     Case: 14-70026      Document: 00513048683         Page: 1    Date Filed: 05/19/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-70026                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
TERRY DARNELL EDWARDS,                                                      May 19, 2015
                                                                           Lyle W. Cayce
              Petitioner - Appellant                                            Clerk

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC No. 3:10-CV-6


Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM:*
       Terry Darnell Edwards (Edwards), a Texas state prisoner on death row,
requests a certificate of appealability (COA) to challenge the district court’s
denial of federal habeas relief on his claim that he was denied the right to trial
by an impartial jury. The district court dismissed this claim as procedurally



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-70026
barred and, alternatively, without merit. For the reasons stated herein, we
DENY Edwards’s application for a COA.
                                        I.
      In November 2003, Edwards was convicted of capital murder and
sentenced to death for the murder of a restaurant worker in connection with
an armed robbery. The Texas Court of Criminal Appeals (TCCA) affirmed his
sentence and conviction on direct appeal. See Edwards v. State, No. AP-74,844,
2006 WL 475783, at *1 (Tex. Crim. App. 2006) (unpublished). Subsequently,
Edwards sought post-conviction relief from the trial court, which adopted the
State’s proposed findings of fact and conclusions of law recommending that
relief be denied. Ex parte Edwards, No. WR-73027-01, 2009 WL 4932198, at
*1 (Tex. Crim. App. 2009) (unpublished). The TCCA affirmed. See id.
      Edwards then moved for federal habeas relief in the Northern District of
Texas. Edwards asserted six grounds for relief. The district court denied
habeas relief on all grounds and denied a COA. Edwards v. Stephens, No. 3:10-
CV-6, 2014 WL 3880437, at *15 (N.D. Tex. Aug. 6, 2014). Edwards now seeks
a COA on one ground: whether the trial court’s denial of his motion to quash a
panel of venirepersons violated his right to an impartial jury under the Sixth
and Fourteenth Amendments.
                                       II.
                                       A.
      Under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), a petitioner must first obtain a COA before he may appeal the
district court’s denial of habeas relief. See 28 U.S.C. § 2253(c)(1); Miller-El v.
Cockrell, 537 U.S. 322, 335–36 (2003). Where, as here, the district court denies
a COA, we only have jurisdiction to determine whether a COA should issue,
not the ultimate merits of his claim. Ward v. Stephens, 777 F.3d 250, 255 (5th
Cir. 2015).
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                                  No. 14-70026
      We may issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” § 2253(c)(2). When the district
court denies habeas relief on procedural grounds, an applicant can satisfy this
standard by showing “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). “Section
2253 mandates that both showings be made before the court of appeals may
entertain the appeal.” Id. at 485. “Each component of the § 2253(c) showing
is part of a threshold inquiry, and a court may find that it can dispose of the
application in a fair and prompt manner if it proceeds first to resolve the issue
whose answer is more apparent from the record and arguments.” Id. Because
reasonable jurists would not debate that the petition fails to state a valid claim
of the denial of a constitutional right, we deny a COA on this ground.
                                       B.
      Edwards contends that the trial court violated his Sixth and Fourteenth
Amendment right to be tried by an impartial jury by denying his motion to
quash a panel of venirepersons that received an allegedly improper jury
instruction.   Edwards argues that the trial court erroneously denied his
challenge for cause to one prospective juror, which caused him to use a
peremptory strike that he could have used on another juror who ultimately sat
on the jury.
      Edwards asserts that during voir dire, the trial court improperly
instructed three venire members, Redden, Caplinger, and Warrick, on the
definition of mitigating evidence.       Edwards’s counsel objected to this
instruction and moved to have the three venire members disqualified. The
objection was overruled.     Caplinger and Warrick were dismissed per the
parties’ agreement but Edwards used a peremptory strike to dismiss Redden.
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The record reveals that the trial court subsequently granted Edwards an
additional peremptory strike.
       On direct appeal, Edwards argued that he was harmed by the trial
court’s improper instruction because he was forced to use a peremptory
challenge to strike Redden that he could have used on a different venire
member. Edwards, 2006 WL 475783, at *2. The TCCA rejected this argument,
concluding that “because the record reflects that appellant received an extra
peremptory challenge in addition to the fifteen he was granted by statute,
appellant cannot demonstrate here that he suffered a detriment from the loss
of the strike he used on Redden.” Id. (citation omitted).
       Relying on this language, the federal district court found that the TCCA
denied Edwards relief on independent and adequate state law grounds and
dismissed this claim as procedurally barred. Edwards, 2014 WL 3880437, at
*6. Specifically, the district court determined that under Texas’s five-step
harm analysis, Edwards failed “to preserve error following the trial court’s
grant of an additional peremptory strike in accordance with state procedural
requirements.” 1 Id. The district court alternatively denied this claim on the
merits, concluding, inter alia, that because Redden did not sit on the jury,
Edwards did not have a constitutional claim. Id. at *7 (relying on Ross v.
Oklahoma, 487 U.S. 81 (1988)).
       “It is well settled that the Sixth and Fourteenth Amendments guarantee
a defendant on trial for his life the right to an impartial jury.” Ross, 487 U.S.



       1 To show harm for an erroneous denial of a challenge for cause, a petitioner must
demonstrate on the record that: “1) he asserted a clear and specific challenge for cause; 2) he
used a peremptory challenge on the complained-of venireperson; 3) all his peremptory
challenges were exhausted; 4) his request for additional strikes was denied; and 5) an
objectionable juror sat on the jury.” Sells v. State, 121 S.W.3d 748, 758 (Tex. Crim. App.
2003) (en banc). The district court further observed that Edwards could not satisfy this
standard because he did not challenge Redden for cause. Edwards, 2014 WL 3880437, at *6
n.4.
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at 85. However, the forced use of a peremptory challenge does not rise to the
level of a constitutional violation.        Id. at 88.    Instead, “a district court’s
erroneous refusal to grant a defendant’s challenge for cause is only grounds for
reversal if the defendant establishes that the jury which actually sat to decide
his guilt or innocence was not impartial.” United States v. Snarr, 704 F.3d 368,
386 (5th Cir. 2013) (internal quotation marks, citation, and alteration omitted);
see also Jones v. Dretke, 375 F.3d 352, 355 (5th Cir. 2004) (“As a general rule,
a trial court’s erroneous venire rulings do not constitute reversible
constitutional error so long as the jury that sits is impartial.”               (internal
quotation marks and citation omitted)).
      Assuming, arguendo, that Redden should have been dismissed for cause,
Edwards cannot establish a constitutional violation because he used a
peremptory strike to exclude Redden from the jury that ultimately sat. See
Ross, 487 U.S. at 85–88.         Therefore, “[a]ny claim that the jury was not
impartial, . . . must focus not on [Redden], but on the jurors who ultimately
sat.” Id. at 86. Edwards attempts to follow Ross’s direction by focusing our
attention on Sims, an allegedly biased juror whose jury service purportedly
rendered the sentencing jury impartial. Yet, Edwards acknowledged to the
district court that his challenge to Sims’s jury service was unexhausted. 2 See
Edwards, 2014 WL 3880437, at *8 n.8.                     The district court agreed,
independently finding that any claim challenging Sims’s jury service was
unexhausted and therefore procedurally barred. 3 Id. at *8. The district court



      2   Edwards moved to stay and abate the proceedings in the district court in order to
exhaust claims involving Sims and another allegedly unacceptable juror, Hernandez. The
magistrate judge recommended that the motion be denied for failure to show good cause or
potential merit. The district court accepted the magistrate’s recommendation without
objection from Edwards or the State. Edwards has neither challenged this finding of the
district court nor Hernandez’s jury service in his COA application.
        3 Indeed, Edwards made only the following passing reference to Sims’s jury service

before the TCCA: “The defense was forced to expend a peremptory strike on Mr. Redden,
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                                     No. 14-70026
alternatively found that Edwards’s challenge to Sims was without merit. Id.
at *9. Edwards has not challenged these findings in his application for a COA.
Accordingly, he has waived any challenge to Sims’s jury service. 4 See Blue v.
Thaler, 665 F.3d 647, 662 (5th Cir. 2011).
       Because Redden did not sit on the jury and Edwards has waived any
challenge to Sims’s jury service, Edwards cannot establish that he was
sentenced by an impartial jury. See Ross, 487 U.S. at 85–88. We therefore
conclude that reasonable jurists would not debate the district court’s
procedural ruling because Edwards’s petition fails to state a valid claim of the
denial of a constitutional right. See Slack, 529 U.S. at 484.
                                           III.
       For the reasons stated herein, we DENY Edwards’s application for a
COA.




which could have been used on . . . Bobby Jack Sims, who was an unacceptable juror to the
defense and upon whom they used their last peremptory strike.”
       4 Even if Edwards had preserved his challenge to Sims’s jury service, his failure to

include in his brief any argument supporting his contention that Sims was a biased juror
further warrants waiver under Federal Rule of Appellate Procedure 28(a)(8). See Berkley v.
Quarterman, 310 F. App’x 665, 668 (5th Cir. 2009).
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