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

                                                                            FILED
                                                                        December 27, 2011

                                       No. 10-70024                        Lyle W. Cayce
                                                                                Clerk

ROBERT LYNN PRUETT,

                                                  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 Southern District of Texas
                              USDC No. 2:06-CV-465


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Robert Lynn Pruett was convicted of capital murder and sentenced to
death for the December 17, 1999, murder of correctional officer Daniel Nagle,
which took place while Pruett was serving a 99-year prison sentence for a 1995
murder.       The district court granted a certificate of appealability (“COA”)
authorizing Pruett to appeal the denial of habeas relief on two related claims.
Pruett requests an expansion of the COA to include an additional claim. For the


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-70024

reasons that follow, we AFFIRM the district court’s denial of habeas relief and
DENY Pruett’s request to expand the COA.
                                       I.
      Pruett was sentenced to 99 years in prison for his role in the 1995 murder
of Ray Yarborough. His father and brother were also convicted for their roles in
the Yarborough murder.
      On December 17, 1999, while in prison, Pruett missed getting a hot lunch
and was given a sack lunch. He attempted to take his lunch into the recreation
area, which was in violation of prison rules. Officer Nagle told Pruett that he
needed to eat his lunch before going to the recreation area, and wrote a
disciplinary charge against Pruett. Later that afternoon, when Nagle was in his
office adjoining a multi-purpose room, Pruett stabbed Nagle eight times with a
“shank” made of a metal rod sharpened to a point at one end, and wrapped in
tape at the other end. According to the autopsy report, Nagle died from a heart
attack that he suffered as a result of the trauma caused by the stab wounds.
The murder weapon and a torn disciplinary report against Pruett, charging him
with attempting to take food into an unauthorized area, were found at the scene
of the attack.
      John Lee Davis of the Texas Department of Criminal Justice Office of
Inspector General testified that after Pruett was arrested, Pruett stated, “Go
ahead and run that disciplinary case on me now. Oop[s], I want to call my first
witness, Officer Nagle. Oops, he’s dead.” Davis said that Pruett then began
laughing.
      Much of the remaining evidence against Pruett consisted of testimony
from inmates. Inmates Allen Thompson and Johnny Barnett testified that they
were in the multi-purpose room and saw and heard Pruett attacking Nagle.
Inmate Anthony Casey testified that he heard Pruett talking about a weapon
with another inmate before the attack. Casey, through a recreation yard

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window, later saw Pruett near Nagle’s desk, and then saw Pruett remove his
clothing in a hallway and push it through a gas port into the recreation yard.
Inmates James Dale Keller, Robert Michael Lewis, and Jimmy Mullican testified
that they witnessed Pruett’s attack on Nagle from the craft shop across from the
multi-purpose room. Inmate Harold Mitchell testified that he was in the multi-
purpose room before the attack. He said that Pruett came into the room and
suggested that he leave because Pruett was going to “do something.” When
Mitchell questioned Pruett, Pruett said that he was going to kill Nagle.
According to Mitchell, Pruett said that he was tired of life in prison and wasn’t
going to kill himself, but didn’t have a problem making the State do it for him.
      At the guilt-innocence phase of the trial, Pruett testified that he was in
prison because “my father killed my neighbor.” He said that he was convicted
of murder when he was fifteen years old and that he went to the penitentiary
when he was sixteen years old. He explained that on December 17, 1999, he was
upset about missing a hot lunch and that he cursed at Nagle when Nagle refused
to allow him to take his sack lunch into the recreation yard. He said that after
he went outside, he saw, through the window, that Nagle was writing a
disciplinary report against him. He already had another disciplinary case
pending for gambling, which he said was the way he made money for personal
items inasmuch as he did not receive any outside financial support. He said that
he had cut his hand while lifting weights in the recreation yard, and had used
his shirt to stop the bleeding. He said that he later decided to talk to Nagle
about the disciplinary case and went to see Nagle, who tore up the report.
      Pruett testified that he left Nagle, got some clean clothes, and got in line
for the “chow hall.” The cut on his thumb reopened and he got more blood on his
clothes. Then prison officers made everyone go into the gym, where he heard
that Nagle “got whooped.” Pruett said that he told the officers, when he was
arrested, that “I ain’t ever killed nobody in my life.”

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      On cross-examination, Pruett denied that he had told inmate Michael Hall
that he had killed Nagle. He also denied telling corrections officer Michael
Baumann that he had killed before and would do it again. He admitted that he
had sent inmate Michael Ross a letter, through defense counsel’s investigator,
just before trial, asking Ross to testify that he (Pruett) had cut his hand on the
weights.
      In rebuttal, the prosecutor called Michael Hall and Michael Ross. Each
of them testified that Pruett admitted to them that he had killed Nagle. The
prosecutor also called Officer Michael Baumann, who testified that he wrote a
disciplinary report on Pruett after Pruett threatened to kill him on August 25,
2001. Defense counsel called Pruett to the stand again to rebut the testimony
of Hall, Ross, and Baumann.
      The jury found Pruett guilty of capital murder.
      At the punishment phase of the trial, the prosecution called three
corrections officers who testified about the disciplinary charges they had
reported for Pruett’s misconduct. Jane Yarborough, the wife of Pruett’s first
murder victim, testified that her husband had been stabbed five to seven times.
The chief of classification at the Connally Unit testified as the custodian of
records for Pruett’s prison records which were offered into evidence by the
prosecution.
      Pruett’s father testified at the punishment phase that he was incarcerated
when Pruett was born. He said that he met Pruett for the first time when Pruett
was seven years old. He stated that he was in prison for stabbing his neighbor,
Ray Yarborough, five or six times. He explained that when the murder occurred,
both of his sons were with him, but they did not know he was going to stab
Yarborough. He testified that he was tried with his sons, and that Pruett was
only fifteen years old at the time. He stated that he was sentenced to life in



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prison for Yarborough’s murder, Pruett’s brother, who was 25 years old at the
time, was sentenced to 40 years, and Pruett was sentenced to 99 years.
      Pruett’s brother testified that his family had been poor and that they were
known as gypsies. He said that his father was in and out of the penitentiary and
that his mother cleaned houses. He said that he kicked Yarborough, but that
Pruett didn’t do anything to Yarborough. He also said that Pruett did not
threaten anyone when he was sentenced for Yarborough’s murder.
      Pruett testified again at the punishment phase. He said that his family
was poor and moved around a lot. According to Pruett, his mother was “not all
the way there mentally,” she did not finish high school, and she had physical
handicaps. He testified that he had been “getting high” with his parents since
he was seven or eight years old, and had used marijuana and cocaine, but not
heroin or crack. He testified that he finished the eighth grade in school, but that
while he was in prison he had obtained his GED and had completed eighteen
hours of college credit. He admitted that he was the cause of Yarborough’s
murder. He explained that they had argued because he had stolen some guns,
Yarborough had taken some of them, and he wanted money for the guns to buy
food. He said that his brother and father came to help him, they wrestled with
Yarborough, and his father stabbed Yarborough. He also testified to his version
of the incidents that were the subject of the disciplinary charges against him.
      Robert Chance, an assistant warden at the Polunsky Unit, testified for the
defense about the prison classification system and the various security levels.
Laura Menn, another witness for the defense, testified that she was a teacher
for the prison school district. She stated that she had taught Pruett while he
was in prison and that he had been a very good student, did his work, was very
bright, and was always very respectful to her. Pruett’s cousin, Christine Hinson,
testified that Pruett’s childhood was dysfunctional, that he was left to roam the



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streets to look for food, and that her mother fed him because his mother often
was away from home for days at a time.
      Dr. Gilda Kessner, a clinical psychologist, testified for the defense as
follows. Based on her review of records and interviews, Pruett was born into a
chaotic family environment, received no nurturing, and grew up in an
atmosphere of poverty, crime, and substance abuse. When Pruett was placed in
an adult criminal setting as an adolescent he was denied the chance to take
advantage of alternatives to adult prison that were available and thus did not
have any opportunity to develop his positive qualities.
      With respect to Pruett’s risk for future dangerousness, Kessner testified
that there were no studies or statistical models for inmates who killed while in
prison, because the number of such inmates was too small to be statistically
reliable. She also testified that the risk of violence decreases as an inmate ages.
On cross-examination, she testified that Pruett’s behavior that was the subject
of the disciplinary charges against him was commonplace behavior for someone
who is facing a long sentence. When the prosecutor asked her if Pruett would
be a danger to people in the future, she testified that “there is not a zero
probability for anybody,” but that any risk of future danger that he might
present could be managed within the prison system.
      In rebuttal, the State called Detective Allen Beall of the Harris County
Sheriff’s Department, who had investigated the 1995 Yarborough murder.
Detective Beall testified that his investigation showed that Pruett punched,
kicked, and held Yarborough down during the assault that killed him. He also
testified that no guns were found at Yarborough’s residence or in his truck. He
testified that he was in the courtroom when Pruett was sentenced for the
Yarborough murder and that he heard Pruett say that everyone was to stay
away from him or he would kill “all of y’all,” referring to everyone in court.



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      Warden Thomas Prasifka, of the McConnell Unit, testified in rebuttal for
the State that it would not be unusual for an inmate who had been convicted of
capital murder to get out of administrative segregation (where he is kept in his
cell for twenty-three hours a day and isolated at all times).
      The jury answered the special punishment issue on future dangerousness
affirmatively, and the special punishment issue on mitigation negatively. Pruett
was sentenced to death. His conviction and sentence were affirmed on direct
appeal. Pruett v. State, No. 74,370, 2004 WL 3093232 (Tex. Crim. App. Sept. 22,
2004) (unpublished). Pruett did not file a petition for a writ of certiorari.
      Pruett filed an application for state habeas relief. The state habeas trial
court conducted an evidentiary hearing and issued findings of fact and
conclusions of law recommending that Pruett’s conviction be reversed because
the prosecution had violated a pretrial discovery order, but recommending that
relief be denied on all of Pruett’s other claims. See Ex parte Pruett, 207 S.W.3d
767 (Tex. Crim. App. 2005). The Court of Criminal Appeals adopted the trial
court’s findings and conclusions, except for those upon which the trial court
recommended granting relief, and denied state habeas relief. Id.
      Pruett then filed in federal court a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. After hearing oral argument, the district court
granted the State’s motion for summary judgment and denied federal habeas
relief. Pruett v. Thaler, No. C-06-CA-465-H (S.D. Tex. Aug. 12, 2010). The
district court granted Pruett’s application for a COA, authorizing him to appeal
the denial of relief as to two related claims. Pruett has asked this Court to grant
a COA for an additional claim.
                                        II.
      First, we will address the claims for which the district court granted a
COA. Then we will turn to consider Pruett’s request to expand the COA.
                                        A.

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      The district court granted a COA for Pruett’s claims that his rights to due
process, effective assistance of counsel, and confrontation were violated (1) by
the State’s failure to disclose to the defense that Michael Hall and Michael Ross
were going to testify that Pruett had admitted to them that he killed Nagle, and
(2) by the trial court’s refusal to require the State to disclose notes of the State’s
investigator’s interviews with those witnesses. Because those claims are related,
we will discuss them together. The Texas Court of Criminal Appeals denied
relief on these claims on the ground that there is no federal constitutional right
to discovery in a criminal case. Ex parte Pruett, 207 S.W.3d at 767. Because
these claims were adjudicated on the merits by the Texas Court of Criminal
Appeals, our consideration of them is governed by 28 U.S.C. § 2254(d). That
section provides:
            An application for a writ of habeas corpus on behalf of a
      person in custody pursuant to the judgment of a State court shall
      not be granted with respect to any claim that was adjudicated on
      the merits in State court proceedings unless the adjudication of the
      claim–

           (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or

            (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.
28 U.S.C. § 2254(d).
      A state court’s decision is “contrary to . . . clearly established precedent if
the state court applies a rule that contradicts the governing law set forth in [the
Supreme Court’s] cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000). “A state-
court decision will also be contrary to . . . clearly established precedent if the
state court confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme Court] and nevertheless arrives at a result different

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from [Supreme Court] precedent.” Id. at 406. “A state-court decision involves
an unreasonable application of [Supreme Court] precedent if the state court
identifies the correct governing legal rule from [the] Court’s cases but
unreasonably applies it to the facts of the particular state prisoner’s case.” Id.
at 407. “A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as fairminded jurists could disagree on the correctness of
the state court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011)
(internal quotation marks and citation omitted).
      Prior to trial, Pruett filed a motion for discovery. The trial court granted
his request to require the State to disclose certain evidence, including “the
substance of any oral statements made by the accused . . . and a list of witnesses
to the making and acknowledgment of such statement.” The trial court denied
his request for “the names and addresses of witnesses the State intends to call
in rebuttal, together with information required to be disclosed in connection with
other witnesses and a specific statement as to the substance of the testimony
such witnesses will give at the trial of the cause.”
      As we have already noted, Pruett testified at the guilt-innocence phase
and denied that he killed Nagle. On cross-examination, the prosecutor asked
Pruett if he had told Michael Hall that he had killed Nagle, and that he just
couldn’t stop himself. Pruett denied making such statements. In the middle of
his cross-examination, at a bench conference outside the presence of the jury, the
prosecutor stated that the State was going to call Michael Ross to rebut Pruett’s
denial that he murdered Nagle, and to relate how Pruett had asked Ross to
testify falsely about some of the facts of the murder. Defense counsel did not
object. Later, after the remaining defense witnesses had testified, the prosecutor
stated to the court and defense counsel that he was going to call four rebuttal
witnesses, including Michael Hall and Michael Ross.



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      The prosecutor called Michael Hall as the State’s first rebuttal witness,
with no objection from the defense. Hall testified that Pruett had admitted to
him that he had stabbed Nagle. Prior to cross-examining Hall, defense counsel
asked if Hall had made a written statement. The prosecutor responded that he
had not, and that all the prosecution had was work product consisting of notes
taken during an interview.       The prosecutor had used those notes while
conducting direct examination. Defense counsel cross-examined Hall, asking
him questions about who he had discussed his testimony with, what he was
convicted of, and whether he had been promised a letter recommending parole
in exchange for his testimony.
      Ross was also called to testify without objection. Ross initially had been
on Pruett’s witness list. Ross testified that Pruett had admitted to him that he
had stabbed Nagle. Ross also testified that he had been shown a letter from
Pruett by the defense investigator, Jim Dickson. In that letter, Pruett had asked
Ross if he “remembered” that Pruett had cut his hand while lifting weights.
Ross stated that he told Dickson that there was nothing he could do for Pruett.
On cross-examination, Ross, who was serving a 99-year sentence, testified that
he would receive a “safe passage” in return for his testimony. He explained that
“safe passage” meant that his safety would be guaranteed for the remainder of
his sentence. Defense counsel did not ask for any notes or statements prior to
or during his cross-examination of Ross.
      After both Hall and Ross had testified, defense counsel complained,
outside the presence of the jury, that the prosecution had failed to disclose to the
defense that Pruett had admitted to Hall and Ross that he had killed Nagle. The
prosecutor argued that the discovery order did not apply to rebuttal witnesses.
      Three days later, Pruett filed a motion for a mistrial or to strike the
rebuttal testimony of Hall and Ross. Defense counsel argued that the discovery
order required the State to disclose the names of the witnesses as well as the

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statements that Pruett had made to them. The State argued that because the
evidence came during rebuttal, it was not required to be disclosed under the
terms of the pretrial order. The trial court denied the defense motion for a
mistrial or to strike the rebuttal testimony of Hall and Ross.
      The state habeas trial court judge (who was not the same judge who had
entered the pretrial discovery order and conducted the trial) found that the State
intentionally failed to disclose Pruett’s admissions to Hall and Ross, in violation
of the discovery order, and recommended that Pruett’s conviction be reversed.
The judge reasoned that, although the discovery order had denied Pruett’s
request for the identities and substance of the testimony of rebuttal witnesses,
other provisions of the discovery order required disclosure. He concluded that
the State’s investigator’s notes taken during the interviews of Hall and Ross
constituted witness statements under the Texas Rules of Evidence, that the
notes contained unspecified inconsistencies with trial testimony, and that the
defense was entitled to use those notes in cross-examination.          The judge
concluded that the State had acted in bad faith in deliberately disregarding the
pretrial discovery order to obtain an advantage. He concluded further that the
trial judge had abused his discretion in allowing the testimony about Pruett’s
inculpatory statements and in denying the defense access to the investigator’s
interview notes. He found that the defense was impaired because defense
attorneys have a right to depend on prosecutors’ complying with pretrial
discovery orders, and the defense was not in a position to anticipate the
testimony.
      In Wooten v. Thaler, our court observed that “there is a line of authority
that leaves open the possibility that a defendant who is deliberately misled as to
the full weight and import of the state’s evidence might have a cognizable due
process claim.” 598 F.3d 215, 220 (5th Cir. 2010) (citing Gray v. Netherland, 518
U.S. 152, 165-66 (1996)). Although the state habeas trial court found that the

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State intentionally failed to disclose Pruett’s admissions to Hall and Ross, and
concluded that the State had acted in bad faith in deliberately disregarding the
pretrial discovery order to obtain an advantage, the Texas Court of Criminal
Appeals did not adopt those findings of fact and conclusions of law.1 Accordingly,
even if the “possibility” of a cognizable due process claim based on deliberate
deception “rises to the level of clearly established law sufficient to support a
habeas petition on AEDPA review,” id. at 221, the Texas Court of Criminal
Appeals did not adopt the state habeas trial court’s finding of deliberate
deception. In rejecting Pruett’s claims, the Court of Criminal Appeals stated:
       According to the United States Supreme Court, “There is no general
       constitutional right to discovery in a criminal case.” [Weatherford
       v. Bursey, 429 U.S. 545, 559 (1977); United States v. Ruiz, 536 U.S.
       622, 629 (2002).] Although the Due Process Clause confers upon
       defendants a right to be informed about the existence of exculpatory
       evidence, it does not require the prosecution to “reveal before trial
       the names of all witnesses who will testify unfavorably.” [Bursey,
       429 U.S. at 559.] As for the trial court’s conclusion that the failure
       to reveal the inculpatory statements also violated the rules of
       evidence and the trial court’s discovery order, such violations, even
       if they occurred, would not be grounds for relief on habeas corpus.
       [Ex parte Pena, 71 S.W.3d 336, 336-337 (Tex. Crim. App. 2002)
       (habeas relief unavailable for a claim that does not involve a
       jurisdictional defect or a violation of constitutional or fundamental
       rights).]
Ex parte Pruett, 207 S.W.3d at 767 (footnotes in brackets).
       Pruett argues that the State’s violation of the pretrial discovery order
violated his due process rights and his right to the effective assistance of counsel.
He points out that his conviction is based on the testimony of convicted felons


       1
         Pruett contends that the Texas Court of Criminal Appeals did not explicitly reject the
trial court’s findings and conclusions that the state had acted in bad faith in withholding the
information and disregarded the pretrial order to obtain an advantage. This is not correct.
The Texas Court of Criminal Appeals stated: “We adopt the trial court’s findings of fact and
conclusions of law, except for the trial court’s findings and conclusions on grounds ten and
eleven [the claims at issue].” Ex parte Pruett, 207 S.W.3d at 767.

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who were prisoners of the prosecution and thus had both a motivation to lie and
the lack of character to act on that motivation. He asserts that the State’s
failure to disclose his admissions to Hall and Ross, along with the trial court’s
refusal to order disclosure of the investigator’s interview notes for cross-
examination, affected his decision whether to testify, prevented defense counsel
from conducting a pretrial investigation to counter the testimony, and deprived
him of the opportunity to discredit the inmate testimony and bolster his defense
that all of the inmate testimony against him was unreliable. He contends that
the nondisclosure violated his right to due process because the due process
clause requires a fair trial and requires the prosecution to refrain from improper
methods calculated to produce wrongful conviction. He argues that the trial
court’s refusal to order disclosure of the interview notes violated his right to due
process under Jencks v. United States, 353 U.S. 657 (1957), and limited his right
to cross-examine Hall and Ross, in violation of the Confrontation Clause. Pruett
insists that his claim has nothing to do with the Constitution not requiring
discovery in a criminal case. Instead, he maintains that it concerns the State’s
duty to follow lawful court orders in the prosecution of a death penalty case.
Pruett also contends that because the prosecution intentionally gave defense
counsel a false picture of the State’s evidence, his counsel were unable to prepare
his defense and thus were rendered ineffective.
      The Texas Court of Criminal Appeals did not unreasonably deny relief on
these claims. As that court noted, the Supreme Court of the United States has
held that “There is no general constitutional right to discovery in a criminal
case.” Weatherford v. Bursey, 429 U.S. 545, 559 (1977). The Supreme Court
stated in Bursey that “[i]t does not follow from the prohibition against concealing
evidence favorable to the accused that the prosecution must reveal before trial
the names of all witnesses who will testify unfavorably.” Id. Accordingly, the
Texas Court of Criminal Appeals did not unreasonably apply clearly established

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law when it rejected Pruett’s claim that the State denied him the right to a fair
trial by failing to identify Hall and Ross as rebuttal witnesses. Further, the
Texas Court of Criminal Appeals did not unreasonably reject Pruett’s claims
regarding the failure to turn over the investigator’s notes from the interviews of
Hall and Ross. Although the state habeas trial court stated in its conclusions of
law that there were inconsistencies between the trial testimony of Hall and Ross
and the interview notes, it made no factual findings revealing any such
inconsistencies. Further, the Texas Court of Criminal Appeals did not adopt
that conclusion. Pruett, likewise, has not identified any inconsistencies between
Ross’s and Hall’s testimony and the interview notes and thus he has failed to
adequately brief this claim. See Hughes v. Dretke, 412 F.3d 582, 597 (5th
Cir.2005) (“In his petition to this Court, Petitioner merely lists his ineffective
assistance complaints in summary fashion, without discussing the legal and
factual basis for each complaint. In failing to brief his ineffective assistance of
counsel complaints adequately, Petitioner has waived those claims.”).
      Jencks, which requires federal prosecutors to disclose written statements
to the defense, does not apply to state criminal proceedings. Martin v. Maggio,
711 F.2d 1273, 1283 (5th Cir. 1983). Pruett’s rights under the Confrontation
Clause were not violated, because the trial court did not restrict defense
counsel’s cross-examination of Hall and Ross. In the light of the evidence of his
guilt, Pruett cannot show that not knowing the identities of Hall and Ross as
rebuttal witnesses, and not having the investigator’s notes from their interviews
of Hall and Ross, had a substantial and injurious effect or influence in
determining the jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637
(1993).
      Because the decision of the Texas Court of Criminal Appeals is neither
contrary to, nor an unreasonable application of, clearly established federal law,
the district court did not err by denying habeas relief on these claims.

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                                  No. 10-70024

                                        B.
      Having determined that Pruett is not entitled to habeas relief on the
claims for which the district court granted a COA, we now turn to consider his
request for an expansion of the COA for his claim that the admission of a
summary of the facts underlying his prior murder conviction violated his rights
under the Confrontation Clause.
       To obtain a COA, Pruett must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). “When the district court denies
a habeas petition on procedural grounds without reaching the prisoner’s
underlying constitutional claim, a COA should issue when the prisoner shows,
at least, that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a district court
has rejected the constitutional claims on the merits, . . . [t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong,” id., “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) (citation omitted). “[A]
claim can be debatable even though every jurist of reason might agree, after the
COA has been granted and the case has received full consideration, that
petitioner will not prevail.” Id. at 338. In making the decision whether to grant
a COA, this court’s examination is limited to a “threshold inquiry,” which
consists of “an overview of the claims in the habeas petition and a general
assessment of their merits.” Id. at 327, 336. The court cannot deny a COA
because it believes the petitioner ultimately will not prevail on the merits of his
claims. Id. at 337. On the other hand, however, “issuance of a COA must not be
pro forma or a matter of course.” Id. “While the nature of a capital case is not

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                                  No. 10-70024

of itself sufficient to warrant the issuance of a COA, in a death penalty case any
doubts as to whether a COA should issue must be resolved in the petitioner’s
favor.” Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005) (brackets, internal
quotation marks, and citations omitted).
      The evidence at issue is entitled “Case Summary.” It is one of 79 pages in
State’s Exhibit 62, which contains Pruett’s prison classification records. The
Case Summary states, in its entirety:
            MURDER WITH A DEADLY WEAPON: The official
            version states that on 8-9-95 in Houston, Harris
            County, Texas, the subject, his brother and father
            (Howard PRUETT Sr., LIFE sentence and Howard
            PRUETT Jr., 40 years TDCJ-ID) assaulted an adult
            white male neighbor. The victim and the subject
            originally got involved in an argument over the subject
            selling him some stolen guns and the subject dating the
            victim’s daughter. The victim ordered the subject to
            stay away from his residence and he and the subject
            became involved in an argument. The subject tried to
            get other friends of his to join in killing the victim that
            same night, without success. When the subject got
            home, he got his father and brother to join him in
            jumping on the victim, beating him and kicking him.
            The subject’s father stabbed the victim 6-7 times while
            the victim was on the ground. The victim managed to
            get up and run away from his assailants but they
            followed him and continued attacking him. The victim
            died as a result of his stab wounds. The subject and
            codefendants fled Harris County and went to Orange,
            Texas, where they were arrested 2 weeks later. At the
            time of the arrest, the subject fled through a window
            but was arrested a short distance away. The subject
            was 16 years old when this offense occurred and he was
            certified to stand trial as an adult. The subject wrote
            letters from the jail where he bragged about the
            MURDER to his friends. He also threatened to kill a
            witness from the jail. After the jury sentenced the
            subject, the subject “fainted” and when he “awoke”, he
            tore off his shift and stated “you better watch out for

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                                  No. 10-70024

             me. I’m going to kill every mother fucker I see.” The
             subject had to be restrained and removed from the
             court room by deputies. There was no bond for this
             offense.

             RATIONALE OF PRESENT OFFENSE “MY DAD
             STABBED HIM.”
      On direct appeal, the Texas Court of Criminal Appeals held that the only
portion of Pruett’s claim regarding the Case Summary that was preserved for
review was his claim that the exhibit was inadmissible because the records
contained in it “were compiled for the purpose of litigation.” 2004 WL 3093232,
at *5. The court rejected that claim on the merits, holding that the records were
not actually created in anticipation of litigation, but merely compiled for use at
trial. Id.
      Pruett raised the claim again in his state habeas application. The state
habeas trial court found that the Case Summary was created on October 18,
1996, more than three years prior to Nagle’s murder. The court rejected Pruett’s
claim for three reasons.     First, the court concluded that the claim was
procedurally barred under state law because, although Pruett’s counsel objected
to the packet of materials in which the Case Summary was included, they did
not object to the Case Summary with sufficient specificity to make the trial court
aware of their arguments regarding its inadmissibility. Next, the state habeas
trial court concluded that the Case Summary was admissible as a business
record because it existed prior to trial, was not prepared for the purpose of
litigation, and was introduced after appropriate testimony from the custodian
of records. Finally, the state habeas court concluded that the same evidence was
admitted from other sources, without objection, both before and after the guilty
verdict. The Texas Court of Criminal Appeals adopted these findings and
conclusions. Ex parte Pruett, 207 S.W.3d at 767.



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                                 No. 10-70024

     The district court held that, assuming that the claim is not procedurally
defaulted and that admission of the Case Summary was erroneous, any error in
was harmless. The district court stated:
            [T]he jury knew from other evidence that Petitioner was
     serving a 99 year sentence for the murder of Ray Yarborough at the
     time the murder of Nagle occurred . . . . The jury had heard
     testimony as to the details of the previous murder, including
     evidence that Petitioner punched, kicked, and held down
     Yarborough during the assault and that he threatened to kill
     everyone in the courtroom upon being convicted . . . . They had also
     heard evidence that he had committed disciplinary infractions while
     in prison, which included fighting, trying to manufacture a weapon,
     and making repeated threats of physical violence against
     guards . . . . Of course, it was undisputed that Nagle, the victim in
     this capital murder case, was a correctional officer in the facility in
     which he was incarcerated.

           Turning to the case and offense summaries, we find the
     following facts reported concerning the Yarborough murder:
     Petitioner solicited the murder, he tried to escape when arrested, he
     bragged about the murder, he tried to kill witnesses from jail, and
     he was not remorseful . . . . All of these details were certainly
     prejudicial. However, when considered in conjunction with the
     evidence the jury already had in its possession, it is difficult to
     conclude that this evidence had a “substantial and injurious effect”
     on Petitioner’s sentence.        The jury was confronted with
     overwhelming evidence that Petitioner would pose a continuing
     threat to society, the most important being that they had just
     convicted him of murdering an officer in a correctional institution.
     It strains credulity to the breaking point to suggest that a
     reasonable jury confronted with all of the evidence except the
     summary reports would conclude that Petitioner did not pose a
     continuing threat to society. Accordingly, the error, if any, in
     admitting the case and offense summaries did not have a
     “substantial and injurious effect” on the sentence and was harmless.
Pruett v. Thaler, No. C-06-CA-465-H, at 11-12.
     Pruett argues that he made a proper objection and that the admission of
the Case Summary violated his rights under the Confrontation Clause because


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                                  No. 10-70024

the Case Summary was the product of police investigation and interrogation and
was therefore testimonial. He contends that the error was not harmless because
the case summary was the only evidence of these damning facts: (1) Pruett tried
to recruit his friends to commit the 1995 murder; (2) Pruett solicited his brother
and father to commit the murder; (3) Pruett tried to escape when he was
arrested; (4) Pruett bragged about the murder; (5) Pruett tried to kill witnesses
from jail; and (6) Pruett was not remorseful. He contends that it also shows
premeditation, adding weight to the State’s proposition that Nagle’s murder was
also planned; shows future dangerousness in that he tried to escape and tried to
have witnesses killed from jail; and negates mitigating evidence bearing on
Pruett’s moral and personal culpability. He points out that in closing argument,
the prosecutor referred to the Case Summary as contradicting Pruett’s testimony
and showing that he was a future danger.
      Pruett concedes that the district court was probably correct in concluding
that future dangerousness was a given because Pruett was in prison, and the
jury had found that he killed his prison guard. However, he points out that the
jury also had to consider mitigating circumstances. He maintains that the Case
Summary added significant weight to the State’s case for death and made his
sentence unreliable.
      In Crawford v. Washington, 541 U.S. 36 (2004), which was decided several
months before the Texas Court of Criminal Appeals handed down its decision on
Pruett’s direct appeal, the Supreme Court held that the Confrontation Clause
forbids admission of out-of-court testimonial statements against a criminal
defendant unless the declarant is unavailable and the defendant has had a prior
opportunity to cross-examine the declarant. Id. at 68. The Court declined in
Crawford to “spell out a comprehensive definition of ‘testimonial,’” but stated
that “it applies at a minimum to prior testimony at a preliminary hearing, before
a grand jury, or at a former trial; and to police interrogations.” Id. In Melendez-

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                                  No. 10-70024

Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the Court stated that “[b]usiness
and public records are generally admissible absent confrontation not because
they qualify under an exception to the hearsay rules, but because–having been
created for the administration of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial–they are not testimonial.” Id. at 2539-
40.
      The State argues that Crawford did not disturb the Supreme Court’s
earlier holding, in Williams v. Oklahoma, 358 U.S. 576, 584 (1959), that the
Confrontation Clause generally does not apply to sentencing and does not
prevent the introduction of hearsay at a sentencing hearing. See United States
v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006) (stating that “there is no Crawford
violation when hearsay testimony is used at sentencing, rather than at trial”).
The State also points out that the Case Summary was not prepared for purposes
of litigation. It was prepared in October 1996, for prison classification purposes,
after Pruett had been sentenced to prison for Yarborough’s murder, and more
than three years before he murdered Nagle.
      We need not decide whether the Case Summary is testimonial, or whether
Crawford applies to evidence presented at a sentencing hearing in a death
penalty case, because we are convinced that reasonable jurists would not find
debatable the district court’s decision that any error in admitting the Case
Summary was harmless.
      As the district court correctly noted, the Case Summary is substantially
cumulative of other evidence of Pruett’s role in the Yarborough murder. In
response to questioning by his own counsel, Pruett testified at the guilt-
innocence phase that he previously had been convicted of murder. At the
punishment phase, Pruett admitted that he started the confrontation with
Yarborough, although he denied making threats in the courtroom after he was
sentenced for Yarborough’s murder.           During the State’s rebuttal at the

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                                 No. 10-70024

punishment phase, Detective Allen Beall of the Harris County Sheriff’s
Department testified, without objection, that his investigation showed Pruett
punched, kicked, and held Yarborough down during the assault; that
Yarborough did not have any guns in his possession; and that, at sentencing,
Pruett told everyone in the courtroom to stay away from him or he would kill all
of them.
      In the light of this evidence, reasonable jurists would not find debatable
the district court’s decision that any error in the admission of the Case Summary
did not have a substantial and injurious effect or influence on the jury’s
determination of Pruett’s sentence and was, therefore, harmless. See Brecht, 507
U.S. at 637. Accordingly, we DENY Pruett’s request for expansion of the COA.
                                      III.
      For the foregoing reasons, the judgment of the district court is AFFIRMED
and Pruett’s request for expansion of the COA is DENIED.




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