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

                                                                            FILED
                                                                         February 14, 2008

                                       No. 07-70016                   Charles R. Fulbruge III
                                                                              Clerk

RODNEY CHARLES RACHAL,

                                                  Petitioner - Appellant,
v.

NATHANIEL QUARTERMAN, Director, Texas Department of Criminal
Justice, Correctional Institutions Division,

                                                  Respondent - Appellee.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. H-05-CV-4394


Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
       Rodney Rachal requests a certificate of appealability (COA) in this capital
case in order to appeal the district court’s dismissal of his federal habeas petition
under 28 U.S.C. § 2254. Because Rachal has not shown that reasonable jurists
would disagree with the district court’s resolution of his claims, or that the court
abused its discretion in denying a stay and abeyance, we deny his request for a
COA.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-70016

                                BACKGROUND
      A more detailed account of Rachal’s offense is found in the district court’s
memorandum, but the following facts are sufficient for our review. In October
1990, Rachal and several friends formed a plan to commit robbery. The group
traveled to an apartment complex known for a high rate of pedestrian traffic.
Rachal and two others laid in ambush while the two female members of the
group, dressed seductively, lured three men to where the others were waiting.
Rachal confronted the victims with a .357 caliber handgun, ordered them to lie
down, and began searching them. At this point two bystanders noticed the
robbery in progress and attempted to run away. Rachal ordered his accomplices
to stop them, and shots were fired at the fleeing men. Without provocation, one
of Rachal’s accomplices then shot one of the prostrate victims in the back, killing
him. Rachal, also without provocation, shot the other two robbery victims in the
head, killing one of them. As Rachal was leaving the scene, he encountered
another bystander, who became his fourth victim. Rachal robbed the man and
ordered him to kneel. Fearing execution, the man pleaded for his life instead.
Rachal shot him in the lower chest and abdomen. This man survived.
      Rachal was arrested a few days later in possession of a .357 caliber
handgun. He provided the police with a detailed written confession, which was
admitted at trial. A jury convicted him of capital murder in October 1992. At
the punishment phase, the defense called several witnesses, including family
members who testified to Rachal’s difficult childhood, and law enforcement and
prison employees who testified to Rachal’s good behavior. The court submitted
two special issues to the jury, asking them to decide whether Rachal committed
the crime deliberately and whether he would pose a continuing threat to society.



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The jury answered both special issues in the affirmative, and Rachal was
sentenced to death.
      Rachal appealed, and the Texas Court of Criminal Appeals affirmed the
conviction and sentence. Rachal v. State, 917 S.W.2d 799 (Tex. Crim. App.
1996). The Supreme Court denied review. Rachal v. Texas, 519 U.S. 1043
(1996). Rachal filed his initial state habeas petition in March 1997, and the
lower state habeas court issued findings of fact and conclusions of law in October
2004. After reviewing the record the Texas Court of Criminal Appeals adopted
the lower court’s findings and conclusions, and denied habeas relief in March
2005. Rachal’s federal habeas action followed.
      In his federal habeas petition Rachal asserted 22 grounds for relief. The
district court held that most of these claims were procedurally barred because
Rachal did not raise them in state court. In the alternative the district court
held that none of Rachal’s claims warranted relief on the merits. The district
court dismissed Rachal’s habeas petition and sua sponte denied a COA on all
issues. Rachal now applies to this court for a COA on six issues, namely: two
requests for a stay and abeyance to exhaust his state court remedies, two claims
of ineffective assistance of counsel, a Penry objection, and an evidentiary
objection pertaining to the punishment phase of his trial. As a preliminary
matter, we note that not all of these claims were presented to the district court.
                          STANDARD OF REVIEW
      Rachal’s § 2254 habeas petition is subject to the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). See Penry v. Johnson, 532 U.S.
782, 792 (2001). AEDPA requires that Rachal obtain a COA before he can
appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1). A COA


                                        3
                                  No. 07-70016

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); Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). 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.”
Miller-El, 537 U.S. at 336 (internal quotations and citation omitted).
      A COA ruling is “not the occasion for a ruling on the merits 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.
Because this case involves the death penalty, any doubts as to whether a COA
should be issued must be resolved in the petitioner’s favor. Bigby v. Dretke,
402 F.3d 551, 557 (5th Cir. 2005).
                                 DISCUSSION
      We divide our review of Rachal’s issues into three categories: (1) the
claims he failed to exhaust in state court; (2) his requests for a stay and
abeyance pending further action in state court; and (3) the claims that, to some
extent, are preserved for federal habeas review.
A.    Unexhausted Claims
      As the district court noted, the concept of procedural default is particularly
relevant in this case. At every level of review Rachal has asserted new claims
that he has not raised previously. Even before this court Rachal seeks relief he
did not request from the court below. We agree with the district court that most
of Rachal’s claims are procedurally barred for failure to exhaust his state court
remedies.


                                         4
                                      No. 07-70016

       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)). If the petitioner fails to follow these
procedures, his claims are procedurally defaulted and typically will not be
regarded as grounds for federal habeas relief. Id. at 239 (citing Keeney v.
Tamayo-Reyes, 504 U.S. 1, 9 (1992)). A petitioner can overcome a procedural bar
if he can demonstrate (a) cause for the default, and (b) 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).1              As the court below properly noted,
allegations that are proffered as “cause” for a procedural default are themselves
subject to the exhaustion requirement; they must be presented to the state court
before they may be raised on federal habeas review. See Edwards v. Carpenter,
529 U.S. 446, 453 (2000) (“[A]n ineffective-assistance-of-counsel claim asserted
as cause for the procedural default of another claim can itself be procedurally
defaulted . . . .”)
       Here, Rachal seeks a COA on two claims that he plainly failed to exhaust
in state court. The first is his argument that his trial counsel was ineffective for
not discovering and presenting more mitigating evidence at the punishment
phase. Specifically, Rachal argues his attorney should have presented more
evidence concerning Rachal’s difficult upbringing, troubled family, and medical
difficulties.   We agree with the court below that this evidence is largely


       1
         A petitioner may also overcome a procedural bar under the “miscarriage of justice”
exception by showing actual (as opposed to legal) innocence. Calderon v. Thompson, 523 U.S.
538, 559 (1998). This exception is not implicated here, because Rachal does not argue that he
did not commit this crime.

                                             5
                                        No. 07-70016

cumulative of the testimony provided by the six defense witnesses who were
called at the punishment phase. More importantly, Rachal did not raise this
claim on direct appeal2 or in his state habeas proceedings, and he has not shown
cause excusing his failure to do so. This issue, raised for the first time on federal
habeas review, is procedurally barred for failure to exhaust. The district court’s
conclusion to this effect was not debatable or wrong, and we deny COA.
       Rachal’s other unexhausted claim is that the Texas “special issues” jury
instructions did not give the jury an adequate vehicle for considering all relevant
mitigating evidence at the punishment phase. This is essentially a claim that
the jury instructions violated the rule articulated in Penry v. Lynaugh, 492 U.S.
302 (1989). Penry was decided well before Rachal’s trial in 1992, and as Rachal
himself points out, the Texas legislature had amended section 37.071 of the
Texas Code of Criminal Procedure in 1991 to conform with Penry’s requirements.
If Rachal believed that the jury instructions in his trial were inconsistent with
Penry or Texas law, he could have raised this claim both on direct appeal and in
his state habeas proceedings. The record shows that he did neither, and Rachal
has made no showing of cause to excuse this failure to exhaust.3 Consistent with
the Supreme Court’s holding in Gray v. Netherland, 518 U.S. 152, 161 (1996),
this claim is procedurally barred and provides no grounds for relief on federal
habeas review. The district court’s conclusion to this effect was not debatable
by reasonable jurists, and we deny COA.


       2
           Rachal’s counsel on appeal was not the same attorney who represented him at trial.
       3
          Rachal’s reliance on Selvage v. Collins, 816 S.W.2d 390 (1991) is misplaced. Selvage
excuses the failure to raise a Penry claim in state court only when the alleged error occurred
prior to the handing down of Penry v. Lynaugh, 492 U.S. 302 (1989). This reasoning does not
apply here, where the authority Rachal relies on was well-established at the time of his trial.

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                                       No. 07-70016

       Faced with the prospect of procedural default, Rachal makes only a limited
attempt to show cause for his failure to exhaust his claims below. In his
amended federal habeas petition, Rachal argued that his AIDS-related illness
prevented him from assisting his attorney with the writing of the state habeas
brief. This argument, viewed in any light, does not constitute grounds for relief.
To the extent Rachal offers this as cause for his failure to exhaust his
substantive claims in state court, he did not exhaust this excuse in state court,
and thus is barred from raising it here. Edwards, 529 U.S. at 453.4 Insofar as
Rachal argues his state habeas counsel was ineffective, the rule is
well-established that the ineffectiveness of state habeas counsel is not grounds
for excusing procedural default. 28 U.S.C. § 2254(i); Jones v. Johnson, 171 F.3d
270, 277 (5th Cir. 1999) (noting that there is no constitutional right to counsel
in state post-conviction review). Rachal has not shown cause for failing to
exhaust these various claims, and the district court’s finding that they are
procedurally defaulted was not debatable by jurists of reason.
B.     Requests for Stay and Abeyance
       In his application to this court, Rachal raises two requests for a stay and
abeyance so that he might exhaust certain claims in state court. Under some
circumstances, a federal court may retain jurisdiction over meritorious claims
and stay proceedings pending complete exhaustion of state remedies on other
claims. Rhines v. Weber, 544 U.S. 269, 275 (2005). Rhines requires, among other
things, that a petitioner seeking a stay and abeyance show that his unexhausted


       4
        Rachal’s failure to raise his AIDS argument in state court could itself be excused upon
the showing of proper cause and prejudice. See Edwards, 529 U.S. at 453. Rachal makes no
showing that he could not have raised the AIDS argument before the state court prior to
seeking federal habeas relief.

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                                       No. 07-70016

claims are not “plainly meritless.” Id. at 277. The district court held that
Rachal failed to meet the Rhines requirements, and we agree. Nonetheless, we
need not discuss Rhines because Rachal’s requests fail for more fundamental
reasons.5
       First, Rachal seeks a stay and abeyance on his challenge to the Texas
lethal injection protocol. Claims challenging the method of execution cannot be
raised in a habeas proceeding because they do not concern the fact or duration
of a sentence. Hill v. McDonough, 126 S. Ct. 2096, 2102 (2006). This challenge
sounds in civil rights, not habeas, law. Id. The district court dismissed Rachal’s
habeas challenge to the lethal injection process without prejudice, “so that
[Rachal] may advance his arguments in federal court pursuant to 42 U.S.C.
§ 1983 or in state court if he wishes.” This decision was not incorrect.
       Second, Rachal asks this court for a stay and abeyance so that he might
exhaust his ineffective assistance of counsel claims in state court. We cannot
address this issue because Rachal never requested this stay and abeyance from
the district court.6 See Johnson v. Puckett, 176 F.3d 809, 814 (5th Cir. 1999).
The court neither erred nor abused its discretion.
C.     Claims Not Entirely Defaulted




       5
         The State acknowledges that a Rhines decision of the district court, being a procedural
ruling, should be reviewable for abuse of discretion only and does not require a COA. See
Dunn v. Cockrell, 302 F.3d 491, 492 (5th Cir. 2002); but cf. Neville v. Dretke, 423 F.3d 474,
479-81 (5th Cir. 2005).
       6
         In the district court Rachal filed a Motion to Stay and Abey Proceedings, seeking to
return to state court to exhaust two specific issues: (1) his challenge to the lethal injection
protocol, and (2) a claim concerning changes in Texas law allowing imposition of a life sentence
without parole. Rachal renews only the first request before this court.

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                                         No. 07-70016

      Two of the issues Rachal raises before this court are not entirely barred.
First, Rachal argues that the trial court violated his right to effective legal
assistance by appointing only one attorney for his defense.7 Rachal raised this
claim on state habeas review, but the state court held the claim was procedurally
barred under Texas law because Rachal failed to raise it on direct appeal. See
Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1996) (holding that
claims not raised on direct appeal are procedurally barred at state habeas stage).
On federal habeas review, the district court also applied a procedural bar, citing
the rule that where a state habeas claim is defaulted on adequate and
independent state grounds, a federal procedural bar results. See, e.g., Aguilar
v. Dretke, 428 F.3d 526, 535 (5th Cir. 2005) (noting that Gardner is an adequate
state basis for procedural default). This rule, while correctly stated below, may
not apply to this case.
      The fact that this claim was procedurally defaulted under Gardner at the
state habeas level does not end our inquiry. A federal bar follows from state
procedural default only when the state procedural rule was “firmly established
and regularly followed by the time as of which it is to be applied.” Busby v.
Dretke, 359 F.3d 708, 718 (5th Cir. 2004) (quoting Ford v. Georgia, 498 U.S. 411
(1991)).     In this case, it is not clear that the Gardner rule was “firmly
established” early enough to result in a federal procedural bar of Rachal’s claim.
Gardner was handed down in December 1996, after Rachal’s direct appeal was
decided, but before his state habeas proceeding. As we noted in Busby, this court
has not yet decided whether the Gardner rule must have been established by the
time of direct appeal, or the time of state habeas review, to result in a federal

      7
          Rachal refers to this as “court-induced ineffective assistance of counsel.”

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                                  No. 07-70016

procedural bar. Id. at 719. The Busby court concluded it was unnecessary to
resolve this question, finding the merits of the case before it dispositive. We
reach the same conclusion today.
      The court below held in the alternative that Rachal had not shown the
trial court violated his constitutional rights by appointing him only one lawyer.
Rachal cites various sources to support his claim that more than one defense
attorney should be appointed in a capital case: changes in Texas law after 2001,
law governing capital trials in federal court, and American Bar Association
standards. Rachal does not, however, direct this court to any authority showing
that “clearly established federal law, as determined by the Supreme Court of the
United States” required the appointment of a second attorney in this capital
murder trial. 28 U.S.C. § 2254(d)(1). As courts routinely recognize, there is no
constitutional right per se to appointment of co-counsel in a capital case. Sosa
v. Dretke, 133 F. App’x 114, 125 (5th Cir. 2005); Riley v. Taylor, 277 F.3d 261,
306 (3d Cir. 2001).
      Nor has Rachal demonstrated that the denial of co-counsel deprived him
of his constitutional rights in this particular case. See Strickland v. Washington,
466 U.S. 668, 687-88 (1984). Under the “prejudice” prong from Strickland,
Rachal cannot establish denial of effective assistance of counsel unless his
attorney’s deficient performance affected the outcome of either phase of his
murder trial. Rachal concedes that the guilt phase of his trial was a “forgone
conclusion,” due to his own confession and the evidence against him. He does
not contend that additional counsel would have altered the jury’s guilty verdict.
As to the punishment phase, Rachal did not make a timely effort to show that
more mitigating evidence was available and would have affected his sentence.


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                                        No. 07-70016

His claims on this point are procedurally barred as explained above. The district
court’s decision to deny relief on this claim was not debatable or incorrect, and
we deny COA.
       The final issue we address was, to some extent, exhausted in state court.
Rachal challenges the trial court’s decision at the penalty phase to admit
evidence that Rachal committed another, unindicted homicide. Rachal has
exhausted this claim insofar as he argues that the trial court’s admission of this
evidence violated his due process rights.8 A federal court will not grant habeas
relief based on a state court’s evidentiary ruling unless it violates a specific
constitutional right or is “so egregious that it renders the petitioner’s trial
fundamentally unfair.” Brown v. Dretke, 419 F.3d 365, 376 (5th Cir. 2005). The
court below denied relief on this point, noting that the Fifth Circuit has
consistently     held     the    admission      of   unadjudicated        offenses     at   the
punishment phase does not violate a criminal defendant’s due process rights.
E.g., Beazley v. Johnson, 242 F.3d 248, 262 (5th Cir. 2001). The district court
further concluded that evidence of this unindicted homicide was relevant to the
question of future dangerousness. See Williams v. Lynaugh, 814 F.2d 205, 207
(5th Cir. 1987) (“The focus of the Texas capital sentencing structure is to have
all the relevant evidence before the jury when answering the special issues
which determine whether the death penalty will be imposed.”).


       8
         In his state habeas petition, Rachal argued only that the admission of this testimony
deprived him of “due process and due course of law.” Later, in his federal habeas petition,
Rachal made a very brief argument that this testimony violated his “6th, 8th, 13th and 14th
amendment rights under the Constitution.” We agree with the court below that this claim is
unexhausted insofar as it relies on legal theories distinct from those stated in state court. See
Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001) (noting exhaustion requirement not met
if petitioner presents new legal theories or factual claims in federal habeas petition).
Accordingly we consider only Rachal’s due process arguments on this point.

                                              11
                                  No. 07-70016

      The relevant details are as follows. In May 1990, just months before the
murder in this case, Rachal shot and killed a man named Charles Wilson. The
killing was presented to a grand jury, which refused to indict Rachal, returning
a “no-bill.” At the punishment phase of this trial, after Rachal had been
convicted of murder, the prosecution presented testimony from a police officer
concerning the facts of the Wilson killing. After the police officer testified,
Rachal called the prosecutor who had presented the Wilson case to the grand
jury. The prosecutor testified that, in his view, the facts of the Wilson homicide
were consistent with self-defense, and the “evidence was such that a fair jury
would probably have concluded that it was self-defense.” At closing argument
the state pointed out that just months after killing Wilson, arguably in self-
defense, Rachal deliberately committed armed robbery and killed another man.
Rachal argues that the trial court erred in admitting evidence of this unindicted
homicide at the penalty phase because, in his words, it was “legally justified
conduct.”
      In concluding that the admission of this evidence did not violate the
Constitution, the district court noted that Rachal overstated the meaning of a
no-bill when he claimed the Wilson killing was a “justified” or “lawful” act. As
the state appeals court pointed out on direct review, “[t]he Grand Jury’s no-bill
of the Wilson homicide does not mean it was justified, lawful, or in self-defense.
. . . A Grand Jury’s no-bill is merely a finding that the specific evidence brought
before the particular Grand Jury did not convince them to formally charge the
accused with the offense alleged.” Rachal v. State, 917 S.W.2d 799, 807 (Tex.
Crim. App. 1996). Rachal has not shown why this unadjudicated killing should
have been treated differently from other unadjudicated conduct that is routinely


                                        12
                                  No. 07-70016

held admissible at the penalty phase. E.g., Harris v. Johnson, 81 F.3d 535, 541
(5th Cir. 1996).
      Even if the Wilson killing was justifiable self-defense, this does not mean
it was irrelevant to the question of Rachal’s future dangerousness. The district
court agreed with the state court’s observation, “That [Rachal] knowingly and
willingly placed himself in, and sought after, circumstances facilitating homicide
soon after Wilson’s killing, demonstrates a callousness and lack of reflection
about taking human life which tends to increase the probability that [Rachal] is
a future danger.” Rachal, 917 S.W.2d at 807-808. In this manner the Wilson
homicide was relevant to the question of future dangerousness, and Rachal has
not shown that the evidence was more prejudicial than probative. See also Jurek
v. Texas, 428 U.S. 262, 276 (1976) (“What is essential is that the jury have before
it all possible relevant information about the individual defendant whose fate it
must determine.”). The jury was presented with the entire truth about the
Wilson homicide, both the prosecutor’s opinion that it may have been
self-defense, and its proximity to the robbery and murder that Rachal
deliberately committed shortly thereafter. The district court concluded the
admission of this evidence was “not so egregious as to violate the Constitution,”
and this holding is neither debatable nor incorrect. We accordingly deny COA.
                                CONCLUSION
      Rachal has failed to show that jurists of reason would debate the district
court’s dismissal of his petition on procedural and substantive grounds. The
application for COA is accordingly DENIED.




                                        13
