Dangerfield   testified   that   she   was    Perkins’s

girlfriend.     She recounted that, in the early morning after the

murder, Perkins told her that “Sonny [Vickers] had got hurt, and

they went out to rob this guy and it didn’t go the way it was

                                   7
supposed to.”    Dangerfield admitted that Perkins had told her that

he had seen that the victim had a gun when he went to open the

gate.    Perkins also told Dangerfield that Vickers asked Kinslow if

he wanted to die and Kinslow asked Vickers the same question,

whereupon both started shooting; that Kinslow jumped in his truck

and drove away; and that Vickers and Perkins ran away from the

scene. Dangerfield was also told by Perkins that he had been asked

by Vickers why he (Perkins) had not shot his gun, stating that he

(Vickers) had not heard any shots from Perkins.           Finally,     Perkins

told Dangerfield that he had not shot Kinslow.

     Vickers     acknowledges   that   both    Martin      and    Dangerfield

testified that Perkins told them that it was Vickers, not Perkins,

who had fired the shots that struck Kinslow.              Vickers maintains,

however that this “circumstantial” evidence is countered by other

circumstantial    evidence   showing   that   he    was    not   in   fact   the

shooter.    He contends that because the evidence gives equal or

nearly equal circumstantial support to a theory of guilt and a

theory of innocence of the crime charged, a reasonable jury must

necessarily entertain a reasonable doubt.          Clark v. Procunier, 755

F.2d 394, 396 (5th Cir. 1985).

     This contention is without merit. Both Martin and Dangerfield

testified as to what they were told by an eyewitness to the
                                                                               2
shooting; such testimony is direct evidence of Vickers’s guilt.

     2
         A painstaking review of the record, both pre-trial and
trial, reveals no motions in limine, contemporaneous objections, or

                                   8
Even if the testimony were circumstantial, however, Vickers still

is    not   entitled   to   relief.       When     Martin’s      and   Dangerfield’s

testimony is viewed in the light most favorable to the prosecution,

it    unequivocally    establishes    that         Vickers      did    the   shooting.

Furthermore, the evidence established that the fatal bullet was a

.22 caliber, copper-coated, hollow-point long rifle like those

found at Vicker’s home, and that the bullet had been fired from a

.22    caliber   handgun,    the   kind       of   gun   that    was    in   Vickers’s

possession at the time he left Martin’s truck.                  A reasonable juror

could also infer that Kinslow shot at Vickers to defend himself

because Vickers was shooting at him.

       Vickers also asserts that the only testimony establishing that

he was the shooter is that of his accomplice, Perkins, and that

under state law, accomplice testimony must be corroborated.                      There

is, however, no constitutional requirement that the testimony of an

accomplice-witness be corroborated. See Brown v. Collins, 937 F.2d

175, 182 n.12 (5th Cir. 1991).                As Vickers is challenging the

sufficiency of the evidence on a matter of Texas law, his claim is

not cognizable in a federal habeas proceeding.                         See Smith v.

Phillips, 455 U.S. 209, 221 (1982).

       Vickers has not established that “reasonable jurists would

find the district court’s assessment of the [sufficiency claim]




other opposition by Vickers to the admission of this testimony,
whether as hearsay or otherwise.

                                          9
debatable or wrong.”      Slack, 529 U.S. at 484.    He is not entitled

to a COA on this claim.

     C.    Ineffective Assistance of Appellate Counsel

     Vickers   contends    that   the   district   court   erred   in   not

reviewing the merits of his ineffective-assistance claim.               The

district court concluded that this claim was procedurally defaulted

because Vickers had never presented it to the state courts.         Under

the procedural-default doctrine, when the last state court that

rendered a reasoned judgment in a case explicitly rejected a claim

based on an independent and adequate state-law procedural ground,

federal courts are ordinarily precluded from granting habeas relief

grounded on that claim.      See Hughes v. Johnson, 191 F.3d 607, 614

(5th Cir. 1999).       If the petitioner failed to exhaust state

remedies and the court to which he would be required to present his

claims to meet the exhaustion requirement would find the claims

procedurally barred, then there is a procedural default for the

purpose of federal habeas consideration. See Emery v. Johnson, 139

F.3d 191, 195 (5th Cir. 1997).          If the claims are found to be

procedurally defaulted, the petitioner must establish both cause

and prejudice for the procedural default or show that the failure

to hear the claim would result in a complete miscarriage of

justice.   Wainwright v. Sykes, 433 U.S. 72, 87, 91 (1977).

     Vickers does not dispute that he failed to present his claim

in the state courts.      Instead he states that such a claim would

have been futile; that if he had raised the claim in his second

                                   10
state postconviction application, it would have been dismissed for

abuse of the writ.       Neither does Vickers attempt to show cause and

prejudice for his failure to raise the issue properly in the state

court; rather, he insists that the sufficiency and jury-instruction

issues, which appellate counsel failed to raise, were meritorious

and could have resulted in an acquittal.             Vickers reasons that by

showing that he might have been acquitted, he has established a

fundamental miscarriage of justice, thereby excusing his failure to

raise the ineffective-assistance claim in the state courts.

     Vickers’s contention on this point is without merit as well.

To establish a miscarriage of justice, Vickers must show that he is

actually, rather than legally, innocent of the charges brought

against him.     See Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992).

As we have already explained, the evidence was sufficient for the

jury to find that Vickers personally shot and killed Kinslow in the

course    of    an    armed   robbery.        This   prevents    Vickers     from

establishing that he was actually innocent of the capital murder.

He has not shown that reasonable jurists would find it debatable

that the district court erred in refusing to consider the merits of

this procedurally defaulted claim.

     D.     Jury Instruction; Sufficiency and Procedural Default

     Vickers also insists that because the indictment did not

allege that he had participated in a conspiracy, the trial court

erred    when   it    charged   the   jury    with   the   law   on   a    “party

conspirator.”        He maintains that as a result, the jury was allowed

                                         11
to sentence him to death merely for his participation in a felony

and his “anticipation” of a murder, rather than based on his own

intent to kill.        He also contends that he was denied notice of the

charges against him as is required by the Sixth Amendment.3

     Vickers also advances that the evidence was insufficient to

establish his intent to kill.            He grounds this contention in the

claim that the only evidence of intent came through the hearsay

testimony of Martin and Dangerfield regarding what Perkins, an

accomplice,      had     told   them    and   that   this   evidence     was   not

corroborated.

     Vickers concedes that he raised these claims for the first

time in his second state application.            He contends, however, that

the district court improperly refused to consider the merits of his

claims   under     the     procedural     default    doctrine,    arguing      that

appellate   counsel’s       ineffectiveness      establishes     cause   for   his

failure to raise the claims in a timely manner.                  He also argues

that, because he could have been acquitted on these grounds, he has

established a fundamental miscarriage of justice.

     The state court dismissed Vicker’s second state application,

which included these claims, for abuse of the writ.               To qualify as

adequate, a procedural rule must be applied strictly or regularly

     3
        The State asserts that Vickers’s challenge to the jury
charge was also procedurally defaulted under the contemporaneous
objection rule and that his assertions that failure to consider the
procedurally defaulted claims would constitute a miscarriage of
justice were untimely in the district court. As these claims of
Vickers are wholly unavailing, we shall not address them.

                                         12
to the vast majority of similar claims.                See Emery, 139 F.3d at

195.     The    law   is   well-settled     that   a   dismissal   of   a   state

application pursuant to art. 11.071 § 5(a) is an independent and

adequate ground regularly invoked by Texas courts.             See Emery, 139

F.3d at 195-96.

       Vickers contends that he has established “cause” for his

procedural default in appellate counsel’s failure to raise the

issues on direct appeal.          Although ineffective assistance may

constitute “cause” for a procedural default, Murray v. Carrier, 477

U.S.    478,    488   (1986),   such   an    ineffective-assistance         claim

generally must “be presented to the state courts as an independent

claim before it may be used to establish cause for a procedural

default.”      Id. at 489.   As Vickers concedes that he did not present

his ineffective-assistance claim to the state courts, he cannot

establish that the procedural default should be excused through

cause and prejudice.

       Neither can Vickers’s miscarriage-of-justice assertion excuse

the procedural default.          This exception requires a showing of

actual innocence.      Sawyer, 505 U.S. at 339.         The evidence here was

sufficient to show that Vickers was the shooter and that the

elements of capital murder were met. Again, he cannot prove actual

innocence.

       As for the contested jury instruction, the district court did

acknowledge that it could conceive of situations in which a death

sentence imposed pursuant to the conspiracy jury instruction could

                                       13
be constitutionally infirm, but concluded that here “the actual

instructions submitted in the case” were appropriate.             The court’s

statement in the abstract about cases dealing with the relevant

jury instructions does not establish that Vickers himself could

succeed under actual innocence.      Vickers has not established that

“jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.”         Slack, 529 U.S. at

484.

                                   III

                              CONCLUSION

       For the reasons set forth above, we conclude that Vickers has

failed   to   demonstrate   any   basis   for   entitlement       to     a    COA.

Consequently, his application must be rejected.

       COA DENIED.




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