                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                   February 11, 2004

                                                        Charles R. Fulbruge III
                           No.    03-20456                      Clerk


                       ANTHONY GUY FUENTES,

                                              Petitioner-Appellant,
                                 versus


  DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
               CORRECTIONAL INSTITUTIONS DIVISION,

                                              Respondent-Appellee.


          Appeal from the United States District Court
               for the Southern District of Texas
                          (01-CV-4018)


Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Anthony Guy Fuentes requests a certificate of appealability

(“COA”) from our court, so that he can challenge the denial of

federal habeas relief for his Texas state court capital conviction

and death sentence.   Accordingly, for each claim covered by a COA

request, we must determine whether that request makes the requisite

“substantial showing of the denial of a constitutional right”, 28




     *
      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this opinion should not be published and is not precedent except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.
U.S.C. § 2253(c)(2), necessary to be permitted to appeal the denial




                                2
of that claim in his 28 U.S.C. § 2254   habeas petition.   DENIED.

                              I.

     On direct appeal, and viewed in the light most favorable to

the verdict, the Texas Court of Criminal Appeals described the

facts as follows:

          [O]n Friday, February 18, 1994, [Fuentes],
          Kelvin Templeton, Terrell Lincoln, and Steve
          Vela conspired to rob the Handi Food Mart and
          any employees or customers who happened to be
          in the store. The Handi Mart was busy with
          employees of the Swartz Electric Company who
          had just been paid, cashed their paychecks at
          the store and were enjoying a few beers and
          the company of coworkers outside the premises
          of the store. Among those gathered was Robert
          Tate, a regular customer and acquaintance of
          the proprietors of the Handi Mart and sometime
          employee of Swartz Electric.

          [Fuentes] and his cohorts arrived at the
          store, noted that it was busy and proceeded
          with their plan. Templeton went directly to
          the coolers, grabbed two cases of beer and
          walked out.    [Fuentes] and Vela walked into
          the store behind Templeton and pulled out
          their guns.     Vela went to the cashier and
          demanded money.      [Fuentes] approached the
          proprietor and a customer who were standing
          near the counter.      The customer, Raymundo
          Soria, was a high school classmate of
          [Fuentes].    He followed [Fuentes’] orders,
          hiding his identity in fear that [Fuentes]
          would recognize him.        James Draffin was
          walking into the store when he noticed that it
          was being robbed. He ran to inform his co-
          workers of the robbery. Ignoring his friends’
          warnings not to get involved, Tate gave chase
          when Templeton left the store with the beer.
          Tate caught up to Templeton and grabbed him.
          Templeton dropped the beer.        Just then,
          [Fuentes] came running out of the store.
          Julio Flores testified that [Fuentes] came out
          of the store, ran up to Tate and Templeton,


                                3
            and shot Tate twice in the chest. Testimony
            at trial indicated that [Fuentes] used a semi-
            automatic gun. Tate fell into a nearby ditch
            and died. The bullets recovered from Tate’s
            body were consistent with those used in a 9
            millimeter weapon, which are most commonly
            semiautomatic.

            Flores   further   testified   that,  despite
            standing five hundred meters from [Fuentes],
            he got a good look at his face and positively
            identified [Fuentes] as Tate’s murderer.
            Flores’   description    of   [Fuentes]   was
            consistent with the description given by the
            proprietor as the man who robbed him in the
            store. Flores and Soria positively identified
            [Fuentes] in photo lineups.

            Templeton was the only co-conspirator to
            testify.    He testified that he was not
            watching when he heard the shots fired; he
            thought Tate had shot at him, so he just began
            running. Templeton testified that although he
            did not see it, he was under the impression
            that [Fuentes] had shot Tate because when he
            looked back, [Fuentes] had a gun in his hand
            and was the one closest to him, and he had not
            seen Vela near the victim.

Fuentes v. State, 991 S.W.2d 267, 270-71 (Tex. Crim. App. 1999).

     Fuentes was found guilty in Texas state court for the capital

murder of Robert Tate.       The jury then answered Texas’ capital

murder special issues in a manner that required the trial court to

impose the death sentence.

     The Court of Criminal Appeals affirmed the conviction and

sentence.    Fuentes, 991 S.W.2d 267.       The Supreme Court of the

United States denied certiorari.       Fuentes v. Texas, 528 U.S. 1026

(1999).



                                   4
     Fuentes   sought    habeas    relief      in   state   court   during    the

pendency of his appeal.       In February 2000, the trial-level state

habeas court rendered findings of fact and conclusions of law,

recommending that relief be denied.            The Court of Criminal Appeals

adopted that recommendation and denied relief in September 2000.

     After Fuentes filed a skeletal petition for habeas relief in

the district   court     to   comply    with    the   applicable    statute    of

limitations, he amended his petition.            In March 2003, the district

court denied relief and a COA.

                                       II.

     Because Fuentes filed for federal habeas relief after the 1996

effective date of the Antiterrorism and Effective Death Penalty Act

(AEDPA), his application is subject to AEDPA’s constraints.              Under

AEDPA, we cannot consider Fuentes’ appeal unless he first obtains

a COA.   28 U.S.C. § 2253(c)(2); e.g., Miller-El v. Cockrell, 537

U.S. 322, 327 (2003).

     To obtain that COA, Fuentes must make “a substantial showing

of the denial of a constitutional right”.             28 U.S.C. § 2253(c)(2).

Restated, he must show “that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have

been resolved [by the district court] in a different manner or that

the issues presented were adequate to deserve encouragement to

proceed further”.       Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(quotation marks omitted).        In other words, “[w]e ... look to the


                                        5
district     court’s      application    of    AEDPA    to   the     petitioner’s

constitutional claims and determine whether the [district] court’s

resolution was debatable among reasonable jurists”.                    Miniel v.

Cockrell, 339 F.3d 331, 336 (5th Cir.), petition for cert. filed,

72 U.S.L.W. 3408 (17 Nov. 2003) (No. 03-811); see also Miller-El,

527 U.S. at 336.       Therefore, at the COA stage, we do not apply the

deferential AEDPA standard of review, found in 28 U.S.C. § 2254,

concerning the merits of the habeas petition.                See, e.g., Miller-

El, 537 U.S. at 342 (“Before the issuance of a COA, the Court of

Appeals had no jurisdiction to resolve the merits of petitioner’s

constitutional claims.”).

       Fuentes seeks a COA on the following claims:             (1) during jury

voir   dire,   the     trial   court    made   unconstitutional       statements

suggesting that gender could be used as a mitigating circumstance;

(2) concerning his request for a jury instruction on the lesser

included offense of felony murder, (a) the state habeas court

improperly held the request was procedurally defaulted, and (b) the

trial court erred in denying his request for the instruction; and

(3)    the   Court   of    Criminal     Appeals’    refusal     to    review   the

sufficiency    of    his   mitigation    evidence      denied   him   meaningful

appellate review.

                                        A.

       Fuentes first seeks a COA based on the district court’s

holding as harmless error the trial judge’s statements at jury voir


                                         6
dire that gender could be used as a mitigating circumstance.                            The

trial judge stated:

            [The punishment phase mitigation special
            issue] is a little confusing, at least by
            comparison with the rest of the things we’ve
            talked about ... I said I can’t tell what a
            mitigating circumstance is, and that’s true.
            Lots of times some folks think that in some
            cases youthfulness might be a mitigating
            circumstance; others might not.    Some folks
            might think in some cases that gender might be
            a mitigating circumstance.

(Emphasis added.)        Fuentes’ counsel objected but the trial court

overruled      and    gave   more    examples       of    factors    that       could    be

considered mitigating.

      On direct review, Fuentes asserted that the trial court’s

statements     violated      his    rights       under    the    Fifth,       Eighth,   and

Fourteenth Amendments by suggesting that a jury could consider

gender a mitigating circumstance only if the defendant were female.

Fuentes is male; he claims these statements encouraged the jury to

discriminate against him. The Texas Court of Criminal Appeals held

that the comments did not authorize the jury to consider gender as

a   mitigating       circumstance,     but       instead       supplied   examples       of

mitigating      circumstances        that        were    not    defined       categories.

Fuentes, 991 S.W.2d at 275.           The Court of Criminal Appeals further

noted   that    Fuentes      provided       no    legal    basis    to    support       his

contention     that    gender      could    not     be    considered      a    mitigating

circumstance.



                                            7
      The state habeas court held this claim procedurally barred

because it had been presented on direct appeal.

      On federal habeas review, the district court held the use of

gender in the punishment phase of a capital murder trial violates

the   Constitution.        The   district          court   denied   habeas   relief,

however, holding:        even if the trial court erred, Fuentes had not

established “actual prejudice” from the comments; therefore, the

error was harmless.         Brecht v. Abramson, 507 U.S. 619 (1993).

      Pursuant to Brecht, a court must determine “whether the error

has substantial and injurious effect or influence in determining

the jury’s verdict”.        Id. at 637.            A constitutional trial error

does not mandate habeas relief unless it had a substantial effect

or influence in determining the verdict. E.g., O’Neal v. McAninch,

513 U.S. 432, 436 (1995).           Under this standard, the petitioner

should prevail whenever the record is “so evenly balanced that a

conscientious judge is in grave doubt as to the harmlessness of the

error”.    Id. at 437.          Restated, “if our minds are ‘in virtual

equipoise as to the harmlessness’ under the Brecht standard, then

we must conclude that it was harmful”.                 Woods v. Johnson, 75 F.3d

1017, 1026-27 (5th Cir.) (quoting O’Neal, 513 U.S. at 435), cert.

denied, 519 U.S. 854 (1996).

      Fuentes asserts that the Brecht harmless error test is no

longer    viable    in    the    light        of    AEDPA’s    “contrary     to”    or

“unreasonable      application     of    clearly      established     Federal      law”

                                          8
standard.   28 U.S.C. § 2254(d)(1).             Moreover, he contends:        Brecht

should not apply because the state court did not perform its own

harmless error analysis as required by Chapman v. California, 386

U.S. 18 (1967); and, accordingly, our court should review under the

Chapman standard, which requires reversal unless the error is

harmless beyond a reasonable doubt.

      These contentions are foreclosed by Robertson v. Cain, 324

F.3d 297 (5th Cir. 2003).     Although the circuits have split on this

issue, Robertson held that Brecht survived AEDPA and is applicable,

even where the state court failed to perform the harmless error

analysis.   Id. at 306-07.

      The district court found:              at voir dire, the trial court

merely provided examples of what a juror may feel is a mitigating

circumstance, but did not define a category of mitigating evidence

or   authorize   its   use   in    the    punishment        phase;    neither   side

contended at the punishment phase that the jury should consider

gender in answering the special issues; the trial court instructed

the jury that mitigating evidence “may include, but is not limited

to, any aspect of the defendant’s character, background, record,

emotional ability, intelligence, or circumstances which you believe

could make a death sentence inappropriate”, but cautioned the jury

to consider only those circumstances supported by the evidence;

neither side presented evidence relating to gender; and the trial

court   properly   informed       the    jury    of   the    role    of   mitigating


                                         9
evidence, noting that the jury should not be swayed by mere

sentiment, sympathy, prejudice, or public feeling.                            Based on

Brecht, the district court held:                even if the trial court erred,

there   was    no   indication      that    the    jury    based       its   sentencing

determination       on   Fuentes’    gender,      either    as     a    mitigating   or

aggravating factor.

     For COA purposes, and because the district court applied the

correct standard, we review its application of Brecht only to

determine     if    that   application      is    debatable      among       reasonable

jurists.      Fuentes asserts:       of the several potential jurors who

heard the trial court’s comments about gender, one was selected for

the jury; and the comments implied it was permissible to consider

Fuentes’ masculinity against him on the mitigation issue.                         Even

assuming the trial court’s statements were error (but, along that

line, and as quoted above, the court only said some “might” think

gender “might be a mitigating circumstance”), the district court’s

ruling that the error did not affect Fuentes’ substantial rights is

not debatable among reasonable jurists.                    First, as noted, the

comments were only examples of evidence that a jury “might” find to

be mitigating.       Second, it is unlikely that the single juror who

heard the statements at the start of trial even remembered them at

the sentencing phase.        Moreover, the trial court did not specify

that only females could have their gender considered as mitigating

evidence.     Neither side addressed gender at the punishment phase,


                                           10
and the trial court warned the jury at that time not to be swayed

by prejudice when considering the evidence.       Lastly, there is

nothing to suggest that the jury based its imposition of the death

sentence on Fuentes’ gender.

                                 B.

     Fuentes next requests a COA on whether the trial court erred

in denying an instruction on the lesser-included offense of felony

murder. The district court denied habeas relief on two bases:   the

claim was procedurally defaulted; in the alternative, reviewing the

merits under the AEDPA deferential standard, the trial court’s

decision was neither contrary to, nor an unreasonable application

of, clearly established federal law, see 28 U.S.C. § 2254(d)(1).

                                1.

     Texas law requires that a proposed jury instruction be made

either in writing or dictated to the court reporter.      TEX. CRIM.

PROC. CODE ANN. § 36.15 (Vernon 2003). During its deliberations, the

jury sent a note to the court asking whether it could consider a

lesser degree of murder. Upon the trial court’s referring the jury

to the instructions as given, Fuentes’ trial counsel objected,

contending he had previously requested a lesser included offense

instruction on felony murder.   The trial judge stated she had no

memory of such a request; and trial counsel noted that, although

they had such a discussion, it may have been off the record.   Trial




                                 11
counsel then requested a felony murder instruction, which the trial

court refused to give.

     At   the   state   habeas   proceeding,   the   trial-level   court

developed evidence on when and how the initial jury instruction

request was made. Based on trial counsel’s court-ordered affidavit

submitted to that state habeas court, it found that counsel had

made an off-the-record, oral request for the lesser included

offense instruction, which was refused.

     The Court of Criminal Appeals denied relief.       It adopted the

conclusion that the lesser included offense claim was procedurally

barred because, contrary to Texas law, Fuentes’ trial counsel had

not made a request for the instruction either in writing or on the

record.

     On this point, the standard for federal habeas relief vel non

is well established.

           A federal habeas court plainly cannot grant
           relief where the last state court to consider
           the claim raised by the petitioner expressly
           and unambiguously based its denial of relief
           on an independent and adequate state law
           procedural ground. Coleman v. Thompson, 501
           U.S. 722, 729-30 (1991). A state procedural
           rule is adequate if it is “firmly established”
           and regularly and consistently applied by the
           court. James v. Kentucky, 466 U.S. 341, 348
           (1984).      A  state   procedural   rule   is
           independent if it does not depend on a federal
           constitutional ruling. Ake v. Oklahoma, 470
           U.S. 68, 75 (1985).




                                   12
Henderson v. Cockrell, 333 F.3d 592, 604 (5th Cir. 2003), cert.

denied, ___ U.S. ___ (26 Jan. 2004) (No. 03-6979) (some citations

omitted; quotation marks omitted).

       The district court held the procedural ground was adequate

because this rule is generally followed.             E.g., Vasquez v. State,

919 S.W.2d 433, 435 (Tex. Crim. App. 1996).            Although the district

court did not hold this procedural ground independent, failing to

make    a    written   request   for   a    jury   instruction   is   obviously

independent of any merits-based constitutional claim.

       Because the district court denied habeas relief based on the

procedural default, the test for a COA has two parts.            Fuentes must

show:       that “jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling”.                Slack,

529 U.S. at 484.       If we hold that the district court’s decision to

invoke the procedural bar was not debatable, we need not address

the second prong of this test.             Id.

       Fuentes contends his claim falls under an exception to the

procedural default doctrine because, even though the claim may have

been defaulted in some technical sense, he substantially complied

with the relevant state law.           E.g., Lee v. Kemna, 534 U.S. 362

(2002); Osbourne v. Ohio, 495 U.S. 103, 123 (1990); Douglas v.




                                       13
Alabama, 380 U.S. 415, 422 (1965).               The district court refused to

hold Fuentes’ claim falls under this exception.

     In this regard, a very narrow exception exists when finding a

procedural    default     is     a    “ritual    of    meaningless      form”    which

“furthers no perceivable state interest”.                   Osbourne, 495 U.S. at

124 (citations omitted).             The Texas statute requiring a proposed

jury instruction be made either in writing or on the record is not

a meaningless ritual — far from it.                        The rule furthers the

important state interest of providing meaningful appellate review

of issues that were fully resolved before the trial court.                           The

district     court’s    procedural        ruling      is    not   debatable      among

reasonable jurists.

                                         2.

     As    discussed,    we    need     not     address     the   district     court’s

alternative determination on the merits, because its decision on

the procedural default is not debatable.                   We will do so, however,

because the district court did so.

                                          a.

     The district court denied relief on the merits of the lesser

included offense claim; that claim was based on Beck v. Alabama,

447 U.S. 625, 638 (1980) (holding where the unavailability of a

lesser    included     offense       instruction      enhances    the   risk    of    an

unwarranted conviction, a State is constitutionally prohibited from

withdrawing that option from the jury).                Respondent challenges the


                                          14
application     of    Beck,       but    did    not       do     so    in   district     court;

therefore,      we    will    not       consider       this       challenge      on     appeal.

Moreover, we assume that Beck applies and hold, even under this

heightened constitutional standard, that a COA should not issue.

       A death penalty sentence may not be imposed if the jury was

not allowed to consider a lesser included offense that is supported

by the evidence.        See Beck, 447 U.S. at 637; Dowthitt v. Johnson,

230 F.3d 733, 757 (5th Cir. 2000), cert. denied, 532 U.S. 915

(2001).       Under Texas law, felony murder is a lesser included

offense of capital murder.                See Ex Parte McClelland, 588 S.W.2d

957,   959    (Tex.    Crim.      App.    1979).           To     establish     that     he   is

constitutionally entitled to a lesser included offense instruction,

Fuentes      must    demonstrate         that       the    record        contains      evidence

permitting a rational jury to find him guilty of felony murder and

acquit him of capital murder.              See Jones v. Johnson, 171 F.3d 270,

274 (5th Cir.) (citations omitted), cert. denied, 527 U.S. 1059

(1999).

       A felony murder is one in which a person “commits or attempts

to commit a felony, other than manslaughter, and in the course of

and in furtherance of the commission or attempt, or in flight from

the commission or attempt, he commits or attempts to commit an act

clearly      dangerous       to   human        life       that        causes   death    of    an

individual”.        TEX. PENAL CODE ANN. § 19.02(b)(3) (Vernon 2003).                         The

requisite     mental     state      for    felony         murder        must   not     rise   to


                                               15
intentional or knowing conduct. See Medina v. State, 7 S.W.3d 633,

639 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102 (2000).

Capital murder, on the other hand, requires (under these facts)

that the actor intentionally cause the death of another in the

course of committing or attempting to commit a robbery.             TEX. PENAL

CODE ANN. § 19.03 (Vernon 2003).

       Fuentes maintains the felony murder instruction is supported

by the evidence because he and Templeton testified that:             robbery

was their objective; neither anticipated someone would be killed;

and the robbery was complete when the victim was shot and the

robbers were in flight from the store.                 The record reflects,

however, that Fuentes ran up to the victim, shot him twice in the

chest and fled.        The district court held:    even though Fuentes may

not have had the intent to kill when he began, his shooting the

victim twice and fleeing demonstrates that he formed the intent to

kill   during    the    robbery.     The    district   court’s   decision   is

supported by the record; reasonable jurists would not debate that

Fuentes formed the intent to kill during the robbery.

                                      b.

       Fuentes also asserts that he was entitled to the felony murder

instruction because trial testimony casts doubt on the identity of

the    shooter   and      supports   that    Fuentes    was   mistakenly    so

identified. Fuentes did not present this contention in his amended

petition for habeas relief in the district court; he raised it only


                                      16
in opposition to summary judgment.         The district court did not

address it in its denial of relief.      Because Fuentes did not make

this claim until his opposition to summary judgment, he has waived

it; we will not address it in his COA request.

     In the alternative, Fuentes’ mistaken identity defense has no

bearing on the felony murder instruction. If the jury had believed

that defense, it would have acquitted him of capital murder,

irrespective of a lesser included offense instruction.

                                 C.

     Fuentes’ final COA request concerns the Court of Criminal

Appeals’ refusal to review the sufficiency of the evidence to

support the jury’s negative answer to the mitigation special issue

at the punishment phase.    Mitigating evidence is “evidence that a

juror   might    regard    as   reducing     the    defendant’s   moral

blameworthiness”.   TEX. CRIM. PROC. CODE ANN. § 37.071 Sec. 2(f)(4)

(Vernon 2003).   The Court of Criminal Appeals does not review the

sufficiency of mitigation evidence as a matter of law, because of

the jury’s unbridled discretion.       Fuentes, 991 S.W.2d 267 at 280

(citing Green v. State, 934 S.W.2d 92, 106-07 (Tex. Crim. App.

1996), cert. denied, 520 U.S. 1200 (1997)).        On the other hand, it

does evaluate the sufficiency of the evidence for finding guilt and

that contributes to the death sentence for the future dangerousness

special issue.   Beazley v. Johnson, 242 F.3d 248, 261 (5th Cir.),

cert. denied, 532 U.S. 949 (2001); McFarland v. State, 928 S.W.2d


                                  17
482 (Tex. Crim. App. 1996), overruled on other grounds, Mosley v.

State, 983 S.W. 2d 249, 263 (Tex. Crim. App. 1998), cert. denied,

519 U.S. 1119 (1997).

     At the punishment phase, Fuentes introduced character evidence

showing:    he was a good person, an athlete and a hard worker; he

was profoundly affected by the death of his grandmother and fell

into the “wrong crowd” after her death; after this crime, he became

a responsible person; and he was gainfully employed and engaged to

be married.     Fuentes contends:            the refusal by Texas courts to

review   the   correctness     of   a   jury’s     negative   answer   to   the

mitigation special issue violates the Eighth Amendment by denying

Texas capital    defendants     “meaningful       appellate    review”,   e.g.,

Parker v. Dugger, 498 U.S. 308, 321 (1991) (emphasizing the crucial

role of meaningful appellate review in ensuring that the death

penalty is not imposed arbitrarily or irrationally); Clemons v.

Mississippi, 494 U.S. 738, 749 (1990) (noting that meaningful

appellate   review     of   death   sentences     promotes    reliability   and

consistency);    and    the   Supreme    Court     approved   Texas’   capital

sentencing scheme with the understanding that there would be prompt

judicial review of a jury’s decision to impose the death penalty,

including a focus on whether mitigating factors were present,

Jurek v. Texas, 428 U.S. 262, 273 (1976).

     As noted, in death penalty cases, the Court of Criminal

Appeals does review the future dangerousness special issue; it


                                        18
holds this affords defendants meaningful review.        See McFarland,

928 S.W.2d at 482.     Fuentes contends, however, that under the

current Texas capital sentencing statute, the Penry v. Lynaugh, 492

U.S. 302 (1989), abrogated on other grounds, Atkins v. Virginia,

536 U.S. 304 (2002), special issue (considering the defendant’s

background and moral culpability in the light of all the evidence)

is now the primary vehicle for consideration of mitigating evidence

and thus should be reviewed.

     The district court denied habeas relief on this issue because

our court has consistently held that Texas’ refusal to review the

sufficiency   of   mitigating   evidence   does   not    violate   the

constitutional right to meaningful review.   See Woods v. Cockrell,

307 F.3d 353, 359-60 (5th Cir. 2002); Beazley, 242 F.3d at 261;

Hughes v. Johnson, 191 F.3d 607, 621-23 (5th Cir. 1999), cert.

denied, 528 U.S. 1145 (2000). The district court’s decision is not

debatable among reasonable jurists because the Supreme Court has

never required review of mitigating factors on appeal; it has held

only that re-weighing aggravating and mitigating factors on appeal

is constitutional.   See Hughes, 191 F.3d at 622.

                                III.

     For the foregoing reasons, a COA is

                                                            DENIED.




                                 19
