                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                      UNITED STATES COURT OF APPEALS
                               FIFTH CIRCUIT                          October 2, 2006

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                               No. 05-70016


                          KENNETH EUGENE FOSTER,

                                  Petitioner-Appellee-Cross-Appellant,

                                  versus

  NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
           JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                  Respondent-Appellant-Cross-Appellee.


            Appeals from the United States District Court
                   for the Western District of Texas


Before JONES, Chief Judge, and BARKSDALE and PRADO, Circuit Judges.

RHESA HAWKINS BARKSDALE:

     Kenneth Eugene Foster was convicted in Texas state court of

capital murder during the course of a robbery in 1996 and sentenced

to death.    The district court granted conditional habeas relief on

Foster’s    claimed    unconstitutional      sentence   under     the    Eighth

Amendment, as construed in Enmund v. Florida, 458 U.S. 782, 797-800

(1982), and Tison v. Arizona, 481 U.S. 137 (1987), because the jury

did not make the requisite factual findings:            (1)whether Foster

acted with reckless indifference to human life; and (2) whether he

played a major role in the activities leading to the murder.                  For

Foster’s remaining      11   claims,   the   court   denied   relief      and a

certificate of appealability (COA).          See 28 U.S.C. §§ 2253, 2254.
         The State appeals the conditional habeas-relief. Subsequent

to our recent denial of Foster’s COA request,             Foster v. Dretke,

No. 05-70016, 2006 WL 616980 (5th Cir. 13 Mar. 2006), petition for

cert. filed, (U.S. 7 June 2006) (No. 05-11488), Foster requested

another COA to pursue a stand-alone actual–innocence claim. In so

doing,    he    maintained   a   COA   request   for   that   claim    had   been

inadvertently omitted from his initial COA request.             Oral argument

addressed the State’s appeal and the extremely belated COA request.

     COA DENIED; conditional habeas relief granted by the district

court VACATED; habeas relief DENIED.

                                        I.

     On the evening of 14 August 1996, Foster and three others –

Mauriceo Brown, DeWayne Dillard, and Julius Steen – embarked on

armed robberies around San Antonio, Texas, beginning with Brown’s

announcing he had a gun and asking whether the others wanted to rob

people:    “I have the strap, do you all want to jack?”.              During the

guilt/innocence phase of Foster’s trial, Steen testified he rode in

the front seat, looking for potential victims, while Foster drove.

     Steen and Brown testified to robbing two different groups at

gunpoint that night; the four men divided the stolen property

equally.       The criminal conduct continued into the early hours of

the next day (15 August), when Foster began following a vehicle

driven by Mary Patrick.




                                        2
     Patrick testified: she and Michael LaHood, Jr. were returning

in separate cars to his house; she arrived and noticed Foster’s

vehicle turn around and stop in front of Michael LaHood’s house;

Patrick approached Foster’s vehicle to ascertain who was following

her; she briefly spoke to the men in the vehicle, then walked away

towards Michael LaHood, who had reached the house and exited his

vehicle; she saw a man with a scarf across his face and a gun in

his hand exit Foster’s vehicle and approach her and Michael LaHood;

Michael LaHood told her to go inside the house, and she ran towards

the door, but tripped and fell; she looked back and saw the gunman

pointing a gun at Michael LaHood’s face, demanding his keys, money,

and wallet; Michael LaHood responded that Patrick had the keys; and

Patrick heard a loud bang.

     Michael LaHood died from a gunshot wound to the head.     The

barrel of the gun was no more than six inches from his head when he

was shot; it was likely closer than that.      Brown had similarly

stuck his gun in the faces of some of the night’s earlier robbery

victims.

     Later that day, all four men were arrested; each gave a

written statement identifying Brown as the shooter. Brown admitted

being the shooter but denied intent to kill.   He testified that he

approached Michael LaHood to obtain Patrick’s telephone number and

only drew his weapon when he saw what appeared to be a gun in




                                 3
Michael LaHood’s possession and heard what sounded to him like the

click of an automatic weapon.

      In May 1997, Foster and Brown were tried jointly for capital

murder committed in the course of a robbery.              The jury found each

guilty of that charge and answered the special issues at the

penalty phase to impose a death sentence for each.

      On direct appeal, Foster contended, inter alia:                   because he

did nothing more than agree to commit and participate in robberies,

his death sentence violated the Eighth Amendment; application of

Texas Penal Code § 7.02(b) (conspiracy party liability) violated

the Sixth and Fourteenth Amendments to the Constitution; and the

trial court erred in refusing a jury instruction on the lesser-

included offense      of   aggravated       robbery.      The   Texas    Court   of

Criminal Appeals affirmed Foster’s conviction and sentence.

      The court held, inter alia: Foster’s sentence did not violate

the Constitution because, before convicting him of capital murder

as a party, the jury had to determine he intended to promote the

commission of intentional murder; a law–of–the–parties instruction

under § 7.02(b) is appropriate when no such charge is in the

indictment because the statute describes attempt to carry out, not

the   offense   of,    conspiracy;          and   a    lesser-included–offense

instruction was not warranted because nothing in the record would

permit a rational jury to find Foster guilty only of aggravated

robbery and not murder in the course of a robbery.                See Foster v.


                                        4
State, No. 72,853 (Tex. Crim. App. 30 June 1999) (unpublished)

(TCCA Opn.).     Three judges dissented, and would have held, inter

alia,   that   Foster    was    entitled   to   a   lesser–included–offense

instruction.     Id. at 33 (Mansfield, J., dissenting).

     The Supreme Court of the United States denied a writ of

certiorari.     Foster v. Texas, 529 U.S. 1057 (2000).

     In April 1999, before the conclusion of his direct appeal,

Foster filed for state–habeas relief.           After holding evidentiary

hearings, the state-habeas court issued findings of fact and

conclusions of law, recommending denial of relief; the Court of

Criminal Appeals denied relief in an unpublished order.              Ex Parte

Foster, No. 50,823-01 (Tex. Crim. App. 6 Mar. 2002).

     The Supreme Court again denied a writ of certiorari.              Foster

v. Texas, 537 U.S. 901 (2002).

     Foster presented 14 claims in his federal-habeas petition,

including the actual–innocence claim for which he belatedly seeks

a COA from this court.            Included with the petition were new

affidavits     and   other   supporting    evidence,   and   an   evidentiary

hearing was requested.         The State moved for summary judgment.       On

3 March 2005, the district court granted conditional habeas relief

as to sentencing for three claims and denied relief, as well as a

COA, for the remaining 11.          Among other rulings, the requested

evidentiary hearing was denied and the State’s summary-judgment



                                       5
motion was denied as moot. See Foster v. Dretke, No. SA-02-CA-301-

RF, 2005 U.S. Dist. LEXIS 13862 (S.D. Tex. 3 Mar. 2005).

          Each side appealed.       To do so, Foster requested a COA from our

court on two claims.          Foster, 2006 WL 616980, addresses the denial

of that request.

                                           II.

          Review of this 28 U.S.C. § 2254 habeas proceeding is subject

to the Antiterrorism and Effective Death Penalty Act of 1996, Pub.

L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA).                     See, e.g., Penry v.

Johnson,       532    U.S.   782,    792   (2001).       Before       addressing         the

conditional      habeas      relief    granted     by   the       district      court,    we

consider the belated COA request for a stand-alone actual-innocence

claim.

                                           A.

          Under AEDPA, Foster may not appeal the denial of habeas relief

unless he obtains a COA from either the district, or this, court.

28 U.S.C. § 2253(c); FED. R. APP. P. 22(b)(1); Slack v. McDaniel,

529   U.S.     473,    478   (2000).       Under    Federal        Rule    of   Appellate

Procedure 22(b)(1), the district court must first decide whether to

grant a COA before one can be requested here.                             As noted, the

district court denied a COA for the claim Foster seeks to appeal

here.

          Obtaining a COA requires “a substantial showing of the denial

of    a    constitutional     right”.       28     U.S.C.     §    2253(c)(2);      e.g.,


                                            6
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack, 529 U.S. at

483.     For   that       requisite   showing,    an   applicant      usually   must

demonstrate “reasonable jurists could debate whether (or, for that

matter, agree that) the [federal-habeas] petition should have been

resolved in a different manner or that the issues presented were

‘adequate      to     deserve      encouragement       to   proceed       further’”.

Miller-El, 537 U.S. at 336 (quoting Slack, 529 U.S. at 484).

Where, as here, the district court’s habeas denial includes a

procedural     ruling,        as   opposed   to    one      on     the    underlying

constitutional claim, the showing is expanded.                   See Hall v. Cain,

216 F.3d 518, 521 (5th Cir. 2000).                     In that situation, the

applicant must show jurists of reason would find debatable whether:

the habeas petition states a valid claim of the denial of a

constitutional right; and the district court’s procedural ruling

was correct.        Id.

       In determining whether to grant a COA, this court is, inter

alia, limited “to a threshold inquiry into the underlying merit of

[Foster’s] claims”.          Miller-El, 537 U.S. at 327.           “This threshold

inquiry does not require full consideration of the factual or legal

bases adduced in support of the claims.”               Id. at 336.       Instead, the

court must make “an overview of the claims in the habeas petition

and a general assessment of their merits”.              Id.      Because Foster was

convicted of capital murder and received the death penalty, “any

doubts as to whether a COA should issue must be resolved in [his]

                                         7
favor”.    Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert.

denied, 531 U.S. 966 (2000).

     For purposes of the mandated threshold inquiry, we recognize

that, in ruling on the merits, the district court was required by

AEDPA to defer, with limited exceptions, to the state court’s

resolution of Foster’s claims.              The exceptions provided by AEDPA

turn on the character of the state court’s ruling.

     First, such deference is mandated both for questions of law

and for mixed questions of law and fact, unless the state court’s

“decision    ...    was    contrary    to,      or    involved    an    unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States”.                  28 U.S.C. § 2254(d)(1);

see Hill v. Johnson, 210 F.3d 481, 488 (5th Cir. 2000), cert.

denied,    532   U.S.     1039   (2001).        A    state    court’s   decision    is

“contrary to clearly established federal law” under § 2254(d)(1)

“if it reaches a legal conclusion in direct conflict with a prior

decision    of   the    Supreme    Court       or   if   it   reaches   a    different

conclusion       than     the     Supreme       Court     based    on       materially

indistinguishable facts”.           Miniel v. Cockrell, 339 F.3d 331, 337

(5th Cir. 2003), cert. denied, 540 U.S. 1179 (2004).

     Second, such deference is required for the state court’s

“decision [unless it] was based on an unreasonable determination of

the facts in [the] light of the evidence presented in the State

court proceeding”.          28 U.S.C. § 2254(d)(2).                On the merits,


                                           8
pursuant to AEDPA, the state court’s factual findings are presumed

correct; in district court, Foster had “the burden of rebutting

[that] presumption ... by clear and convincing evidence”.           28

U.S.C. § 2254(e)(1).       This threshold inquiry is considered against

the elements for Foster’s claim.          Again, it is but one of the

procedures mandated by AEDPA for deciding whether a COA should be

granted.

     As presented in state and federal court, Foster seeks a COA

for his claim he is innocent, as proven by:        Dillard’s testimony

during a state-habeas evidentiary hearing; and an affidavit from

Steen presented for the first time during the federal-habeas

proceeding.    Before addressing the request, we must decide whether

to consider it because of its untimeliness.

                                     1.

     Foster’s initial COA request to our court was filed on 1 June

2005 and addressed two claims (neither concerned actual innocence).

On 29 June 2005, the State filed its opposition; it did not, of

course, address actual–innocence, as Foster had not raised the

issue.     Foster filed:    a reply brief on 27 July 2005 for his COA

request; and a sur–reply on 11 October 2005 to the State’s reply

brief regarding its appeal from the conditional habeas–grant, in

which he also addressed his COA request. Neither of Foster’s reply

briefs addressed actual–innocence or claimed he had inadvertently

failed to include that issue in his COA application. (It is assumed



                                     9
that, in replying to the State’s briefs, Foster’s counsel read

them.        Obviously, in doing so, he should have noticed an actual-

innocence claim was not addressed.)

      Foster did not make this inadvertent-failure assertion until

after    our     13    March     2006    COA–denial.           On    27     March     2006,

approximately ten months after Foster’s initial COA application was

filed, Foster’s counsel filed a “Motion for Consideration of

Inadvertently Omitted Issue”, claiming that, while reading our 13

March    COA     denial,    he    “immediately      noticed         that    the     opinion

addressed only two issues; there was no mention regarding [the

actual-innocence          claim]”.        That   motion    stated:            “Counsel’s

fifty–page brief [for the initial request] included twelve pages of

argument about whether a reasonable and fair jury would more likely

have acquitted Mr. Foster in light of the accounts of Dwayne

Dillard and Julius Steen”; and this issue’s not being addressed in

the     13     March   COA–denial       “alarmed    counsel”.              Counsel     then

acknowledged he had failed in the initial application to submit the

portion of his brief addressing Dillard and Steen, and asked our

court to consider the omitted issue.

               Pursuant     to   AEDPA,    there    is    no    limitations          period

governing the filing of COA requests.               Of course, Foster’s 4 April

2005 notice of appeal satisfied the related limitations period for

filing an appeal.          FED. R. APP. P. 4.      In any event, in a situation

such as this, where Foster appealed the denial of relief on various



                                           10
claims and requested a COA for that, he generally would have waived

any claim not addressed in his COA application/brief.

     Foster’s situation, however, is somewhat different than the

usual case where a party waives a claim by failing to raise it.

Here, counsel claims he unintentionally failed to do so because he

filed the wrong brief.

     As noted, Foster’s initial COA request to our court was

denied.      Generally,   we   would    not   consider   this    new   request.

Because the State’s appeal is pending in our court, however, we

will consider the COA request for the actual–innocence claim.

Counsel in future cases are warned that, should they seek to

likewise raise “inadvertantly-omitted” COA requests, they may well

not be allowed to do so, for obvious reasons.             In this instance,

counsel’s purported reasons for failing to initially request a COA

on this issue are nothing short of inexcusable.

                                       2.

     Pursuant to a plea agreement, Steen testified at trial against

Brown and Foster; Dillard did not testify.                Foster maintains

Dillard’s testimony in the state-habeas proceeding and Steen’s

affidavit in the federal-habeas proceeding (clarifying Steen’s

trial     testimony)    demonstrate     Foster’s     actual     innocence   and

ineligibility for the death penalty.

     As    of   the   state-habeas     evidentiary   hearing,     Dillard   had

already begun serving a life–sentence for another capital murder he


                                       11
committed with Steen.      Dillard testified:       there was no agreement

to commit robberies the night of Michael LaHood's murder; although

he (Dillard) provided the gun, he had nothing to do with the

robberies or the murder; Foster was just the group's driver, not

the getaway driver;        after the second robbery, Foster said he

wanted to stop, so Dillard took the gun back and believed no more

robberies would be committed that night; he directed Foster to

drive through the residential area where Michael LaHood lived;

Foster stopped because a woman flagged the car down and because

Steen told him to;    there was no agreement to rob Michael LaHood;

and, after Brown shot Michael LaHood, Foster tried to leave but

Dillard would not let him.

     Steen’s affidavit in the federal-habeas proceedings stated:

concerning   his   trial   testimony    that   he   “understood   what   was

probably fixing to go down” when Brown exited the vehicle at

Michael LaHood's residence, he understood, at that point (but not

before), what might happen;      Steen did not think Foster knew what

was going to happen; there was no agreement to commit robbery;

everyone was shocked after Brown shot Michael LaHood; and by

testifying at trial he needed to stay awake because he was “riding

shotgun", he meant a person gets a “good view in the front seat”,

not that riding in that position means committing robberies.

     In denying habeas relief in March 2002, the Court of Criminal

Appeals did not address Dillard’s testimony. Steen’s affidavit, of



                                   12
course, was also not mentioned, because it was presented for the

first time during federal-habeas proceedings.

       In addressing Foster’s actual–innocence claim, the district

court first noted Herrera v. Collins, 506 U.S. 390, 400 (1993),

precludes that claim’s being brought as an independent ground for

habeas relief.    Foster,   2005 U.S. Dist. LEXIS 13862, at *40-42.

Rather, the district court noted an actual–innocence claim may be

used to raise an otherwise procedurally–defaulted habeas claim. It

cited Schlup v. Delo, 513 U.S. 298, 327 (1995), for the following

proposition:     “[A] petitioner seeking to surmount a procedural

default through a showing of ‘actual innocence’ must establish it

is more likely than not that, in [the] light of the new evidence,

no   juror,   acting   reasonably,    would    have   voted   to   find   the

petitioner guilty beyond a reasonable doubt”.          Id. at *43.

      The district court then stated:         Dillard’s new testimony and

Steen’s affidavit merely repeat the same non–credible assertions

made by Brown’s trial testimony and Foster’s statements to police

(namely, that Brown exited the vehicle at Michael LaHood’s house

only to get Patrick’s telephone number); and the jury rejected

Brown’s testimony by finding him guilty of capital murder.                The

court also stated the jury implicitly rejected Foster’s claims to

police that:    he was not involved in the night’s robberies; he had

no idea Brown carried a gun when he approached Michael LaHood; and,

when Brown exited the vehicle, Foster did not think Brown was going


                                     13
to rob Michael LaHood.          The court held:          because Dillard’s new

testimony and Steen’s affidavit merely repeat testimony the jury

heard and rejected, there is no reasonable possibility any rational

jury would have found Foster not guilty of capital murder based on

that testimony and affidavit.                Foster,    2005 U.S. Dist. LEXIS

13862, at *48-49.

       Foster conceded during oral argument his actual-innocence

claim is raised here only as a stand-alone claim.                As the district

court held, actual–innocence is not an independently cognizable

federal-habeas claim.          Dowthitt v. Johnson, 230 F.3d 733, 741-42

(5th Cir. 2000), cert. denied, 532 U.S. 915 (2001); see also Graves

v. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003).

       The Supreme Court recently decided House v. Bell, 126 S. Ct.

2064   (2006),   a    habeas    case    in    which    “House,   protesting   his

innocence, [sought] access to federal court to pursue habeas corpus

relief based on constitutional claims that are procedurally barred

under state law”, id. at 2068; and as a stand-alone claim for such

relief,    id.   at   2086.       The    Court    concluded      House   provided

substantial evidence suggesting he might not have committed the

murder for which he was convicted; and thus held he satisfied the

Schlup standard, enabling him to use his actual–innocence claim to

raise an otherwise procedurally barred habeas claim.                Id. at 2087.

       The Court, however, “decline[d] to resolve” whether Herrera

left open the possibility of stand-alone actual–innocence claims.

                                        14
Id.     It further stated:        even if a stand-alone actual–innocence

claim were hypothetically cognizable, House was not entitled to

relief on that basis, despite meeting the Schlup standard.              Id. at

2087.

      Absent an en banc, or intervening Supreme Court, decision, one

panel of this court may not overrule a prior panel’s decision.

E.g., Hogue v. Johnson, 131 F.3d 466, 491 (5th Cir. 1997), cert.

denied, 523 U.S. 1014 (1998).        Because House did not change the law

to recognize the validity of stand-alone actual–innocence claims,

this panel may not entertain Foster’s stand-alone claim.                 E.g.,

Dowthitt,    230   F.3d   at   741-42.        Accordingly,   pursuant   to   the

earlier-described two-prong AEDPA standard for whether to grant a

COA, Foster is not entitled to a COA on this claim.

                                        B.

      In   reviewing,     under   the    deferential   AEDPA   standard,     the

district court’s granting conditional habeas relief, its findings

are reviewed for clear error; conclusions of law, de novo.               E.g.,

Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003), cert.

denied, 540 U.S. 1154 (2004).            As discussed, pursuant to AEDPA,

federal-habeas relief cannot be granted “unless the challenged

state court proceeding resulted in: (1) ‘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’, 28 U.S.C. 2254(d)(1); or (2) ‘a decision that was

                                         15
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)(2)”. Id.     A decision is not unreasonable merely because it

is incorrect; to be unreasonable, it must be both incorrect and

objectively unreasonable. Miller v. Dretke, 420 F.3d 356, 360 (5th

Cir. 2005).

     As also discussed, a state court reaches an unreasonable

result when it correctly identifies the relevant precedent but

unreasonably applies that precedent to the facts.               Wiggins v.

Smith, 539 U.S. 510, 520 (2003).       Habeas relief will not be granted

when the   “state   court,   at   a   minimum,   reaches   a   satisfactory

conclusion”. Miller, 420 F.3d at 360 (internal quotation omitted).

     On direct appeal and in his federal-habeas petition, Foster

claimed:   pursuant to the Eighth Amendment, he was ineligible for

the death penalty “because he did not kill, attempt to kill, or

intend to kill [Michael] LaHood”.          Foster, 2005 U.S. Dist. LEXIS

13862, at *76.      At oral argument here, Foster based his Eighth

Amendment challenge largely on the above-described actual–innocence

claim, asserting he was ineligible for the death penalty because he

was actually innocent.    Because we deny Foster a COA on that claim,

we do not consider it.    Instead, we consider his Eighth Amendment

claim as presented to, and decided by, both the Court of Criminal

Appeals on direct appeal and the district court.




                                      16
     In    rejecting      this   claim      on    direct     appeal,   the   Court      of

Criminal Appeals held the evidence supported the jury’s finding on

the following special issue, and with it, the death penalty.                           See

TCCA opn. at 31-32.          That special issue asked whether the jury

“found from the evidence beyond a reasonable doubt that Kenneth

Foster actually caused the deceased’s death, or that he intended to

kill the deceased or another, or that he anticipated that a human

life would be taken”.            Id. at 12 (internal quotation omitted)

(emphasis added).          Because it was undisputed that Brown shot

Michael LaHood, the issue relevant to Foster was whether the jury

found he “anticipated that a human life would be taken”.                         Id.

     The Court of Criminal Appeals had previously rejected similar

claims in Lawton v. State, 913 S.W.2d 542, 555 (Tex. Crim. App.

1995), because, “before an accused can be convicted of capital

murder as a party [as Foster was], it must first be determined

beyond a reasonable doubt that the accused harbored a specific

intent to promote or assist in the commission of intentional

murder”. TCCA opn. at 32.           Therefore, for Foster’s direct appeal,

the court held it was inconsequential the jury may have found

“Foster    only    anticipated       that        death    would   result”    from      his

participation in the conspiracy.                 Id.

     The     district       court     held         this     direct-appeal        holding

unreasonable under AEDPA.           In addressing Foster’s Eighth Amendment

claim,     the    court    first     discussed           applicable    Supreme    Court

                                            17
precedent.     Enmund, 458 U.S. 782, held the death penalty could not

be imposed on a getaway driver who not only neither committed

murder nor intended anyone be killed, but also did not even witness

the murder.    Tison, 481 U.S. at 158, however, created an exception

to   Enmund,   holding   the   death    sentence   constitutional   for   an

accomplice: (1) whose participation in the crime was major; and (2)

who displayed “reckless indifference to human life”.         Tison upheld

the death penalty for two brothers who helped arm prisoners for a

successful prison escape; aided that escape; participated in the

robbery of a family to further the escape; and then did nothing to

stop the murder of that family.         Id. at 151.

      Relying upon Supreme Court precedent discussed infra, the

district court granted Foster conditional habeas relief because a

jury had not made both requisite Tison findings:          (1) that Foster

substantially participated in the robbery–conspiracy; and (2) that

he acted with reckless indifference to human life.           Foster, 2005

U.S. Dist. LEXIS 13862, at *82-83.             In so holding, as also

discussed infra, the court held the jury had made the reckless-

indifference finding. It held, however, that the jury had not been

required to make the first of the two required findings:              that

Foster “had major participation in the felony committed, i.e., the

armed robbery conspiracy that culminated in [Michael] LaHood's

murder”.   Id. at *80 (internal quotation omitted).



                                       18
     Along this line, the district court did not, however, accept

Foster’s   claim   that,   as   the     group’s     driver,    he   was   per   se

ineligible for the death penalty.            The court ruled a rational jury

unquestionably     could   have    made       the   above     requisite   major-

participant   finding,     based   on    the    following     evidence:     when

arrested, Foster had a pair of cellular telephones from robberies

committed a few nights before the murder of Michael LaHood; on the

night Michael LaHood was killed, Foster drove his co-defendants

around neighborhoods with which he was familiar; he shared in the

proceeds of the night’s earlier robberies; no evidence suggested

anyone directed Foster “to take up his extended pursuit” of Mary

Patrick’s vehicle as she drove to Michael LaHood’s house; and Steen

believed Foster was in charge that night because he controlled

where the conspirators drove and when they stopped.                 Id. at *81.

     Nevertheless, the district court held Apprendi v. New Jersey,

530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002), and

Blakely v. Washington, 542 U.S. 296 (2004), “make clear that only

a jury can make the factual determinations necessary to impose a

sentence of death on a criminal defendant”.             Id. at *82 (emphasis

added).    Foster’s conviction became final, however, in April 2000

(when the Supreme Court denied review from his direct appeal),

before Apprendi, Ring, and Blakely were decided.                 None of those

cases applies retroactively.       Schriro v. Summerlin, 542 U.S. 348,

358 (2004) (Ring does not apply retroactively); In re Elwood, 408

                                        19
F.3d 211, 213 (5th Cir. 2005)(Apprendi and Blakely do not apply

retroactively).    Therefore, they do not apply to this case.

       Accordingly, because, as the district court noted, no evidence

supports finding Foster intentionally murdered Michael LaHood or

intended that he be murdered, the court should have examined the

entire record of the state court proceedings to determine whether

any state court made the requisite Tison/Enmund findings. Clark v.

Johnson, 227 F.3d 273, 281 (5th Cir. 2000), cert. denied, 531 U.S.

1167 (2001).

       Similar to the Court of Criminal Appeals’ decision reviewed in

Clark, it appears the Court of Criminal Appeals upheld Foster’s

death–sentence on a flawed legal theory, based on its 1995 decision

in Lawton.     As noted supra, the Court of Criminal Appeals held

that, before convicting Foster, the jury had to determine he

specifically intended either to murder Michael LaHood or promote or

assist in that murder. The cases Lawton cites (for example, Tucker

v. State, 771 S.W.2d 523, 530 (Tex. Crim. App. 1988)) discuss the

§ 7.02(a) instruction, which states a defendant tried for capital

murder as an accomplice is death–penalty eligible only if he

intended to promote or assist in the commission of a capital

murder.    TEX. PENAL CODE § 7.02(a).

       Foster's jury was instructed pursuant to both §§ 7.02(a) and

(b).    Section 7.02(b) does not require the same level of intent.

It allowed the jury to convict Foster if it found he should have

                                   20
anticipated a co-conspirator might commit murder, even if Foster

did not intend for that murder to occur.        TEX. PENAL CODE § 7.02(b).

Therefore, the Court of Criminal Appeals erred by relying on Lawton

to uphold Foster’s death sentence.

     As discussed, our review does not end merely because the state

court’s decision was based on flawed reasoning.         Neal v. Puckett,

286 F.3d 230, 246 (5th Cir. 2002) (federal habeas court reviews

only a state court’s decision, not the reasoning behind that

decision), cert. denied, 537 U.S. 1104 (2003).          Therefore, as in

Clark, we examine the entire state-court record to determine

whether any state court made the requisite Enmund/Tison findings:

(1) that Foster played a major role in the criminal activities

leading to Michael LaHood’s death; and (2) that he displayed

reckless indifference to human life.

                                    1.

     Addressing the second required finding first, and as the

district   court   held,   Foster        obviously   displayed   reckless

indifference to human life.         The jury found as much when it

answered the earlier-described special issue in the affirmative

(the jury could not answer that issue in the affirmative unless it

found, at a minimum, Foster anticipated a life would be taken).

The district court stated:

           [I]nsofar as [Foster] argues there was legally
           insufficient evidence showing that he acted
           with reckless disregard for human life, that


                                    21
          contention lacks any arguable merit. Foster
          could not have helped but anticipate the
          possibility that a human life would be taken
          in the course of one or more of his co-
          conspirators’    armed    robberies.        By
          transporting a pair of pot-smoking armed
          robbers to and from one robbery after another,
          Foster clearly displayed the type of “reckless
          disregard for human life” the Supreme Court
          had in mind when it employed that term in
          Tison. Foster knowingly engaged in criminal
          activities known to carry a grave risk of
          death....

Foster, 2005 U.S. Dist. LEXIS 13862, at *78-79 (emphasis added).

                                2.

     Despite the above-described district-court holding to the

contrary, there was a state-court finding that Foster played a

major role in the criminal activity culminating in Michael LaHood’s

murder. First, it is at least arguable the jury made that finding.

In any event, the Court of Criminal Appeals did.   Accordingly, its

ruling was not unreasonable under AEDPA.

                               a.

     As discussed, the jury was allowed to find Foster guilty of

capital murder by finding he anticipated a life would be taken, a

lesser standard than requiring intent to kill.   Concomitantly, the

jury could have used the special issues to find Foster ineligible

for the death penalty based on his role in the crime.   For example,

the jury found Foster anticipated a life would be taken; but, had

it believed Foster did not play a major role in the activity

leading to Michael LaHood’s murder, it could have found, for


                                22
another   of    the     special   issues,    that    he   would       not   likely    be

dangerous in the future and, thus, answered that special issue in

the negative, notwithstanding the evidence presented for Foster’s

criminal conduct on other occasions.

     It did not. Instead, it found Foster anticipated a life would

be taken and presented a risk of future dangerousness; therefore,

it recommended he receive the death sentence.                   As discussed, the

special issues, however, did not require the jury to find Foster

had specific intent to kill; nor did they explicitly require the

jury to consider the Enmund/Tison requirements.                       Therefore, as

noted above, we consider the Court of Criminal Appeals’ direct-

appeal opinion.

                                        b.

     That      court    denied    Foster's   claim    that      the    evidence      was

insufficient to “support a finding that Foster deliberately engaged

in any culpable conduct that caused death”. Foster v. State, No.

72,853 at 12.          It noted the trial evidence demonstrated Foster:

(1) actively participated in the group's robberies; (2) knew

members of the group were using a gun to commit them; (3) shared

the proceeds from them; (4) was the getaway driver; and (5)

expressed no remorse when Michael LaHood was murdered.                      Id. at 13.

Therefore, the court held a rational jury could have determined

Foster anticipated a life would be taken.                 Id.    In addition, the

court noted:      after Brown shot Michael LaHood, Foster “drove him


                                        23
away ... , all the while telling Brown to hide the gun”, id. at 10;

further, when police pulled over the vehicle, Foster encouraged

Brown to hide the gun in his underwear, id. at 5.

       These    rulings   demonstrate    the   Court   of   Criminal   Appeals

determined Foster was, inter alia, a major participant in the

night’s criminal activities, including the robbery and murder of

Michael LaHood.        That court, like the jury, rejected Foster’s

claims that he did not participate in the robberies and did not

know Brown was planning to rob Michael LaHood.

       A death sentence violates the Eighth Amendment if it is not

proportional to the crime for which the defendant was convicted.

See Tison, 481 U.S. at 148 (noting death sentence for armed robbery

violates       the   Eighth   Amendment      because   it    is   excessive).

Furthermore, as the Supreme Court has held, the death penalty

serves two main purposes: deterrence and retribution.             Id. at 148-

49.    The rationale of retribution is to hold a criminal defendant

liable in direct proportion to his personal culpability.               Id. at

149.   Enmund held the death penalty excessive, in violation of the

Eighth Amendment, because the defendant’s personal conduct was so

attenuated from the murder it did not warrant that sentence.

Enmund, 458 U.S. at 798.        On the other hand, the Court held the

Tison brothers’ substantial role in the activities leading to

murder demonstrated the personal culpability justifying such a

sentence.      Tison, 481 U.S. at 158.

                                        24
     In a number of ways, the Court of Criminal Appeals’ rulings

regarding Foster are similar to those noted by the Supreme Court in

upholding the death sentence for the non–shooters in Tison. There,

the Court discussed the findings by the Arizona Supreme Court,

which had noted:    “After the killings [the brothers] did nothing to

disassociate [themselves] from [the shooters], but instead used the

victims’ car to continue on the joint venture, a venture that

lasted several more days”.        Tison, 481 U.S. at 145.      In addition,

the Supreme Court noted the brothers made “no effort to assist the

victims before, during, or after the shooting”.          Id. at 151.    Like

the Tison brothers, Foster did nothing to disassociate himself from

Brown after the shooting; instead, as the Court of Criminal Appeals

noted, he waited for Brown to return to the car and drove away,

later telling Brown to hide the murder weapon.

     Further, Tison noted both of the death–sentenced non–shooters

assisted, in the prison breakout, a man they “knew had killed a

prison guard in the course of a previous escape attempt”.          Id.; see

also id. at 139 (noting previous escape attempt was “a number of

years” before the one in issue).          The facts in Tison are analogous

to those here.      In denying Foster’s claim that the evidence was

insufficient to support the jury’s affirmative answer to the

future-dangerousness special issue, the Court of Criminal Appeals

noted:   a day or two before Michael LaHood was murdered, Foster,

Steen,   Dillard,   and   Brown   had     participated   in   another   armed


                                     25
robbery, TCCA opn. at 11; and, previously, Foster and a friend shot

at people in a truck while driving alongside them on a highway, id.

at 12.    In sum, as stated by the district court, discussed supra,

a rational fact finder could have found:            Foster was a major

participant; and he acted with reckless indifference to human life.

That the other robbery did not result in a murder in no way

suggests Foster did not play a major role in either that robbery or

the one leading to Michael LaHood’s murder.        This point is further

supported by Foster’s having previously fired a weapon into the

moving vehicle.

     As stated above, and pursuant to AEDPA’s deferential standard

of review, because the Court of Criminal Appeals (and arguably the

jury)    made   the   requisite   Enmund/Tison   findings,   that   court’s

decision was not unreasonable.         Accordingly, the district court

erred in granting Foster habeas relief.

                                    III.

     For the foregoing reasons, a COA is DENIED; the conditional

habeas relief is VACATED; and habeas relief is DENIED.

                      COA DENIED; CONDITIONAL HABEAS GRANT VACATED;

                                                 HABEAS RELIEF DENIED




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