     Case: 15-70013      Document: 00513523972         Page: 1    Date Filed: 05/26/2016




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

                                      No. 15-70013                               FILED
                                                                             May 26, 2016
                                                                            Lyle W. Cayce
ERICK DANIEL DAVILA,                                                             Clerk

              Petitioner - Appellant

v.

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

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:13-CV-506


Before DENNIS, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Erick Daniel Davila was convicted of capital murder and sentenced to
death. After pursuing relief in state court, he brought a Section 2254 action.
The district court denied relief. He now seeks a certificate of appealability
(“COA”) from this court. We deny him a 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                FACTUAL AND PROCEDURAL BACKGROUND
      In February 2009, a Texas jury found Davila guilty of capital murder.
Davila had opened fire with a semiautomatic assault rifle on a birthday party
at a home in Fort Worth, Texas, killing Annette Stevenson and her five-year-
old granddaughter, Queshawn Stevenson. The birthday party was for another
of Annette’s granddaughters. All the guests were children or adult women,
except for Jerry Stevenson, Queshawn’s father.
      Around 8:00 p.m., many guests were on the porch when a black Mazda
passed by the house slowly, driven by a man with a gun. A few minutes later,
Cashmonae Stevenson, an 11-year-old at the party, saw a man run in front of
the house across the street and begin shooting at the guests on the porch.
Panic ensued as the guests tried to get inside the house. Multiple children,
including Cashmonae, and adult guests were shot and injured. Annette and
Queshawn were the only ones to die from their injuries.
      A police investigation led to the arrest of Davila, who gave four written
statements over the course of seven hours in custody after his arrest. Davila
was a member of the Bloods gang.                Davila’s third statement included
admissions that he and his friend had been driving around in his girlfriend’s
black Mazda and decided to have a “shoot em up.” He said that he was trying
to shoot “the guys on the porch and . . . trying to get the fat dude.” He stated
he did not know the name of the “fat dude,” but recognized him. 1 As for the
“guys on the porch,” Davila appeared to have mistaken some adult women at
the party for men because the only male at the party was Jerry.                     This



      1  Jerry Stevenson testified that neither he nor anyone who lived at Annette
Stevenson’s house was associated with the rival Crips gang, although he had friends who
were Crips. A few weeks before this shooting, Stevenson had intervened in an argument that
occurred in front of Annette’s house between some of his family members and members of the
Bloods gang. A security guard who witnessed the argument testified that Davila was one of
the men with whom Stevenson was arguing.
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                                 No. 15-70013
confession, along with other evidence, was presented at Davila’s trial and led
to his conviction.
      At the punishment phase, the State introduced aggravating evidence:
Davila had attempted to escape from jail and seriously injured a detention
officer in the process; he had committed an aggravated robbery and an
additional murder only two days before the birthday party shooting; he also
had been convicted for burglary of a habitation in 2006.
      For the mitigation case, the defense offered testimony from Davila’s
father, sister, mother, maternal aunts, and a psychologist, Dr. Emily Fallis. In
summary, they testified that Davila had been raised solely by a teenage
mother, with his alcoholic father having been incarcerated for murder since he
was very young. Davila’s mother told him that he was conceived when his
father sexually assaulted her.     She was neglectful, abusive, and hateful
towards Davila and his sister, and even made them leave the house as
teenagers. Davila’s sister testified about physical fights she had with their
mother.    After deliberation, the jury returned a sentence of death.
      The Texas Court of Criminal Appeals affirmed Davila’s conviction on
direct appeal, and the United States Supreme Court denied a writ of certiorari.
Davila then pursued state habeas relief. He petitioned the convicting court for
a writ of habeas corpus, which was denied. He then sought a writ of habeas
corpus from the Court of Criminal Appeals, which adopted the convicting
court’s findings and conclusions and denied relief. He again petitioned the
Supreme Court for a writ of certiorari, which was denied.
      Davila then sought federal habeas corpus relief under 28 U.S.C. § 2254.
He presented seven constitutional claims:
      1) The evidence at trial was insufficient to support his conviction;
      2) He received ineffective assistance of trial counsel, appellate counsel,
          and state habeas counsel;
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      3) His written confession to this offense was erroneously admitted;
      4) His written confession to a separate murder was erroneously
         admitted;
      5) The trial court erroneously denied his motion to preclude the death
         penalty and declare Article 37.071 of the Texas Code of Criminal
         Procedure unconstitutional;
      6) The trial court erroneously overruled his objection to Texas’s “10-12
         Rule”; and
      7) The trial court erroneously instructed the jury about the burden of
         proof on mitigation.
      In addition to his application for federal habeas relief, he sought an
evidentiary hearing and a stay and abeyance to allow him to exhaust an
ineffective assistance claim in state court. The district court reviewed the state
court proceedings with the deference required by the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), then denied habeas relief. The court
also denied the motion for an evidentiary hearing and a stay and abeyance.
The court did not certify any issue for appeal. Davila now seeks a COA from
our court to allow him to proceed on appeal. See 28 § U.S.C. 2253(c)(1)(A).


                                 DISCUSSION
      We grant a COA only upon “a substantial showing of the denial of a
constitutional right.” Id. § 2253(c)(2).    When the district court denies an
applicant’s constitutional claims on the merits, a COA will only issue if the
applicant shows “jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-
El v. Cockrell, 537 U.S. 322, 327 (2003). When the district court denies an
applicant’s claims on procedural grounds, a COA will only issue if the applicant
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shows that reasonable jurists would debate whether the district court was
correct in its procedural ruling and whether the petition states a valid claim
on the merits. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
      AEDPA requires federal district courts to give deference to state court
decisions. See Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005). A federal
court must not grant habeas relief regarding any claim adjudicated on the
merits in state court proceedings unless the state court’s adjudication “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 evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2).
       A state court’s adjudication is “contrary to” Supreme Court precedent if:
(1) the state court reaches the opposite conclusion from the Supreme Court on
a question of law; or (2) the state court arrives at the opposite result of Supreme
Court precedent in a case involving materially indistinguishable facts. See
Williams v. Taylor, 529 U.S. 362, 405–06 (2000). A state court’s decision is “an
unreasonable application” of clearly established federal law if it “correctly
identifies the governing legal rule but applies it unreasonably to the facts of a
particular prisoner’s case.” Perez v. Cain, 529 F.3d 588, 594 (5th Cir. 2008).
Even if we find that a state court incorrectly applied clearly established federal
law, we can only correct the state court if the incorrect application was also
objectively unreasonable. Id.
      A determination of facts by a state court is presumed correct unless
rebutted by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “This
presumption of correctness attaches not only to explicit findings of fact, but
also to ‘unarticulated findings which are necessary to the state court’s


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                                  No. 15-70013
conclusion of mixed law and fact.’” Pippin, 434 F.3d at 788 (quoting Pondexter
v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003)).
      We must conduct a “threshold inquiry into the underlying merit” of
Davila’s habeas claims to determine whether a COA should issue. Miller-El,
537 U.S. at 327. This inquiry “does not require full consideration of the factual
or legal bases” of the claims. Pippin, 434 F.3d at 787.


      I. Sufficiency of the Evidence Claim
      Davila asserts that there was insufficient evidence to support his
conviction for capital murder because capital murder in Texas requires specific
intent to kill more than one person. He claims the evidence showed he only
intended to kill one person: Jerry Stevenson.
      The district court denied this claim because Davila’s written statement
evidenced intent to kill more than one person. Davila’s statement included the
following: “we were going to have a shoot em up . . . The fat dude was in the
middle of the street. The other 3 were on the porch. . . . I was trying to get the
guys on the porch and I was trying to get the fat dude.”       The district court
decided that the Texas Court of Criminal Appeals did not unreasonably apply
clearly established federal law to assess sufficiency of the evidence, as set out
in Jackson v. Virginia, 443 U.S. 307 (1979).
      Davila argues that a COA should issue on whether his legal sufficiency
claim should be analyzed under Section 2254(d)(1) or (d)(2). Davila asserts
that the district court did not address his claim that the Texas Court of
Criminal Appeals made unreasonable determinations of the facts under
Section 2254(d)(2), but instead just analyzed his claim under Section
2254(d)(1). An applicant establishes legal error in the state court proceedings
under Section 2254(d)(1), but factual error under Section 2254(d)(2). See Lewis
v. Thaler, 701 F.3d 783, 791 (5th Cir. 2012). A claim of insufficient evidence is
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                                   No. 15-70013
a mixed question of law and fact, which we review under Section 2254(d)(1).
See Miller v. Johnson, 200 F.3d 274, 281, 286–88 (5th Cir. 2000). Accordingly,
we deny a COA on this sub-issue because reasonable jurists would not debate
the district court’s resolution in light of our precedent.
         We must decide whether the Texas Court of Criminal Appeals’ rejection
of Davila’s claim that the evidence was insufficient “was an objectively
unreasonable application of the clearly established federal law” as set out in
Jackson, 443 U.S. 307. See Martinez v. Johnson, 255 F.3d 229, 244 (5th Cir.
2001).    Evidence is sufficient if, viewing it in the light most favorable to the
state prosecution, “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319.
We look to state law to determine the substantive elements of the crime.
Coleman v. Johnson, 132 S. Ct. 2060, 2064 (2012). Murdering more than one
person in the same criminal transaction qualifies as capital murder in Texas.
TEX. PENAL CODE § 19.03(a)(7)(A).             Murder requires “intentionally or
knowingly caus[ing] the death of an individual.” Id. § 19.02(b)(1). Under Texas
law, a person is still “criminally responsible for causing a result if the only
difference between what actually occurred and what he desired . . . is that . . .
a different person . . . was . . . harmed.” Id. § 6.04(b)(2).
      Davila’s third written statement reveals an intent to kill at least four
persons. Because there was only one man at the party, Jerry Stevenson, Davila
mistook some of the adult women for men. Under Texas law, Davila’s intent
to kill four men transferred to the killing of Annette and Queshawn Stevenson.
A rational juror could look at that evidence and decide beyond a reasonable
doubt that Davila intentionally or knowingly killed more than one person.
Reasonable jurists would not find the district court’s resolution debatable or
wrong. We deny a COA on this claim.


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      II.   Ineffective Assistance of Appellate Counsel Claim
      Davila contends that he is entitled to a COA on his claim that his counsel
in the direct appeal from his conviction was ineffective for failing to raise an
allegedly erroneous jury instruction on appeal.
      During deliberations, the jury sent this written question to the trial
judge: “In a capital murder charge, are you asking us did he intentionally
murder the specific victims, or are you asking us did he intend to murder a
person and in the process took the lives of 2 others[?]”         The trial judge
responded by giving the jury an instruction that for the first time tracked the
Texas transferred-intent statute: “A person is nevertheless criminally
responsible for causing a result if the only difference between what actually
occurred and what he desired, contemplated or risked is that: a different
person was injured, harmed, or otherwise affected.”              This additional
instruction was submitted along with another instruction repeating the
definitions for “intentionally” and “knowingly.” Davila’s trial counsel objected
to the instruction on the basis that it should not have been sent to the jury
until more deliberation had occurred. Davila now claims that counsel should
have argued on appeal from the conviction that the additional jury instruction
incorrectly stated Texas law because he had to have specific intent to murder
more than one person, but the jury charge permitted him to be convicted of
capital murder even if he only intended to kill Jerry Stevenson.
      Because Davila did not raise this ineffective appellate counsel claim in
state habeas proceedings, the district court held it was procedurally defaulted.
The district court rejected Davila’s argument that Martinez v. Ryan, 132 S. Ct.
1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013), should extend to
excuse ineffective assistance of appellate counsel claims that are defaulted due
to state habeas counsel’s ineffectiveness. We have addressed this possible
extension of Martinez in at least one precedent, where we wrote that if the
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petitioner was “suggest[ing] that his ineffective-assistance-of-appellate-
counsel claims also should be considered under Martinez, we decline to do so.”
Reed v. Stephens, 739 F.3d 753, 778 n.16 (5th Cir. 2014). We do not interpret
the court’s declining to consider the issue to have been based on discretion. We
must consider Section 2254 claims when they are non-defaulted, exhausted,
and otherwise properly raised. Moreover, Reed included one citation to an
opinion holding that Martinez made an “unambiguous holding” to the effect
that “ineffective assistance of post-conviction counsel cannot supply cause for
procedural default of a claim of ineffective assistance of appellate counsel.” Id.
(quoting Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013)).
      In light of this controlling precedent from our court, reasonable jurists
at least in this circuit would not debate the district court’s conclusion that this
claim of error arising from the response to the jury note was procedurally
defaulted because Davila failed to exhaust it in state court proceedings. See
Blue v. Thaler, 665 F.3d 647, 669 (5th Cir. 2011) (“Because both of Blue’s
arguments with respect to the burden of proof on the mitigation special issue
are foreclosed by Fifth Circuit precedent, the correctness of the district court’s
decision to reject them is not subject to debate among jurists of reason.”).
      Finally, Davila challenges the district court’s resolution of his motion for
a stay and abeyance and motion for an evidentiary hearing. Davila sought a
stay and abeyance so he could exhaust this claim in state court. A stay and
abeyance is warranted when the petitioner shows there was good cause for the
failure to exhaust the claim in state court, the claim is not plainly meritless,
and there is no indication the failure was for delay. See Williams v. Thaler,
602 F.3d 291, 309 (5th Cir. 2010). We review the denial of a stay and abeyance
for abuse of discretion. See Rhines v. Weber, 544 U.S. 269, 277–78 (2005). The
district court did not abuse its discretion because this claim is meritless, as
discussed above, and there was no showing of good cause. Additionally, the
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district court did not abuse its discretion in denying Davila’s request for an
evidentiary hearing under Section 2254(e). See Clark v. Johnson, 202 F.3d
760, 765–66 (5th Cir. 2000). Here, the record itself precludes habeas relief and
thus, a hearing would not enable Davila to prove factual allegations in his
petition that, if true, would entitle him to relief. See Schriro v. Landrigan, 550
U.S. 465, 474 (2007). We deny a COA on this claim.


       III.   Ineffective Assistance of Trial Counsel Claim
       Davila claims his trial counsel was ineffective in failing to make a proper
investigation of his background or present a mitigation case to the jury at the
punishment phase under Wiggins v. Smith, 539 U.S. 510 (2003). This claim
was presented to the Texas Court of Criminal Appeals and rejected. The
district court reviewed the state court’s decision 2 and held the state court’s
resolution of the claim was not contrary to, or an unreasonable application of,
Strickland v. Washington, 466 U.S. 668, and subsequent caselaw.                         Under
Strickland, an ineffective assistance of trial counsel claim requires deficient
performance and prejudice. Id. at 690–92. Deficient performance is conduct
that falls below an objective standard of reasonableness. Id. at 688. Counsel
must conduct a reasonable investigation into a defendant’s background in
order to make reasonable, strategic decisions about how to present, or whether
to present, the mitigation case. See Wiggins, 539 U.S. at 521–23. To show
prejudice, Davila must show “a reasonable probability that . . . the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at



       2 To the extent that Davila argues the district court was not limited to the state habeas
court’s record under Cullen v. Pinholster, 563 U.S. 170 (2011), because he claims his state
habeas counsel was ineffective, we reject that claim. See Escamilla v. Stephens, 749 F.3d
380, 394–95 (5th Cir. 2014); Ross v. Thaler, 511 F. App’x 293, 305 (5th Cir. 2013).
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694.   To determine prejudice in the context of mitigation evidence, the
reviewing court “reweigh[s] the evidence in aggravation against the totality of
available mitigating evidence.” Wiggins, 539 U.S. at 534. Our limited review
is whether reasonable jurists would debate the district court’s decision that the
Texas court did not unreasonably apply Strickland and Wiggins.
       Davila argues that his trial attorneys were deficient because they failed
to hire a mitigation specialist. Davila relies on the ABA Guidelines to claim
that the failure to hire a mitigation specialist was deficient performance. The
ABA Guidelines are only guides, not requirements, to determine whether
counsel’s performance was reasonable. See Strickland, 466 U.S. at 688. Here,
trial counsel worked together with a clinical psychologist, Dr. Emily Fallis, to
investigate and evaluate mitigation evidence. Trial counsel conducted the
factual investigation into Davila’s background and childhood themselves, with
the help of a fact investigator, because they wanted to build relationships with
potential witnesses.    Counsel interviewed at least 12 family members in
addition to friends and employers. Counsel obtained Davila’s school records
and spoke to former teachers. After conducting initial interviews, counsel
would send certain persons to be interviewed by Fallis. The interviews Fallis
conducted allowed her to present her testimony more effectively about the
impact of Davila’s upbringing and background.         Counsel also had Davila
examined by another psychologist, neurologist, and hired another doctor with
expertise in gang activity.    Trial counsel made a reasonable decision to
maintain responsibility for the factual investigation and to seek the assistance
of an expert, Fallis, in evaluating and presenting the mitigation evidence.
       Davila also argues that counsel was deficient by failing to uncover
additional mitigation evidence from four extended family members identified
by mitigation specialist, Toni Knox, who testified at the state habeas
proceeding regarding trial counsel’s deficient performance. As the district
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court noted, two of those individuals were contacted at the time of trial but
refused to testify or were otherwise uncooperative. We agree with the district
court that counsel was not deficient for leaving the uncooperative family
members uncalled. Additionally, as for the other two family members, counsel
was not necessarily unreasonable for failing to interview them. “Questioning
a few more family members . . . can promise less than looking for a needle in a
haystack, when a lawyer truly has reason to doubt there is any needle there.”
Rompilla v. Beard, 545 U.S. 374, 389 (2005). Based on the investigation that
counsel conducted, it was reasonable to doubt that interviews with these two
extended family members would result in different, new information beyond
what they already had discovered.
      Furthermore, regarding any possible deficient performance in failing to
interview the other two witnesses whom Knox identified, the district court held
that Davila could not show prejudice. The court concluded that the mitigation
evidence Knox presented from these witnesses was of the same kind trial
counsel had presented: Davila’s mother was neglectful and abusive towards
her children. Davila claims that the uncovered mitigation evidence would have
shown more details of the type of physical abuse Davila and his sister endured.
As the district court noted, such an argument “comes down to a matter of
degrees” and is “even less susceptible to judicial second-guessing.” Kitchens v.
Johnson, 190 F.3d 698, 703 (5th Cir. 1999). The additional mitigation evidence
presented by Knox “was largely cumulative and differed from the evidence
presented at trial only in detail, not in mitigation thrust.” See Villegas v.
Quarterman, 274 F. App’x 378, 384 (5th Cir. 2008).
      Additionally, when compared to the strong aggravating evidence, any
incremental increase in mitigation evidence would not create “a reasonable
probability that . . . the result of the proceeding would have been different.”
See Wiggins, 539 U.S. at 534. Not only were the facts of Davila’s shooting of
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Annette and Queshawn Stevenson aggravating, but he also had a serious
criminal history and had admitted to murdering another person days before
the birthday party shooting. Furthermore, he attacked and seriously injured
a guard while trying to escape jail prior to his trial. Finally, as the district
court noted, evidence demonstrating abuse to Davila and his sister could
undermine any possible mitigating effect, because his sister made different
choices than Davila despite growing up in the same environment. See Guevara
v. Stephens, 577 F. App’x 364, 369 (5th Cir. 2014).
      Reasonable jurists would not debate the district court’s conclusion that
Davila’s attorneys conducted a reasonable investigation, made reasonable
strategic choices, and that any other available mitigation evidence could not
outweigh the aggravating evidence. We deny a COA on this claim.


      IV.    Suppression Issues
      Davila presented four claims to the district court involving suppression
of statements he made. He has grouped them together in his application for a
COA. They seek suppression of Davila’s oral and written statements under
the Fourth, Fifth, and Sixth Amendments.
      First, we address his Fourth Amendment claims. The district court held
that Stone v. Powell, 428 U.S. 465, 494 (1976), prevented review of Davila’s
Fourth Amendment claims because Davila had an opportunity to fully and
fairly litigate these in state court.
      Davila argues that Stone has never been applied by the Supreme Court
in a capital case. The district court noted that panels of our court have applied
Stone in capital cases. See, e.g., ShisInday v. Quarterman, 511 F.3d 514, 524–
25 (5th Cir. 2007). The Supreme Court has never indicated that Stone does
not apply in capital cases. Davila argues that AEDPA should have abrogated
the rule in Stone. Our circuit has continued to apply Stone after AEDPA to
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capital cases. See id.; see also Busby v. Dretke, 359 F.3d 708, 722–23 (5th Cir.
2004); Balentine v. Quarterman, 324 F. App’x 304, 306 (5th Cir. 2009). In light
of our binding precedent, reasonable jurists would not debate the district
court’s determination that Stone barred Davila’s Fourth Amendment claims if
he had a full and fair opportunity to litigate them in state court.
      The district court noted that Davila had moved to suppress all his oral
and written statements. Prior to trial, the state court held a hearing and heard
evidence on Davila’s Fourth Amendment claims.           The state court denied
Davila’s motion to suppress. Davila again raised the validity of his arrest
warrant during the state trial, and the trial court denied his motion again on
a different basis. On direct appeal, the Texas Court of Criminal Appeals
affirmed the trial court’s rulings. Jurists of reason would not debate that
Davila was given a full and fair opportunity to litigate his Fourth Amendment
claims. See Janecka v. Cockrell, 301 F.3d 316, 320–21 (5th Cir. 2002).
      For his Fifth and Sixth Amendment claims, Davila argues that his
written statements were not voluntary because he was in “custodial
interrogation for seven hours” without anything to eat or drink and without
using the restroom.       This claim was presented during state habeas
proceedings, and the state court resolution of it must be given AEDPA
deference. Whether a confession is voluntary is ultimately a legal question,
which sometimes involves subsidiary mixed issues of law and fact, and
accordingly, we review it under Section 2254(d)(1). See Barnes v. Johnson, 160
F.3d 218, 222 (5th Cir. 1998). Any purely factual sub-questions are presumed
correct, unless shown to be unreasonable determinations of fact by clear and
convincing evidence. See id.; 28 U.S.C. § 2254(d)(2), (e)(1). To determine
voluntariness, we consider the “totality of the circumstances.”       Rogers v.
Quarterman, 555 F.3d 483, 491 (5th Cir. 2009). “A statement is involuntary if


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there existed official, coercive conduct that made it unlikely the statement was
a product of the individual’s free choice.” Id.
      The district court determined that the state court’s evaluation of the
voluntariness of Davila’s confession was not an unreasonable application of, or
contrary to, clearly established Supreme Court precedent. The state court
noted that Davila never requested food, a drink, or a restroom break while he
was in custody. Davila points to no clearly established federal law that the
state court unreasonably applied in deciding that these facts did not show
coercive or improper activity. The district court’s resolution would not be
debated among jurists of reason. We deny the COA on the suppression claims.


      V.    Claims Regarding the Texas Death Penalty Scheme
            a. Violation of the Fifth Amendment Grand Jury Guarantee
      Davila claims that the Texas death penalty scheme, Article 37.071 of the
Texas Code of Criminal Procedure, violates the Fifth Amendment because the
special issues considered at the punishment phase are not presented to the
grand jury that returns the indictment. Both the Texas Court of Criminal
Appeals and the district court rejected this claim because the Fifth
Amendment’s guarantee to a grand jury indictment has not been extended to
the states through the Fourteenth Amendment. See Albright v. Oliver, 510
U.S. 266, 272 (1994). Reasonable jurists would not debate the district court’s
resolution in light of Albright. See Kerr v. Thaler, 384 F. App’x 400, 402–03
(5th Cir. 2010). We deny the COA.


            b. Violation of the Eighth and Fourteenth Amendments
      Davila argues that Article 37.071 violates the Eighth and Fourteenth
Amendments. First, he claims the jury must be but is not told that a single
juror can prevent the death penalty under the so-called “10-12 Rule.” Under
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the 10-12 Rule, if a jury answers “yes” to the punishment-stage questions
submitted, then the defendant receives a death sentence; but, if ten or more
jurors answer one or more of the questions “no,” or if the jury cannot agree on
an answer to an issue, then the defendant receives a life sentence. See Blue,
665 F.3d at 669 (explaining TEX. CODE CRIM. PROC. art. 37.071). The 10-12
Rule prohibits the court or the parties from instructing the jurors that their
failure to agree on an answer will result in a life sentence. See TEX. CODE
CRIM. PROC. art. 37.071 § 2(a)(1), (g). Davila claims this misleads the jury on
its role in the sentencing process and runs afoul of Caldwell v. Mississippi, 472
U.S. 320 (1985). We have already rejected this argument. See Druery v.
Thaler, 647 F.3d 535, 544 (5th Cir. 2011).
      Second, he claims that the 10-12 Rule violates his right to individualized
sentencing under Mills v. Maryland, 486 U.S. 367 (1988) and McKoy v. North
Carolina, 494 U.S. 433 (1990). Davila asserts that a reasonable juror could
believe that his vote on the sentencing special issues is meaningless unless
enough jurors agree with him because there is no instruction on the effect of a
lack of unanimity. We have also rejected this claim. See Reed, 739 F.3d at 779.
      Davila argues that the post-1991 Texas death penalty scheme, which
now includes a true mitigation special issue under Penry v. Lynaugh, 492 U.S.
302 (1989), has not been squarely addressed by our court.         Yet, we have
considered the 10-12 Rule since the 1991 changes to Article 37.071 and have
held that the mitigation special issue does not violate Mills or McKoy. See
Allen v. Stephens, 805 F.3d 617, 624, 631–33 (5th Cir. 2015). The Texas death
penalty scheme does not create the possibility that reasonable jurors would
think they all had to agree on particular mitigating evidence like the statute
in Mills did; instead, each juror can independently consider mitigating
evidence. See 486 U.S. at 384; see also Druery, 647 F.3d at 543 & n.5. We have
also held that this argument is barred by Teague v. Lane, 489 U.S. 288 (1989).
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   Case: 15-70013     Document: 00513523972      Page: 17   Date Filed: 05/26/2016



                                  No. 15-70013
See Hughes v. Dretke, 412 F.3d 582, 594 (5th Cir. 2005).             Accordingly,
reasonable jurists would not debate the district court’s resolution of this claim.


            c. Violation of the Sixth Amendment Right to Proof Beyond a
               Reasonable Doubt
      Finally, Davila argues that Article 37.071 is unconstitutional under the
Sixth Amendment because it does not place the burden on the State to prove a
lack of mitigating evidence beyond a reasonable doubt under Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002). This
claim was rejected by the Texas Court of Criminal Appeals. The district court
rejected relief on this claim based on our precedent. See Rowell v. Dretke, 398
F.3d 370, 378 (5th Cir. 2005).
      Davila, in a letter directing us to recent relevant authority, cites to the
decision in Hurst v. Florida, 136 S. Ct. 616 (2016). There, the Supreme Court
held that Florida’s capital sentencing scheme violated Ring, 536 U.S. 584.
Under the Florida scheme, a jury makes an advisory verdict while the judge
makes the ultimate factual determinations necessary to sentence a defendant
to death. Hurst, 136 S. Ct. at 621–22. The Court held that procedure was
invalid because it “does not require the jury to make the critical findings
necessary to impose the death penalty.” Id. at 622. Davila recognizes that
Texas does require jurors to make all factual determinations necessary for a
death sentence. His argument is that the scheme is unconstitutional because
jurors do not have to find the absence of mitigating circumstances beyond a
reasonable doubt. Our precedent precludes this claim. Rowell, 398 F.3d at
378. Reasonable jurists would not debate the district court’s resolution, even
after Hurst. See Avila v. Quarterman, 560 F.3d 299, 315 (5th Cir. 2009).
                                      ***
      We DENY the COA as to all claims. All pending motions are denied.

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