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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                  No. 17-70026                   December 17, 2018
                                                                    Lyle W. Cayce
RANDY ETHAN HALPRIN,                                                     Clerk


             Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

             Respondent - Appellee


                 Appeal from the United States District Court
                      for the Northern District of Texas


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:
      Randy Halprin, a state prisoner sentenced to death in 2003 in connection
with the murder of police officer Aubrey Hawkins, seeks a certificate of
appealability (“COA”) with respect to five claims described below. Halprin also
appeals the district court’s denial of his request for an evidentiary hearing. For
the reasons set forth below, we AFFIRM the district court’s denial of Halprin’s
request for an evidentiary hearing and DENY the COA application.
                                 I.   Background
      Halprin was a member of a group known as the “Texas Seven” who
escaped from the Texas Department of Criminal Justice (“TDCJ”) John B.
Connally Unit (the “Connally Unit”). During their escape, the Texas Seven
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                                  No. 17-70026
violently took hostages and stole guns and ammunition from the Connally
Unit.
        Several days after the escape, the Texas Seven set out to rob a Texas
store. Halprin alleges that he did not accompany the others when they went
to buy ammunition in preparation for the robbery and that another conspirator
did most of the planning. Halprin further alleges that he “didn’t want to take
a gun in or participate in the robbery.” Nonetheless, he did. Halprin helped
evaluate the layout of the store before the robbery, carried a gun during the
robbery, and exited the store with stolen clothing, a bag of money, and some
rifles that had been gathered during the robbery.
        During the robbery, an onlooker called the police. Officer Hawkins of the
Irving Police Department then arrived on the scene. Officer Hawkins was shot
at least eleven times almost immediately upon his arrival at the store. Halprin
alleges other members of the Texas Seven shot at Officer Hawkins, but he did
not. While fleeing the scene, the Texas Seven backed over Officer Hawkins’s
body in their vehicle, dragging it several feet. Officer Hawkins died from his
gunshot wounds. A jury convicted Halprin of capital murder for his role in
Officer Hawkins’s killing and recommended the death penalty, and the trial
court sentenced Halprin to death.
        Many of Halprin’s arguments for obtaining a COA concern the “Ranking
Document,” a TDCJ report that lists the Texas Seven in order of most to least
likely to lead the group. The Ranking Document identifies Halprin as the
weakest of the Texas Seven in terms of leadership abilities, concluding that
Halprin:
              was quiet and never exhibited leadership qualities.
              Was consistently worried about whether his work was
              acceptable to the civilian workers. Very submissive
              characteristic. This worrisome attitude was seen to
              escalate a month before the escape. One civilian

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                                No. 17-70026
           worker speculated whether [Halprin] was undergoing
           some type of depression.
The Ranking Document was a summary compilation based on interviews with
a number of civilian workers, correctional officers, and inmates who worked
closely with the Texas Seven before their escape.        Halprin’s writ counsel
indicated that sixty-seven people contributed to the report.      The Ranking
Document was one piece of paper among the approximately twenty boxes of
TDCJ records the State produced to the defense.
      Halprin’s counsel attempted to admit the Ranking Document at trial, but
it was excluded as hearsay because of the lack of evidence about who created
or otherwise contributed to the Ranking Document. The trial court noted that,
while there was no question that the document was authentic, the conclusions
in the document were all hearsay from unnamed sources, and Halprin’s
counsel had been unable to identify the author of the document.
      Halprin’s counsel was unsuccessful in attempting to identify the author
of the Ranking Document during trial, despite hiring a former TDCJ custodian
of records, S.O. Woods, to investigate the issue and asking counsel for the
State. Later, during habeas proceedings, the same former TDCJ custodian of
records whom the defense retained during trial reviewed the TDCJ records
again and found records identifying the Ranking Document’s author.
      Although the Ranking Document itself was excluded, two witnesses
testified to the same thing concluded in that document: that Halprin was weak,
unintelligent, and likely a follower among the Texas Seven.              Patrick
Moczygemba, who worked at the Connally Unit at the time of the escape and
was taken hostage during the escape, affirmed that following the escape he
reported that Halprin was “dumb as a bag of rocks, [and] had to be told time
after time how to complete a task.” He agreed when asked that following
orders was “about the best [Halprin] could do.” Mark Burgess, also a Connally

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                                       No. 17-70026
Unit employee who was taken hostage during the escape, testified that Halprin
was “not a leader type.”
       During the punishment phase of trial, the defense called Dr. Kelly
Goodness, a forensic psychologist who had examined Halprin. Dr. Goodness
primarily evaluates criminal defendants to help defense attorneys understand
criminal defendants’ behavior. Although Dr. Goodness was permitted to testify
at length about factors contributing to Halprin’s behavior, she was prevented
on hearsay grounds from testifying to specific facts gathered from interviews
and the specific contents of the records she reviewed.
       On direct appeal, Halprin’s appellate counsel argued that the trial court
violated his constitutional rights by excluding the Ranking Document. 1 The
Court of Criminal Appeals affirmed the trial court.                See Halprin v. State
(Halprin I), 170 S.W.3d 111, 113 (Tex. Crim. App. 2005). It found that Halprin
presented a significant amount of mitigating evidence that was cumulative of
the mitigating evidence contained in the Ranking Document.                      Id. at 116.
Specifically, the Court of Criminal Appeals pointed to Moczygemba’s and
Burgess’s testimony. Id. The Court also noted that Halprin “testified at length
that he was a follower and not a leader and that his participation in the victim’s
murder was minimal.” Id.
       Halprin filed a state post-conviction writ on April 6, 2005. After two
changes of presiding judge, the trial court adopted the State’s proposed
findings of fact and conclusions of law with minimal alterations. The Court of



       1 Halprin asserts that he intended to include more arguments in his appellate brief,
but because of time constraints, had to turn in a brief that lacked some issues he wished to
raise. Appellate counsel later moved to amend the brief to include additional points of error,
correct errors included in the opening brief, and cite more case law. Appellate counsel then
attempted to file an amended brief raising new claims. The Texas Court of Criminal Appeals
denied leave to amend.

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                                 No. 17-70026
Criminal Appeals adopted the trial court’s findings (with a few alterations not
pertinent here) and denied relief. Ex Parte Halprin (Halprin II), No. WR-
77,175-01, 2013 WL 1150018, at *1 (Tex. Crim. App. Mar. 20, 2013) (per
curiam).
      Halprin filed his amended federal habeas petition on June 17, 2014,
asserting nine grounds for relief. The federal district court denied each claim
for lack of merit, denied one claim on the additional ground that it was
procedurally barred, and denied Halprin’s request for a COA. Halprin v. Davis
(Halprin III), No. 3:13-CV-1535-L, 2017 WL 4286042, at *1, *22 (N.D. Tex.
Sept. 27, 2017).
      Halprin now seeks a COA on his claims that (1) the state trial court
violated his constitutional rights by preventing him from offering the Ranking
Document as mitigating evidence; (2) the State violated Brady v.
Maryland, 373 U.S. 83 (1963), by withholding the identity of the author of the
Ranking Document; (3) Halprin’s trial counsel were ineffective for failing to
discover the author of the Ranking Document; (4) Halprin’s death sentence is
unconstitutional because he lacked intent to kill; and (5) Halprin’s appellate
counsel were ineffective for failing to argue on appeal that the trial court
erroneously refused to admit certain portions of Dr. Goodness’s testimony as
mitigating evidence. In supplemental briefing, Halprin also argues that he is
entitled to an evidentiary hearing.     For the reasons set forth below, we
AFFIRM the district court’s denial of Halprin’s request for an evidentiary
hearing and DENY a COA.
                           II.   Standard of Review
      The standard for obtaining a COA is well settled. To obtain a COA,
Halprin must demonstrate “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Halprin may satisfy this standard
by showing that “jurists of reason could disagree with the district court’s
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                                      No. 17-70026
resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-
El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473,
484 (2000)).
       If a district court denies a habeas petition on procedural grounds without
reaching the merits of a petitioner’s underlying claim, we grant a COA “when
the prisoner shows, at least, 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.” Segundo v. Davis, 831 F.3d 345, 350 (5th
Cir. 2016) (quoting Slack, 529 U.S. at 484). We are charged with reviewing the
case only through these prisms. See Buck v. Davis, 137 S. Ct. 759, 773 (2017).
       Because the state court adjudicated each of Halprin’s claims on the
merits, 2 our review is constrained by the deferential standards of review found
in the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254
(“AEDPA”). Under AEDPA, where the state court decided the issues on the
merits, federal habeas relief may not be granted 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,” id. § 2254(d)(1), or “was based on an unreasonable determination of



       2 The state habeas court concluded that Halprin had procedurally defaulted on his
claim that under Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona,
481 U.S. 137 (1987), he lacked the minimum culpability to justify imposition of the death
penalty. In the alternative, the state court also addressed the merits of Halprin’s
Enmund/Tison claim. As discussed in Section III(E), we deny Halprin’s request for a COA
because he has not made the showing required to overcome his procedural default. But even
if Halprin could overcome his procedural default, we would still apply Antiterrorism and
Effective Death Penalty Act (“AEDPA”) review to the state court’s adjudication on the merits.
See Busby v. Dretke, 359 F.3d 708, 721 n.14 (5th Cir. 2004) (“That the state habeas court also
invoked a procedural bar as an alternative basis to deny relief does not deprive the state of
the benefit of AEDPA’s deferential standard.”).
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the facts in light of the evidence presented in the State court proceeding,”
id. § 2254(d)(2).
       An unreasonable application of clearly established federal law means
that “the state court’s ruling on the claim being presented in federal court was
so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.”      White v. Woodall, 572 U.S. 415, 419–20 (2014) (quoting
Harrington v. Richter, 562 U.S. 86, 103 (2011)). Put differently, a “state court’s
determination that a claim lacks merit precludes federal habeas relief so long
as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (quoting Richter,
562 U.S. at 101). “This is ‘meant to be’ a difficult standard to meet.” Virginia
v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (per curiam) (quoting Richter, 562 U.S.
at 102).
       Thus, to obtain a COA, Halprin must show that jurists of reason could
disagree with the district court’s conclusion that the state court’s decision was
not an unreasonable application of clearly established federal law and was not
based upon an unreasonable determination of the facts in light of the evidence
presented. Because this is a death penalty case, we resolve any doubts about
granting a COA in favor of a grant. Escamilla v. Stephens, 749 F.3d 380, 387
(5th Cir. 2014).
                                    III.    Discussion
   A. Request for Hearing
       Halprin first asserts that the district court erroneously denied his
request for an evidentiary hearing on his habeas petition. 3 The district court



       3 Because we conclude that the district court did not err in this regard, we do not
address the State’s argument that Halprin failed to properly and timely raise this argument.
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concluded that “[o]n the allegations and record before this court, an evidentiary
hearing would not enable Halprin to establish a right to federal habeas relief.”
Halprin III, 2017 WL 4286042, at *22. We review the district court’s denial of
an evidentiary hearing for abuse of discretion. McDonald v. Johnson, 139 F.3d
1056, 1059 (5th Cir. 1998).
      “If a claim has been adjudicated on the merits by a state court, a federal
habeas petitioner must overcome the limitation of § 2254(d)(1) on the record
that was before that state court.” Cullen v. Pinholster, 563 U.S. 170, 185
(2011); see also Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Similarly,
§ 2254(d)(2) expressly limits review to the state court record. Against this
backdrop of statutory and case law precedent, Halprin has not shown that the
district court abused its discretion in denying a hearing.
   B. Exclusion of the Ranking Document
      Halprin claims the state trial court violated his constitutional rights by
preventing him from offering the Ranking Document as mitigating evidence.
The district court rejected this claim, holding that Halprin had not shown that
the state court violated his constitutional rights or that the state court’s factual
findings were unreasonable. Halprin III, 2017 WL 4286042, at *9. Jurists of
reason could not disagree with the district court’s conclusion. We thus deny a
COA on Halprin’s first claim.
      “[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–
68 (1991). “In conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United
States.” Id. at 68.
      Halprin asserts that the trial court erroneously excluded the Ranking
Document as hearsay. He relies on Green v. Georgia, a case in which the
Supreme Court held that where evidence is “highly relevant to a critical issue
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                                   No. 17-70026
in the punishment phase of the trial” and “substantial reasons exist[] to
assume its reliability . . . ‘the hearsay rule may not be applied mechanistically
to defeat the ends of justice.’” 442 U.S. 95, 97 (1979) (per curiam) (quoting
Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). Halprin argues that the
Ranking Document was highly relevant to his character as a follower, not a
leader, and that substantial reasons existed to assume the document’s
reliability such that the state court erred in excluding the document. But we
have recognized that Green was based on “unique and disturbing facts: the
exclusion of evidence about another person confessing to the murder” that gave
rise to the petitioner’s sentence. Simmons v. Epps, 654 F.3d 526, 543 (5th Cir.
2011) (per curiam). Halprin points to no such facts. Additionally, here, the
Court of Criminal Appeals concluded that the Ranking Document was
cumulative of other testimony from TDCJ witnesses, and Halprin himself,
indicating that Halprin lacked leadership capabilities.           Green is thus
inapplicable to Halprin’s claim.
      Halprin argues that the sentencer should be allowed to consider all
mitigating evidence under Lockett v. Ohio, 438 U.S. 586, 604 (1978) and
Eddings v. Oklahoma, 455 U.S. 104, 113–14 (1982). But we have interpreted
the Lockett and Eddings line of cases to apply to “the exclusion of specific types
of evidence rather than specific items in evidence.” Simmons, 654 F.3d at 544
(emphasis added). Here, the question focuses solely on an item of evidence, not
a general type. We conclude that reasonable jurists could not disagree with
the district court’s conclusion that the state trial court’s ruling on Halprin’s
first claim was not unreasonable and did not violate Halprin’s constitutional
rights. See Halprin III, 2017 WL 4286042, at *9.
      We thus deny a COA on Halprin’s first claim.




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   C. Suppression of Evidence
      Halprin next claims that the State violated Brady by withholding the
identity of the Ranking Document’s author. Under Brady, the prosecution
violates the due process rights of the accused if, upon request for information,
the prosecution keeps from the defense favorable, material evidence,
regardless of good or bad faith. 373 U.S. at 87. A party asserting a Brady
claim must show that: “(1) the prosecution suppressed evidence, (2) it was
favorable to the defendant, and (3) it was material.” United States v. Brown,
650 F.3d 581, 587–88 (5th Cir. 2011). While “suppressed evidence need not be
admissible to be material,” it must “create a reasonable probability that the
result of the proceeding would [have been] different” had the evidence been
disclosed to the defense. Id. at 588. “A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.”            United States v.
Bagley, 473 U.S. 667, 682 (1985).
      Halprin asserts that the State violated Brady when it withheld the name
of the Ranking Document’s author, thus preventing Halprin from using the
document as mitigating evidence at trial. It is undisputed that Halprin’s
expert, Woods, who reviewed the documents prior to trial discovered the
identity of the author by reviewing documents during the post-conviction
proceedings.   Although Halprin argues this point, the state habeas court
expressly found that the document from which Woods ultimately determined
the Ranking Document’s author was disclosed before trial. Halprin has not
shown that jurists of reason would debate whether Halprin has shown by clear
and convincing evidence that this factual finding was incorrect. 28 U.S.C. §
2254(e)(1).
      Further, the state habeas court indicated that, even if Halprin had
known before trial who created the Ranking Document, the document still
would have been hearsay because its conclusions were based on hearsay
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                                  No. 17-70026
statements from unnamed sources. Thus, even if Halprin had known the
identity of the author, the state court would have excluded the Ranking
Document. The author’s identity is thus not material. See id. Moreover, even
if knowing the author’s identity would have persuaded the state court to admit
the Ranking Document, the author’s identity is still immaterial given the
cumulative nature of the evidence.
      Halprin now claims that, had he known the author’s identity, he would
have been able to identify the witnesses on whom the document’s author relied,
and those witnesses would have independently corroborated Halprin’s
testimony. Even if we could consider this new argument and even if Halprin
is correct that knowing the identity of the Ranking Document’s author would
have enabled him to identify the witnesses who contributed to the report,
Halprin has not shown that jurists of reason would debate that the witnesses’
testimony could have had a material impact on the outcome of his trial.
      The district court held that the state court’s findings (1) that the identity
of the Ranking Document’s author would not have made the evidence
admissible, and (2) that the defense was able to admit the same mitigation
evidence through other witnesses, buttressed its conclusion that the author’s
identity was not material for Brady purposes. Halprin III, 2017 WL 4286042,
at *7. The district court thus held that the state court’s determination was
“not an unreasonable application of clearly established federal law.”          Id.
Reasonable jurists could not debate the district court’s determination that
Halprin had not made the showing required under 28 U.S.C. § 2254(d) with
respect to his Brady claim. We thus deny a COA on Halprin’s second claim.
   D. Ineffective Assistance of Trial Counsel
      Halprin next argues that his trial attorneys were ineffective.             A
successful ineffective assistance of counsel claim under Strickland v.
Washington has two components. 466 U.S. 668, 687 (1984). First, a petitioner
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must demonstrate “that counsel’s performance was deficient.”             Id.    In
determining whether counsel’s performance was deficient, courts apply “a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. Second, a petitioner “must
show that the deficient performance prejudiced the defense.” Id. at 687. To
show prejudice, the petitioner must show “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.
      Halprin asserts that his trial attorneys were ineffective for failing to
discover the identity of the Ranking Document’s author. The district court
noted that, even if Halprin’s trial counsel had been deficient in failing to
discover the author’s identity, that deficiency was not the reason for the
Ranking Document’s exclusion. Halprin III, 2017 WL 4286042, at *12. The
district court thus held that Halprin had not shown “a reasonable probability
that, but for [] counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. (quoting Strickland, 466 U.S. at 694). The
district court further noted the state court’s findings that the defense was able
to admit the mitigating information in the Ranking Document through other
witnesses and that the jury was left with a more favorable view of the Ranking
Document than likely would have been the case had the document been
admitted. Halprin III, 2017 WL 4286042, at *12. The district court thus held
that Halprin had not satisfied AEDPA’s exacting standard with respect to his
claim for ineffective assistance of trial counsel. Id.
      Reasonable jurists could not debate the district court’s conclusion that
the state court’s decision on Halprin’s claim for ineffective assistance of trial
counsel was neither contrary to nor an unreasonable application of clearly
established federal law. We thus deny a COA on Halprin’s third claim.


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                                  No. 17-70026
      E. Enmund/Tison Culpability
        Halprin next claims that he lacked the minimum culpability to justify
imposition of the death penalty. The state court found that Halprin’s claim
was procedurally barred because Halprin did not raise it at trial or on direct
appeal. It held in the alternative that Halprin’s claim was meritless. The
district court similarly dismissed Halprin’s claim as procedurally barred. Id.
at *11. In the alternative, the district court held that the alternate finding of
the Court of Criminal Appeals that the claim lacked merit deserved deference.
Id.
        Where a district court denies a habeas petition on procedural grounds
without reaching the merits of a petitioner’s claim, we grant a COA “when the
[petitioner] shows, at least, 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.” Segundo, 831 F.3d at 350 (quoting Slack,
529 U.S. at 484).
        Here, jurists of reason would not debate that Halprin’s petition does not
state a valid claim of the denial of a constitutional right or that the district
court’s procedural ruling was correct. See Segundo, 831 F.3d at 350. Although
Halprin conceded in the district court that his claim was procedurally barred
because he failed to raise it at trial or on direct appeal, he now argues that the
contemporaneous objection rule does not apply, or alternatively that he
complied with the rule.      But regardless of whether the contemporaneous
objection rule bars Halprin’s claim, Halprin does not dispute that his claim is
barred for failure to raise it on direct appeal. See Ex parte Gardner, 959 S.W.2d
189, 191 (Tex. Crim. App. 1996) (holding that an applicant procedurally
defaulted on a claim by failing to raise the claim on direct appeal); see also
Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. 2004) (recognizing that “the
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Gardner rule set forth an adequate state ground capable of barring federal
habeas review”). Halprin has not shown cause for and prejudice attributable
to the default or demonstrated that a failure to address his claim will result in
a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S.
722, 750 (1991). We thus conclude that jurists of reason would not debate the
district court’s determination that Halprin’s Enmund/Tison claim is
procedurally barred.
      Alternatively, even if Halprin had not procedurally defaulted on his
Enmund/Tison claim, reasonable jurists could not debate that the district court
appropriately deferred to the state court’s alternative conclusion that Halprin’s
claim was meritless. See Halprin III, 2017 WL 4286042, at *11.
      The Supreme Court held in Enmund that the Eighth Amendment
prohibits capital punishment for one who “aids and abets a felony in the course
of which a murder is committed by others but who does not himself kill,
attempt to kill, or intend that a killing take place or that lethal force will be
employed.” 458 U.S. at 797. But the Court indicated that the result could be
different if “the likelihood of a killing in the course of a robbery were so
substantial that one should share the blame for the killing if he somehow
participated in the felony.” Id. at 799. Later, in Tison, the Court held that
“[1] major participation in the felony committed, combined with [2] reckless
indifference to human life, is sufficient to satisfy the Enmund culpability
requirement.” 481 U.S. at 158.
      The state habeas court concluded that Halprin was a major participant
in the robbery and that he demonstrated reckless indifference to human life,
as shown by the jury’s finding that Halprin “anticipated that a human life




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would be taken.” 4 See Tison, 481 U.S. at 158 (holding that “major participation
in the felony committed, combined with reckless indifference to human life, is
sufficient to satisfy the Enmund culpability requirement”). Halprin has not
shown that jurists of reason would debate that the state court’s findings were
incorrect or that the state court’s decision was contrary to or an unreasonable
application of clearly established federal law. Additionally, reasonable jurists
could not debate the district court’s application of AEDPA deference and denial
of Halprin’s fourth claim. We thus deny a COA on Halprin’s fourth claim.
   F. Ineffective Assistance of Appellate Counsel
       Finally, Halprin claims his counsel on direct appeal were ineffective for
failing to argue that the trial court erroneously excluded as hearsay certain
portions of Dr. Goodness’s testimony.
       The right to effective assistance of counsel extends to appellate counsel
on the first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 394 (1985). The
familiar Strickland standard governs claims for ineffective assistance of
appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). In the appellate
context, counsel is deficient if he or she “unreasonably fail[s] to discover
nonfrivolous issues and to file a merits brief raising them.” Id. If the petitioner
succeeds in showing that counsel was deficient, “he then has the burden of
demonstrating prejudice.” Id. A petitioner may demonstrate prejudice by
showing “a reasonable probability that, but for his counsel’s unreasonable
failure to file a merits brief, he would have prevailed on his appeal.” Id.


       4 The Texas Court of Criminal Appeals has stated that, for someone who has been
convicted of capital murder as a participant in an underlying felony, “[a]nticipating that a
human life will be taken is a highly culpable mental state, at least as culpable as the one
involved in Tison v. Arizona, and we hold that, according to contemporary social standards,
the death penalty is not disproportionate for defendants with such a mental state.” Ladd v.
State, 3 S.W.3d 547, 573 (Tex. Crim. App. 1999) (emphasis omitted). Halprin’s argument
that AEDPA deference is not owed to a state court judgment made by a judge who did not
witness the testimony is unsupported by post-AEDPA precedent.
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    Case: 17-70026    Document: 00514763271      Page: 16    Date Filed: 12/17/2018



                                  No. 17-70026
      Here, the state trial court excluded as hearsay Dr. Goodness’s testimony
regarding the sources, including documents and interviews with various third
parties, underlying her opinions at trial.        For example, the trial court
prevented Dr. Goodness from testifying in depth about the basis for her
conclusion that Halprin was predisposed to substance abuse or from explaining
the events surrounding Halprin’s expulsion from boarding school. Halprin
asserts that his appellate counsel were ineffective for failing to appeal the trial
court’s exclusion of the evidence. The state habeas court rejected Halprin’s
claim, concluding that the underlying information was hearsay and that
Halprin’s counsel were not ineffective for failing to argue a meritless issue on
appeal. The court noted that Halprin was not precluded from offering evidence
of his troubled background; he was merely barred from offering it in the form
of inadmissible hearsay through Dr. Goodness.
      The district court similarly denied Halprin’s claim, concluding that
Halprin had not shown that the state court’s conclusion was incorrect or
unreasonable. Halprin III, 2017 WL 4286042, at *21. Reasonable jurists could
not debate that the district court appropriately applied AEDPA deference to
the state court’s adjudication of Halprin’s fifth claim. We thus deny a COA on
Halprin’s claim.
                                IV.    Conclusion
      For the reasons set forth above, we AFFIRM the district court’s denial of
Halprin’s request for an evidentiary hearing. We DENY Halprin’s request for
a COA.




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