                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
                 verIN THE UNITED STATES COURT OF APPEALS
                                                                        March 31, 2006
                           FOR THE FIFTH CIRCUIT
                                                                    Charles R. Fulbruge III
                             _____________________                          Clerk
                                 No. 05-70029
                             ____________________

                            JAMES EDWARD MARTINEZ,

                                             Petitioner-Appellant,

                                        v.

    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
                              (04-CV-728)

                              __________________

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:1

      James Martinez was convicted and sentenced to death for the

murders     of   Sandra     Walton    and    Michael   Humpreys.         Martinez

initially    raised    11    claims    for    relief   in   his   state     habeas

petition,    and    later    sought    to    supplement     his   petition     with

additional claims.          After denial of relief in the state court,

1
  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opinion should not be published and is not precedent except under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.


                                        1
Martinez filed his federal habeas petition in the district court,

raising 29 claims for relief.        The district court denied relief

and   sua   sponte   denied   a   certificate   of   appealability,   and

Martinez now seeks a certificate of appealability to appeal the

district court’s denial of relief under 28 U.S.C. § 2254.2            For

the reasons stated below, we deny COA.


                                    I.


                                    A.

      Martinez was indicted, convicted, and sentenced to death in

Tarrant County, Texas, for the September 21, 2000, murders of

Sandra Walton and Michael Humphreys. Martinez’s conviction and

sentence were affirmed on direct appeal by the Texas Court of

Criminal Appeals, Martinez v. State, No. 74,292, 2003 WL 22508081

(Tex. Crim. App. Nov. 5, 2003), and certiorari was denied by the

United States Supreme Court, Martinez v. Texas, 125 S.Ct. 32

(2004).



2
 Martinez ostensibly raises two “issues,” denominated “Ineffective
Assistance of Trial Counsel” and “Unconstitutionality of Texas
Death Procedures as applied to Appellant.” Each issue, however,
comprises several related and overlapping questions and subparts,
some of which are repeated verbatim from Martinez’ initial
petition, and some of which are reformulated and combined versions
of issues previously raised. Because the issues as presented by
Martinez are repetitive and overlapping, certain issues are grouped
for purposes of discussion.


                                     2
       Martinez filed his state application for writ of habeas

corpus in October of 2003, raising eleven grounds for relief. In

December 2003, Martinez filed a motion to supplement his writ

with additional claims. The trial court entered findings of fact

and conclusions of law recommending that relief be denied on

Martinez’s original claims, and that his supplemental claims be

dismissed as a subsequent application.                The Court of Criminal

Appeals ultimately adopted those findings. Ex parte Martinez, No.

59,313-01 (Tex. Crim. App. Sept. 22, 2004).             The motion for leave

to    add   claims   was   treated   as     a   subsequent   application      and

dismissed. Ex parte Martinez, No. 59,313-02 (Tex. Crim. App.

Sept.    22,   2004).3     Martinez's       related   petition   for   writ    of

certiorari was denied. Martinez v. Texas, 125 S.Ct. 1401 (2005).



3
    The order stated, in pertinent part:
       This Court has reviewed the record with respect to the
       eleven allegations made by Applicant in his initial
       application. We adopt the trial judge's findings and
       conclusions. Based upon the trial court's findings and
       conclusions and our own review, the relief sought is
       denied.
       With respect to Applicant's two subsequently filed
       allegations, we conclude that Applicant has failed to
       show the factual or legal bases of his claims were
       unavailable to him at the time he filed his initial
       application. Therefore, those claims are dismissed
       pursuant to Code of Criminal Procedure Article 11.071 §
       5. Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002).
Ex parte Martinez, Nos. 59,313-01 & 59,313-02, slip op. at 2 (Tex.
Crim. App. Sept. 22, 2004).


                                        3
     Martinez filed his petition for federal habeas relief in the

federal district court in January of 2005 and included 29 related

and overlapping claims for relief.          The district court denied

Martinez’s petition, rejecting each of Martinez’s claims in a

thorough and reasoned order.       Martinez timely filed a notice of

appeal, and although not requested, the district court sua sponte

denied COA as to each of the 29 claims.          This request for COA

followed.


                                   B.

     The    district   court   succinctly   summarized   the   facts   of

Martinez’s offense:

     Martinez briefly dated Walton, and gave or loaned her
     money from time to time. In May of 2000, Walton signed
     a promissory note reflecting that she owed Martinez
     $1,000. Martinez became fixated on obtaining repayment
     from her, stalking, harassing, and threatening Walton
     on numerous occasions. On the night of her murder,
     Martinez pounded on Walton's door, threatening to break
     it down if she did not open the door. He had earlier
     told Walton that her time was almost up. Walton and
     Humphreys, who was visiting, went out to get something
     to eat. When they returned, at approximately 1:00 a.m.
     on September 21, 2000, they were shot to death with a
     high-powered rifle. Witnesses saw a man dressed in
     black trotting away from the scene. Police found
     twenty-seven shell casings at the scene. Walton was
     shot nine or ten times; Humphreys, eight.
     On the night of the murders, Martinez called Casey
     Ashford (“Ashford”), a long-time friend, several times.
     Martinez drove to the farm where Ashford was staying to
     deliver a black canvas bag for Ashford to keep. Ashford


                                    4
     looked in the bag and saw the rifle later determined to
     be the murder weapon, among other items. He buried the
     bag, but later disclosed its location to police. When
     police opened the bag, they found the rifle, a bag of
     fertilizer, a fuse, dark clothing, combat boots,
     gloves, a pipe bomb, a ski mask, a double-edged knife,
     a bulletproof vest, and ammunition.
     At trial, Martinez tried to pin the blame for the
     murders on Ashford. His mother and brother testified
     that he had been at home on the night of the murders.
     He also showed that Ashford lied several times when
     dealing with the police and that, prior to the murders,
     Ashford had had access to the murder weapon.
Martinez v. Dretke, 2005 WL 1383350, *2 (N.D. Tex. June 8, 2005)

     The district court also summarized the evidence introduced

during the punishment phase of trial:

     At the punishment phase of the trial, the State
     introduced items that had been kept by Martinez in a
     storage facility. They included bomb-making components,
     over   3000  rounds   of   ammunition,  other  weapons,
     including   two   pistols,   several   illegal  knives,
     illegally modified shotguns, and several rifles. Also
     introduced were four books bearing the notation
     “completed reading by James Martinez”: Be Your Own
     Undertaker: How to Dispose of a Dead Body; Master's
     Death Touch: Unarmed Killing Techniques; 21 Techniques
     of Silent Killing; and Dragon's Touch: Weaknesses of
     the Human Anatomy. The State also offered victim-impact
     testimony by Humphreys' father, mother, and stepmother,
     and Walton's mother.
     Martinez called a number of people to testify that they
     had not known him to be a violent person and did not
     believe he would commit any more crimes in the future.
     None of them seemed to know Martinez very well, except
     his mother and brother, and most of them did not know
     (or admit that they knew) about his extensive
     collection of weapons and the books Martinez had read.
     Martinez also presented testimony of a former custodian
     of records for the Texas Department of Criminal


                                5
      Justice, who testified generally about daily prison
      routines and classification of prisoners. Martinez also
      presented   the  testimony   of   Dr.   Mark   Cunningham
      (“Cunningham”), a clinical and forensic psychologist
      who testified about recidivism rates for capital
      murderers with Martinez's characteristics. Cunningham
      testified that there was only a small chance that a
      person like Martinez would commit future acts of
      violence in prison. In rebuttal, the state offered the
      testimony   of   an   investigator    with   the   prison
      prosecution unit, who testified about violence within
      the prison population.
Id.


                                      II.

      Because Martinez initiated his federal habeas proceedings

after April 24, 1996, his petition and the instant appeal are

governed by AEDPA.     Slack v. McDaniel, 529 U.S. 473, 478 (2000).

In order to appeal the denial of his petition by the district

court,    Martinez   “must    first    seek    and    obtain   a   COA”    as   a

jurisdictional prerequisite.          Miller-El v. Cockrell, 537 U.S.

322, 335-36 (2003).        A COA will only issue if Martinez makes a

substantial showing of the denial of a constitutional right,

which requires a showing that “reasonable jurists could debate

whether” the court below should have resolved the claims in a

different manner or that this court should encourage Martinez to

further   litigate   his     claims   in    federal   court.       Id.    at   336

(quoting Slack, 529 U.S. at 483-84); Dowthitt v. Johnson, 230

F.3d 733, 740 (5th Cir. 2000).             The COA determination “requires


                                       6
an overview of the claims in the habeas petition and a general

assessment of their merits” but not “full consideration of the

factual    or       legal   bases     adduced      in    support        of   the    claims.”

Miller-El, 537 U.S. at 336.

      This      court       has    emphasized       that           in   making      the       COA

determination, the court must be cognizant of the deferential

standard      of    review     the    district      court       applies      under      AEDPA.

Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir. 2003), cert.

denied, 540 U.S. 1179 (2004).                 The district court defers to a

state court's adjudication of a petitioner's claims on the merits

unless the         state    court's    decision         was:    (1)     “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.”                       Id. at 336-37 (quoting

28   U.S.C.     §    2254(d)).        A   state     court's         decision       is   deemed

contrary to clearly established federal law 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.                                    Id.

at 337 (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).



                                             7
A state court's decision constitutes an unreasonable application

of   clearly    established   federal   law   if   it   is   objectively

unreasonable.    Id. (citing Williams, 529 U.S. at 407-08).

     Additionally, AEDPA provides that the state court’s factual

findings “shall be presumed to be correct” unless the petitioner

carries “the burden of rebutting the presumption of correctness

by clear and convincing evidence.”      28 U.S.C. § 2254(e)(1).     “The

presumption of correctness not only applies to explicit findings

of fact, but it also applies to those unarticulated findings

which are necessary to the state court’s conclusions of mixed law

and fact.”     Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir.

2001).    We now turn to a consideration of Martinez’s specific

claims.




                                   8
                                           III.


                                             A.

       Martinez first alleges in his federal habeas petition that

he   was   denied    the     right    to     effective   assistance    of   counsel

because his trial counsel failed to argue that Casey Ashford was

an accomplice witness.             Martinez also argues that trial counsel

never informed him of the implications such a theory might have

for his case.

       Counsels’ primary defense theory in the liability phase of

the trial was that Ashford had acted alone and that Martinez was

not involved in the murders.               For obvious reasons, trial counsel

did not conduct voir dire on the accomplice witness theory, nor

request a jury charge on accomplice witness testimony.

       In order to prevail on an ineffective assistance of counsel

ground, Martinez must show (1) that his counsels' performance

fell below an objective standard of reasonableness and (2) that

there is a reasonable probability that, but for his counsels'

unprofessional errors, the result of the proceedings would have

been   different.     Strickland        v.    Washington,   466   U.S.   668,     687

(1984).    Both     prongs    of     the   Strickland    test   must   be   met    to

demonstrate ineffective assistance. Id. at 697. Judicial scrutiny



                                             9
of this type of claim must be highly deferential and Martinez

must overcome a strong presumption that his counsels' conduct

fell within the wide range of reasonable professional assistance.

Id. at 689.

       As a threshold matter, the district court observed that the

state trial court made extensive findings of fact and conclusions

of law related to the performance of Martinez’s counsel, finding

that trial counsel engaged in sound strategy.                     Those findings

were adopted by the Court of Criminal Appeals in the habeas

proceedings.      Martinez makes no attempt, either in his federal

petition or in the instant application for COA, to show that

those findings are not entitled to a presumption of correctness

under 28 U.S.C. § 2254(e)(1).             Martinez also makes no attempt to

show    that    the    state    court’s    application     of     Strickland    was

“contrary to, or involved an unreasonable application” of that

precedent.

       Moreover, the district court independently concluded that

the    record    supports      the    conclusion    that   Martinez's     counsel

employed sound trial strategy.                 Also, according to Martinez’s

trial   counsel       they   raised    with    Martinez    the    possibility   of

arguing that he and Ashford had acted together, and Martinez

declined to agree with pursuing this strategy.                   The record fully



                                          10
supports the district court’s conclusion that counsel followed a

conscious    and    informed      decision       on    trial    tactics.     Such    a

decision    cannot    be    a    basis    for    constitutionally       ineffective

assistance    of     counsel     unless     it    is     so    ill-chosen   that    it

permeates the entire trial with obvious unfairness. Crane v.

Johnson, 178 F.3d 309, 314 (5th Cir.1999).                       Martinez fails to

make any such showing.             Because reasonable jurists could not

debate whether the district court’s conclusion was correct, we

deny COA on this issue.


                                           B.

     Martinez      next     argues       that    his    trial    counsel    rendered

ineffective assistance during the punishment phase.                    He complains

that his attorneys presented the testimony of two witnesses, a

corrections expert and a psychologist, on the issue of future

dangerousness which was damaging to his defense.                       The district

court agreed       with    the   state    habeas       court   and   concluded     that

counsel employed sound trial strategy consistent with Strickland

in deciding to call these witnesses.                    Again, Martinez makes no

effort to demonstrate that the factual findings of the state

court are not entitled to the presumption of correctness under 28

U.S.C. § 2254(e)(1), or that the state court’s application of




                                           11
Strickland        was     “contrary     to,       or     involved       an     unreasonable

application” of that precedent.

     The    State’s       brief   exhaustively            discusses       trial    counsels’

decision to elicit the testimony of these two witnesses.                               Counsel

ultimately determined that the best punishment phase strategy

would be to present evidence tending to show that Martinez was

most likely going to be a “good” and “nonviolent” inmate in

prison.     The record makes clear that trial counsel carefully and

deliberately consulted with several experts and attorneys who had

presented    similar        testimony        in    death        penalty      trials     before

arriving     at     the     strategic        decision       to       follow    this      path.

Moreover,     although        parts     of        the    witnesses’          testimony     was

negative, in that both witnesses acknowledged that there were

opportunities       for     violence     in       prison,        neither      affirmatively

testified    that       Martinez      himself           posed    a    threat      of   future

dangerousness.          Even disregarding Martinez’s failure to address

the relevant standard of review in evaluating counsels’ strategic

decision, Martinez has failed to demonstrate either that his

trial counsel was deficient or that he was prejudiced, both of

which are required under Strickland. Because reasonable jurists

could not debate whether the district court should have reached a

different conclusion, we deny COA on this issue.



                                             12
                                         C.

       Martinez next argues that the state trial court violated his

Eighth    and     Fourteenth       Amendment    rights      by       issuing   a    jury

instruction that did not perfectly track the mitigation special

issue, and that his trial counsel rendered ineffective assistance

by failing to object to the instruction.                  Martinez complains that

the trial court’s instruction did not track the special issue on

mitigation the trial court required the jury to answer.                              The

Texas statute calls for a response to a special issue that asks

“[w]hether ... there is sufficient mitigating circumstance or

circumstances to warrant that a sentence of life imprisonment

rather    than    death     sentence   be     imposed.”         In    explaining     the

special issues, the trial judge instructed the jury to “consider

all    evidence     ...     that    militates       for    or    mitigates     against

imposition of the death penalty.”                    (emphasis added).             As we

understand the argument, Martinez objects to the language in the

charge, designed to explain the mitigation special issue, that

refers to evidence that “militates for” the death penalty.”

       Martinez admits in his application for COA that these claims

were neither raised on direct appeal nor in his first state writ

application.        Instead, these claims were presented for the first

time     in   the    late     supplement       to    his    first      state       habeas


                                         13
application, which the Court of Criminal Appeals found to be

procedurally barred and dismissed as a subsequent writ.             Martinez

made no effort in his federal habeas petition to overcome the

procedural bar, and therefore the district court denied relief

based on the procedural default.

       Procedural default of a petitioner’s federal habeas claim

occurs where the last state court to consider a claim “clearly

and expressly” dismisses it based upon a state procedural rule

that provides an adequate basis for denial of relief, independent

of the merits.     Coleman v. Thompson, 501 U.S. 722, 729 (1989);

Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001); Nobles v.

Johnson, 127 F.3d 409, 422 (5th Cir. 1997).            The “independent”

and “adequate” requirements are satisfied where the court clearly

indicates its dismissal of a particular claim rests upon a state

ground that bars relief, and that bar is strictly and regularly

followed by the state courts.      Finley, 243 F.3d at 218.

       In this case, the Texas Court of Criminal Appeals expressly

based   its   dismissal   of   Martinez’s   new   claims   raised    in   his

subsequent state writ application on an independent procedural

bar.    Martinez, therefore, may not obtain federal habeas relief

absent a showing of cause for the default and actual prejudice

that is attributable to the default.        Murray v. Carrier, 477 U.S.



                                    14
478, 485 (1986); Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977).

However, Martinez has made virtually no effort to show cause for

his   failure      to   bring   these     claims   in   his   first   state    writ

petition.    Instead he asserts, without elaboration or citation to

the record, that the default was “due to the fault of appointed

state     habeas    corpus      counsel.”       However,      error   by   counsel

committed in a post-conviction proceeding, where there is no

constitutional right to counsel, cannot constitute cause.                      Jones

v. Johnson, 171 F.3d 270, 276-77 (5th Cir. 1999); Irving v.

Hargett, 59 F.3d 23, 26 (5th Cir. 1995).                Martinez has completely

failed to offer any cause sufficient to meet the requirements to

overcome the procedural bar on these claims, and no reasonable

jurists    could    debate      whether   the    district     court   should   have

reached a different conclusion.                We therefore deny COA on this

issue.4


                                          D.

      Martinez next argues, based on a strained reading of Ring v.

Arizona, 536 U.S. 583 (2002) and Apprendi v. New Jersey, 530 U.S.

466 (2000), that the State must bear the burden of proving beyond


4
  On the merits, we also see no error in the instruction that
approaches constitutional error. The instruction attempts to give
the jury a balanced explanation of their duty to consider all the
relevant evidence.


                                          15
a reasonable doubt a negative answer to the mitigation special

issue.    Martinez’s theory is incorrect.                          Apprendi requires that

“other    than    the    fact        of    a    prior      conviction,       any    fact    that

increases the penalty for a crime beyond the prescribed statutory

maximum    must    be        submitted         to   a     jury,    and     proved    beyond    a

reasonable doubt.”             Apprendi, 530 U.S. at 490.                        In Ring, the

Supreme   Court    applied           Apprendi        to    the     Arizona    death    penalty

scheme, and concluded that to the extent the sentencing scheme

allowed “a sentencing judge, sitting without a jury, to find an

aggravating      circumstance             necessary       for     the    imposition    of   the

death penalty,” it was unconstitutional.                          Ring, 536 U.S. at 609.

      However,     the        same    requirements           are    not     imposed    on   the

consideration       of        mitigating            facts.           The     Supreme       Court

specifically concluded in Walton v. Arizona that the burden of

proof may lie on a defendant to establish by a preponderance of

the   evidence          the     existence            of      mitigating          circumstances

sufficiently substantial to call for leniency.                               497 U.S. 639,

649-51 (1990) (“So long as a State's method of allocating the

burdens of proof does not lessen the State's burden to prove

every element of the offense charged, or in this case to prove

the   existence         of     aggravating           circumstances,          a     defendant's

constitutional rights are not violated by placing on him the



                                                16
burden        of   proving       mitigating       circumstances        sufficiently

substantial to call for leniency.”), overruled in part on other

grounds, Ring v. Arizona, 536 U.S. 548 (2002).

       Martinez’s       theory    that    the   State     must   prove    beyond    a

reasonable doubt a negative answer to the mitigation special

issue has been clearly rejected by both the Supreme Court and the

Fifth Circuit.         We therefore deny COA on this issue.

                                          E.

       Finally,       Martinez   argues    that   the     punishment     phase   jury

instruction on the special issue of future dangerousness fails to

give    the    jury    sufficient    guidance     in    understanding     the    term

“probability.”5         However, as the district court noted, Martinez

failed to raise these claims in either his direct appeal or his

state    habeas       application,   so    that    they    are   unexhausted      and

procedurally barred.         Finley v. Johnson, 243 F.3d 215, 218 (5th

Cir. 2001).        As with the barred claims discussed above, Martinez

makes no effort to overcome this procedural bar by showing any

cause for his failure to bring these claims before the state

courts.       Moreover, even if Martinez were able to overcome the

5
   During the sentencing phase of Martinez’s trial, the jury was
charged with answering the following special issue:
        Do you find from the evidence beyond a reasonable doubt that there
        is a probability that the defendant would commit criminal acts of
        violence that would constitute a continuing threat to society?
TEX.   CODE CRIM. PROC. ART. 37.071 § 2(b)(1).


                                          17
procedural bar, his theory is clearly incorrect.                 As the district

court found, it is well established that the Texas punishment

issues are not impermissibly vague as they have a “common-sense

core of meaning.”          Pulley v. Harris, 465 U.S. 37, 50 n. 10

(1984); Milton v. Procunier, 744 F.2d 1091, 1095–96 (5th Cir.

1984).     Reasonable       jurists     could      not     debate    either     the

application   of    the    procedural       bar   nor    the     conclusion     that

Martinez’s substantive argument is flawed.               We therefore deny COA

on this issue.


                                      IV.

     The claims asserted in Martinez’s request for COA are wholly

without merit or clearly subject to procedural bar.                   Because we

conclude   that    the    district   court’s      denial    of    relief   is   not

debatable by jurists of reason, the petition for certificate of

appealability is denied.

     PETITION DENIED.




                                      18
