                                                                                    United States Court of Appeals
                                                                                             Fifth Circuit
                                                                                           F I L E D
                                                  In the                                  February 26, 2007
                       United States Court of Appeals                                  Charles R. Fulbruge III
                                      for the Fifth Circuit                                    Clerk
                                            _______________

                                              m 05-70051
                                            _______________




                                             TONY ROACH,

                                                               Petitioner-Appellant,

                                                 VERSUS

                                     NATHANIEL QUARTERMAN,
                        DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                              CORRECTIONAL INSTITUTIONS DIVISION,

                                                               Respondent-Appellee


                                     _________________________

                             Appeal from the United States District Court
                                 for the Northern District of Texas
                                         m 2:02-CV-0042
                               ______________________________



Before SMITH, GARZA, and PRADO,
  Circuit Judges.                                         Tony Roach was convicted of capital mur-
                                                       der and sentenced to death. The district court
JERRY E. SMITH, Circuit Judge:*                        denied habeas corpus relief and declined to is-
                                                       sue a certificate of appealability (“COA”).
                                                       Roach petitions this court for a COA on ten
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
                                                           *
and is not precedent except under the limited cir-        (...continued)
                                     (continued...)    cumstances set forth in 5TH CIR. R. 47.5.4.
issues. We deny a COA.                                 fact and conclusions of law, recommending
                                                       denial of relief; the Court of Criminal Appeals
                        I.                             denied relief based on the trial court’s findings
    In June 1998 firefighters found the body of        and its own review.
Ronnie “Kitten” Hewitt inside her burning
apartment in Amarillo, Texas. Though the fire                                  II.
burned her body, it was determined that she               Roach’s application for COA was filed pur-
died from asphyxiation from being choked by            suant to 28 U.S.C. § 2253 (1996), which
a belt found tightened around her neck; she            “permits the issuance of a COA only where a
likely had been sexually assaulted; and some-          petitioner has made a substantial showing of
one set fire to her house using aerosol hair           the denial of a constitutional right.” Miller-El
spray.                                                 v. Cockrell, 537 U.S. 322, 336 (2003). For
                                                       that requisite showing, a petitioner must show
    Later that month, police officers in Oklaho-       that “reasonable jurists could debate whether
ma questioned Roach about an unrelated                 (or, for that matter, agree that) the petition
crime, and during the questioning Roach con-           should have been resolved in a different man-
fessed to killing a woman named Kitten in Am-          ner or that the issues presented were ‘adequate
arillo. He signed a written confession in which        to deserve encouragement to proceed fur-
he stated that he entered Hewitt’s apartment           ther.’” Id. (quoting Slack v. McDaniel, 529
through a window, confronted her, and choked           U.S. 473, 483 (2000)). We conduct only a
her with his arm and then with a belt until she        threshold inquiry into the merits of Roach’s
died. Then, he raped her vaginally and anally          claims, not a full consideration of the factual
and took money, a knife, a beer, and some              and legal basis of those claims. Id. Because
rings. Finally, he described using hair spray to       Roach was sentenced to death, “any doubts as
set the apartment on fire.                             to whether a COA should issue must be re-
                                                       solved in [his] favor.” Hernandez v. Johnson,
   A knife identified as Hewitt’s and two of           213 F.3d 243, 248 (5th Cir. 2000).
her rings were retrieved from pawn shops in
Amarillo and in Guymon, Oklahoma, along                    The federal district court is required to de-
with pawn slips signed by Roach. Semen was             fer to the state court’s adjudication of ques-
present in vaginal and anal swabs. Roach was           tions of law and mixed questions of law and
excluded as the contributor of the vaginal             fact unless the court’s decision “was contrary
swab, but the DNA profile of the contributor           to, or involved an unreasonable application of
of the semen found in the anal swab matched            clearly established Federal law, as determined
his DNA in ten different areas; such a profile         by the Supreme Court of the United States.”
would occur in only one in six billion Cauca-          28 U.S.C. § 2254(d)(1). A decision is con-
sians, Blacks, or Hispanics.                           trary to clearly established Federal law “if the
                                                       state court arrives at a conclusion opposite to
   A jury convicted Roach of capital murder,           that reached by [the Supreme Court] on a
and he was sentenced to death. The Texas               question of law or if the state court decides a
Court of Criminal Appeals affirmed. In re-             case differently than [the] Court has on a set of
sponse to a state application for writ of habeas       materially indistinguishable facts.” Williams v.
corpus, a state trial court entered findings of        Taylor, 529 U.S. 362, 413 (2000).


                                                   2
    Also, the district court must defer to the          Roach’s case considered the evidence required
state court’s factual findings unless they “re-         by Woodson. Texas does not have an auto-
sulted in a decision that was based on an un-           matic sentencing provision like the provision in
reasonable determination of the facts in light of       Woodson, and jurors were required to consider
the evidence presented in the State court pro-          the evidence Woodson requires.
ceeding.” 28 U.S.C. § 2254(d)(2). In the dis-
trict court, “a determination of a factual issue                               B.
made by a State court shall be presumed to be              Roach posits that his execution under Tex-
correct. The applicant shall have the burden of         as’s capital clemency procedures would violate
rebutting the presumption of correctness by             his Eighth and Fourteenth Amendment rights.
clear and convincing evidence.” 28 U.S.C.               The procedure is deficient, he asserts, because
§ 2254(e)(1).                                           the Texas Governor and Board of Pardons and
                                                        Paroles seriously consider only actual inno-
   Roach requests a COA on ten issues. We               cence for commutation of a death sentence.
address each in turn.
                                                            Roach argues, citing Ohio Adult Parole Au-
                       A.                               thority v. Woodard, 523 U.S. 272 (1998), that
   Roach contends that his execution would              the Supreme Court has held that minimal due
constitute punishment on the basis of the na-           process safeguards apply to clemency proceed-
ture of the offense alone with no consideration         ings. Woodard suggests, he points out, that
of his character, in violation of Woodson v.            judicial intervention might be “warranted in the
North Carolina, 428 U.S. 280, 304 (1976). In            face of a scheme whereby a state official
Woodson the Court struck down a statute that            flipped a coin to determine whether to grant
mandated an automatic death sentence for                clemency, or in a case where the State arbi-
those convicted of first-degree murder, be-             trarily denied a prisoner any access to its clem-
cause the statute failed to require a consider-         ency process.” Id. at 289 (O’Connor, J.,
ation of the defendant’s character and record           concurring).
and the circumstances of the offense. Id. at
303-04.                                                    Texas’s clemency procedure is defective,
                                                        Roach contends, because only actual inno-
   The district court noted that Texas’s death          cence is seriously considered, so inmates do
penalty laws differ from those in Woodson.              not have meaningful clemency review. Texas
The jury was required to consider all the evi-          has granted clemency only based on judicial
dence presented at Roach’s trial, including the         expediency and never based on an inmate’s
evidence on the issues Woodson mentions                 request.
SSthe circumstances of the offense and the de-
fendant’s background and character. More-                   The district court deferred to the state
over, the jury was required to consider the             court’s conclusion that Texas’s clemency pro-
probability Roach would commit future acts of           cedures do not violate the Eighth or Four-
violence.                                               teenth Amendments, holding that Roach mere-
                                                        ly pointed out aspects of the clemency process
    No reasonable jurists could debate the dis-         with which he disagreedSShe did not provide
trict court’s conclusion that the jurors in             evidence that he would be denied access to the


                                                    3
process or evidence that the decision will be            and because and Congress has not incorporat-
made arbitrarily. Futher, the district court             ed it into domestic law. Beazley v. Johnson,
pointed out, we have held that Texas’s clem-             242 F.3d 248, 267 (5th Cir. 2001).2 Reason-
ency procedures do not violate due process.1             able jurists could not debate the district court’s
The Texas clemency procedures, the Faulder               conclusion that Roach has failed to establish
court concluded, do not resemble flipping a              that Texas’s clemency process violates the
coin. Id. at 344.                                        ICCPR.

    Given Woodard’s description of the char-                Because we have already established that
acteristics of the sort of arbitrary clemency            reasonable jurists would not find Texas’s clem-
procedure that would require judicial interven-          ency review defective, Roach’s claim that
tion, and in light of Faulder, no reasonable jur-        execution without meaningful clemency/com-
ist could debate whether the district court              mutation review violates customary interna-
erred in deferring to the state court.                   tional law also fails for this same reason.

                      C.                                                         D.
   Roach urges that Texas’s clemency process                Roach also argues that Texas’s unstruc-
violates the International Covenant on Civil             tured sentencing scheme is unconstitutional
and Political Rights (“ICCPR”), which the                because it does not permit meaningful appel-
United States ratified in 1992. He contends              late review. Roach claims he has a right for
that Texas lacks a meaningful clemency pro-              appellate review of the legal and factual suffi-
cess as required by the sixth article of the             ciency of the jury’s findings relating to Texas’s
ICCPR. Also, he suggests execution without               mitigation special issue.
a meaningful clemency process violates cus-
tomary international law.                                    In response, the district court deferred to
                                                         the state habeas court’s determination that the
   The district court found that when the Sen-           Eight and Fourteenth Amendments do not re-
ate ratified the ICCPR, it stated that articles          quire an appellate court to reweigh punishment
one through twenty-seven were not self-exe-              evidence. Reasonable jurists could not debate
cuting, so Congress must incorporate those               this conclusion. As the district court pointed
provisions into domestic law to make the cov-            out, the Supreme Court has not stated that re-
enant effective. Because Congress has not                view of mitigation evidence is constitutionally
done so, the ICCPR is not binding law, and               required. In contrast, the Court has stated that
Roach’s appeal to its provisions fails.                  juries may evaluate mitigation evidence3 and

   Along with the First and Sixth Circuits, we
have previously concluded that ICCPR was                    2
                                                              See also Buell v. Mitchell, 274 F.3d 337, 371-
not U.S. law because it is not self-executing
                                                         72 (6th Cir. 2001); Igartua de la Rosa v. United
                                                         States, 32 F.3d 8, 10 n.1 (1st Cir. 1994) (per curi-
                                                         am).
   1
     Faulder v. Tex. Bd. of Pardons & Paroles,
                                                            3
178 F.3d 343, 344-45 (5th Cir. 1999) (stating that           Tuilaepa v. California, 512 U.S. 967, 974
due process challenges to Texas’s procedure were         (1994) (“[T]he States may adopt capital sentencing
“meritless”).                                                                                (continued...)

                                                     4
that appellate review of the proportionality of            proof beyond a reasonable doubt.7 Roach’s
a death sentence is not required where a stat-             argument confuses proving the elements of an
ute properly channels a sentencer’s discretion.4           offense beyond a reasonable doubt, which is
Moreover, we have rejected challenges to Tex-              required by In re Winship, 397 U.S. 358
as’s appellate review of the special mitigation            (1970), with the contents of the elements
issue, holding it does not violate the Fourth or           themselves. Because Texas’s issue regarding
Eight Amendments5 and that it does not vio-                future dangerousness must be proven beyond
late due process.6 In light of these precedents,           a reasonable doubt, reasonable jurists could
no reasonable jurist could debate the district             not debate the district court’s opinion.
court’s decision.
                                                               We have already held that the burden of
                        E.                                 proof is not shifted to the defendant in Texas’s
    Roach avers that Texas’s special issue re-             special issue, see Hughes v. Johnson, 191 F.3d
lating to the future dangerousness of the de-              607, 625-26 (5th Cir. 1999), so reasonable jur-
fendant is unconstitutional because it requires            ists would not debate Roach’s objection on
only proof of a probability of future danger-              this ground. Similarly, we have held that a de-
ousness and not proof beyond a reasonable                  fendant’s argument that Texas’s special issue
doubt of future dangerousness, puts the bur-               chilled the defendant’s ability to present rel-
den of proof on the defendant, chilled Roach’s             evant mitigating evidence is meritless. See
ability to present relevant mitigating evidence,           Woods v. Johnson, 75 F.3d 1017, 1033 (5th
and insufficiently guides the jury in making its           Cir. 1996). Finally, the district court recited
determination. First, contrary to Roach’s con-             the long line of our cases holding that the
tention, Texas’s special issue does require                terms included in the punishment special issue
                                                           are constitutionally sufficient.8 None of
                                                           Roach’s objections to Texas’s special issue
                                                           would cause reasonable jurists to debate the
   3                                                       district court’s decision.
     (...continued)
processes that rely upon the jury, in its sound dis-
cretion, to exercise wide discretion.”); Penry v.                               F.
Lynaugh, 492 U.S. 302, 326-27 (1989) (stating                 Roach asserts that Texas law violates the
“there is no constitutional infirmity in a procedure       Eighth and Fourteenth Amendments because it
that allows a jury to recommend mercy based on             prevents jurors from knowing that Roach
the mitigation evidence introduced by a defen-             would be sentenced to life if even one juror
dant”).                                                    causes a deadlocked jury. The district court
   4
    McCleskey v. Kemp, 481 U.S. 279, 306-07
(1987); Pulley v. Harris, 465 U.S. 37, 50-51
                                                              7
(1984).                                                         TEX. CODE CRIM. PROC. art 37.071§(c) (“The
                                                           state must prove each issue submitted under Sub-
   5
     Hughes v. Johnson, 191 F.3d 607, 621-23               section (b) of this article beyond a reasonable
(5th Cir. 1999).                                           doubt . . . .”).
   6                                                          8
     Woods v. Cockrell, 307 F.3d 353, 359-60 (5th               See, e.g., id. at 1033-34 (listing cases holding
Cir. 2002); Moore v. Johnson, 225 F.3d 495, 505-           that the terms in Texas’s special issue do not need
06 (5th Cir. 2002).                                        to be defined by jury instructions).

                                                       5
pointed out that we have previously rejected               Graham v. Collins, 506 U.S. 461, 476
this argument as meritless. See Alexander v.               (1993)). This jury instruction “does not
Johnson, 211 F.3d 895, 897, n.5 (5th Cir.                  unconstitutionally ‘preclude[ ] [the jury] from
2000). In Alexander we explained as follows:               considering, as a mitigating factor, any aspect
                                                           of a defendant’s character or record and any of
   In addition to be being barred by Teague,               the circumstances of the offense that the de-
   Alexander’s substantive argument is merit-              fendant proffers as a basis for a sentence less
   less. The Supreme Court recently rejected               than death’” Id. (quoting Lockett v. Ohio, 438
   the theory that a district court’s failure to           U.S. 586, 604 (1978)). Roach’s potential for
   instruct the jury as to the consequences of             rehabilitation falls within the evidence this jury
   deadlock gives rise to an Eighth Amend-                 instruction permits the jury to consider based
   ment violation. See Jones v. United States,             on our caselaw; no reasonable jurists could de-
   527 U.S. 373 (1999). Furthermore, the                   bate the district court’s decision to rely on this
   Fifth Circuit has expressly rejected the con-           precedent.
   tention that Texas’s 10-12 Rule prevents
   jurors from considering mitigating circum-                                      H.
   stances. See Jacobs v. Scott, 31 F.3d 1319,                 Roach alleges that Texas’s capital murder
   1328-29 (5th Cir.1994).                                 and death penalty statutes violate the Estab-
                                                           lishment Clause of the First Amendment be-
Id. at 897 n.5. Because we have previously                 cause the statutes did not have a secular pur-
rejected Roach’s contention, no reasonable                 pose, and the preeminent purpose of the stat-
jurist could debate the district court’s conclu-           utes is religious. As evidence, he points to the
sion.                                                      primary sponsor’s purely religious arguments
                                                           in favor of the bill and the inability of the spon-
                         G.                                sors to articulate a reasonable secular purpose.
   Roach claims that his right to have a jury
consider all evidence relevant to mitigation of                The district court, however, noted that the
the death sentence was violated because the                primary sponsor of the bill asserted religious
definition of mitigating circumstances limited             arguments only in response to an opponent’s
the jury’s consideration to evidence that might            religious arguments about the bill. The district
reduce Roach’s culpability of the crime, ex-               court further noted that Roach presented evi-
cluding the potential for rehabilitation. The              dence about the purpose of the bill only from
district court, citing to the trial transcript, not-       the closing arguments for the bill. These few
ed that jurors were instructed to consider all             arguments, the district court reasoned, do not
evidence submitted to them in both phases of               demonstrate the actual purpose of the bill.
the trial and were told to consider mitigating
evidence “to be evidence that a juror might re-               No reasonable jurist could debate the con-
gard as reducing the defendant’s moral blame-              clusion that Roach has failed to show that
worthiness.”                                               Texas’s death penalty statutes violate the First
                                                           Amendment. Roach presents only evidence
   This definition encompasses “‘virtually any             from a small part of the legislative process, and
mitigating evidence.’” Beazley v. Johnson,                 the evidence merely demonstrates the sponsor
242 F.3d 248, 260 (5th Cir. 2001) (quoting                 used a religious argument to refute an oppo-


                                                       6
nent’s religious argument, not to state the pur-          Roach has not demonstrated that his attorney’s
pose of the statute. Moreover, as Roach’s                 failure to allow him to testify constituted inef-
brief highlights, the primary sponsor invited             fective assistance of counsel, because Roach
prosecutors to testify about the effect of the            failed to prove he was prejudiced as required
death penaltyon deterrence and incapacitation.            by Strickland v. Washington, 466 U.S. 668
That testimony stated secular purposes for the            (1984). We have previously held that a defen-
death penalty.                                            dant failed to meet Washington’s prejudice
                                                          standard, despite the fact his attorney prevent-
   “While the Court is normally deferential to            ed him from testifying against his wishes, be-
a State’s articulation of a secular purpose, it is        cause there was no reasonable probability that
required that the statement of such purpose be            the defendant would not have received the
sincere and not a sham.” Edwards v. Aguil-                death penalty if he had testified. See United
lard, 482 U.S. 578, 586-87 (1987). Here,                  States v. Mullins, 315 F.3d 449, 456 (5th Cir.
where secular reasons for the statute were pro-           2001). Because of the defendant’s extensive
vided and no evidence demonstrates a religious            criminal history and drug use, about which the
purpose, no reasonable jurists could debate the           government could cross-examine him, there
district court’s conclusion that Texas’s death            was no reasonable probability that the jury
penalty statutes do not offend the First                  would believe the defendant’s testimony in-
Amendment.                                                stead of the arresting officers’. Id. Here, the
                                                          district court reasoned, that there was no rea-
                         I.                               sonable probability that Roach’s testimony
   Roach claims he was unconstitutionally de-             would alter the outcome because of Roach’s
prived of his right to testify in mitigation of his       criminal history, which included a prior murder
punishment. He informed his attorney he                   and the brutal nature of this crime.
wanted to testify, Roach alleges, but his attor-
ney told him he would not be called to testify.               No reasonable jurists could debate that the
                                                          district court erred in deferring to the state ha-
    The district court rejected this claim for            beas court’s findingSSRoach presented no evi-
two reasons. First, the state habeas court de-            dence that the state court’s determination was
termined that Roach did not ever express a de-            unreasonable. Also, even if the district court
sire to testify and that his attorney informed            accepted Roach’s account, no reasonable jurist
him of his right to testify. Without evidence             could debate the conclusion that Roach’s tes-
contradicting these fact findings, the district           timony would have altered the outcome, given
court deferred to the state court’s finding.              our analogous reasoning in Mullins and
The state court had Roach’s affidavit, assert-            Roach’s criminal history and particular crime
ing he informed his attorney of his desire to             in this case.
testify, as well as his attorney’s affidavit, stat-
ing she informed him of his right to testify and                                 J.
that he never told her he wanted to do so.                   Roach argues that because of a conflict of
From this evidence, the state court made its              interest, he received ineffective assistance of
factual finding.                                          counsel, violating his Sixth and Fourteenth
                                                          Amendment rights. He states that his attorney
   Second, the district court reasoned that               accepted employment with the prosecutor’s


                                                      7
office that was prosecuting Roach while she                      Roach fails to point to any adverse effects
was still representing Roach on direct appeal.                of the alleged conflict, such as points of error
                                                              that should have been argued or additional ar-
    Roach’s attorney accepted employment                      guments that were omitted from the points of
with the prosecutor’s office beginning Janu-                  error raised. He contends his attorney devoted
ary 1, 2000, but she filed a brief on Roach’s                 less time to his brief than she could otherwise
behalf on February 2, 2000. In an affidavit to                have devoted, but he fails to suggest any harm
the state habeas court, she explained that she                from this lack of time. We require a petitioner
completed Roach’s brief before going to work                  to show “some plausible defense strategy or
at the prosecutor’s office but merely filed the               tactic might have been pursued but was not,
brief after starting work there.9 The affidavit               because of the conflict of interest.”12 Without
also explained that the lawyer did not perform                any showing of harm, reasonable jurists could
any work in the prosecutor’s office related to                not debate the district court’s conclusion that
Roach and did not communicate any confiden-                   Roach has failed to establish this ineffective
tial material to the prosecutor’s office. An-                 assistance of counsel claim.
other attorney began representing Roach and
filed a supplemental brief on his behalf with the                The request for COA is DENIED.
Court of Criminal Appeals in May 2000, rais-
ing three additional points of error.

   The district court found that the state habe-
as court’s conclusionsSSthat no actual conflict
of interest existed10 and that Roach did not
prove he suffered harmSSnot to be an unrea-
sonable application of federal law. We do not
address whether an actual conflict existed, be-
cause reasonable jurists could not debate the
conclusion that Roach failed to prove harm.11
                                                                 11
                                                                    (...continued)
                                                              668, 694 (1984), and Beets v. Scott, 65 F.3d 1258,
   9                                                          1271-72 (5th Cir.1995) (en banc)). Though the
     The certificate of service on the brief states the
brief was completed December 31, 1999.                        district court analyzed the harm of Roach’s at-
                                                              torney’s conflict under Cuyler’s requirement that
   10
     Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)             the conflict adversely affected his lawyer’s perfor-
requires proof of an actual conflict of interest, not         mance, Washington’s requirement that the conflict
merely a potential conflict.                                  prejudiced Roach’s defense is more onerous than
                                                              Cuyler’s requirement. Because Roach failed under
   11
      Cases in which “it is alleged that the attor-           Cuyler’s standard, he also fails under Washing-
ney’s representation was affected by his own self-            ton’s more exacting standard. Thus, though the
interest are evaluated under the more relaxed                 district court erred in applying Cuyler instead of
Strickland [v. Washington] standard,” not the                 Washington, Roach’s argument is unavailing.
Cuyler standard that the district court applied here.
                                                                 12
Moreland v. Scott, 175 F.3d 347, 349 (5th Cir.                     Hernandez v. Johnson, 108 F.3d 554, 560
1999) (citing Strickland v. Washington, 466 U.S.              (5th Cir. 1997) (quoting Perillo v. Johnson, 79
                                       (continued...)         F.3d 441, 449 (5th Cir.1996)).

                                                          8
