     Case: 15-70039      Document: 00514084603         Page: 1    Date Filed: 07/21/2017




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

                                      No. 15-70039                             FILED
                                                                           July 21, 2017
                                                                          Lyle W. Cayce
JOSEPH C. GARCIA,                                                              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
                             USDC No. 3:06-CV-2185


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:*
       Joseph C. Garcia was convicted of capital murder and sentenced to death
in a Texas state court for the December 2000 killing of Irving, Texas, police
officer Aubrey Hawkins.          The Texas Court of Criminal Appeals (TCCA)
summarized the facts of the crime as follows:
       On December 13, 2000, seven inmates, including [Garcia], escaped
       from the Texas Department of Criminal Justice Connally Unit,


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 15-70039
      taking with them a number of firearms stolen from the unit. On
      December 24th, the group committed a robbery at a sporting-goods
      store in Irving, killing Irving police officer Aubrey Hawkins as they
      fled. The escapees used the weapons they stole from the prison to
      commit the robbery and murder. The escapees then made their
      way to Colorado where they lived in an RV park until January
      2001, when six were apprehended and one committed suicide.
The TCCA upheld Garcia’s conviction and sentence on direct appeal. See
Garcia v. State, No. AP-74692, 2005 WL 395433, at *1 (Tex. Crim. App. Feb.
16, 2005). Garcia filed a state post-conviction application for a writ of habeas
corpus, but the TCCA denied relief. See Ex parte Garcia, No. WR-64,582-01,
2006 WL 3308744, at *1 (Tex. Crim. App. Nov. 15, 2006).
      Garcia then filed a federal habeas application under 28 U.S.C. § 2254, in
which he included several claims that he had not presented to the state courts.
The district court held an evidentiary hearing as to some of those unexhausted
claims to determine if Garcia could establish cause and prejudice for his
procedural default. However, the court excluded from the evidentiary hearing
Garcia’s claims of ineffective assistance of counsel at jury selection.
Ultimately, the district court denied relief on all of Garcia’s claims and denied
a certificate of appealability (COA). Garcia now seeks a COA from this court
on his claims that: (1) trial counsel rendered ineffective assistance in failing to
request an “anti-parties” jury charge; (2) trial counsel rendered ineffective
assistance in failing to object to the prosecutor’s closing argument; (3) appellate
counsel rendered ineffective assistance in failing to challenge on appeal the
trial court’s admission of evidence of Garcia’s prison escape; (4) the term
“probability,” as used in the jury charge, is unconstitutionally vague; and (5)
the State’s death-penalty scheme is unconstitutional because it does not
require the jury to find the lack of sufficient mitigating circumstances beyond
a reasonable doubt.      Garcia also appeals the district court’s denial of
evidentiary hearings as to his claims that trial counsel rendered ineffective
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                                   No. 15-70039
assistance at jury selection. For the following reasons, we deny a COA as to all
of Garcia’s claims and affirm the district court’s denial of evidentiary hearings.
We discuss Garcia’s requests for a COA before turning to his appeal of the
district court’s denial of evidentiary hearings.
      I. APPLICATION FOR COA
      Our review of this § 2254 habeas proceeding is subject to the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Foster v.
Quarterman, 466 F.3d 359, 364 (5th Cir. 2006). Under AEDPA, a habeas
applicant may not appeal the district court’s denial of habeas relief unless he
first obtains a COA from either the district court or this court. § 2253(c). We
may grant a COA only upon “a substantial showing of the denial of a
constitutional right.”     § 2253(c)(2).       When the district court rejects an
applicant’s constitutional claims on the merits, we will issue a COA only if the
applicant shows that “jurists of reason could disagree with the district court’s
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). We must decide this “threshold
question . . . without ‘full consideration of the factual or legal bases adduced in
support of the claims.’” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (quoting
Miller-El, 537 U.S. at 336). In a case that involves the death penalty, any
doubts as to whether a COA should issue must be resolved in favor of the
applicant. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
      AEDPA requires federal courts to give substantial deference to state
court decisions. See Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005). A
federal court cannot grant habeas relief regarding any claim adjudicated on
the merits in state court proceedings unless, as relevant in this case, the state
court’s decision “involved an unreasonable application of[] clearly established
Federal law[] as determined by the Supreme Court of the United States.”
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§ 2254(d)(1). A state court’s decision involves an unreasonable application of
clearly established federal law if it “correctly identifies the governing legal rule
but applies it unreasonably to the facts of a particular prisoner’s case.” Perez
v. Cain, 529 F.3d 588, 594 (5th Cir. 2008).
      If a claim was not exhausted in state court, a prisoner may obtain federal
review only if he shows cause for that default and actual prejudice as a result
of the alleged violation of federal law. See Coleman v. Thompson, 501 U.S. 722,
750 (1991). Once cause and prejudice have been established, the district court
reviews the claim in the first instance; because the claims have not been
“adjudicated on the merits in State court proceedings,” the deferential
standard of review under § 2254(d) does not apply. Rather, a federal court’s
review of an unexhausted claim is de novo. See Porter v. McCollum, 558 U.S.
30, 39 (2009).
            a. Ineffective Assistance of Counsel
      A habeas applicant who wishes to demonstrate ineffective assistance of
counsel must show (1) that counsel’s performance was deficient and (2) that
the deficient performance prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687 (1984). To establish deficient performance, “the defendant
must show that counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688. In considering an ineffective-assistance claim, the
court must apply a “strong presumption” that counsel’s performance was
within the wide range of reasonable professional assistance. Id. at 689. “The
question is whether an attorney’s representation amounted to incompetence
under ‘prevailing professional norms,’ not whether it deviated from best
practices or most common custom.” Harrington v. Richter, 562 U.S. 86, 105
(2011) (quoting Strickland, 466 U.S. at 690).
      To show prejudice, an applicant must establish a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
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                                      No. 15-70039
have been different.” Strickland, 466 U.S. at 694. Reasonable probability
means “a probability sufficient to undermine confidence in the outcome.” Id.
An applicant “need not show that counsel’s deficient conduct more likely than
not altered the outcome in the case.” Id. at 693. In his application for a COA,
Garcia asserts multiple claims of ineffective assistance of counsel. We address
each of them in turn.
                     i. Trial counsel’s failure to request anti-parties charge
      Garcia contends that his trial counsel rendered ineffective assistance in
failing to request an “anti-parties” charge at the penalty phase of his trial.
Under the Texas Law of Parties, contained in section 7.02 of the Texas Penal
Code, a defendant may be held criminally responsible for the conduct of
another under certain circumstances. 1 The TCCA has held that if a jury is
instructed on the Law of Parties in the guilt phase of a capital trial, the trial
court should, upon the defendant’s request, submit an “anti-parties” charge
during the penalty phase. Martinez v. State, 899 S.W.2d 655, 656–57 (Tex.
Crim. App. 1994). An anti-parties charge informs the jury that it must limit
its consideration of punishment evidence to the defendant’s conduct, id. at 657,
and it is meant to comply with the constitutional directive that, for the
purposes of imposing the death penalty, the “punishment must be tailored to
[the defendant’s] personal responsibility and moral guilt,” Enmund v. Florida,
458 U.S. 782, 801 (1982). During the guilt phase of Garcia’s trial, the jury
received a Law of Parties instruction. He contends that he was therefore




      1 As relevant here, section 7.02(b) provides:
      If, in the attempt to carry out a conspiracy to commit one felony, another felony
      is committed by one of the conspirators, all conspirators are guilty of the felony
      actually committed, though having no intent to commit it, if the offense was
      committed in furtherance of the unlawful purpose and was one that should
      have been anticipated as a result of the carrying out of the conspiracy.
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                                       No. 15-70039
entitled to an anti-parties charge at the penalty phase of his trial and that his
trial counsel was ineffective in failing to request such a charge.
       At the punishment phase of his trial, Garcia’s jury was asked to answer
three “special issues” pursuant to article 37.071, section 2 of the Texas Code of
Criminal Procedure. The jury was required to answer the questions presented
in the first two special issues affirmatively before the death penalty could be
imposed. In the second special issue, the jury was asked:
       Do you find from the evidence beyond a reasonable doubt that the
       defendant, JOSEPH C. GARCIA, actually caused the death of the
       deceased, Aubrey Hawkins, or did not actually cause the death of
       the deceased but intended to kill the deceased or another or
       anticipated that a human life would be taken?
The jury answered this question in the affirmative.
       In denying Garcia’s state habeas application, the TCCA held that the
second special issue provided a sufficient anti-parties charge under Texas state
law. Thus, to the extent that Garcia’s claim is based on state law, its lack of
merit is not debatable among jurists of reason. See Charles v. Thaler, 629 F.3d
494, 500 (5th Cir. 2011) (“We defer to the Texas Court of Criminal Appeals’s
determination of state law. It is not our function as a federal appellate court
in a habeas proceeding to review a state’s interpretation of its own law.”
(quoting Schaetzle v. Cockrell, 343 F.3d 440, 448–49 (5th Cir.2003)). To the
extent Garcia’s claim is based on federal law, it similarly does not raise a
debatable issue among jurists of reason, as we have previously held that the
question in the second special issue satisfied Enmund’s requirement of an
individualized liability finding by the jury during the punishment phase, 2 see



       2 Garcia nevertheless contends that the question submitted to the jury did not comply
with constitutional mandates. He points to the Supreme Court’s decision in Tison v. Arizona,
481 U.S. 137, 158 (1987), in which the Court held that a felony-murder defendant who did
not actually kill or attempt to kill may be sentenced to death if he (1) was a major participant
in the felony committed; and (2) demonstrated reckless indifference to human life. Garcia
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                                        No. 15-70039
Ramirez v. Dretke, 398 F.3d 691, 697 (5th Cir. 2005), and Garcia does not argue
that there has been any intervening change in the law.
       Garcia’s counsel did not render deficient performance in failing to seek a
duplicative or additional instruction to which he was not entitled. See Wood v.
Quarterman, 503 F.3d 408, 413 (5th Cir. 2007) (counsel cannot be considered
constitutionally ineffective for failing to raise a meritless claim). Accordingly,
reasonable jurists would not find the district court’s rejection of this claim
debatable.
                      ii. Trial counsel’s failure to object to the prosecutor’s closing
                          argument
       At Garcia’s trial, the prosecution presented six alternative theories of
Garcia’s guilt to the jury: the killing of a peace officer as a (1) principal, (2)
party, or (3) conspirator, or killing in the course of a robbery as (4) principal,
(5) party, or (6) conspirator. At closing argument, the prosecutor told the jurors
that they did not have to unanimously agree on a single theory of guilt in order
to find Garcia guilty. In his federal habeas application, Garcia argued that his
trial counsel was ineffective in failing to object to that statement by the
prosecutor, as he argued that the jury had to unanimously agree at least on
whether Garcia was responsible for the killing of a peace officer or for killing
in the course of a robbery. The district court rejected this claim, concluding
that the prosecution’s alternative theories represented alternative means of




argues that the second special issue submitted to the jury does not meet the standard
established in Tison because it does not require a finding of reckless indifference to human
life. We have previously granted a COA as to a claim that Texas’s second special issue fails
to comply with Tison. See Gongora v. Quarterman, No. 07-70031, 2008 WL 4656992, at *7
(5th Cir. Oct. 22, 2008). However, Garcia did not raise his Tison-based argument before the
district court, and he has therefore forfeited it. See, e.g., Jefferson Cmty. Health Care Ctrs.,
Inc. v. Jefferson Par. Gov’t, 849 F.3d 615, 626 (5th Cir. 2017) (citing In re Paige, 610 F.3d 865,
871 (5th Cir. 2010)) (“[T]his court generally does not consider arguments raised for the first
time on appeal.”).
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                                  No. 15-70039
committing a single offense—capital murder—and therefore did not require
jury unanimity as to a particular theory.
      In his application for a COA, Garcia does not challenge this conclusion.
Instead, he points to other closing-argument statements by the prosecutor,
which he contends were improper and may have misled the jurors to believe
that they could find Garcia guilty as a principal based on the actions and mens
rea of the seven escaped inmates as a group. However, Garcia did not make
this particular argument below, and we therefore do not consider it. See, e.g.,
Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Par. Gov’t, 849 F.3d 615,
626 (5th Cir. 2017) (citing In re Paige, 610 F.3d 865, 871 (5th Cir. 2010))
(“[T]his court generally does not consider arguments raised for the first time
on appeal.”).
                 iii. Appellate counsel’s failure to challenge admission of
                      evidence of prison escape as unduly prejudicial
      Garcia claims that he was denied constitutionally effective assistance
because his state appellate counsel failed to argue that the extraneous offense
evidence of his prison escape was erroneously admitted during the guilt phase
of trial because it was unduly prejudicial. Garcia raised this claim for the first
time in a subsequent state habeas application, and the state court dismissed it
as procedurally defaulted. As previously explained, federal courts generally
cannot grant habeas relief on claims that were not properly exhausted in state
courts. See 28 U.S.C. § 2254(b)(1). In federal district court, Garcia argued that
his lack of exhaustion and procedural default of the claim should be excused
pursuant to Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012), under which
ineffective state habeas counsel can be seen as cause to overcome the
procedural default of a substantial ineffective assistance of trial counsel claim.
The district court dismissed the claim as procedurally barred, stating that
Martinez’s exception to the procedural bar does not apply to claims of

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                                 No. 15-70039
ineffective assistance of appellate counsel. In his application for a COA, Garcia
renews his contention that Martinez applies to claims of ineffective assistance
of appellate counsel. After briefing was concluded, the Supreme Court issued
its opinion in Davila v. Davis, 137 S. Ct. 2058 (2017), in which the Court held
that Martinez’s exception does not apply to claims of ineffective assistance of
appellate counsel. Accordingly, jurists of reasons would not find the district
court’s procedural ruling debatable.
            b. Unconstitutionally Vague Jury Charge
      As previously noted, at the punishment phase of Garcia’s trial, the jury
was asked to answer three “special issues” pursuant to article 37.071, section
2 of the Texas Code of Criminal Procedure, and an affirmative answer to the
first two was required for a death sentence to be rendered. In the first special
issue, the jury was asked: “Do you find from the evidence beyond a reasonable
doubt that there is a probability that the defendant, JOSEPH C. GARCIA,
would commit criminal acts of violence that would constitute a continuing
threat to society?” The jury answered this question in the affirmative.
      In his federal habeas application, Garcia argued that the term
“probability” as used in the first special issue is unconstitutionally vague in
violation of the Due Process Clause. He conceded, however, that his claim was
foreclosed by this court’s precedent, see, e.g., James v. Collins, 987 F.2d 1116,
1120 (5th Cir. 1993), and he stated that he wished to preserve it for further
review. The district court therefore denied relief as to this claim for lack of
merit.   In his application for a COA, Garcia contends that, this court’s
precedent approving of the state’s general use of the word “probability”
notwithstanding, the use of that undefined term in his particular case was
unconstitutional because the jurors had demonstrated their confusion
regarding the meaning of that term during voir dire. However, here, too,


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                                  No. 15-70039
Garcia did not make this particular argument below, and we therefore do not
consider it. See, e.g., Jefferson Cmty. Health Care Ctrs., Inc., 849 F.3d at 626.
            c. Failure to Require Finding of Lack of Mitigating
               Circumstances Beyond Reasonable Doubt
      Pursuant to article 37.071, section 2(e)(1) of the Texas Code of Criminal
Procedure, the third special issue submitted to the jury at the penalty phase of
Garcia’s trial asked:
      Do you find, taking into consideration all of the evidence, including
      the circumstances of the offense, the defendant’s character and
      background, and the personal moral culpability of the defendant,
      that there is a sufficient mitigating circumstance or circumstances
      to warrant that a sentence of life imprisonment rather than a
      death sentence be imposed?
The jury answered this question in the negative, which was required for a
death sentence to be rendered. TEX. CODE CRIM. PRO. art. 37.071, § 2(g).
      On direct appeal to the TCCA, Garcia contended that the third special
issue was unconstitutional in that it did not require the jury to find a lack of
sufficient mitigating circumstances beyond a reasonable doubt.             Citing
Apprendi v. New Jersey, 530 U.S. 466 (2000), he argued that the third special
issue was “the functional equivalent of [an] element[], and must therefore be
proven to a jury beyond a reasonable doubt.” The TCCA rejected this claim as
foreclosed under its precedent. See Garcia v. State, No. AP-74692, 2005 WL
395433, at *4 (Tex. Crim. App. Feb. 16, 2005) (citing Escamilla v. State, 143
S.W.3d 814, 828 (Tex. Crim. App. 2004)). In his federal habeas application,
Garcia pressed the same claim while noting that it was foreclosed by this
court’s opinion in Rowell v. Dretke, 398 F.3d 370 (5th Cir. 2005).
      In his application for a COA, Garcia again asserts this claim, and he
points to the Supreme Court’s decision in Hurst v. Florida, 136 S. Ct. 616
(2016), as establishing his entitlement to relief. In Hurst, the Court held
Florida’s death-penalty sentencing scheme unconstitutional because it
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                                 No. 15-70039
required the sentencing judge, not the jury, to decide whether to impose the
death penalty based on the judge’s independent determination and weighing
of aggravating and mitigating circumstances. Id. at 620. In so doing, the Court
relied on its prior holding in Ring v. Arizona, 536 U.S. 584 (2002), that capital
defendants are entitled to a jury determination beyond a reasonable doubt of
any fact on which the legislature conditions the imposition of the death
penalty. Hurst, 136 S. Ct. at 621–22 (discussing Ring, 536 U.S. at 604).
      This court has “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 reasonable doubt the absence of mitigating circumstances.” Allen v.
Stephens, 805 F.3d 617, 627–28 (5th Cir. 2015) (internal quotation marks
omitted) (quoting Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir. 2007)).
This holding rested on the reasoning that “through the guilt-innocence phase,
‘the state was required to prove beyond a reasonable doubt every finding
prerequisite to exposing [the defendant] to the maximum penalty of death. . . .
[A] finding of mitigating circumstances reduces a sentence from death, rather
than increasing it to death.’” Id. at 628 (quoting Granados v. Quarterman, 455
F.3d 529, 536–37 (5th Cir. 2006)). Garcia has not shown how the Supreme
Court’s opinion in Hurst disturbs this court’s prior analysis and holding. We
are therefore bound to apply our precedent, under which there is no need for a
jury to find the absence of sufficient mitigating circumstances beyond a
reasonable doubt. In this light, jurists of reason would not find the district
court’s resolution of this claim debatable.
      II. Appeal of the Denial of Evidentiary Hearings
      The district court conducted an evidentiary hearing to determine
whether Garcia can overcome the procedural bar that would otherwise
preclude the presentation of claims that he did not exhaust in state courts.
However, the court granted the State’s request to exclude from the evidentiary
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                                       No. 15-70039
hearing Garcia’s claims that trial counsel was ineffective for failing to object to
the jury selection process and to the trial court’s grant of the State’s for-cause
challenge to a particular veniremember. Garcia appeals the district court’s
denial of an evidentiary hearing as to these claims of ineffective assistance of
counsel. 3 We review the district court’s denial of an evidentiary hearing for
abuse of discretion. Hall v. Quarterman, 534 F.3d 365, 367 (5th Cir. 2008). A
district court does not abuse its discretion in denying an evidentiary hearing if
“there is not ‘a factual dispute which, if resolved in the prisoner’s favor, would
entitle him to relief.’” Norman v. Stephens, 817 F.3d 226, 235 (5th Cir. 2016)
(alteration omitted) (quoting Clark v. Johnson, 202 F.3d 760, 766 (5th Cir.
2000)).
              a. Trial Counsel’s           Agreement        to     Change      Voir    Dire
                 Procedure
       During voir dire of veniremembers prior to Garcia’s trial, defense counsel
agreed to allow the State to examine a pool of potential jurors before having to
decide on the use of peremptory challenges. In his federal habeas application,
Garcia claimed that counsel’s agreement to this procedure constituted
ineffective assistance because it deprived him of the benefit of a state law
requiring the State to exercise any peremptory challenge at the conclusion of
each individual voir dire. The district court granted the State’s motion to deny
an evidentiary hearing as to this claim because it found that Garcia had failed
to properly allege that counsel’s decision prejudiced his defense.
       On appeal, Garcia asserts that he was entitled to an evidentiary hearing
regarding his claim that counsel was ineffective in agreeing to the change in
voir dire procedure. 4        However, Garcia alleges no facts that could be


       3  No COA is required to appeal the denial of an evidentiary hearing. Norman v.
Stephens, 817 F.3d 226, 234 (5th Cir. 2016).
        4 Garcia also complains of multiple other deficiencies in counsel’s performance during

voir dire and argues that they entitle him to an evidentiary hearing. However, he did not
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                                       No. 15-70039
substantiated or revealed in an evidentiary hearing and that would permit a
conclusion that, but for trial counsel’s agreement to the changed procedure,
Garcia would have obtained a different result at trial. See Strickland, 466 U.S.
at 694. He therefore has not established a factual dispute that would entitle
him to relief if resolved in his favor. Accordingly, the district court did not
abuse its discretion in denying an evidentiary hearing on this claim. See
Norman, 817 F.3d at 235.
              b. Trial Counsel’s Failure to Object to the Trial Court’s For-
                 Cause Dismissal of a Particular Veniremember
       Garcia argues that trial counsel was ineffective in failing to object to the
trial court’s grant of the State’s for-cause challenge to veniremember David
Chmurzynski. In his juror questionnaire, Chmurzynski indicated that he was
“an 8 on a scale of 1 to 10” in favor of the death penalty and that he believed in
“an eye for an eye.” During individual voir dire, in response to the prosecutor’s
questions, Chmurzynski expressed his belief that the death penalty is
appropriate only “in some cases” and that “taking a life is probably the ultimate
crime or ultimate evil . . . [e]specially if it’s done . . . maliciously and willfully.”
       The prosecutor subsequently explained to Chmurzynski that some
people who support the death penalty are “not sure they can sit over here and
do it.” He told Chmurzynski about an actual execution that took place the
previous week, during which the person being executed “gasped three times for
air in the middle of a sentence.” The following colloquy between the prosecutor
and Chmurzynski ensued:
       [Q.] People come down and tell us, you know, that’s maybe not a
       situation that’s right for them. . . . That’s why we ask the question.
       And I liken it to washing windows on a skyscraper. I know that




raise these claims before the district court, and we therefore do not consider them. See, e.g.,
Jefferson Cmty. Health Care Ctrs., Inc., 849 F.3d at 626.
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                                  No. 15-70039
      needs to be done, but me, personally, you can’t get me up there.
      That’s just something that I can’t do.
      A. Right.
      Q. Have you thought about that? Serving on a case like that to
      make that decision?
      A. I have.
      Q. And what are your thoughts about whether you can participate?
      A. I think it would be a difficult thing for me to do.
      Q. That’s fair. . . . You are certainly entitled to that. And I ask
      because I don’t think it would be fair to me to say to you, too bad,
      get over there, anyway. I don’t think it would be fair to you.
      A. Right.
      Q. And that’s why I ask and I certainly don’t want to put you in a
      position where that would compromise yourself.
      A. Right.
      Thereafter, the State challenged Chmurzynski for cause.               Garcia’s
counsel responded, “The defense will remain silent,” and the trial court granted
the State’s challenge. The trial court added, “For the record, the Court, sitting
higher than the jurors, I have had an opportunity to view the jurors. This juror
was extremely nervous. His hands were quivering. In response to the question
whether or not he could assess the death penalty, his voice broke.”
      In his federal habeas application, Garcia contended that Chmurzynski
was removed merely because he expressed reservations about the use of the
death penalty and did not endorse its use in all cases, and he asserted that
removal of a veniremember for these reasons is improper. Garcia claimed that
trial counsel’s failure to object to Chmurzynski’s for-cause dismissal therefore
constituted ineffective assistance.    The district court granted the State’s
motion to deny an evidentiary hearing as to this claim because it found that
Garcia had failed to properly allege that counsel’s failure to object prejudiced
his defense. On appeal, Garcia asserts that he was entitled to an evidentiary

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                                 No. 15-70039
hearing regarding this claim. He contends that had trial counsel objected to
Chmurzynski’s dismissal, the prosecutor’s for-cause challenge would not have
prevailed.
       “[A] juror may not be challenged for cause based on his views about
capital punishment unless those views would prevent or substantially impair
the performance of his duties as a juror in accordance with his instructions and
his oath.”   Adams v. Texas, 448 U.S. 38, 45 (1980).        Whether a juror is
excludable under this standard is a question of fact. See Ortiz v. Quarterman,
504 F.3d 492, 501 (5th Cir. 2007) (citing Wainwright v. Witt, 469 U.S. 412, 424
(1985)).
       Here, the colloquy between the prosecutor and Chmurzynski called the
veniremember’s ability to perform his duties in an impartial manner into
question. The trial court’s observations regarding Chmurzynski’s demeanor
reinforced the suggestion of partiality and led the court to conclude that
Chmurzynski could not perform his duties as a juror in accordance with the
law in deciding whether to impose the death penalty. Garcia argues that
Chmurzynski’s demeanor during voir dire “was entirely reasonable and within
the range of normal behavior” in light of the prosecutor’s vivid description of
an execution. He asserts that at an evidentiary hearing, he would be able to
develop evidence of trial counsel’s knowledge of facts and law relevant to
counsel’s failure to object.
       However, in light of the transcript and the trial court’s sua sponte
clarification of the basis for its ruling, we are unpersuaded that there is a
reasonable probability that the trial court would have ruled differently on the
State’s challenge had Garcia’s counsel objected. See Strickland, 466 U.S. at
694.   Nor are we persuaded that there is a reasonable probability that a
reviewing court would have overruled the trial court’s resolution of this factual


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    Case: 15-70039        Document: 00514084603          Page: 16     Date Filed: 07/21/2017



                                       No. 15-70039
question had a challenge been preserved. 5                  See Witt, 469 U.S. at 426
(“[D]eference must be paid to the trial judge who sees and hears the juror.”).
Because an evidentiary hearing would not have affected Garcia’s failure to
establish prejudice by counsel’s alleged error, the district court did not abuse
its discretion in denying an evidentiary hearing on this claim. See Norman,
817 F.3d at 235.
       III.   CONCLUSION
       Garcia’s attorneys from the Arizona Federal Public Defender’s Office
have done an admirable job of sifting through the record and seeking to raise
the strongest challenges to Garcia’s conviction and sentence, but we cannot
consider many of these challenges, as they were not raised before the district
court. For the forgoing reasons, we conclude that Garcia has not made a
substantial showing of the denial of a constitutional right and therefore deny
his application for a COA, and we find no abuse of discretion in the district
court’s denial of evidentiary hearings.




       5 In his brief on appeal, Garcia states in passing that “defense counsel did not question
Chmurzynski to rehabilitate him to alleviate the trial court’s concerns.” He does not,
however, further develop this contention, and he does not explain its significance and support
it with relevant authority. We therefore do not consider it. See, e.g., SEC v. Life Partners
Holdings, Inc., 854 F.3d 765, 784 (5th Cir. 2017) (deeming a party’s challenge forfeited for
inadequate briefing).
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