                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS           May 10, 2004

                        FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                  Clerk


                            No. 03-10839



LAMONT REESE,
                                           Petitioner-Appellant,

                               versus

DOUG DRETKE, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
                                           Respondent-Appellee.




          Appeal from the United States District Court
               For the Northern District of Texas
                         (4:03-CV-359-A)




Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Lamont Reese requests a certificate of appealability in order

to appeal the federal district court’s denial of habeas relief.

Reese was convicted by a jury and sentenced to death for murdering

Anthony Roney, Riki Jackson, and Alonzo Stewart during the same

criminal transaction. The Texas Court of Criminal Appeals affirmed



     *
       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this opinion should not be published and is not precedent except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.
Reese’s conviction and sentence on November 6, 2002.1              Reese’s

subsequent petition for certiorari review was denied by the Supreme

Court on June 15, 2003.2

     Reese filed an application for writ of habeas corpus in the

trial    court.   The   trial   court   entered   findings   of   fact   and

conclusions of law that were ultimately adopted by the Court of

Criminal Appeals in its written opinion denying Reese’s request for

habeas relief.3    The instant federal habeas proceeding followed.

     Reese brings two issues:

Issue One:

Whether the Texas death penalty statute and the imposition of the

death penalty upon the petitioner, who is a mentally retarded

person, is unconstitutional under Atkins v. Virginia, the Eighth

and Fourteenth Amendments of the United States Constitution and

Section 19 of Article 1 of the Texas Constitution in that it would

be cruel and unusual punishment.

Issue Two:

Whether the statute under which petitioner was sentenced to death

is unconstitutional in violation of the due process requirements of

the Fourteenth Amendment because it places the burden of proving



     1
         Reese v. State, No. 73,989 (Tex. Crim. App. 2002).
     2
         Reese v. Texas, 123 S.Ct. 2581 (2003).
     3
         Ex Parte Reese, No. 55,443-01 (Tex. Crim. App. April 30,
2003).

                                    2
the mitigation special issue on petitioner rather than requiring a

jury finding against petitioner on that issue beyond a reasonable

doubt.

     The first issue, to the extent it complains of any failure of

the State of Texas to construct procedural tracks for Atkins, is

meritless.   Whatever the State’s obligation, Reese’s retardation

was rejected with abundant record support by the state habeas judge

with findings adopted by the Texas Court of Criminal Appeals.

There is no colorable showing here of retardation.

     The second issue apparently attempts to launch an Apprendi-

Ring argument against Texas’s interrogatory submissions.                      This

argument is also flawed.       The jury convicted Reese of capital

murder, here   multiple   murders    in     a    single      transaction.      The

contention that mitigating factors are an element of the offense

within the meaning of Apprendi is meritless. The conviction of the

capital crime for which all elements were submitted to the jury for

a decision beyond a reasonable doubt exposed Reese to the death

penalty.     Mitigation   issues    guide       the   jury    in   tailoring    an

appropriate punishment – the individualized decision.

     Judge   McBryde   filed   a   carefully      drawn      memorandum     order,

rejecting numerous contentions by Reese, including the two Reese

presents to us.   We refuse to issue a certificate of appealability

for essentially the reasons stated in his opinion.




                                     3
The application for certificate of appealability is DENIED.




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