     Case: 13-70020      Document: 00512874474         Page: 1    Date Filed: 12/18/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-70020                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
JAMES EUGENE BIGBY,                                                     December 18, 2014
                                                                           Lyle W. Cayce
              Petitioner - Appellant                                            Clerk

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:08-CV-765


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner-appellant James Eugene Bigby was convicted of murder in
Texas state court and sentenced to death. The district court denied his federal
petition for habeas corpus, and he now requests a certificate of appealability
from us. For the reasons that follow, we will deny the request.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-70020
                                         I.
         On the evening of December 23, 1987 and into the early morning hours
of the following day, operating under a belief that his friends were conspiring
to thwart a pending workers’ compensation claim he filed against his employer,
Bigby murdered four people, including a four-month-old child whom he
drowned in the sink. Bigby was tried in state court for capital murder. During
a trial recess, he retrieved a revolver from the judge’s bench, entered the
judge’s chambers, pointed the gun at the judge’s head, and said, “Let’s go.” He
was subdued, and trial proceeded. The jury convicted Bigby of capital murder
and, in March 1991, sentenced him to death.
         The Texas Court of Criminal Appeals affirmed Bigby’s conviction and
death sentence on direct appeal. Bigby v. State, 892 S.W.2d 864 (Tex. Crim.
App. 1994). Bigby then filed a state application for habeas corpus, which the
Court of Criminal Appeals denied. Ex parte Bigby, No. 34,970-01 (Tex. Crim.
App. Feb. 4, 1998) (unpublished). Next, Bigby filed a federal petition for
habeas corpus, which the United States District Court for the Northern
District of Texas denied. Bigby v. Johnson, No. 4:98-CV-336 (N.D. Tex. Oct.
18, 1999) (unpublished). On appeal, this court affirmed Bigby’s conviction but
vacated his death sentence, holding that, under the reasoning of Penry v.
Johnson, 532 U.S. 782 (2001) (Penry II), the instructions to the jury were
inadequate to allow a proper decision on capital punishment. Bigby v. Dretke,
402 F.3d 551, 572 (5th Cir. 2005).
         The state court held a second sentencing trial in 2006. The prosecution’s
case for death focused on the facts of Bigby’s crime, with the prosecutors
stressing the deliberateness of it, and the attempted escape during the first
trial.    The prosecutors also presented evidence as to Bigby’s substantial
criminal history and other antisocial behavior. The defense’s case attempted
to show that Bigby’s murders were the result of his mental illnesses and that,
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                                 No. 13-70020
during his subsequent fifteen years of incarceration, he had found religion, had
changed in other meaningful respects, and no longer presented a threat of
dangerousness.    The jury sided with the prosecution and again sentenced
Bigby to death.
      The Court of Criminal Appeals affirmed the sentence and denied Bigby’s
state application for habeas corpus. Bigby v. State, No. AP-75,589, 2008 WL
4531979 (Tex. Crim. App. Oct. 8, 2008) (unpublished); Ex parte Bigby, No. WR-
34,970-02, 2008 WL 5245356 (Tex. Crim. App. Dec. 17, 2008) (unpublished).
Bigby filed his second federal petition for habeas corpus on April 14, 2010, and
the district court denied it and declined to issue a certificate of appealability
on April 5, 2013. Bigby v. Thaler, No. 4:08-CV-765, 2013 WL 1386667 (N.D.
Tex. Apr. 5, 2013). Bigby now requests a certificate of appealability from us.
                                       II.
      To obtain a certificate of appealability, Bigby must demonstrate 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) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
      In determining whether the district court’s denial of Bigby’s habeas
petition is debatable, we “must be mindful of the deferential standard of review
the district court applied to [Bigby’s] claims as required by [the Antiterrorism
and Effective Death Penalty Act].” See Miniel v. Cockrell, 339 F.3d 331, 336
(5th Cir. 2003). Under that statute, the district court could have granted relief
on Bigby’s habeas claims only if he established that the state court’s denial of
those claims was (1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States” or (2) “based on an unreasonable determination of the facts in


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                                  No. 13-70020
light    of   the   evidence   presented        in   the   State    court   proceeding.”
28 U.S.C. § 2254(d).
        Because this is a death penalty case, any doubts as to whether the
certificate of appealability should issue must be resolved in Bigby’s favor. See
Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005).
                                       III.
                                           A.
        Bigby’s first claim is that his attorneys during the second sentencing
trial provided ineffective assistance of counsel under the Sixth Amendment
when they did not present certain evidence about Bigby’s family history to the
jury. To succeed on this claim, Bigby must show (1) that the representation of
his counsel fell below an “objective standard of reasonableness,” and (2) that
the deficient performance prejudiced him. Strickland v. Washington, 466 U.S.
668, 687-88, 694 (1984). We need not address whether the representation of
Bigby’s attorneys was deficient in the manner Bigby charges, because, that
issue aside, it is clear that Bigby cannot show prejudice. See Williams v.
Stephens, 761 F.3d 561, 566-67 (5th Cir. 2014) (“Both of these prongs must be
proven, and the failure to prove one of them will defeat the claim, making it
unnecessary to examine the other prong.”).
        In the context of this case, prejudice means that, but for the failure to
present the evidence that Bigby argues should have been presented, there is a
“reasonable probability” that Bigby would have received a life sentence rather
than death. See Porter v. McCollum, 558 U.S. 30, 41 (2009). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting Strickland, 466 U.S. at
694). “To assess that probability, we consider the totality of the available
mitigation evidence—both that adduced at trial, and the evidence adduced in
the habeas proceeding—and reweigh it against the evidence in aggravation.”
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Porter, 558 U.S. at 41 (citation, internal quotation marks, and alteration
omitted).
      We can divide the mitigation evidence Bigby adduced in his habeas
proceedings into three general categories:
      First, there is evidence about Bigby’s family history that, as far as we
can tell, has no bearing on Bigby’s moral culpability and is irrelevant as to
mitigation, such as, for one example, information about the work history of
Bigby’s grandfather.     Cf. Tennard v. Dretke, 542 U.S. 274, 284 (2004)
(“Relevant mitigating evidence is evidence which tends logically to prove or
disprove some fact or circumstance which a fact-finder could reasonably deem
to have mitigating value.”) (citation omitted).
      Second, and comprising the bulk of Bigby’s habeas case, is evidence
about his siblings that has indirect relevance as to him. This evidence shows
that Bigby’s mother did not raise his siblings, but rather gave them up to be
raised by others. Although Bigby’s mother did raise him, the abandonment of
his siblings caused him to fear during his childhood that he too would be given
up, he says. (Most of the argument about the siblings, however, focuses on
aspects of their lives that seem irrelevant here, such as, for example, his
sister’s trouble in school, and his brother’s “small mobile home.” There is no
explanation as to what bearing those facts have on Bigby’s culpability.)
      Third, there is evidence about Bigby’s own troubled relationship with his
mother. The problem with this aspect of Bigby’s argument is, although it
describes the relationship between Bigby and his mother as “sick,”
“inappropriate,” “unhealthy,” and otherwise problematic, there are scarce
concrete facts in the record illustrating what those descriptors mean. There is
evidence that Bigby’s mother breastfed him long past the usual age, that she
drank often (including, possibly, when she was pregnant with him), that she
argued with him at times, that she had limited mobility and required certain
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                                       No. 13-70020
assistance, and that on more than one occasion she attempted suicide, but the
record does not disclose details about these matters and how they affected
Bigby. In short, this evidence about Bigby’s relationship with his mother is
relevant, but vague. (Bigby’s evidence also says, we should note, that Bigby
“felt that his mother loved him.”)
       This family history does not change the sentencing calculus in a
meaningful sense. At trial, the prosecution argued the heinousness of Bigby’s
crime, stressing how he, in a methodical manner, went from house to house
murdering one victim after another, including an infant whom he drowned in
the sink.     The prosecutor further stressed that Bigby, during his first
sentencing trial, obtained a firearm and tried to escape. The image of Bigby
presented to the jury was of a career criminal with extreme, antisocial behavior
and a desire to, in his own words, “go out in a blaze of glory.” Based on this,
the jury concluded that Bigby deserved death. Given the sparse and opaque
nature of the new evidence about Bigby’s family, we cannot say that, had the
jury been aware of it, it “might well have influenced the jury’s appraisal of
[Bigby’s] moral culpability.” See Porter, 558 U.S. at 41 (citation omitted). For
these reasons, we conclude that reasonable jurists could not debate the district
court’s denial of Bigby’s claim as to the mitigation evidence. 1




       1 Bigby’s brief contains several arguments, and fragments of arguments, related to
mitigation that we do not think warrant further discussion here. For one, Bigby’s brief states
that, had the mental health experts who examined him been provided with his family history,
their diagnoses “may have been different.” This argument is speculative and unsupported
by the evidence. Second, Bigby presents arguments about how his counsel should have
presented the jury with the family history evidence, contending, for example, that visual aids
would have been helpful. We think that the evidence at issue would not suffice to establish
prejudice no matter what media may have been available to Bigby’s attorneys. The brief
contains other intermingled contentions about mitigation that do not warrant further
analysis.
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                                 No. 13-70020
                                      B.
      Bigby’s second claim is that his attorneys provided ineffective assistance
of counsel under the Sixth Amendment during voir dire. This claim, however,
is entirely conclusory. That is, Bigby states that his attorneys failed him, but
he provides no specific explanation as to how they did so and what effect it had
on his case. (Bigby’s brief says that his attorneys failed “because they did not
have an adequate understanding of [Bigby’s] mitigation evidence,” but that
nebulous allegation hardly speaks for itself.) “This Court has made clear that
conclusory allegations of ineffective assistance of counsel do not raise a
constitutional issue in a federal habeas proceeding.” Miller v. Johnson, 200
F.3d 274, 282 (5th Cir. 2000) (citing Ross v. Estelle, 694 F.2d 1008, 1012 (5th
Cir. 1983)). Given the absence of any showing of deficiency and prejudice, the
Strickland requirements, reasonable jurists could not debate the district
court’s denial of this claim.
                                      C.
      Third, Bigby claims that the Texas death penalty statute is
unconstitutional under the Supreme Court’s decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000), because (1) the jury instruction suggests that the
defendant must bear the burden of proving mitigation (rather than require the
prosecution to prove a lack of mitigation beyond a reasonable doubt) and (2)
the indictment does not allege the specific facts that the prosecution will
present in support of death. The district court concluded that these arguments
are foreclosed under this court’s decisions in Scheanette v. Quarterman, 482
F.3d 815, 828 (5th Cir. 2007), and Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir.
2005). Bigby repeats the arguments he presented to the district court to us
verbatim and does not attempt to argue that the district court’s analysis was
wrong. We do not think that reasonable jurists could debate the district court’s
conclusion.
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                                      No. 13-70020
                                             D.
       Fourth, Bigby argues that, based on the evidence introduced at trial, the
jury’s determination of a probability that he would “commit criminal acts of
violence that would constitute a continuing threat to society,” see Tex. Crim.
Proc. Code art. 37.071, § 2(b)(1), was irrational and should be reversed. See
Jackson v. Virginia, 443 U.S. 307 (1979). The district court concluded that this
claim was barred from federal court review under the doctrine of procedural
default. See Coleman v. Thompson, 501 U.S. 722 (1991). Bigby, again, repeats
the arguments he presented to the district court to us verbatim, and those
arguments are all about the merits of the claim. Bigby makes no attempt to
argue against the district court’s procedural default ruling. We, therefore,
need not address this claim any further.
                                             E.
       Fifth, Bigby argues that the Texas death penalty scheme is
unconstitutional for the reasons discussed in Justice Blackmun’s dissenting
opinion in Callins v. Collins, 510 U.S. 1141 (1994). Reasonable jurists could
not debate the district court’s conclusion that this claim is foreclosed under
Hughes v. Dretke, 412 F.3d 582, 594 (5th Cir. 2005), a conclusion that Bigby,
again, does not counter. 2
                                             F.
       Sixth, and finally, Bigby claims that the jury instructions in his case
were invalid under Penry II, supra. Reasonable jurists could not debate the



       2 Bigby’s brief presents this claim twice, once as “issue number five” and again as
“issue number seven.” It appears that Bigby’s attorney accidentally copied and pasted this
section of the brief under two different headings. We note, further, that Bigby presented one
additional claim to the district court on which he has not requested a certificate of
appealability. It appears likely that Bigby’s attorney intended to copy and paste that claim
into his brief rather than copy and paste the same claim twice as both “issue number five”
and “issue number seven.” Nevertheless, he has had months to notice and correct the error,
and he has not, so we will not address this single claim that has not been presented to us.
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                               No. 13-70020
district court’s conclusion that the jury instructions in Bigby’s second
sentencing did not present the same problem as addressed in Penry II.
                                    IV.
     For these reasons, the motion for a certificate of appealability is
DENIED.




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