                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                                                                                     August 15, 2003
                          UNITED STATES COURT OF APPEALS
                                                                                Charles R. Fulbruge III
                                  FOR THE FIFTH CIRCUIT                                 Clerk


                                     __________________

                                        No. 03-20122
                                     __________________



                           FREDERICK PATRICK MCWILLIAMS,

                                                     Petitioner-Appellant,

                                           VERSUS

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


                                                     Respondent-Appellee.

                   ______________________________________________

                     Appeal from the United States District Court for the
                        Southern District of Texas, Houston Division
                   ______________________________________________


Before DAVIS, WIENER and EMILIO M.. GARZA, Circuit Judges.

PER CURIAM:*

       Petitioner, Frederick Patrick McWilliams (McWilliams), was convicted of capital murder in



       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Texas and sentenced to death. He now seeks a certificate of appealability (COA) pursuant to 28

U.S.C. § 2253(c)(2) from the district court’s denial of relief under 28 U.S.C. § 2254 on the following

claims: (1) the failure to inform the jury that, if sentenced to life in prison, he would be ineligible for

parol for at least forty calendar years under Texas’s capital sentencing scheme violated his Sixth

Amendment right to effective assistance of counsel and Fourteenth Amendment rights to due process

and equal protection; (2) he was denied his Eighth Amendment right to protection from cruel and

unusual punishment; (3) the state habeas court wrongfully denied him access to sealed juror cards in

violation of the Fourteenth Amendment due process clause; and (4) his appellate counsel provided

ineffective assistance in violation of his Sixth Amendment right to counsel. For the reasons that

follow, we deny COA on all of McWilliams’ claims.

                                                    I.

        On the night of September 27, 1996, McWilliams went driving with his cousin, Richard

Hawkins (Hawkins), and Kenneth Adams (Adams), in Adams’ red compact car in Houston. Hawkins

fell asleep in the back seat and awoke as they turned into the parking lot of an apartment complex.

McWilliams and Adams were discussing stealing a car. After their first unsuccessful attempt,

McWilliams and Adams found a brown car in the lot and opened the door to find a man asleep inside

the vehicle. They returned to Adams’ vehicle, and Adams told McWilliams that he should have

gotten the man, and McWilliams decided to return.

        The two men returned to the car carrying guns. Adams pulled the victim, Alfonso Rodriguez

(Rodriguez), from the driver’s side at gun point while McWilliams rummaged through the glove box.

Adams beat Rodriguez with the butt of the gun. Rodriguez laid on the ground covering his head to

avoid the blows. Adams and McWilliams then attempted to force Rodriguez into the trunk of the car.


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       Not wanting to be a part of the robbery, Hawkins jumped into the front of Adams’ car and

drove away. As he left, he heard a gun shot. Shortly thereafter, McWilliams and Adams caught up

to Hawkins in Rodriguez’s car and waved Hawkins to the side of the road. Adams, who was covered

in blood, got into the driver’s seat and told Hawkins “Your cousin wild. He wild. He shot a man.”

The three met up at a gas station where McWilliams pulled a bag of jewelry from Rodriguez’s car and

put it in Adams’ car. The next day, McWilliams admitted to Hawkins that he had shot Rodriguez.

       The next week, Adams was stopped for speeding. A search of the car yielded several firearms

one of which was the weapon used to kill Rodriguez. During questioning by investigators, Adams

confessed and implicated McWilliams.

       After being arrested, McWilliams gave two statements. In his first statement, McWilliams

claimed that Adams shot Rodriguez. In his second statement, McWilliams admitted shooting

Rodriguez.

       A jury convicted McWilliams of capital murder on September 4, 1997 in state court in Harris

County, Texas. McWilliams was sentenced to death on September 9, 1997.

       On March 10, 1999, the Texas Court of Criminal Appeals affirmed McWilliams’ conviction

and sentence on direct appeal. The Texas Court of Criminal Appeals denied his state habeas petition

on April 4, 2001. McWilliams timely filed an application for federal post-conviction relief. The

federal district court granted the State’s motion for summary judgment, denying McWilliams’

petition. The district court also denied a COA on McWilliams’ claims. McWilliams now seeks a COA

from this court

                                                 II.

       McWilliams filed the instant Section 2254 application for habeas relief after the April 24, 1996


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effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). His application is

therefore subject to the AEDPA. Lindh v. Murphy, 521 U.S. 320, 336(1997). Under the AEDPA,

a petitioner must obtain a COA before appealing the district court’s denial of habeas relief. 28 U.S.C.

§ 2253(c)(2). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless

a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court

of appeals. . . .’” Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003) (citing 28 U.S.C. §2253(c)(1))

. “The COA statute requires a threshold inquiry into whether the circuit court may entertain an

appeal.” Id. (citing Slack v. McDaniel, 529 U.S. 473, 482 (2000); Hohn v. United States, 524 U.S.

236, 248 (1998)). A COA will be granted only if the petitioner makes “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a petitioner

“must demonstrate that the issues are debatable among jurists of reason; that a court could resolve

the issues [in a different manner]; or that the questions are adequate to deserve encouragement to

proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (citation and internal quotation

marks omitted). Any doubt regarding whether to grant a COA is resolved in favor of the petitioner,

and the severity of the penalty may be considered in making this determination. Fuller v. Johnson,

114 F.3d 491, 495 (5th Cir. 1997).

        The analysis “requires an overview of the claims in the habeas petition and a general

assessment of their merit.” Miller-El, 123 S.Ct. at 1039. The court must look to the district court’s

application of AEDPA to the petitioner’s constitutional claims and determine whether the court’s

resolution was debatable amongst reasonable jurists. Id. “This threshold inquiry does not require full

consideration of the factual or legal bases adduced in support of the claims.” Id. Rather, “‘[t]he

petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the


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constitutional claims debatable or wrong.’” Id. at 1040. (citing Slack v. McDaniel 529 U.S. 473,

484).

                                                  III.

        McWilliams makes several challenges (denial of his Fourteenth Amendment due process right,

denial of his Sixth Amendment right to effective assistance of trial and appellate counsel, and denial

of his Fourteenth Amendment right to equal protection) to the trial court’s denial of his request to

inform the jury that, if sentenced to life in prison, he would be ineligible for parol for at least forty

calendar years under Texas’s capital sentencing scheme. McWilliams bases his argument on the

United States Supreme Court’s decision in Simmons v. South Carolina, 512 U.S. 154, 156 (1994),

which holds that “where the defendant’s future dangerousness is at issue, and state law prohibits the

defendant’s release on parole, due process requires that the sentencing jury be informed that the

defendant is parole ineligible.” In Simmons, the Court acknowledged that its holding did not apply

to Texas’s sentencing scheme. Id. at 168, n. 8. Moreover, McWilliams acknowledges that this court

has refused to extend Simmons to Texas’s sentencing scheme. See Tigner v. Cockrell, 264 F.3d 521

(5th Cir. 2001). However, McWilliams contends that this court should, nonetheless, issue a COA to

consider his claims because four Supreme Court Justices noted a tension in Texas’s sentencing

scheme and the basic holding of Simmons without reaching the merits of the issue. Brown v. Texas,

522 U.S. 940 (1997). We disagree.

        We are bound by Fifth Circuit precedent and cannot resolve these issues in a different manner.

Thus, the district court’s resolution of McWilliams’ due process, ineffective assistance of counsel

and equal protection claims does not give rise to debate. Accordingly, we deny McWilliams’ request

for COA on the Simmons issues.


                                                  -5-
                                                   IV.

       McWilliams next argues in conclusory fashion that he was denied his Eighth Amendment right

to protection from cruel and unusual punishment.

       Without citing any authority in support of his claim, McWilliams first argues that he was

exposed to cruel and unusual punishment because Texas does not have pre-trial safeguards to ensure

that a defendant is “appropriately qualified to receive the death penalty.” In resolving this claim, the

federal habeas court noted that McWilliams has not identified a specific “unrealized pretrial

procedure” required by the Constitution. McWilliams v. Cockrell, No. H-02-CV-1276, slip. op. at

22 (S.D. Tex. December 31, 2002). The federal habeas court also observed that Texas initiates

capital cases only upon grand jury indictment. Accordingly, the federal habeas court concluded that

the state habeas court’s determination that the Texas procedure adequately narrowed the class of

capital defendants was not contrary to, or an unreasonable application of, federal law.

       McWilliams has cited no authority and made no argument which would suggest that the

federal habeas court’s resolution of this claim is debatable among jurists of reason or that a court

could resolve the issue differently. Thus, we deny COA on this claim.

       McWilliams next argues that he was subjected to cruel and unusual punishment because the

Texas sentencing statute does not allocate the burden of proof on the second special issue (mitigating

evidence). See Tx. Crim. Pro. art. 37.071. McWilliams contends that by requiring the defendant to

prove the existence of mitigating evidence, it somehow implies that the defendant has the burden of

disproving the existence of aggravating factors.

       In support of this claim, McWilliams cites Walton v. Arizona, 497 U.S. 639 (1990) without

explaining how this case provides him any relief. As pointed out by the State, Walton was overruled


                                                   -6-
by Ring v. Arizona, 536 U.S. 584 (2002).

       In Ring, the Supreme Court held that capital defendants are entitled to “a jury determination

of any fact on which the legislature conditions an increase in their maximum punishment.” Id. at 589.

Thus, before a court may sentence a defendant to death, a jury must find beyond a reasonable doubt

that aggravating factors exist to support a death sentence when a state’s sentencing regime requires

this finding for the imposition of the death penalty. The Court in Ring did not suggest the existence

of a similar requirement that the state establish the absence of mitigation. Id. at 597, n. 4.

       As noted by the district court, the trial court instructed the jury during the sentencing phase

that “the burden of proof in this phase of the trial still rests upon the state and never shifts to the

defendant.” McWilliams, at 23. We agree with the district court that even if, as a practical matter,

it is incumbent on the defendant to produce mitigating evidence and convince the jury of its

significance, t his burden of production did not alter the burden of proof and did not violate the

Constitution.

       McWilliams has failed to cite any authority which would give rise to debate regarding the

federal habeas court’s resolution of this claim. Thus, he has failed to make “substantial showing of

the denial of a constitutional right.” Accordingly, we deny his request for a COA on this claim.

                                                  V.

       McWilliams next argues that this court should grant a COA to determine whether the state

habeas court wrongfully denied him access to sealed juror cards. The federal habeas court ruled that

this claim is not cognizable on federal habeas review because this “challenge to the administration of

the state habeas proceeding does not contest the validity of his confinement.” McWilliams, at 28.

McWilliams has not addressed this ground for denying his claim.


                                                 -7-
        In Duff-Smith v. Collins, 973 F.2d 1175, 1181-1182 (5th Cir. 1992), a pre-ADEPA case, this

court rejected the petitioner’s claim that he was entitled to federal habeas relief because the state

habeas court quashed three subpoenas duces tecum served on three witnesses: the Harris County

District Attorney, the Texas Attorney General, and a United States Marshal. In doing so, the court

held that “infirmities in state habeas proceedings do not constitute grounds for federal habeas relief.”

Id. at 1182. In our post-AEDPA cases, this court has declined to issue COA’s for the same reason.

See e.g. Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999).

        We agree with the district court that this is not a matter which is cognizable on federal habeas

review. Accordingly, we deny McWilliams’ request for a COA on this claim.

                                                 VI.

        McWilliams next challenges the federal habeas court’s determination that appellate counsel

did not rendered constitutionally ineffective assistance of counsel.

        As a preliminary matter, it should be noted that McWilliams did not raise the issue of

ineffective assistance of appellate counsel in the state habeas court. In the federal habeas proceeding,

the State challenged McWilliams’ claim of ineffective assistance on the basis that: (1) McWilliams

failed to exhaust the claim in state court, (2) the claim was procedurally barred under Texas’s abuse

of writ doctrine, and (3) McWilliams could not establish “cause and prejudice” to overcome the

default. The federal habeas court agreed and held that McWilliams’ claim of ineffective assistance

of appellate counsel was barred. In his application for COA, McWilliams has not addressed the

federal habeas court’s ruling on this issue. By failing to brief this issue, McWilliams has conceded

that his claim is barred. Johnson v. Puckett, 176 F.3d 809, 814 (5th Cir. 1999). COA could be denied

on this basis alone.


                                                  -8-
       A habeas petitioner may overcome the state procedural bar by demonstrating cause for the

procedural default and actual prejudice as a result of the alleged violation of federal law. Smith v.

Johnson, 216 F.3d 521, 524 (5th Cir. 2000). Although McWilliams does not expressly argue “cause

and prejudice,” he co ntends that it would be “virtually impossible for state writ counsel to allege

ineffective assistance of appellate counsel at the state level because [the appellate and writ time

delays] are running concurrently.” We may construe this as an argument that there is cause for his

default, but even this argument is ultimately unavailing.

       The federal habeas court addressed McWilliams’ argument, st ating the following:

“McWilliams filed his direct appeal brief several months before filing his state habeas action. He had

sufficient opportunity to investigate the claims advanced by appellate counsel and raise any that had

been neglected.” McWilliams, at 35, n. 17. The State points out that over two years passed between

the time McWilliams’ sentence was affirmed on direct appeal and the state court denied habeas relief.

During this time, McWilliams made no attempt to amend or supplement his petition to raise a claim

of ineffective assistance of appellate counsel, which he could have done, under Tex. Code Crim. Proc.

art. 11.071. Thus, even if McWilliams’ statement is construed as an argument that there was “cause”

for his default, the argument is completely lacking in merit and fails to give rise to any reasonable

debate.2 Thus, McWilliams has failed to make a “substantial showing of the denial of a constitutional


       2
          In the alternative, the district court denied this claim on the merits. McWilliams claims
that appellate counsel was ineffective because counsel failed to raise a claim of ineffective
assistance of trial counsel in a motion for new trial. The district court reasoned that, because
McWilliams could not show that trial counsel made substantive errors, he could not prove
ineffective assistance of appellate counsel under Strickland v. Washington, 466 U.S. 668 (1984).
We have conducted a threshold review of the merits of each particular basis for this claim under
Miller-El, supra, and we have found nothing in the district court’s alternative resolution of this
claim which would give rise to debate among jurists of reason. Alternatively, we would deny
COA on this basis.

                                                 -9-
right.” Accordingly, we deny his request for a COA on this claim.

                                                  VII.

        For the reasons stated above we deny the petitioner’s request for a COA on his claims that:

(1) the failure to inform the jury that, if sentenced to life in prison, he would be ineligible for parol

for at least forty calendar years under Texas’s capital sentencing scheme violated his Sixth

Amendment right to effective assistance of counsel and Fourteenth Amendment rights to due process

and equal protection; (2) he was denied his Eighth Amendment right to protection from cruel and

unusual punishment; (3) the state habeas court wrongfully denied him access to sealed juror cards in

violation of the Fourteenth Amendment due process clause; and (4) his appellate counsel provided

ineffective assistance in violation of his Sixth Amendment right to counsel

        COA denied.




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