    Case: 13-70018   Document: 00512589179     Page: 1   Date Filed: 04/08/2014




                       REVISED APRIL 8, 2014

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

                                No. 13-70018                          FILED
                                                                   April 7, 2014
                                                                  Lyle W. Cayce
                                                                       Clerk

KENT WILLIAM SPROUSE,

                                          Petitioner–Appellant,

versus

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




Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


     A jury found Kent Sprouse guilty of the capital murder of a police officer,
and he was sentenced to death. Among many other issues raised on direct
appeal and on state habeas corpus review, Sprouse challenged the jury
    Case: 13-70018    Document: 00512589179     Page: 2   Date Filed: 04/08/2014



                                 No. 13-70018
instructions given during the punishment phase of his trial. He claimed that
the instructions, in violation of the Eighth Amendment, effectively precluded
the jury from considering voluntary intoxication as mitigating evidence. The
Texas Court of Criminal Appeals (“TCCA”) rejected that argument. On federal
habeas review, Sprouse contends that the state court unreasonably applied
Penry v. Lynaugh (“Penry I”), 492 U.S. 302 (1989), Boyde v. California, 494 U.S.
370 (1990), and Penry v. Johnson (“Penry II”), 532 U.S. 782 (2001). We disagree
and affirm the denial of the habeas petition. We also decline to grant a certifi-
cate of appealability (“COA”) on any of the additional issues Sprouse raises.


                                       I.
      In 2002, Sprouse entered a convenience store with a shotgun hung over
his shoulder and, after returning to his vehicle, fired his weapon in the direc-
tion of two men. Then another customer saw Sprouse working on his vehicle
and Pedro Moreno, yet another customer, filling his truck with gas. The cus-
tomer noticed Sprouse attempting to speak to Moreno, who did not respond.
Sprouse then reached into his vehicle, pulled out a gun, and shot and killed
Moreno.
      Officer Harry Steinfeldt, dressed in uniform and driving a police vehicle,
responded to the shooting. When he arrived, before turning toward Sprouse’s
car, he noticed Moreno on the ground. As he turned, Sprouse shot him twice.
Steinfeldt returned fire but died from his injuries. A second officer arrived and
took Sprouse into custody. Sprouse was transported to a nearby hospital,
where a doctor thought he was under the influence of drugs. Testing revealed
he had consumed amphetamines, methamphetamines, and cannabis within
the past forty-eight hours.
      Sprouse was indicted for capital murder of a police officer. His lawyer
filed notice of intent to present an insanity defense. The issue of intoxication—
                                       2
     Case: 13-70018       Document: 00512589179           Page: 3     Date Filed: 04/08/2014



                                       No. 13-70018
both as an affirmative defense and as mitigating evidence—was raised with
several potential jurors during voir dire.                  Specifically, the prosecutor
questioned two jurors who were chosen—Ruby Martinez 1 and Kathy Wilson 2—



      1 The prosecutor discussed with Martinez the possibility of voluntary intoxication as
a defense and as mitigating evidence:
      [Prosecutor]: [E]ven if a defendant showed you that his conduct was wrong, that
      doesn’t mean that he prevails on his insanity defense. And that leads into another
      area of law . . . concerning voluntary intoxication. And in our questionnaire we advise
      you that voluntary intoxication is not a defense to crime. Do you agree with that?
       [Martinez]: Yes.
       [Prosecutor]: All right. And so no matter how much evidence was produced that a
       person was intoxicated or why they did what they did while they were intoxicated has
       nothing to do with their guilt of the crime charged.
       ....
       [Prosecutor]: Right. Now, the law does allow a defendant to introduce evidence of
       intoxication at punishment as mitigation, okay, but only in a certain circumstance;
       and that is, a defendant has to show that he was intoxicated at the time of the conduct
       charged and that the intoxication resulted in his not knowing his conduct was wrong.
       Okay?
      2[Prosecutor]: Someone takes a substance into their body who becomes so intoxicated
      they simply don’t know their conduct is wrong. That’s a situation in the law known
      as temporary insanity. And that is completely different from the insanity defense.
      Our law says that a person who is voluntary—who—that voluntary intoxication is not
      a defense to crime. And I believe in your jury questionnaire you agreed with that law?
      [Wilson]: Uh-huh.
      [Prosecutor]: . . . Where intoxication or voluntary intoxication can be presented to the
      jury is on the issue of punishment. And the law says that while it’s not a defense to
      [the] crime[, ] intoxication which results in a defendant not knowing their conduct is
      wrong can be used by the jury in mitigation of punishment, to lessen the punishment.
      Doesn’t say they have to use it. It, again, is just like any other mitigating evidence in
      a case. It’s only mitigating if you think it’s mitigating and the result of the jury thinks
      it’s mitigating. . . . Would you require—before considering voluntary intoxication as
      any mitigation of punishment, would require a defendant to prove that that intoxica-
      tion resulting in their not knowing their conduct was wrong?
      [Wilson]: Would I require them to prove that they were so intoxicated—
      [Prosecutor]: Would you―would you require that finding . . .
      [The Court]: Preface it if the law stated this . . . could she follow that?
      [Prosecutor]: If the law states that voluntary intoxication can be used in mitigation of
      punishment if the jury finds that the voluntary intoxication resulted in the defendant
                                               3
     Case: 13-70018        Document: 00512589179         Page: 4     Date Filed: 04/08/2014



                                       No. 13-70018
on that issue. Sprouse, however, did not object to that questioning. Defense
counsel discussed the issue of intoxication with Martinez but not Wilson.
       At the close of the guilt phase, the jury was instructed on insanity 3 but
rejected that defense and convicted Sprouse of capital murder. At the punish-
ment phase, Sprouse put forward no new evidence, instead relying on all the
testimony and evidence that had been presented during the guilt phase.
       At the close of the punishment phase, the jury was given three general
instructions regarding mitigating evidence. First, it was instructed on what
constitutes “mitigating evidence.” 4 Second—the focus of this appeal—the jury
was instructed on the issue of intoxication: “You are instructed that under our




       not knowing that his conduct was wrong, could you consider that―no strike that would
       you be willing―Let me rephrase that. . . . If the law is that a defendant can introduce
       evidence of intoxication that causes temporary insanity at punishment on the issue of
       mitigation, okay, but only if that intoxication results in the condition called temporary
       insanity which means that they didn’t their conduct was wrong—
       [Wilson]: Uh-huh.
       [Prosecutor]:—can you follow that law?
       [Wilson]: Yes.
       [Prosecutor]: Okay. And what that means is that if evidence of intoxication was intro-
       duced that does not arise to temporary insanity that then it would not be considered
       as mitigation if it was consideration as mitigation anyhow.
       3 “You are instructed that no act done in a state of insanity can be punished as an
offense. It is an affirmative defense to prosecution that, at the time of the conduct charged,
the defendant, as a result of severe mental disease or defect, did not know that his conduct
was wrong.” TEX. PENAL CODE ANN. § 8.01(a) (West 2013). The jury was further instructed
on the meaning of “mental disease or defect”: “The term ‘mental disease or defect’ does not
include an abnormality manifested only by repeated criminal or otherwise antisocial con-
duct.” Id. § 8.01(b).
       4“You are instructed that the term ‘mitigating evidence,’ as used herein, means evi-
dence that a juror might regard as reducing the defendant’s blameworthiness.”
                                               4
     Case: 13-70018         Document: 00512589179          Page: 5   Date Filed: 04/08/2014



                                         No. 13-70018
law neither intoxication 5 nor temporary insanity of mind caused by intoxica-
tion constitute [sic] a defense to the commission of a crime. Evidence of tem-
porary insanity caused by intoxication may be considered in mitigation of the
penalty, if any, attached to the offense.” 6 Third, the jury was instructed on the
issue of temporary insanity. 7
       Additionally, the court told the jury to answer the mitigation special
issue: “Taking into consideration all of the evidence, including the circum-
stances of the offense, the defendant’s character and background, and the per-
sonal moral culpability of the defendant, do you find that there is sufficient
mitigating . . . circumstances to warrant that a sentence of life imprisonment
rather than death be imposed?” Finally, the jury was given a catch-all instruc-
tion on mitigation: “You are to consider all evidence submitted to you during
the whole trial as to defendant’s background or character or the circumstances
of the offense that mitigates against the imposition of the death penalty.”




       5 The court further defined “intoxication” and “insanity”: “By the term ‘intoxication’
as used herein is meant a disturbance of mental or physical capacity resulting from the intro-
duction of any substance into the body.” “By the term ‘insanity’ as used herein is meant that
as a result of intoxication the defendant did not know his conduct was wrong.”
       6   At the time, Sprouse objected to this instruction:
       The second sentence where it says you are instructed that under our law nei-
       ther intoxication or [sic] temporary insanity of mind caused by intoxication
       shall constitute any defense to the commission of a crime. To the defense that
       serves no purpose. It confuses the issues. The defendant’s already been con-
       victed of the crime; and a defense to the crime, whether it’s a defense of the
       crime or not, seems to be irrelevant at this stage. We’d ask that sentence be
       taken out completely.
       7 “[I]f you find from the evidence that . . . Sprouse, at the time of the commission of
the offense . . . , was laboring under temporary insanity as defined in this charge, then you
may take such temporary insanity into consideration in mitigation of the penalty which you
attach to the crime.”
                                                5
     Case: 13-70018          Document: 00512589179          Page: 6    Date Filed: 04/08/2014



                                          No. 13-70018
       At the close of the punishment phase, during his initial closing argu-
ment 8 and again on rebuttal, 9 the prosecutor discussed the possibility of
Sprouse’s intoxication as mitigating. Defense counsel also discussed that issue
during closing. 10 The jury determined (1) there was a probability that Sprouse
would commit criminal acts of violence that would constitute a continuing
threat to society; and (2) there was not sufficient mitigating circumstances to
warrant a life sentence. In accordance with the verdict, the court sentenced
Sprouse to death.
       The TCCA affirmed on direct appeal. See Sprouse v. State, No. AP-4933,
2007 WL 283152, at *9 (Tex. Crim. App. Jan. 31, 2007). In deciding numerous
issues raised on state habeas, the state trial court rejected the argument
Sprouse presses on appeal, 11 and the TCCA denied Sprouse’s application for




       8 “No one here can tell you that you must consider anything to be mitigating. The
Judge’s instructions have a section that talked about voluntary intoxication and the circum-
stances under which you may consider that mitigating. It does not direct you that you must.”
       9  “I submit to you if you think a 30-year-old man whose parents have been good to
him, who have given him a good home, supported him through high school, through college,
tried to get him help, even went to the extent of getting him involuntarily committed in order
to get him help, . . . if a man who has all of that advantage spends his life smoking it away
with dope, you can consider that mitigation if you choose to.”
       10“You can consider anything on mitigation . . . . You know you can consider under
law intoxication is mitigation. The law says you can. You can consider it either way. You
know that. You’ve heard it before.”
       11   The state trial court’s opinion states in relevant part:
       42. There was evidence admitted at trial that Applicant was voluntarily intoxicated
       at the time of the offense.
       43. The jury charge at punishment included the mandatory instruction on voluntary
       intoxication set out in section 8.04 of the Texas Penal Code.
       44. Trial counsel objected to the jury instruction on voluntary intoxication in the
       Court’s charge at punishment, stating that the instruction was irrelevant and con-
       fused the issues because Applicant had already been convicted.
       45. Trial counsel specifically stated that he was not asking the trial court to not give
       the instruction at all but only objecting to specific parts of the instruction.
                                                  6
     Case: 13-70018       Document: 00512589179          Page: 7     Date Filed: 04/08/2014



                                       No. 13-70018
writ of habeas corpus. See Ex parte Sprouse, No. WR-66950-01, 2010 WL
374959, at *1 (Tex. Crim. App. Feb. 3, 2010).
       Pursuant to 28 U.S.C. § 2254, Sprouse filed the instant petition, which
the district court denied but granted a COA on the following issue: “Whether
the jury instruction on intoxication during the punishment phase violated the
Eighth Amendment, and whether counsel’s failure to object or preserve it con-
stituted ineffective assistance of trial counsel and/or appellate counsel.” 12
       In determining that reasonable jurists would find that issue debatable,
the district court first recognized that Fifth Circuit caselaw foreclosed




       46. Defense counsel addressed the voluntary intoxication instruction during closing
       argument, telling the jury without objection that they could consider intoxication as
       mitigating.
       47. Appellate counsel did not raise any issue regarding the voluntary-intoxication
       instruction.
       48. Neither trial counsel nor appellate performed deficiently in failing to raise such a
       claim when the issue has been decided against the claim. See Drinkard v. Johnson,
       97 F.3d 751, 758 (5th Cir. 1996)[, overruled on other grounds by Lindh v. Murphy, 521
       U.S. 320, 325 (1997)]; Cantu v. State, 939 S.W.2d 627, 647–48 (Tex. Crim. App. 1997).
       49. Reviewing the voluntary intoxication instruction in the context of the instructions
       on special issues as a whole and in light of the proceedings before the jury, there is no
       reasonable likelihood that the jury applied the instruction to place consideration of
       non-insane intoxication beyond its effective reach. Drinkard, 97 F.3d at 758–59.
Ex Parte Sprouse, No. 26824CR/A, slip op. at 124–25 (40th Dist. Ct., Ellis Cnty., Tex. Jan. 25,
2007).
       12 Sprouse first raised this issue (framed as an Eighth Amendment violation) before
the state trial habeas court, which dismissed it on the merits. The record does not, however,
make clear whether Sprouse repeated this argument before the TCCA. Because the state
does not press procedural default, however, we do not need to determine whether Sprouse
did in fact raise it through one complete cycle in the state courts. Cf. Busby v. Dretke, 359
F.3d 708, 723 (5th Cir. 2004) (“Habeas petitioners must exhaust state remedies by pursuing
their claims through one complete cycle of either state direct appeal or post-conviction col-
lateral proceedings.” (emphasis added)). Even if the TCCA decided this issue on the merits,
it did not discuss it at any length, so we treat the state trial habeas court opinion as the
relevant state court decision.
                                               7
     Case: 13-70018     Document: 00512589179        Page: 8    Date Filed: 04/08/2014



                                    No. 13-70018
Sprouse’s contention. 13 As the court noted, “[Narvaiz v. Johnson, 134 F.3d 688
(5th Cir. 1998),] reasoned that the general instruction to consider ‘all of the
evidence’ admitted at trial negates any inference that the intoxication instruc-
tion precludes consideration of non-insane, voluntary intoxication.” Sprouse,
2013 WL 1285468, at *23. The district court, however, also observed that
(1) Narvaiz, Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996), and Lauti v.
Johnson, 102 F.3d 166 (5th Cir. 1996) all predate Penry II, and (2) “[Penry II]
appears to reject the type of reasoning relied upon in Narvaiz that a jury can
logically and ethically follow two conflicting sets of instructions.” Id.
       The district court denied a COA on all other issues raised in the motion.
Sprouse appeals the Eighth Amendment issue and seeks COAs on five others.


                                           II.
       “In a habeas corpus appeal, we review the district court’s findings of fact
for clear error and its conclusions of law de novo, applying the same standards
to the state court’s decision as did the district court.” Busby v. Dretke, 359 F.3d
708, 713 (5th Cir. 2004). Under the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), if the state court adjudicated Sprouse’s claim on the
merits, federal habeas relief can be granted on that claim only if the adjudica-
tion of it
       (1) resulted in 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; or

       (2) resulted in a decision that was based on an unreasonable deter-
       mination of the facts in light of the evidence presented in the State
       court proceeding.


       13See Sprouse v. Thaler, No. 3:10-CV-317-P, 2013 WL 1285468, at *23 (N.D. Tex.
Mar. 29, 2013) (citing Narvaiz v. Johnson, 134 F.3d 688, 692–94 (5th Cir. 1998); Lauti v.
Johnson, 102 F.3d 166, 169–70 (5th Cir. 1996)).
                                           8
     Case: 13-70018       Document: 00512589179          Page: 9     Date Filed: 04/08/2014



                                       No. 13-70018


28 U.S.C. § 2254(d) (2012). We consider a state court decision to be “contrary
to” clearly established Federal law 14 in two situations: “[(1)] the state court
arrives at a conclusion opposite to that reached by this Court on a question of
law . . . [or (2)] the state court confronts facts that are materially indistinguish-
able from a relevant Supreme Court precedent and arrives at a result opposite
to [that Supreme Court decision].” Williams v. Taylor, 529 U.S. 362, 405
(2000). Likewise, we consider a state court decision to be “an unreasonable
application” of Supreme Court precedent in three situations:
       [(1)] the state court . . . unreasonably applies [the correct governing
       legal rule] to the facts of the particular [ ] case . . . [(2)] the state
       court [] unreasonably extends a legal principle from our precedent
       to a new context where it should not apply or [(3) the state court]
       unreasonably refuses to extend that principle to a new context
       where it should apply.

Id. at 407.
       Even if a state court errs in applying Supreme Court precedent, the court
may still not have acted unreasonably for AEDPA purposes. See Harrington
v. Richter, 131 S. Ct. 770, 786 (2011). “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.” Id. “[E]valu-
ating whether a rule application was unreasonable requires considering the
rule’s specificity. The more general the rule, the more leeway courts have in
reaching outcomes in case-by-case determinations.” Yarborough v. Alvarado,
541 U.S. 652, 664 (2004). “[I]t is not an unreasonable application of clearly



       14 “‘Clearly established federal law’ under § 2254(d)(1) is the governing legal principle
or principles set forth by the Supreme Court at the time the state court reaches its decision.”
Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003). Therefore, Sprouse must demonstrate that
the trial habeas court’s opinion was “contrary to” or “an unreasonable application of” the
holdings of Supreme Court cases issued before January 25, 2007.
                                               9
    Case: 13-70018       Document: 00512589179          Page: 10     Date Filed: 04/08/2014



                                       No. 13-70018
established Federal law for a state court to decline to apply a specific legal rule
that has not been squarely established by th[e] [Supreme] Court.” Knowles v.
Mirzayance, 556 U.S. 111, 112 (2009).
       Attempting to bypass this deferential standard, Sprouse challenges the
constitutionality of § 2254(d). 15        As Sprouse concedes, we, like our sister
courts, 16 have rejected that challenge. 17 We therefore apply AEDPA’s highly
deferential standard to Sprouse’s appeal.


                                             III.
       Sprouse maintains that the voluntary-intoxication instruction required
by Texas Penal Code § 8.04 unconstitutionally limited the jury’s ability to con-
sider mitigating evidence. Because the instruction could have just stated
“Intoxication may be considered in mitigation” as opposed to “Evidence of tem-
porary insanity caused by intoxication may be considered in mitigation,”
Sprouse contends that “[t]he jury must necessarily have been led to believe
that they could not consider intoxication alone for mitigation.” He avers that
the negative implication of this instruction trumps or else contradicts the


       15 First, Sprouse argues that AEDPA deference violates the principles of stare decisis
specified by Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and United States v. Klein,
80 U.S. (13 Wall.) 128 (1871): “[C]ontrary to the holdings of Marbury and Klein, Congress
afforded the federal courts habeas jurisdiction, but limited the courts’ manner of review by
suspending stare decisis.” Second, Sprouse argues that AEDPA violates Article III: “2554(d)
prohibits the federal courts from saying what the law is. Instead, 2254(d) requires the federal
courts to defer to and uphold state court decisions erroneously interpreting federal
constitutional law.”
       16 Evans v. Thompson, 518 F.3d 1, 10 (1st Cir. 2008); Crater v. Galaza, 491 F.3d 1119,
1130 (9th Cir. 2007); Green v. French, 143 F.3d 865, 876 (4th Cir. 1998), abrogated on other
grounds by Williams v. Taylor, 529 U.S. 362 (2000); Lindh v. Murphy, 96 F.3d 856, 871–74
(7th Cir. 1996) (en banc), rev’d on other grounds, 521 U.S. 320 (1997).
       17Cobb v. Thaler, 682 F.3d 364, 374 (5th Cir. 2012), cert. denied, 133 S. Ct. 933 (2013)
(“As each circuit to address the question has recognized, § 2254(d)(1) does not intrude on the
independent adjudicative authority of the federal courts. Rather, it limits the grounds on
which federal courts may grant the habeas remedy to upset a state conviction.”).
                                              10
    Case: 13-70018       Document: 00512589179         Page: 11     Date Filed: 04/08/2014



                                      No. 13-70018
catch-all mitigation instruction and the mitigation special issue. In this vein,
Sprouse urges that the state court unreasonably applied Penry I, Boyde, and
Penry II.


                                             A.
       Before specifically addressing Sprouse’s position, we turn to the three
Supreme Court cases on which he principally relies. In Penry I, the Supreme
Court granted the habeas petition, holding that the Texas death-penalty stat-
ute had been applied unconstitutionally in that case. Because the Court was
reviewing the habeas petition, it began by assessing the clear Supreme Court
precedent available to the state court when Penry’s conviction became final:
       [I]t was clear from [Lockett v. Ohio, 438 U.S. 586 (1978)] and
       [Eddings v. Oklahoma, 455 U.S. 104 (1982)] that a State could not,
       consistent with the Eighth and Fourteenth Amendments, prevent
       the sentencer from considering and giving effect to evidence rele-
       vant to the defendant’s background or character or to the circum-
       stances of the offense that mitigate against imposing the death
       penalty.

Penry I, 492 U.S. at 318.
       That is, the Eighth Amendment requires that a capital sentencing jury
not be precluded from considering, as a mitigating factor, the character and
record of the individual defendant and the circumstances of the particular
offense. The Court in Penry I noted that the jury was not given any specific
mitigation instruction, 18 so it could not adequately give effect to any mitigating




       18Penry I, 492 U.S. at 320 (“Although Penry offered mitigating evidence of his mental
retardation and abused childhood as the basis for a sentence of life imprisonment rather than
death, the jury that sentenced him was only able to express its views on the appropriate
sentence by answering three questions: Did Penry act deliberately when he murdered Pam-
ela Carpenter? Is there a probability that he will be dangerous in the future? Did he act
                                             11
    Case: 13-70018       Document: 00512589179          Page: 12     Date Filed: 04/08/2014



                                       No. 13-70018
circumstances it may have found. 19
       At Penry’s second sentencing trial, the state court, attempting to abide
by Penry I, gave a supplemental instruction on mitigation. Penry II, 532 U.S.
at 789–90. If the jury believed that the mitigating evidence warranted a life
sentence instead of death, it was directed to make a negative finding to one of
the special issues even if it had already answered yes to that question. The
mitigation instruction did not include a separate question for the jury.
       The Supreme Court first emphasized its holding in Penry I:
       Penry I did not hold that the mere mention of “mitigating circum-
       stances” to a capital sentencing jury satisfies the Eighth Amend-
       ment. Nor does it stand for the proposition that it is constitution-
       ally sufficient to inform the jury that it may “consider” mitigating
       circumstances in deciding the appropriate sentence. Rather, the
       key under Penry I is that the jury be able to “consider and give
       effect to [a defendant’s mitigating] evidence in imposing sentence.”

Id. at 797 (quoting Penry I, 492 U.S. at 319). Having established that frame-
work, the Court considered two possible ways of interpreting the “confusing
instruction” and concluded that neither understanding satisfied its command
in Penry I: (1) If the instruction was “understood as telling the jurors to take
Penry’s mitigating evidence into account in determining their truthful answers
to each special issue . . . the supplemental instruction placed the jury in no
better position than was the jury in Penry I.” Id. at 798. (2) Alternatively, the



unreasonably in response to provocation? The jury was never instructed that it could con-
sider the evidence offered by Penry as mitigating evidence and that it could give mitigating
effect to that evidence in imposing sentence.”).
       19 Id. at 322 (“Penry argues that his mitigating evidence of mental retardation and
childhood abuse has relevance to his moral culpability beyond the scope of the special issues,
and that the jury was unable to express its “reasoned moral response” to that evidence in
determining whether death was the appropriate punishment. We agree. Thus, we reject the
State’s contrary argument that the jury was able to consider and give effect to all of Penry’s
mitigating evidence in answering the special issues without any jury instructions on miti-
gating evidence.”).
                                             12
    Case: 13-70018     Document: 00512589179      Page: 13    Date Filed: 04/08/2014



                                   No. 13-70018
instruction could be understood “as informing the jury that it could ‘simply
answer one of the special issues ‘no’ if it believed that mitigating circumstances
made a life sentence . . . appropriate . . . regardless of its initial answers to the
questions.’” Id. (citations omitted). This approach, however, “made the jury
charge as a whole internally contradictory, and placed law-abiding jurors in an
impossible situation.”      Id. at 799.       Therefore, under either approach,
“[a]lthough the supplemental instruction made mention of mitigating evi-
dence, the mechanism it purported to create for the jurors to give effect to that
evidence was ineffective and illogical.” Id. at 804.
         Finally, Boyde sets the standard for reviewing a claim of jury-charge
error:     A federal habeas court must ask “whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way that
prevents the consideration of constitutionally relevant evidence.” Boyde, 494
U.S. at 380. Two observations underpin that standard: (1) “Jurors do not sit
in solitary isolation booths parsing instructions for subtle shades of meaning
in the same way that lawyers might”; and (2) “Differences among [jurors] in
interpretation of instructions may be thrashed out in the deliberative process,
with commonsense understanding of the instructions in the light of all that has
taken place at the trial likely to prevail over technical hairsplitting.” Id. at
380–81. Moreover, “a single instruction to a jury may not be judged in artificial
isolation, but must be viewed in the context of the overall charge.” Id. at 378
(quoting Boyd v. United States, 271 U.S. 104, 107 (1926)).


                                         B.
         To obtain relief, Sprouse must establish that the state court unrea-
sonably applied Penry I, Boyde, and Penry II. First, the state court had good
reason to distinguish Sprouse’s case from Penry I and Penry II. Unlike the
situation in Penry I, the state court here instructed the jury with a specific
                                         13
    Case: 13-70018       Document: 00512589179          Page: 14     Date Filed: 04/08/2014



                                       No. 13-70018
mitigating special issue. And unlike the circumstance in Penry II, Sprouse’s
jury was given a separate special issue, which, as a discrete yes-or-no question,
plainly specified the mechanism by which the jury could give effect to any
mitigating circumstances it wished to consider. Put otherwise, the fact that
Sprouse perceives a negative inference in one sentence of his jury charge does
not demonstrate that his jury was confused about, and precluded from fol-
lowing, the comprehensive and catch-all affirmative command to the jury to
consider mitigation circumstances. 20 In light of these differences, the state
court did not act unreasonably in refusing to extend Penry I and Penry II to
this case. Insofar as Sprouse points to dicta from those decisions that may
suggest reversal, AEDPA directs us to consider only holdings. See Williams v.
Taylor, 529 U.S. 362, 412 (2000).
       Second, Sprouse has not demonstrated that the state court’s reliance on
precedent was itself unreasonable. Although it is true that Cantu v. State, 939
S.W.2d 627 (Tex. Crim. App. 1997), and Drinkard preceded Penry II, that fact
alone does make the state court’s reliance unreasonable. For this reliance to
be unreasonable, Sprouse would need to demonstrate that Boyde, Penry I, or
Penry II squarely establishes a specific legal rule that Cantu and Drinkard
violate.
       In Cantu, the TCCA assessed the very conflict at issue here: “[The defen-
dant] contends[ ] evidence of intoxication which did not rise to this level was
precluded from being afforded mitigating effect in violation of Eddings v. Okla-
homa, 455 U.S. 104 (1982) and Lockett v. Ohio, 438 U.S. 586 (1978).” Cantu,



       20 See Williams v. Norris, 612 F.3d 941, 956 (8th Cir. 2010) (“Penry and [Mills v. Mary-
land, 486 U.S. 367 (1988)] involved juries that were precluded from properly considering mit-
igating circumstances because of misleading jury instruction forms.” (citations omitted)); see
also McCoskey v. Thaler, 478 F. App’x 143, 150 (5th Cir. 2012) (per curiam) (highlighting
Penry “Court’s concerns about contradiction and limitation”).
                                              14
    Case: 13-70018       Document: 00512589179        Page: 15     Date Filed: 04/08/2014



                                      No. 13-70018
939 S.W.2d at 647. In light of the fact that an unambiguous, separate mitiga-
tion catch-all instruction was given, the court rejected the petitioner’s argu-
ments: “We hold that the inclusion of the latter instruction satisfied the consti-
tutional deficiency appellant avers was created by the inclusion of the intoxi-
cation instruction. Thus, no egregious harm, if any harm at all, can be estab-
lished.” Id. at 647–48.
       And in Drinkard, 97 F.3d at 759, we assessed a similar instruction. 21
The court had given a special instruction addressing temporary insanity
caused by intoxication during the punishment phase. Id. We determined that
the instruction was not Boyde error: “[W]e cannot say that there is a reasona-
ble likelihood that the jury interpreted the instructions as precluding the con-
sideration of Drinkard’s intoxication if it did not rise to the level of temporary
insanity.” Id.
       In both Cantu and Drinkard, the trial court instructed the jury with a
clear, separate mitigation instruction. In neither case was the jury required to
take “mitigating evidence into account in determining their truthful answers
to each special issue” or “simply [to] answer one of the special issues ‘no’ if it
believed that mitigating circumstances made a life sentence appropriate.”
Cantu and Drinkard therefore did not involve juries that were precluded from
considering mitigating evidence in the manner at issue in Penry I or Penry II.
Because those decisions do not necessarily violate any rule squarely
established by Boyde, Penry I, or Penry II, for purposes of AEDPA, the state
court’s reliance on them was not unreasonable.


       21 The instruction in Drinkard stated only that “[e]vidence of temporary insanity
caused by intoxication may be considered in mitigation of the penalty . . . .” Drinkard, 97
F.3d at 755. In contrast, Sprouse’s instruction included that sentence but was preceded with
the following: “You are instructed that under our law neither intoxication nor temporary
insanity of mind caused by intoxication constitute [sic] a defense to the commission of a
crime.”
                                            15
   Case: 13-70018     Document: 00512589179      Page: 16   Date Filed: 04/08/2014



                                  No. 13-70018
      Third, other Fifth Circuit cases (not cited by the state court) further
demonstrate that the state court’s decision was not unreasonable. In Narvaiz,
134 F.3d at 692, for example, we addressed an instruction identical to the one
here. And there, following Drinkard, we rejected the same Eighth Amendment
argument Sprouse presses. See id. at 694.
      Finally, Sprouse maintains that his case can be distinguished from
Drinkard and Narvaiz on three grounds: (1) the additional first sentence given
in his case that was not given Drinkard; (2) the prosecutor’s statements made
during voir dire to two chosen jurors (which were not made in Drinkard or
Narvaiz); and (3) the prosecutor’s “confusing” closing remarks made in this
case (again not made in Drinkard or Narvaiz). This line of reasoning fails.
First, as Sprouse readily concedes, Narvaiz included the additional first sen-
tence. Second, as to the voir dire and closing remarks, even if Sprouse can
show that those considerations constitute proper bases to distinguish Drinkard
and Narvaiz, he has not demonstrated that the state court unreasonably
applied Supreme Court precedent in failing to distinguish his case on these
bases. We therefore conclude that the state court’s decision was not an unrea-
sonable application of Boyde, Penry I, or Penry II.


                                       IV.
      Sprouse asks this court to grant COAs on five additional issues: whether
trial counsel provided ineffective assistance by failing to challenge (1) the
Texas death-penalty statute on the ground that it does not provide for mean-
ingful appellate review; (2) the statutory definition of “mitigating evidence” as
unconstitutionally narrow; (3) the statute on the ground that the aggravating
factors are vague and do not properly channel the jury’s discretion; (4) the
statute on the ground that it prohibits informing the jury of the consequences
of a “hold out” juror; and (5) the statute on the ground that it does not allocate
                                       16
    Case: 13-70018      Document: 00512589179        Page: 17     Date Filed: 04/08/2014



                                     No. 13-70018
to the state the burden of proving a lack of mitigating evidence. Because clear
Fifth Circuit caselaw forecloses each of these challenges, we do not grant a
COA on any of them.


                                           A.
      AEDPA requires a state habeas petitioner to secure a COA before
appealing a federal district court’s denial of habeas relief. 22 The petitioner
must make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2) (2012). For that, he must “sho[w] that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (citations and internal quotation marks omitted). “The COA
determination under § 2253(c) requires an overview of the claims in the habeas
petition and a general assessment of their merits.” Id. “Where a district court
has rejected the constitutional claims on the merits, the showing required to
satisfy § 2253(c) is straightforward: The petitioner must demonstrate that rea-
sonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “In
assessing whether [a petitioner] is entitled to a COA, we must keep in mind
the deference scheme laid out in 28 U.S.C. § 2254(d).” Moore v. Johnson, 225
F.3d 495, 501 (5th Cir. 2000).


                                           B.
      As discussed above, Sprouse seeks a COA with regard to five related



      22  Adams v. Stephens, No. 12-11264, 2013 WL 6155603, at *1 (5th Cir. Nov. 25, 2013)
(per curiam) (unpublished); 28 U.S.C. § 2253(c)(1)(A) (2012).
                                           17
    Case: 13-70018      Document: 00512589179         Page: 18    Date Filed: 04/08/2014



                                     No. 13-70018
claims. In the main, he contends that trial counsel were ineffective because
they did not bring various constitutional challenges to Texas’s death-penalty
scheme. We take each in turn.


                                            1.
       Sprouse seeks a COA on whether trial counsel provided ineffective
assistance of counsel (“IAC”) by failing to challenge the statute on the ground
that it does not provide for meaningful appellate review on the following three
issues: (1) the jury’s determination on mitigation; (2) the jury’s determination
on future dangerousness; and (3) comparative proportionality. In dismissing
that argument, the TCCA noted, “[A]ppellant asserts that the death penalty
scheme is unconstitutional because it fails to provide to provide a meaningful
appellate review of mitigating evidence or a re-weighing of aggravating and
mitigating circumstances. . . . The[se] arguments . . . have been previously
raised and rejected by this Court.” 23
       Applying AEDPA’s framework of “contrary to” or “unreasonable applica-
tion” of Supreme Court law, Sprouse would need to show that the state court
either applied the wrong test in deciding this issue or unreasonably applied
the correct test to the facts.       Sprouse has not pointed to any conflicting
Supreme Court precedent, instead conceding that we have rejected similar
challenges. See Martinez v. Johnson, 255 F.3d 229, 244–45 (5th Cir. 2001) (“We
find that the [TCCA] was not objectively unreasonably in its application of the
Jackson standard.”); Moore, 225 F.3d at 506–07 (“It is just this narrowly
cabined but unbridled discretion to consider any mitigating factors submitted


       23 Sprouse v. State, No. AP-74933, 2007 WL 283152, at *8 & n.11 (Tex. Crim. App.
Jan. 31, 2007) (citing Russeau v. State, 171 S.W.3d 871, 886 (Tex. Crim. App. 2005); McGinn
v. State, 961 S.W.2d 161, 170 (Tex. Crim. App. 1998); Ibarra v. State, 11 S.W.3d 189, 198
(Tex. Crim. App. 1999)).
                                            18
    Case: 13-70018        Document: 00512589179          Page: 19     Date Filed: 04/08/2014



                                       No. 13-70018
by the defendants and weighed as the jury sees fit that Texas has bestowed
upon the jury. In so doing, Texas followed Supreme Court instructions to the
letter. No court could find that Texas had acted contrary to federal law as
explained by the Supreme Court, and no benefit will arise from further con-
sideration of the obvious.”). Therefore, Sprouse has not demonstrated that rea-
sonable jurists would find the district court’s determination to be debatable.
                                              2.
       Sprouse seeks a COA on whether trial counsel provided IAC by failing to
challenge the statutory definition of “mitigating evidence” as unconstitution-
ally narrow. In dismissing that claim, the TCCA noted, “[A]ppellant asserts
that Article 37.071’s definition of mitigating evidence 24 is facially unconsti-
tutional because it limits the Eighth Amendment concept of ‘mitigation’ to fac-
tors that render a capital defendant less morally blameworthy for the commis-
sion of a capital murder. We have previously rejected this argument.” Sprouse,
2007 WL 283152, at *8 & n.13 (citing Blue v. State, 125 S.W.3d 491, 504–05
(Tex. Crim. App. 2003)).
       Sprouse points to Payne v. Tennessee, 501 U.S. 808 (1991), Skipper v.
South Carolina, 476 U.S. 1 (1986), and Eddings v. Oklahoma, 455 U.S. 104
(1982), contending that the Court has an expansive view of mitigating evi-
dence. As Sprouse concedes, however, we have rejected that challenge. See
Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir. 2001) (“[O]ur reading of the
statute leads us to conclude that the amended statute does not unconstitu-
tionally preclude[ ] [the jury] from considering, as a mitigating factor, any
aspect of a defendant’s character or record and any of the circumstances of the


       24   See TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2(f)(4) (West 2013) (“The court shall
charge the jury that in answering the issue submitted under Subsection (e) of this article, the
jury . . . shall consider mitigating evidence to be evidence that a juror might regard as reduc-
ing the defendant’s moral blameworthiness.”).
                                              19
   Case: 13-70018     Document: 00512589179     Page: 20   Date Filed: 04/08/2014



                                 No. 13-70018
offense that the defendant proffers as a basis for a sentence less than death.”
(citation and internal quotation marks omitted)). Reasonable jurists could not
therefore conclude that the state court’s opinion was contrary to or an unrea-
sonable application of Supreme Court precedent.


                                       3.
      Sprouse seeks a COA on whether trial counsel provided IAC by failing to
challenge the Texas death-penalty statute on the ground that the aggravating
factors are vague and do not properly channel the jury’s discretion. In dismiss-
ing that argument, the TCCA noted,
      Appellant argues . . . Article 37.071 is unconstitutional because the
      aggravating factors used in the statute are vague and do not prop-
      erly channel the sentencer’s discretion. Specifically, appellant
      asserts that the terms “probability,” “criminal acts of violence,”
      and “continuing threat to society” should be defined. This Court
      has previously decided this claim adversely to appellant.

Sprouse, 2007 WL 283152, at *8 & n.14 (citing Blue, 125 S.W.3d at 505).
      Texas does not run afoul of Maynard v. Cartwright, 486 U.S. 356 (1988),
or Godfrey v. Georgia, 446 U.S. 420 (1980), by not expressly defining these
terms. See Turner v. Quarterman, 481 F.3d 292, 300 (5th Cir. 2007) (“Because
Turner is unable to point to any clearly established federal law under which
the terms of the Texas sentencing instructions could be unconstitutionally
vague, he is unable to make a substantial showing of the denial of a federal
constitutional right, and we deny a COA.”); Hughes v. Johnson, 191 F.3d 607,
615–16 (5th Cir. 1999) (“We similarly have rejected contentions that ‘proba-
bility’ and other terms included in the statutory special issues are unconstitu-
tionally vague. . . . Hughes has not made a substantial showing of the denial
of a constitutional right as to this claim.”); James v. Collins, 987 F.2d 1116,
1120 (5th Cir. 1993) (“Despite the fact that Texas is a ‘non-weighing’ state, the

                                       20
   Case: 13-70018     Document: 00512589179     Page: 21   Date Filed: 04/08/2014



                                 No. 13-70018
terms used in the special issues are not so vague as to require clarifying
instructions.”). We therefore deny a COA on this issue.


                                       4.
      Sprouse seeks a COA on whether trial counsel provided IAC by failing to
challenge the statute on the ground that it prohibits informing the jury of the
consequences of a “hold out” juror. In dismissing that claim, the TCCA noted,
“[A]ppellant asserts that the capital-sentencing statute is unconstitutional
because it fails to require that jurors be informed that a single holdout juror
on any special issue would result in an automatic life sentence. We have pre-
viously decided this issue adversely to appellant.” Sprouse, 2007 WL 283152,
at *9 & n.16 (citing Russeau v. State, 171 S.W.3d 871, 886 (Tex. Crim. App.
2005). Clear Supreme Court and Fifth Circuit precedent forecloses granting a
COA on this issue. See Druery v. Thaler, 647 F.3d 535, 542 (5th Cir. 2011) (“To
the extent Petitioner’s challenge to Texas’s 12–10 rule rests on Mills v. Mary-
land, 486 U.S. 367 (1988) and the Eighth Amendment, . . . it is foreclosed by
Fifth Circuit precedent.”); see also Jones v. United States, 527 U.S. 373, 379,
382 (1999).


                                       5.
      Sprouse requests a COA on whether trial counsel provided IAC by failing
to challenge the statute on the ground that it does not allocate to the state the
burden of proving a lack of mitigating evidence. The TCCA rejected that con-
tention by noting,
      [A]ppellant claims that the mitigation question submitted to the
      jury pursuant to Article 37.071, section 2(e), is unconstitutional
      because the statute does not require the State to prove beyond a
      reasonable doubt that there was insufficient mitigating evidence


                                       21
   Case: 13-70018    Document: 00512589179      Page: 22   Date Filed: 04/08/2014



                                 No. 13-70018
      to support a life sentence. We have previously rejected this claim
      and appellant has given us no reason to revisit the issue here.

Sprouse, 2007 WL 283152, at *9 & n.20 (citing Perry v. State, 158 S.W.3d 438,
446–47 (Tex. Crim. App. 2004)). Although Sprouse maintains that the state-
court opinion runs counter to Apprendi v. New Jersey, 520 U.S. 466 (2000), and
Ring v. Arizona, 536 U.S. 584 (2002), we have expressly rejected that argu-
ment. See Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir. 2007) (“We
have specifically held that the Texas death penalty scheme did not violate
either Apprendi or Ring by failing to require the state to prove beyond a rea-
sonable doubt the absence of mitigating circumstances. In [Granados v. Quar-
terman, 455 F.3d 529, 536 (5th Cir. 2006)], we stated that ‘the state was
required to prove beyond a reasonable doubt every finding prerequisite to
exposing [the defendant] to the maximum penalty of death,’ and we concluded
that ‘a finding of mitigating circumstances reduces a sentence from death,
rather than increasing it to death.’”). We decline to grant a COA on this issue.
      The judgment denying Sprouse’s habeas petition is AFFIRMED.
Sprouse’s request for COAs on additional issues is DENIED.




                                      22
