     Case: 11-70001     Document: 00511835937         Page: 1     Date Filed: 04/26/2012




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

                                                                            FILED
                                                                           April 26, 2012

                                       No. 11-70001                        Lyle W. Cayce
                                                                                Clerk

RAY JASPER,

               Petitioner - Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

               Respondent - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:08-CV-735


Before DENNIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       Ray Jasper was convicted of a robbery-related murder and sentenced to
death. He presses his appeal to this court on the single ground that the district
court granted a certificate of appealability (“COA”)—a potential Batson
violation—while also requesting a COA on various issues that the district court




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-70001

rejected. We reject his Batson claim, deny the COA on the remaining issues, and
AFFIRM the district court in all regards.
                       FACTS AND PROCEEDINGS
      Jasper was found guilty of robbery-related capital murder with a deadly
weapon and sentenced to death. He planned and carried out the murder of an
acquaintance and later confessed to his crime. The Texas Court of Criminal
Appeals on direct review outlined the facts of the murder.
      David Alejandro owned and operated a music recording studio
      where musicians could have their music professionally recorded for
      a fee. This business required the use of various pieces of electronic
      equipment such as computers, soundboards and microphones.
      [Jasper] and some of his friends frequently recorded their rap music
      at the studio. At some point, [Jasper] decided to steal Alejandro’s
      equipment in order to make money from its sale. Aware that
      Alejandro would be able to identify him, [Jasper] also decided to kill
      Alejandro so that there would be no witnesses. He enlisted the help
      of two friends to assist in removing the heavy equipment from the
      studio.

      On November 21, 1998, [Jasper] purchased large bags from an
      Academy store. A week later, he and his accomplices drove two vans
      to Alejandro’s studio. [Jasper] and one accomplice carried concealed
      knives. The three had made an appointment at the studio and
      spent about two hours there while Alejandro recorded their music
      before they decided it was time to kill him. [Jasper] slashed
      Alejandro’s throat from ear to ear, but did not kill him. [Jasper] and
      one accomplice continued to attack Alejandro until he died as a
      result of multiple stab wounds to his chest and abdomen. [Jasper]
      covered the body with a sheet taken earlier from [Jasper’s] bed, and
      the group began loading equipment into the vans. [Jasper] fled on
      foot when an off-duty police officer arrived to investigate the scene,
      but was apprehended days later outside his home.

      On December 2, 1998, [Jasper] confessed to police that he had
      planned the crime and recruited two accomplices. His confession
      describes events in detail that were later corroborated by [Jasper’s]
      girlfriend, Christina Breton, police officers, security guards, and
      physical evidence discovered by investigators. Breton testified that

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      several days before the commission of the crime, [Jasper] had told
      her about his plan to steal Alejandro’s equipment and kill him.

Jasper v. State, 61 S.W.3d 413,417 (Tex. Crim. App. 2001).
      On direct review, the Texas Court of Criminal Appeals affirmed his
conviction and his sentence. Id. Jasper did not seek certiorari review from the
U.S. Supreme Court. His application for state habeas corpus relief for ineffective
assistance of counsel was denied. Ex parte Jasper, No. WR-68832-01, 2008 Tex.
Crim. App. Unpub. LEXIS 536 (Aug. 20, 2008).
      Jasper sought a COA in the district court for the Western District of Texas
asserting fourteen grounds for relief. In a comprehensive 187-page opinion, the
district court denied all but one claim. Jasper v. Thaler, 765 F. Supp. 2d 783
(W.D. Tex. 2011). The district court granted a COA on his Batson equal
protection claim for allegedly race-based use of peremptory challenges during
voir dire. Jasper presses his appeal on that front while also seeking a COA on
various other grounds.
      The sole issue on which Jasper was granted a COA was an alleged Batson
violation. In Batson, the Supreme Court held that the use of a peremptory strike
against a venire member on racial grounds violated the Equal Protection Clause.
Batson v. Kentucky, 476 U.S. 79, 89 (1986). It also established a process by which
defendants may contest the use of a purportedly racially motivated peremptory
strike.
      [A] defendant may establish a prima facie case of purposeful
      discrimination in selection of the petit jury solely on evidence
      concerning the prosecutor’s exercise of peremptory challenges at the
      defendant’s trial. To establish such a case, the defendant first must
      show that he is a member of a cognizable racial group, and that the
      prosecutor has exercised peremptory challenges to remove from the
      venire members of the defendant’s race . . . [T]he defendant must
      show that these facts and any other relevant circumstances raise an
      inference that the prosecutor used that practice to exclude the
      veniremen from the petit jury on account of their race.

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       ...
       Once the defendant makes a prima facie showing, the burden shifts
       to the State to come forward with a neutral explanation for
       challenging black jurors. Though this requirement imposes a
       limitation in some cases on the full peremptory character of the
       historic challenge, we emphasize that the prosecutor’s explanation
       need not rise to the level justifying exercise of a challenge for cause.
       . . . The prosecutor therefore must articulate a neutral explanation
       related to the particular case to be tried. The trial court then will
       have the duty to determine if the defendant has established
       purposeful discrimination.
Id. at 96-98 (internal citations and quotation marks omitted). The Court has
refined this process in subsequent cases. In Purkett v. Elem, the Court stated
that an implausible or unbelievable justification for the strike must be found to
be a pretext for purposeful discrimination. 514 U.S. 765, 768 (1995). The party
alleging purposeful discrimination ultimately bears the burden of persuasion.
United States v. Webster, 162 F.3d 308, 349 (5th Cir. 1998).
       Jasper raises a Batson challenge to the peremptory strike of venire
member Vernon Galloway. All members of the venire filled out a lengthy
questionnaire prior to individual voir dire. Unfortunately, the questionnaires
were not made part of the direct appellate record and have been lost for review.
The transcript of the voir dire examination of Mr. Galloway is the only way to
examine his answers to the questionnaire.
       Galloway made numerous statements under questioning by the prosecutor.
•      He said that he believed the death penalty was appropriate in some cases
       but that he could never return a verdict which assessed the death penalty.
       In response to a question by the prosecution on that answer he responded
       by saying, “Well, it’s just that I can’t play the role of God. I can’t send
       nobody, you know, to death.”
•      In reference to the prosecutor saying that “you personally could not be
       involved as one of the twelve jurors who would ever answer those


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       questions in such a way as a man’s life would be taken,” Galloway
       answered, “I don’t believe I can. But if I have to, I can make a decision.”
•      To follow up, the prosecutor asked: “If you were selected to sit as a juror
       in this case, could you answer those three punishment questions in such
       a way that you would know that the result of the way you answered those
       question that a man would be sentenced to death?” Galloway replied,
       “Yes.”
•      It was revealed that he had answered “Yes” and “too often” in reference to
       a question of whether the death penalty was ever misused. On follow up,
       he indicated that he thought innocent men had been executed and their
       innocence was not discovered until it was too late.
•      According to the questionnaire, Galloway’s greatest fear was that he
       would not have enough evidence to decide a case. Upon explanation by the
       prosecution of the burden of proof required in the trial, Galloway indicated
       that he would have to personally ask questions to eliminate reasonable
       doubt in his mind if he felt there was not “enough evidence.”
•      Upon explanation by the prosecution that he would not be able to ask
       questions, he explained that he would ask them to the other jurors.
•      He checked on his questionnaire that “capital [punishment] is absolutely
       never justified.” On follow-up the prosecutor asked him “when it would not
       be too harsh?”(emphasis added). He responded “When you don’t have
       enough evidence.”
•      He indicated on his questionnaire that he thought “capital punishment is
       the most hideous practice of our time.”
•      He stated that he strongly agreed that if someone is accused of capital
       murder, he should “have to prove his innocence.” When the prosecutor
       explained that the burden was on the prosecution to prove guilt, he
       responded by saying, “I believe people have to prove it strongly.” He then

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       went on to relate a story where an assaulter would have to prove, through
       the help of his lawyers, that he had not committed the crime
•      He responded on the questionnaire that his friends describe him as
       “crazy.” In voir dire, he indicated that he meant that he “joke[d] a lot.”
•      Finally, he indicated during voir dire that he could answer the three
       sentencing questions in such a way that he would know he was sentencing
       someone to death.
       During the defense portion of the voir dire, Galloway was again told the
appropriate burden of proof that applied to the case. He indicated that he could
impose the death penalty if he felt there was enough evidence. At that point,
defense counsel pointed out to Galloway that the defendant was black and that
Galloway was the only black member of the panel. He then started to ask him
if he would treat the defendant any differently. The prosecution objected and the
court sustained the objection. During defense voir dire Galloway indicated that:
•      he could assess capital punishment if given enough evidence;
•      sometimes the criminal deserves capital punishment;
•      we must have capital punishment for some crimes;
•      capital punishment is wrong but it is necessary in an imperfect
       civilization;
•      he had not understood the prosecution’s question about his questionnaire
       answer agreeing with the statement “that capital punishment cannot be
       regarded as a sane method for dealing with crime”;
•      he had not understood the prosecution’s question about whether the death
       penalty was never justified;
•      he agreed with his questionnaire answer that “capital punishment may be
       wrong but it is the best preventative to crime”;
       After the prosecutor exercised his peremptory challenge and the judge had
dismissed Galloway, Jasper’s attorney belatedly raised a Batson challenge. The

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district court told him that he was supposed to make the challenge before the
venire member was dismissed, but nevertheless let him lodge his challenge.
After arguing with the trial judge that the prosecution had struck all the black
members of the venire, the defense lawyer was permitted to question the
prosecution’s decision to strike Galloway. The prosecutor cited a variety of race-
neutral factors, including his:
•      belief that Galloway’s first impression of the death penalty was not
       positive, stating, “I believe Mr. Galloway believes that the death penalty
       is appropriate in some cases. [Although Galloway also stated,] ‘But I can
       never return a verdict which addressed the death penalty.’”;
•      unease with Galloway’s answer that the defendant would have had to
       have a prior run-in with the law before assessing the death penalty;
•      unease with Galloway’s answer that capital punishment is absolutely
       never justified;
•      unease with Galloway’s answer that capital punishment is the most
       hideous practice of our time;
•      uncertainty whether Galloway trusted the criminal justice system in
       Bexar County, Texas;
•      concern about Galloway’s answer that his best friends describe him as
       crazy. The prosecutor stated, “It was somewhat tempered by his
       explanation, but it still left me feeling a little bit unsettled in terms of the
       decorum I would want to have on a jury in this case;”
•      opinion that Galloway’s gold-hoop earing was a little bit of “an outlier” for
       a fifty-two year old man, and that he was not interested in having jurors
       that are “outliers of the norm;”
•      thought that Galloway might have been influenced by the inappropriate
       insinuation by the defense;



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•      dislike of Galloway’s demeanor when he was asked by defense counsel
       about the death penalty being a sane method to deal with crime. The
       prosecutor explained that “there was something at that moment in his
       mannerisms that suggested to me that he still does not believe that it is
       a sane method of dealing with crime.”
       Upon questioning by the defense regarding Galloway’s assertion that he
was rushed in answering the questionnaire, the prosecutor responded that there
was no one rushing him and the fact Galloway felt rushed also entered into his
mind as a reason for striking him. After more discussion between the prosecutor
and defense counsel about the questionnaire and why the prosecutor had asked
Galloway about certain questions on the questionnaire and not others, the judge
ruled against the Batson challenge stating that he believed the prosecutor had
given racially-neutral reasons.
       On direct appeal, the Court of Criminal Appeals rejected Jasper’s equal
protection claim and upheld his conviction and sentence. Jasper, 61 S.W.3d at
424. The court stated that “numerous written answers in the pre-voir dire
questionnaire indicating a bias against the imposition of the death penalty can
constitute a valid reason to exercise a peremptory challenge” and that “the
record support[ed] the prosecutor’s reasons for exercising a peremptory challenge
against the venireperson in question.” Id. at 422. When Jasper raised the equal
protection claim in state habeas proceedings, the convicting court held it would
not revisit the issue since it had been heard on appeal and thus could not form
the basis for state habeas relief. The Court of Criminal Appeals accepted the
convicting court’s findings and denied relief. Ex parte Jasper, 2008 Tex. Crim.
App. Unpub. LEXIS 536.
       The district court for the Western District of Texas reviewed the state
court’s analysis and denied relief but granted a COA on the Batson issue for
several reasons. Jasper, 765 F. Supp. 2d at 877. First, the state trial judge made

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no express factual finding regarding the credibility of the prosecution’s race
neutral reasons for striking Galloway. Id. Second, there were no copies of the
juror questionnaires available to the state appellate court or to the district court.
Id. Third, Galloway’s answers with regard to the death penalty differed so
widely between his written statements and his oral voir dire that the district
court felt this placed particular significance on the trial court’s “favorable
credibility determinations of the prosecution’s race-neutral explanations.” Id.
Fourth, the prosecution accepted another venire member who had expressed
reluctance about the death penalty. Id. Fifth, the district court wanted guidance
on how to handle the lack of venire members’ questionnaires and whether or not
failure to preserve those questionnaires effectively waives a Batson claim. Id.
                                  DISCUSSION
A. BATSON VIOLATION
      Jasper’s Batson claim is subject to review under the Anti-Terrorism and
Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2254(d). Under
AEDPA, a federal court may not grant habeas relief for a defendant convicted
of a state court judgment unless the constitutional adjudication by the state
court a) “was contrary to federal law then clearly established in the holdings of
[the Supreme Court];” b) “involved an unreasonable application of such law;” or
c) “was based on an unreasonable determination of the facts in light of the record
before the state court.” Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (internal
citations and quotation marks omitted). Under Williams v. Taylor, a “run-of-the-
mill” state court decision applying the correct precedent to the facts of the case
is reviewed for an “unreasonable application.” 529 U.S. 362, 406-07 (2000).
Federal habeas relief is only warranted where the state-court decision is both
incorrect and objectively unreasonable, “whether or not [this Court] would reach
the same conclusion.” Woodford v.Visciotti, 537 U.S. 19, 27 (2002).



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           Even seemingly strong cases do not necessarily merit relief from the
reviewing court because the state court’s contrary conclusion may not have been
unreasonable. Richter, 131 S. Ct. at 786. The Fifth Circuit has previously held
that a federal court reviews only the state court’s ultimate decision—not every
link in the state court’s reasoning. Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.
2002) (en banc); see also Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir. 2002)
(“[W]e review only the state court’s decision, not its reasoning or written
opinion.”). Finally, lower courts are not permitted to establish a new principle
of constitutional law under AEDPA review. See Williams, 529 U.S. at 381.
Appellant’s Arguments
       Appellant’s arguments focus on the supposed disparate treatment of
Galloway compared to other, non-black jurors who gave similar answers on the
questionnaire. As Jasper points out, the constitution forbids striking even a
single prospective juror for a discriminatory purpose. Snyder v. Louisiana, 552
U.S. 472, 478 (2008); Reed v. Quarterman, 555 F.3d 364, 381 n.12 (5th Cir.
2009). Jasper argues that white jurors who gave similar answers on their
questionnaires but changed those answers in oral voir dire were accepted by the
prosecution and that Galloway was not.
       As he did at the district court, Jasper suggests comparing the way other
jurors were treated to see if Galloway’s strike was racially motivated. See
Snyder, 552 U.S. at 483. Jasper argues that we should compare Galloway to two
different groups of people: the other black venire members, and to other, non-
minority venire members.1
Analysis of Hagans’ answers compared with Galloway’s




       1
          Contrary to Jasper’s attorney’s contention during voir dire with Galloway, there was
in fact one other black venire member, Natasha Hagans.

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        On his first point of suggested comparison, Jasper’s argument is weak.
Jasper argues that Hagans was struck because she was black. Jasper’s briefing
on this point is exceedingly convoluted but he appears to make an illogical leap
that even though Hagans gave different answers between the questionnaire and
voir dire, striking her somehow shows racial bias in the dismissal of Galloway,
the other black member of the venire. He contends that the Prosecutor’s further
questioning of Galloway and Hagans regarding the different answers they gave
on their questionnaires compared to their voir dire answers, somehow shows
bias towards Galloway because of his race. He states “[b]ut when Mr. Galloway
testified opposite to his questionnaire, the prosecutor didn’t accept those [voir
dire] answers as valid.”
        This muddled reasoning aside, any comparison to Hagans is especially
unpersuasive when reviewing some of the answers that Hagans gave during voir
dire.

        Ms. Hagans testified during her voir dire, in pertinent part: (1) she
        had a number of teenage friends (four or five) who had been
        murdered when she lived in Virginia and she felt the police in
        Virginia had failed to properly investigate those crimes and bring
        the perpetrators to justice, (2) in her experience, police officers were
        intimidating, (3) she had a younger brother who was in jail for
        violating parole and writing bad checks, (4) her daughter’s father
        sold crack and marijuana while they were together and had served
        time in jail for his drug dealing but resumed drug dealing once he
        got out of jail, and (5) she believed a person who committed murder
        should get life in prison. At that point, the prosecution exercised a
        peremptory challenge and petitioner’s defense counsel raised a
        Batson objection.

Jasper, 765 F. Supp. 2d at 816. During the Batson challenge regarding Hagans,
the prosecutor cited her hostility toward police officers, who she described as
“intimidators”, her romantic relationship with a crack dealer, her belief that her
brother should receive a second chance despite his long criminal record, and her


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oral testimony that she believed convicted murderers should receive life in
prison. Id. at 817. The judge then overruled the Batson challenge and removed
her from the venire.
      The comparison between Galloway and Hagans is of little use. Hagans
gave multiple answers which could cause a prosecutor to hesitate to have her on
any jury, and her anti-death penalty answers were similar to Galloway’s thus
supporting the prosecution’s argument that Galloway was dismissed for race-
neutral reasons.
Analysis of prosecutor’s questioning of non-black members compared to Galloway
      Jasper’s second point of comparison under the Snyder standard is a
comparison between Galloway and other, non-black, venire members. He cites
multiple instances in which non-black members of the venire gave similar
answers on the questionnaire or during oral testimony, including expressing
opposition to the death penalty. According to Jasper, these answers did not
disqualify them from serving, but did disqualify Galloway, demonstrating racial
motives behind the peremptory strike.
      The district court analyzed the voir dire exchanges in detail and found
that, contrary to Jasper’s argument, none of the other potential jurors came close
to giving a pattern of answers similar to Galloway’s. See id. at 817; see also
Snyder, 552 U.S. at 483 (“[A] retrospective comparison of jurors based on a cold
appellate record may be very misleading when alleged similarities were not
raised at trial. In this situation, an appellate court must be mindful that an
exploration of the alleged similarities at the time of the trial might have shown
that jurors in question were not really comparable.”). It is not surprising that
some individual answers were similar or identical to Galloway’s because of the
length of the questionnaires and the number of questions involved. As the
district court explained:



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      This Court’s independent review of the voir dire of all the venire
      members reveals no instances in which Black venire members were
      questioned in a manner dramatically different from the questioning
      of venire members of other ethnic groups. Unlike the situation in
      Miller-El, there does not appear to have been a blatant use of
      graphic voir dire questions about the process of carrying out an
      execution in Texas at the commencement of voir dire for Black
      venire members. Nor did this Court identify anything else that was
      different about the way the prosecution chose to conduct voir dire of
      Black venire members, as opposed to non-Black venire members.
      The state trial court could reasonably have concluded there was
      nothing about the prosecution’s questioning of the jury venire as a
      whole which supported a finding the strike of Mr. Galloway was
      racially motivated.

Jasper, 765 F. Supp. 2d at 819. The district court went on to explain: “The
prosecution appeared to question every member of the jury venire who gave any
questionable answers on their juror questionnaires regarding their views on the
efficacy of the death penalty in a similar, open-ended manner.” Id. at 821. We
agree with the district court’s conclusions. Further, Jasper fails to demonstrate
that any other juror expressed as many reservations about the death penalty as
Galloway did on his questionnaire.
Conclusions Regarding the Batson Challenge of Galloway
      Jasper’s claim that Galloway was removed for racial reasons in violation
of the Fourteenth Amendment is unpersuasive. Although he established a prima
facie case, the failure to preserve the questionnaires in the record makes the
comparative analysis he seeks difficult to conduct. Jasper has the burden of
proving that the discrimination was purposeful. See Woodward v. Epps, 580 F.3d
318, 338 (5th Cir. 2009) (noting that petitioner must carry burden of proving
purposeful discrimination but declining to find waiver of comparative analysis).
The record does not indicate why the questionnaires were not included in the
trial court record, but that does not negate the fact that the burden is on the


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plaintiff to demonstrate that the prior findings were erroneous. There is nothing
which would indicate that Jasper has met this burden, especially in light of
AEDPA’s demanding standards. The trial court determined that there were non-
racial reasons for the peremptory strike and Jasper did not satisfy his burden
of overturning this conclusion. There is no indication that the trial court’s
analysis was an unreasonable application of law. “[O]n appeal, a trial court’s
ruling on the issue of discriminatory intent must be sustained unless it is clearly
erroneous.” Snyder, 552 U.S. at 477. Galloway gave a variety of answers that
would trouble a prosecutor in a capital murder trial and potentially presented
himself with a demeanor that would make a prosecutor credibly question his
seriousness for the task. As such, we affirm the ruling below.
B. COA ON OTHER POINTS OF ERROR
      Jasper asks for a COA for numerous alleged errors, all of which were
previously denied by the district court, including: 1) ineffective assistance of
counsel for failure to raise his immaturity during sentencing; 2) ineffective
assistance of counsel for allowing him to testify without prior knowledge of his
testimony; 3) denial of due process by the trial court for failing to investigate a
supposed disagreement between Jasper and his attorneys; 4) insufficient
evidence was presented to demonstrate that Jasper would be a continuing threat
to society if given a life sentence; 5) whether trial counsel was ineffective for
failing to provide a vehicle for mitigating evidence; 6) violation of due process for
failing to conduct a proportionality review in a death penalty case; 7) that Texas’
Capital Sentencing statute is unconstitutional because it does not inform jurors
that a single juror can hold out; 8) that the Texas Capital Sentencing structure
is unconstitutional because it gives jurors “open-ended discretion;” 9) that, as
applied, the mitigating evidence special issue is unconstitutional, under
Apprendi, because the state does not have to prove it beyond a reasonable doubt.



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                                  No. 11-70001

      Under AEDPA, before a petitioner may appeal the denial of a federal
habeas corpus claim, he must obtain a COA. “[U]ntil a COA has been issued
federal courts of appeals lack jurisdiction to rule on the merits of appeals from
habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (citing §
2253(c)(1)). To grant a COA, the court of appeals must be satisfied that the
petitioner has made a “substantial showing of the denial of a constitutional
right.” Id. A petitioner must “sho[w] that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Id. (alteration in original) (internal
quotation marks omitted). “A prisoner seeking a COA must prove something
more than the absence of frivolity or the existence of mere ‘good faith’ on his or
her part.” Id. at 338 (internal quotation marks omitted). The question for the
court of appeals looking at a COA application is “the debatability of the
underlying constitutional claim, not the resolution of that debate.” Id. at 342.
Jasper has not made the necessary showing to merit a COA on any of the issues
he raises.
Jasper’s age and immaturity
      Jasper cites the recent Supreme Court decision in Roper v. Simmons which
prohibited the death penalty for minors. 543 U.S. 551 (2005). Jasper claims that
his attorney failed to argue his age and immaturity as mitigating factors. Even
though Jasper was over eighteen at the time of the murder, he cites to the
proposition in Roper that “[t]he qualities that distinguish juveniles from adults
do not disappear when an individual turns 18.” Id. at 574. Jasper fails to explain
his supposed immaturity and simply argues that he is more mature now than
he was at the time of the crime. Conclusory statements aside, Jasper presents
no evidence that was immature enough to fall within Roper’s dicta.



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      The problem with this argument is three-fold. First, Jasper was over the
age of eighteen at the time he committed the murder so Roper is inapplicable on
its face. Second, Jasper is arguing that his counsel was ineffective for not
presenting evidence of his immaturity, but the record indicates that his lawyers
did in fact present such evidence, including testimony from his father about his
age and evidence from a psychiatrist that he was relatively immature. Third, a
Strickland ineffective assistance claim under AEDPA is an exceedingly high bar
because Jasper must show that his counsel was objectively unreasonable, that
the unreasonableness prejudiced him, and still pass AEDPA’s requirements. If
there is any reasonable argument that counsel satisfied Strickland’s deferential
standard, the claim must be dismissed. See Harrington, 131 S. Ct. at 788. Jasper
has not satisfied this standard.
Testifying at trial with inadequate preparation by attorney
      He contends that his trial counsel’s failure to prepare him to testify is
evidence of ineffective assistance of counsel. Jasper testimony included denying
his part in the actual death of the victim and testifying about thoughts of pulling
the court bailiff’s gun while on the stand. The district court dealt with this issue
extensively. See Jasper, 765 F. Supp. 2d at 857-63, and there is no indication
that it reached the wrong conclusion.
      This argument is unavailing. The record indicates that his trial counsel
advised him of his right to testify and that there could be pitfalls in testifying.
Further, trial counsel stated that Jasper insisted on testifying despite his advice.
Counsel also had no knowledge that Jasper was going to testify as he did. See
United States v. Fields, 565 F.3d 290, 295 (5th Cir. 2009) (“Clairvoyance is not
a required attribute of effective representation.”). Jasper gives no reason to
believe that his representation was objectively unreasonable. As such, we deny
his application for a COA.
Trial court’s failure to inquire about the conflict between Jasper and his lawyer

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                                     No. 11-70001

         He also alleges that the trial court violated his due process rights by
failing to inquire into an alleged conflict between him and his attorneys. He
failed to raise this point on direct appeal or during his state collateral attack and
therefore the claim is procedurally defaulted. Before seeking federal habeas
corpus relief, a state prisoner must exhaust available state remedies, thereby
giving the state the opportunity to pass upon and correct alleged violations of its
prisoners’ federal rights. See Baldwin v. Reese, 541 U.S. 27, 29 (2004). Under
AEDPA, federal courts, absent special circumstances, lack the power to grant
habeas relief on claims that have not been exhausted. See Kunkle v. Dretke, 352
F.3d 980, 988 (5th Cir. 2003); Orman v Cain, 228 F.3d 616, 619 (5th Cir. 2000).
Having failed to raise this point at the state level, Jasper’s claim must be
dismissed.
         Despite this fact, the district court sufficiently addressed this claim on the
merits:
         [T]here is no merit to petitioner’s fourth claim. A criminal
         defendant’s generalized statement of dissatisfaction with the
         performance of his trial counsel does not, standing alone, necessitate
         intervention by a trial court to inquire into the reasons for that
         dissatisfaction. Moreover, under the facts of petitioner’s case, it was
         evident to the state trial court why petitioner was expressing
         impatience and even hostility toward his own trial counsel—said
         trial counsel were attempting to help petitioner obtain a life
         sentence despite petitioner’s refusal to accept any responsibility for
         David Alejandro’s murder.


Jasper, 765 F. Supp. 2d at 85 (citations omitted). We agree with the district
court’s conclusion that even if the claim had not been procedurally defaulted, it
would not warrant the issuance of a COA and deny his request for a COA on this
issue.
Insufficient evidence of future dangerousness




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                                  No. 11-70001

      Jasper seeks a COA on the claim that there was insufficient evidence of
future dangerousness presented to the jury. This claim was presented on direct
appeal and in state habeas proceedings, as well as in the district court. It is
wholly without merit. The conclusions of the Texas Court of Criminal Appeals
dispel this claim best:
      The facts of this crime were brutal and demonstrated calculated
      deliberation. Appellant planned well in advance the stabbing
      murder of someone he would later describe as “one of the nicest
      people [he] ever met in [his] life.” He allowed Alejandro to assist him
      with recording for two hours, knowing he was about to kill him. As
      Alejandro sat unaware at the soundboard mixing a track for
      appellant, appellant pulled his head back and, taking a kitchen
      knife from his jacket, slit his throat from ear to ear. When that
      wound did not kill him, one of appellant’s accomplices joined the
      attack until Alejandro was dead. Alejandro suffered twenty-five stab
      wounds. Appellant quickly loaded equipment into the vans and
      instructed one stunned accomplice to hurry up and help.

      In addition to the facts of the crime itself, evidence adduced at trial
      of prior criminal history and lack of remorse support the jury’s
      finding. Appellant’s criminal history included incidents beginning
      at the age of fifteen, when he stole a bicycle. He was expelled from
      school for possession of marijuana and expelled from alternative
      school. More recently, he attempted a residential burglary and
      attacked the off-duty police officer who attempted to detain him and
      also attempted to evade police at a traffic stop, leading them on a
      high-speed chase. The evidence introduced by the State at trial
      shows a pattern of escalating criminal activity and an increasing
      proclivity to break laws posing threats to the safety of others.
      Furthermore, the evidence showed a lack of remorse. Immediately
      after killing Alejandro, appellant began loading the vans. At the
      punishment phase of the trial, when asked if he had anything to say
      to Alejandro’s family, appellant replied that he wanted the family
      to know that he did not kill Alejandro because, according to the
      autopsy, the only wound he claims to have been inflicted by his
      hand (slicing the victim’s throat, as opposed to the twenty-five stab
      wounds), was not enough to kill him.




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                                  No. 11-70001

      Based on the facts of the offense and other evidence of escalating
      criminal activity and lack of remorse, a rational jury could have
      found beyond a reasonable doubt that appellant would continue to
      be a threat to society. Accordingly, we hold the evidence legally
      sufficient to support the jury's affirmative answer to the future
      dangerousness special issue.

Jasper, 61 S.W.3d at 418. We deny him a COA on this issue.
Ineffective assistance of counsel for failing to explain the mitigating evidence
      He seeks a COA on the claim that his trial counsel should have objected
to the punishment phase jury charge or requested supplemental instructions
informing the jury that it could give mitigating effect to petitioner’s evidence. He
argues that counsel’s failure to do so amounted to ineffective assistance. There
is no indication that the jury instruction was defective, and Jasper does not even
attempt to explain what a proposed jury instruction would have included. Any
such objection at the trial level would have been deemed meritless. As such, the
failure of Jasper’s trial counsel to object does not meet the high threshold of
Strickland. See Paredes v. Quarterman, 574 F.3d 281, 291 (5th Cir. 2009) (failure
to raise a meritless objection does not satisfy the deficient performance prong of
Strickland). Therefore the state’s rejection of this claim during Jasper’s state
habeas corpus proceeding was neither contrary to existing law nor an
unreasonable application of that law, and does not rise to the level necessary for
the issuance of a COA.
Structural problems with the Texas death penalty scheme
      Finally, Jasper argues that there are numerous constitutional defects with
the Texas sentencing scheme, all of which have previously been rejected by the
Supreme Court or this court. Each one of these claims was extensively discussed
by the district court and dismissed. The district court’s summary of these
challenges (after comprehensive analysis of each point) states:




                                        19
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                                       No. 11-70001

      Petitioner’s constitutional challenges to the Texas capital sentencing
      scheme present claims this Court and the Fifth Circuit have
      consistently rejected for more than half a decade. Petitioner made
      no effort to distinguish the rulings by this Court or the many
      opinions by the Fifth Circuit Court of Appeals rejecting those
      constitutional complaints on the merits. . . .This Court has also
      rejected those same claims as bases for a CoA. See, e.g., Bartee v.
      Quarterman, 574 F. Supp. 2d at 712-14 (denying CoA on many of
      the same claims asserted by petitioner in his eighth through
      fourteenth claims herein); Moore v. Quarterman, 526 F. Supp. 2d at
      740 (denying CoA on many of the same constitutional challenges to
      the Texas capital sentencing scheme raised by petitioner herein).
      Petitioner is not entitled to a CoA on any of his [Texas death penalty
      scheme] claims.

Jasper, 765 F. Supp. 2d at 875.
      According to Jasper, the Texas scheme: a) fails due process because it does
not include a proportionality review (rejected in Martinez v. Johnson, 255 F.3d
229, 241 n.17 (2001)); b) fails to inform the jury that a holdout will lead to a life
sentence (rejected in Jones v. United States, 527 U.S. 373, 384 (1999)); c) gives
the jurors open ended discretion (rejected in Sonnier v. Quarterman, 476 F.3d
349, 367 (5th Cir. 2007)); and d) violates Apprendi2 and its progeny because it
places an unconstitutional burden on the defendant for mitigating evidence
(rejected in Ortiz v. Quarterman, 504 F.3d 492, 504-05 (2007)). Jasper gives no
new reasons to accept his claims on these grounds nor does he distinguish his
case from previously rejected challenges to the Texas death penalty scheme. As
such his request for a COA on these grounds is denied.
Conclusion on denial of a COA
      Jasper presents no arguments to refute the diligent and comprehensive
analysis by the district court on all these issues. The district court meticulously
analyzed each one of these claims and properly concluded that there was no


      2
          Apprendi v. New Jersey, 550 U.S. 466 (2000).

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                                No. 11-70001

reason to issue a COA on any of his claims alleging ineffective assistance of
counsel, due process violations, or the unconstitutionality of the Texas death
penalty scheme. We agree.
                              CONCLUSION
     We AFFIRM the ruling of the district court on the Batson violation claim,
and deny a COA on all other claims.




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