                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       March 24, 2005

                        _______________________                   Charles R. Fulbruge III
                                                                          Clerk
                              No. 04-70024
                        _______________________


                             MELVIN WAYNE WHITE,

                                                   Petitioner - Appellant,

                                    versus

                      DOUGLAS DRETKE, Director,
               Texas Department of Criminal Justice -
                       Institutional Division,

                                                     Respondent - Appellee.



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


Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

           Melvin Wayne White was convicted of capital murder and

sentenced to death for the murder of nine-year-old Jennifer Lee

Gravell in    the   course    of   committing   or   attempting    to   commit

kidnapping, or in the course of committing or attempting to commit

aggravated sexual assault.         After exhausting state remedies, White

filed a § 2254 petition for a writ of habeas corpus in federal

district court raising two grounds for relief.           The district court

wrote a thorough and well-reasoned opinion that granted the state’s


     *
            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opinion should not be published and is not precedent except under the limited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.
motion for summary judgment on the two issues, dismissed White’s

petition, and refused to grant a certificate of appealability

(“COA”) on either issue raised.

           White now seeks a COA from this court on two issues:

(1)   whether   the   evidence   admitted     at   trial   and   during   the

punishment phase was sufficient to support the jury’s affirmative

answer to the future dangerousness special issue; and (2) whether

he can show cause to excuse the procedural default of his challenge

to the “good-time” jury instruction given at punishment.            We deny

a COA on each claim.

                                 BACKGROUND

           On   August   4,   1997,   then    forty-seven-year-old    White

kidnapped, sexually assaulted and murdered a nine-year-old girl who

lived in his neighborhood in Ozona, Texas.             On the night of a

neighborhood barbeque, White went home between 10:30 and 11:00 p.m.

after consuming several alcoholic drinks.           Around this time, the

victim came over to his house.        White took her in his truck to a

roadside rest area where he bound the girl’s hands behind her back

with electrical tape, stuffed a sock in her mouth and sexually

assaulted her with an object – possibly a screwdriver.              He also

admitted that he penetrated her vagina with his finger.           White then

killed the girl by repeatedly striking her head with a tire tool

and dumped her body behind a water tank in a field outside of town.

In a trash can in White’s house, investigators discovered the



                                      2
victim’s underpants, sandals, and a ball of electrical tape with

her hair in it.

          At    the   punishment   phase    of   trial,   the   prosecution

presented evidence that White had forced his daughter to perform

oral sex and penetrated her with his finger when she was twelve

years old.     White’s daughter testified that two years later her

father had offered her fifty dollars per week if she would provide

him with sexual favors upon demand.        Further evidence demonstrated

that when White was between ten and twelve years old he touched the

genitals of a four-year-old relative.            Additionally, a witness

testified that White allowed teenagers to have parties at his house

where alcohol was served, and during a party he touched a teenage

girl’s breast.    Another witness testified that White had watched

her engage in sex with his son and later described the events in

detail.

          Dr. Windell Dickerson, the chief psychologist employed by

the Texas prison system, opined for the prosecution that, if one

believed that White had raped his daughter, then White posed a very

serious risk for further violent conduct.        Dr. Dickerson concluded

that White was “at substantial risk” or “considerable risk” of

committing criminal acts of violence that would constitute a

continuing threat to society.      Specifically, he stated that “the

possibility of Melvin Wayne White doing something else in or out of

prison is substantially greater than it is for an individual who is

doing okay in their life.”     Dr. Dickerson further testified that

                                    3
research indicates that sex offenders “tend to commit multiple

kinds of sex offenses.”

            Dr. Dickerson also informed the jury that women serve

among the prison staff, and in most units of the prison system,

there have been escapes from prison, including one from death row.

Further, alcoholic beverages are available inside prison even

though their consumption violates prison rules.

            On June 10, 1999, the jury found White guilty of capital

murder. Following a separate punishment hearing, the jury answered

in the affirmative the special issues set forth in Texas Code of

Criminal Procedure article 37.071(b), and White was sentenced to

death.     On direct appeal, the Texas Court of Criminal Appeals

(“CCA”) affirmed White’s sentence and conviction in an unpublished

opinion.    White v. State, No. 73,592 (Tex. Crim. App. Jan. 31,

2001).   On September 7, 2000, White commenced a state application

for writ of habeas corpus.       The state district court held an

evidentiary hearing and entered findings of fact and conclusions of

law recommending denial of relief.     The CCA denied relief in an

unpublished order adopting the findings and conclusions entered by

the trial court.

                             DISCUSSION

            White’s § 2254 habeas petition is subject to the Anti-

terrorism and Effective Death Penalty Act of 1996 (AEDPA).      See

Penry v. Johnson, 532 U.S. 782, 121 S. Ct. 1910, 150 L. Ed. 2d 9



                                  4
(2001).   AEDPA mandates that White obtain a COA before he can

appeal the district court’s denial of habeas relief.         28 U.S.C.

§ 2253(c)(1).    Indeed, “until a COA has been issued federal courts

of appeals lack jurisdiction to rule on the merits of appeals from

habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123

S. Ct. 1029, 154 L. Ed. 2d 931 (2003).

          A COA will issue only when the petitioner has made

“a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2) (2000);         Miller-El, 537 U.S. at 336, 123

S. Ct. 1029.    To make such a showing, a petitioner must demonstrate

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.”       Id.

          “[A] COA ruling is not the occasion for a ruling on the

merit of petitioner’s claim.”     Id. at 331.    Rather, at this stage

we engage in an “overview of the claims in the habeas petition and

a general assessment of their merits.”         Id. at 336.   “Indeed, a

claim can be debatable even though every jurist of reason might

agree, after the COA has been granted and the case has received

full consideration, that petitioner will not prevail.” Id. at 338.

          Although the nature of the death penalty is a proper

consideration for determining whether the court should issue a COA,

its severity alone is not sufficient to warrant the issuance of the

certificate.    Ogan v. Cockrell, 297 F.3d 349, 355 (5th Cir. 2002).

                                   5
Nevertheless,    doubts    regarding       the    propriety    of   issuing    the

certificate in a death penalty case should be resolved in favor of

the petitioner.      Id.

            Even if the petitioner succeeds in obtaining a COA, he is

not necessarily entitled to habeas relief.               “To prevail on a peti-

tion for writ of habeas corpus, a petitioner must demonstrate that

the state    court    proceeding   ‘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.’”       Robertson v. Cockrell, 325 F.3d 243, 247-48

(5th Cir. 2003) (en banc) (quoting 28 U.S.C. § 2254(d)(1) (2000)).

Before this court may grant habeas relief under the “unreasonable

application” standard, “the state court’s application must be more

than merely incorrect.”      Id. at 248.         Rather, the more appropriate

inquiry is whether the “state court’s application of clearly

established federal law was objectively unreasonable.”                  Cotton v.

Cockrell, 343 F.3d 746, 750 (5th Cir. 2003).

1.   The Legal Sufficiency of the Evidence Supporting the Jury’s
     Finding of Future Dangerousness

            White contends that the evidence was insufficient to

support the jury’s affirmative answer to the second special punish-

ment issue, namely, whether there is, beyond a reasonable doubt, a

probability that White would commit acts of violence constituting




                                       6
a continuing threat to society.1            Further, White contends that the

evidence presented by the state’s mental health expert that White

could commit future violent acts in prison was too speculative to

support the jury finding.              White argues from Jurek that the

constitutional validity of the Texas death penalty statute is

predicated on a restrictive interpretation of Texas’s “future

dangerousness” special issue and a limitation of capital punishment

to only the most extraordinary crimes.                See Jurek v. Texas, 428

U.S. 262, 273-74, 276, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976).

            When   a    habeas   petitioner     asserts    that    the   evidence

presented to the state court was insufficient to find future

dangerousness, the limited question before a federal habeas court

is whether the state courts’ decision to reject that claim was an

objectively unreasonable application of the clearly established

federal law set out in Jackson v. Virginia, 443 U.S. 307, 323, 99

S. Ct. 2781, 61 L. Ed. 2d 560 (1979).           See Martinez v. Johnson, 255

F.3d 229, 241 n.21 (5th Cir. 2001) (“Therefore, our review of the

CCA’s   decision       is   properly   framed    as   whether     that   decision

constitutes an ‘unreasonable application’ of Jackson.”);                  Callins


      1
            According to White, a reasonable juror could, from the evidence
presented at sentencing, have concluded that he posed a future danger of sexual
violence toward young girls, and presented a much smaller risk of more
generalized violence when he was intoxicated. On the other hand, a reasonable
jury could not have concluded beyond a reasonable doubt that White would present
a future danger because imprisonment would deprive him of access to young girls
and alcohol, the two stimuli previously associated with the violent conduct in
his life. According to White, the chance that he would live long enough to be
released was nearly non-existent because White was forty-nine years old at
sentencing and would not have been eligible for release until he was almost
ninety years old if not sentenced to death.

                                        7
v. Collins, 998 F.2d 269, 276 (5th Cir. 1993) (citing Jackson).

Under Jackson, a conviction is constitutional if, “after viewing

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.”           443 U.S. at 319, 99 S. Ct.

2789.

            The CCA began its review of White’s capital sentence by

directly    citing   Jackson    and   framing    its   analysis    under   that

constitutional standard.2        The CCA then stated that, under Texas

law, a jury may consider several factors to support a finding of

future dangerousness, including: (1) the circumstances of the cap-

ital offense; (2) the calculated nature of the defendant’s conduct;

(3) the deliberateness exhibited in the execution of the crime;

(4) the existence and severity of any previous offenses committed

by the defendant; (5) the defendant’s age and personal circum-

stances at the time of the offense; (6) whether, at the time of the

offense, the defendant was acting under duress; (7) psychiatric

evidence; and (8) character evidence.           White v. State, No. 73,592,

slip op. at 2-3 (Tex. Crim. App. Jan. 31, 2001) (citing Wilson v.

State, 7 S.W.3d 136, 142 (Tex. Crim. App. 1999)).                 The CCA then



      2
            White v. State, No. 73,592, slip op. at 2 (Tex. Crim. App. Jan. 31,
2001) (“In analyzing appellant’s claim, we view the evidence in the light most
favorable to the jury’s verdict and ask whether a jury rationally could have
concluded beyond a reasonable doubt that ‘there is a probability that [appellant]
would commit criminal acts of violence that would constitute a continuing threat
to society.’ Jackson v. Virginia, 443 U.S. 307 (1979); Barnes v. State, 876
S.W.2d 316, 322 (Tex. Crim. App. 1994).”).

                                       8
cited its substantive law that the circumstances of the charged

offense may alone be sufficient to support an affirmative finding

of future dangerousness.       Id.3

            The CCA reviewed and rejected White’s sufficiency of the

evidence claim. In so doing, the CCA recited the relevant evidence

and reasoned as follows:

      A rational jury could find that the circumstances of the
      instant offense alone indicate [White] would commit
      future violent criminal acts – the acts committed by
      [White] were particularly gruesome. See, e.g., Williams
      v. State, 937 S.W.2d 479, 484 (Tex. Crim. App. 1996).
      But the offense is not an isolated incident of sexual
      abuse on the part of [White]. [White] has a history of
      sexually assaulting young girls. Additionally, [White]
      has been physically violent against both women and men.
      Furthermore, both the prosecution’s and [White]’s
      psychological experts stated that [White] would likely
      commit offenses against female children in the future.
      Considering the evidence presented at guilt/innocence and
      punishment and the factors detailed above, we conclude
      that there was sufficient evidence to support the jury’s
      conclusion that there was a probability that [White]
      would be a future danger to society. Barnes [v. State,
      776 S.W.2d 316, 322 (Tex. Crim. App. 1994)].

      The jury’s affirmative answer to the future dangerousness
      issue is reasonable even if, as [White] suggests, we
      disregarded the well-settled law and redefine “society”
      to include only the prison population.        See, e.g.,
      Narvaiz v. State, 840 S.W.2d 415, 424 (Tex. Crim. App.

      3
            It should also be recognized that the CCA has stated that the term
“continuing threat to society” requires no special definition. The term is to
be understood in its usual acceptance in common language and need not be defined
in the charge to the jury. Lackey v. State, 819 S.W.2d 111, 118 n.2 (Tex. Cr.
App. 1989). The term “includes not only free citizens but also inmates in the
penitentiary. Therefore, the length of time appellant remains incarcerated is
not relevant to the issue of whether he will be a continuing threat to society.”
Jones v. State, 843 S.W.2d 487, 495 (Tex. Crim. App. 1992) (internal citation
omitted); Narvaiz v. State, 840 S.W.2d 415, 424 (Tex. Crim. App. 1992) (noting
that the state’s burden is to prove that a capital defendant poses “a continuing
threat, whether in or out of prison”).

                                       9
     1992). The prosecution’s psychological expert testified
     that [White] was likely to be a target of violence in
     prison.   “The more he is a recipient of it, the more
     likely he is to act out in that way.” The expert also
     testified that women work on the staff at prisons.
     Additionally, the expert stated that in the absence of
     women, some men “will tend to shift to guys.” In light
     of this evidence, we concluded that the jury could find
     beyond a reasonable doubt that someone like appellant,
     who kidnaps, sexually assaults and murders a 9-year-old
     girl, would be dangerous to prison society as well as
     non-prison society. See Barnes, 876 S.W.2d at 322.

Id. at 5-6.

              Under the limited scope of AEDPA review, the district

court concluded that the CCA was not objectively unreasonable in

its application of the Jackson standard in determining, after a

review   of    the   evidence   in   the   light   most   favorable   to   the

prosecution, that a rational trier of fact could find the essential

elements of future dangerousness beyond a reasonable doubt.                 A

rational finder of fact could have found beyond a reasonable doubt

that White posed a future danger based on its consideration of the

brutal nature of the crime and the violent manner of the treatment

of the victim’s body.      Additionally, the testimony of the experts

and witnesses concerning White’s background and behavior, even

though disputed, supports a finding of future dangerousness. Based

on the evidence presented at trial, including the evidence of the

expert psychological witness, a jury could have concluded that

White posed a future danger whether in or out of prison.          White has

not demonstrated that reasonable jurists could debate whether, or

disagree that, the district court should have resolved his habeas

                                      10
petition in     a    different     manner.          Therefore,    we   deny    White’s

application for COA on this issue.

2.   Cause to Excuse Procedural Default of the Underlying Claim
     that the Jury Received a Constitutionally Inaccurate
     Instruction on White’s Eligibility for Good Time Credit.

          White       argued      before      the     district     court      that   an

instructional       error    on   the   possibility       of     parole    introduced

unwarranted uncertainty about the length of time White would be

required to spend in prison, and thus tainted his sentencing

proceedings with a level of unreliability inconsistent with the

protection of the Eighth and Fourteenth Amendments.                    According to

White, his jury was incorrectly instructed that if he received a

life sentence, he would be eligible to “earn time off the period of

incarceration imposed through the award of good conduct time.”

White contends that this instruction was incorrect because those

sentenced to life prison terms for capital murder are ineligible

for good conduct reductions. White admits that his trial attorneys

did not lodge an objection to this instruction, and that this issue

was not raised on either direct appeal or state habeas proceedings.

          The district court rejected White’s argument on the basis

of procedural bar.          White v. Dretke, No. P-01-CV-076, slip op. at

32-33 (W.D. Tex. Apr. 22, 2004).           Additionally, the district court

determined that an argument that state habeas counsel provided

ineffective assistance did not excuse the procedural default.                        Id.

The court alternatively found no merit in White’s claim.                    White now

                                         11
seeks a COA to determine whether he has demonstrated cause to

excuse the procedural default of his jury instruction claim.

           The law requires that “a state prisoner seeking to raise

claims in a federal petition for habeas corpus ordinarily must

first present those claims to the state court and must exhaust

state remedies.”      Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir.

2001) (citing 28 U.S.C. § 2254(b)). Generally, if the petitioner

fails to follow these procedures, his claims will be considered

procedurally defaulted and will not be regarded as grounds for

granting federal habeas relief.           Id. at 239 (citing Keeney v.

Tamayo-Reyes, 504 U.S. 1, 9, 112 S. Ct. 1715, 118 L. Ed. 2d 318

(1992)). However, a petitioner can overcome this procedural default

if he can demonstrate cause for the default and actual prejudice as

a result of the alleged violation of federal law.              Id. (citing

Jones v. Johnson, 171 F.3d 270, 277 (5th Cir. 1999)).

           White asserts that the ineffective performance of his

counsel   at   each    of   the   state   trial,   appellate   and   habeas

proceedings provides cause that excuses his default.           White argues

that because of his state habeas counsel’s damaging ineffective-

ness, which prevented him from demonstrating counsel’s ineffec-

tiveness at the sentencing stage and on direct appeal, he can

demonstrate cause excusing the procedural default.

           White’s argument is foreclosed by circuit precedent.

This court has consistently held that ineffective assistance of

                                     12
state habeas counsel cannot provide cause for a procedural default.

See, e.g., Ogan v. Cockrell, 297 F.3d 349, 357 (5th Cir. 2002);

Martinez, 255 F.3d at 245;         In re Goff, 250 F.3d 273, 274-76,

(5th Cir. 2001).    This is because there is no underlying right to

counsel in state post-conviction review and there is no cognizable

constitutional claim based on the ineffectiveness of state habeas

counsel.     Jones v. Johnson, 171 F.3d 270, 277 (5th Cir. 1999);

Callins v. Johnson, 89 F.3d 210, 212 (5th Cir. 1996).

           Accordingly, reasonable jurists could not disagree as to

whether White has articulated a claim of cause to excuse the

procedural    default   of   his   claim   of   instructional   error.   We

therefore deny a COA on this issue.

                               CONCLUSION

           Because we DENY White’s application for COA on both of

the issues raised, we lack jurisdiction to review the district

court’s denial of habeas relief.

           COA DENIED.




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