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

                                                 FILED
                                                                          August 28, 2009

                                       No. 08-70049                    Charles R. Fulbruge III
                                                                               Clerk

LINDA ANITA CARTY,

                                                  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, Houston Division
                                   No. 06-614


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       A Texas jury convicted and sentenced to death petitioner–appellant Linda
Anita Carty for the intentional murder of Joana Rodriquez during the course of
a kidnaping of Rodriguez and her newborn son. State appellate courts affirmed
the conviction and sentence and denied post-conviction relief.                  Carty then
brought this federal habeas petition under the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. The district court denied


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this order should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
substantive relief, dismissed Carty’s case, and denied a certificate of
appealability (“COA”) for most of her claims.       It granted a COA for two
substantive claims. Carty’s appeal of those two claims is now before us, as is
Carty’s request for an additional COA for many of the other claims she
unsuccessfully raised in the district court. We deny Carty’s request for an
additional COA, grant her request for oral argument regarding the two
substantive claims, and reserve opinion on those claims until after oral
argument.
                       I. FACTS AND PROCEDURE
      The district court’s exhaustive opinion more than adequately documents
the factual background and procedural development of this case. See Carty v.
Quarterman (Carty Federal Habeas), No. 06-614, slip op. at 5–35 (S.D. Tex. Sept.
30, 2008). Here, we recite the facts and procedure in cursory form to provide a
framework for our denial of an additional COA.
      Carty, a foreign national citizen of St. Kitts and thus the United Kingdom,
was indicted by a Texas grand jury for the kidnaping and intentional murder of
Rodriguez. Although Carty originally hired her own attorney, when her family
could not pay his fees, the Texas trial court appointed Jerry Guerinot and Wendy
Akins to represent her (collectively, “trial counsel”).     Trial counsel hired
investigator John Castillo and psychologist Dr. Jerome Brown to aid Carty’s
defense.
      The trial proceeded in two phases: guilt/innocence and punishment.
During the guilt-innocence phase, the prosecution called, inter alia, Jose Corona,
with whom Carty had previously resided and who may have been Carty’s
common-law husband; Charlie Mathis, an agent of the Drug Enforcement
Agency and for whom Carty had previously worked as an informant; and Josie
Anderson, Marvin Caston, Chris Robinson, and Zebediah Combs, all of whom
had some role in the kidnaping, although the parties currently contest their
statuses as accomplices. The jury returned a verdict of guilty on the charge of


                                        2
capital murder. During the subsequent punishment phase, Dr. Brown testified
on behalf of Carty, as did members of her family. The jury answered all three
of Texas’s “special issues” in favor of sentencing Carty to death.
      The Texas Court of Criminal Appeals affirmed Carty’s conviction and
sentence. See Carty v. State, No. 74295, 2004 WL 3093229 (Tex. Crim. App. Apr.
07, 2004). Carty then applied for state post-conviction relief. Carty raised a few
of her presently asserted claims in her initial application for post-conviction
relief but most others in her Further Additional Response (her third amended
response to the government’s answer). The parties dispute whether they—along
with the state habeas court—agreed to permit Carty to raise new claims in that
response. The state habeas court reviewed the claims she raised in her initial
application and recommended that the Court of Criminal Appeals deny those
claims, see Ex Parte Carty, No. 877592-A, order (Tex. Dist. Ct. Dec. 2, 2004), a
recommendation that the Court of Criminal Appeals adopted, see Ex Parte Carty,
No. WR-61,055-01, slip op. 2 (Tex. Ct. Crim. App. Mar. 2, 2005). Neither court
addressed the claims she raised for the first time in her Additional Further
Response.
      Having found no success in state court, Carty then filed an application in
federal district court for a writ of habeas corpus under § 2254. Carty presented
approximately twenty issues to the district court, which concluded that Carty
failed to raise a triable issue of her entitlement to relief, granted the state’s
motion for summary judgment, and dismissed the case. See Carty Federal
Habeas, No. 06-614, slip op. at 142. Carty then moved for a COA. The district
court granted Carty a COA on whether she failed to exhaust the claims that she
raised for the first time in her Further Additional Response and on whether trial
counsel rendered ineffective assistance by failing to notify Corona of his spousal
privilege and by failing to produce more mitigation evidence during the
punishment phase of trial. It denied a COA for all other claims. See Carty v.
Quarterman (Carty COA), No. 06-614, slip op. at 2–3 (S.D. Tex. Dec. 16, 2008).


                                        3
Carty now appeals the claims for which the district court granted her a COA and
moves us to grant a COA on her additional claims. At this time, we rule only on
her motion for an additional COA and deny it.
                           II. STANDARDS OF REVIEW
      Carty’s motion is governed by AEDPA. Under AEDPA, a state habeas
petitioner may appeal a district court’s dismissal of his petition only if the
district court or the court of appeals first issues a COA.              28 U.S.C.
§ 2253(c)(1)(B); see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (describing a
COA as a “jurisdictional prerequisite” without which “federal courts of appeals
lack jurisdiction to rule on the merits of appeals from habeas petitioners”). In
determining whether to grant a petitioner’s request for a COA, we limit our
“examination to a threshold inquiry into the underlying merit of [the
petitioner’s] claims.” Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel, 529
U.S. 473, 481 (2000)). “This threshold inquiry does not require full consideration
of the factual or legal bases adduced in support of the claims. In fact, the statute
forbids it.” Id. at 336.
      We will grant a request for a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.”            28 U.S.C.
§ 2253(c)(2). Typically, where the district court denies a habeas petition at least
in part on procedural grounds without reaching the applicant’s underlying
constitutional claim, or by reaching the underlying constitutional claim by
denying it in the alternative, “a COA should issue when the [applicant] shows,
at least, 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. In this case, the district court concluded that
the claims that Carty raised for the first time in her Further Additional
Response were not exhausted in state court, a procedural ruling precluding relief
on those claims; however, it granted a COA for that ruling. See Carty COA, No.


                                         4
06-614, slip op. at 2 (“[G]iven the complexity of the record and the intricacies of
Texas habeas law, the [district court] finds that the exhaustion issue ‘deserves
encouragement to proceed further.’ The [district court], therefore, will grant a
COA on the question of whether [Carty] sufficiently exhausted state court
remedies.”).1    Thus, in order to grant a COA for one of Carty’s additional
substantive claims, we must conclude only that Carty has demonstrated the
threshold showing for that substantive claim.2 See Miller-El, 537 U.S. at 327.
“Although the issuance of a COA ‘must not be pro forma or a matter of course,’
the petitioner satisfies the burden under § 2253(c) by ‘demonstrat[ing] that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.’” Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005)
(alteration in original) (quoting Miller-El, 537 U.S. at 337–38). “[A] claim can
be debatable even though every jurist of reason might agree, after the COA has
been granted and the case has received full consideration, that petitioner will
not prevail.” Miller-El, 537 U.S. at 338. “[A]ny doubt as to whether a COA
should issue in a death-penalty case must be resolved in favor of the petitioner.”
Pippin, 434 F.3d at 787.
       In determining whether the district court’s denial of Carty’s petition for
a COA on her additional claims was debatable, we must keep in mind the
deferential standard of review that AEDPA requires a district court to apply to
the state courts’ rulings. See Brown v. Dretke, 419 F.3d 365, 371 (5th Cir. 2005)




       1
          Carty also seeks a COA for the district court’s holding that the procedural default
that resulted from her failure to exhaust was not subject to certain exceptions. Our
disposition on Carty’s appeal of the merits of the exhaustion issue will necessarily resolve the
correctness of the district court’s underlying procedural default holding. We consider as a
separate matter whether to grant Carty’s request for a COA on the applicability of exceptions
to procedural default.
       2
         Where a district court held that a different procedural bar applied to prevent
consideration of the merits of one of Carty’s claims, we apply the appropriate standard to both
the procedural and substantive holdings. See Slack, 529 U.S. at 484.

                                               5
(“With respect to the review of factual findings, AEDPA significantly restricts
the scope of federal habeas review.”). Under AEDPA,
       a federal court is not to grant a writ of habeas corpus “with respect
       to any claim that was adjudicated on the merits in State court
       proceedings” unless it determines that the state court’s adjudication
       “resulted in a decision that was contrary to, or involved an
       unreasonable application of, clearly established Federal law, as
       determined by the Supreme Court of the United States.”
Pippin, 434 F.3d at 787 (quoting 28 U.S.C. § 2254(d)(1)).                  Moreover, “‘a
determination of a factual issue made by a State court shall be presumed to be
correct’ unless the petitioner rebuts the presumption ‘by clear and convincing
evidence.’” Id. at 788 (quoting 28 U.S.C. § 2254(e)(1)). “This presumption of
correctness attaches not only to explicit findings of fact, but also to
‘unarticulated findings which are necessary to the state court’s conclusions of
mixed law and fact.’” Id. (quoting Pondexter v. Dretke, 346 F.3d 142, 148 (5th
Cir. 2003)).
                                  III. DISCUSSION
       Carty requests a COA for numerous substantive claims and for her claim
that exceptions to procedural default apply to the claims she raised for the first
time in her Further Additional Response.
A. Substantive claims
       Carty raises six types of substantive challenges to her conviction or
sentence.3
       1. Ineffective assistance of counsel
       Carty contends that her trial counsel’s assistance was ineffective. “The
benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the



       3
        Carty presented the majority of these claims in her Further Additional Response, so
there were no state court holdings to which the district court could apply the AEDPA-
mandated standard of deference. See § 2254(d); Pippin, 434 F.3d at 787. We will note the few
claims for which the state court provided a holding.

                                             6
trial cannot be relied on as having produced a just result.”                   Strickland v.
Washington, 466 U.S. 668, 686 (1984). Under the Strickland standard, the Sixth
Amendment right to effective assistance of counsel “is denied when a defense
attorney’s performance falls below an objective standard of reasonableness and
thereby prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003).
“Failure to make the required showing of either deficient performance or
sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at
700.       “The proper measure of attorney performance remains simply
reasonableness under prevailing professional norms,” by reference to “all the
circumstances.” Id. at 688. “Judicial scrutiny of counsel’s performance must be
highly deferential” and must avoid second-guessing. Id. at 689. Prejudice
requires a “reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceedings would have been different.” Id. at 694.4 In light
of these standards, we now consider Carty’s claims of ineffective assistance of
counsel.
       First, Carty alleges that trial counsel rendered ineffective assistance
through deficient pre-trial preparation by (1) failing to interview Mathis; (2)
failing to conduct inquiries of Carty’s family and her life in St. Kitts; and (3)
failing to interview and prepare to cross-examine state witnesses. Carty has
failed to identify any testimony or information that trial counsel should have
elicited from Mathis that would have been admissible, relevant, and non-
cumulative. See United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989) (“A
defendant who alleges a failure to investigate on the part of his counsel must
allege with specificity what the investigation would have revealed and how it


       4
         “It bears repeating that,” where the state habeas court had the opportunity to rule on
the petitioner’s ineffective assistance of counsel claim, “the test for federal habeas purposes
is not whether [the petitioner] made [the required] showing.” Schaetzle v. Cockrell, 343 F.3d
440, 444 (5th Cir. 2003). “Instead, the test is whether the state court’s decision—that [the
petitioner] did not make the Strickland-showing—was contrary to, or an unreasonable
application of, the standards, provided by the clearly established federal law (Strickland), for
succeeding on [the petitioner’s] IAC claim.” Id.

                                               7
would have altered the outcome of the trial.”). She has similarly failed to show
that testimony about her character from her family and distant acquaintances
in St. Kitts was admissible and would have altered the guilt/innocence phase of
trial.5 Carty has additionally failed to show that Robinson and Combs, who were
also charged with crimes, would have agreed to be interviewed by trial counsel
or that they had any knowledge that was not otherwise disclosed to the jury
during trial. Thus, the district court’s holding—that trial counsel’s performance
did not fall below an objective standard of reasonableness—is not debatable by
jurists of reason.
       Second, Carty claims that trial counsel provided ineffective assistance by
failing to call Dr. Brown to testify during the guilt/innocence phase and by
failing to prepare him for cross-examination during the punishment phase.
Carty has failed to show that Dr. Brown could have testified to his proffered
opinions—that Carty’s psychological profile did not fit the crime, that bandage
scissors could not cut human flesh, and that Carty could not have passed the
baby off as her own—during the guilt/innocence phase. Dr. Brown’s opinion
about Carty’s psychological profile was not helpful to the jury because the jury
was ultimately charged with deciding whether Carty kidnaped and killed
Rodriguez with the requisite intent. Dr. Brown’s analysis of her psychological
profile based on later observations in a controlled setting would not have been
helpful to the jury in determining whether she committed these crimes and, in
any case, that Carty’s later psychological profile suggested that she would not
have committed these crimes pales in comparison to the substantial evidence
that she did so. The only case relied upon by Carty permits testimony regarding
the defendant’s psychological profile in the punishment phase, not the
guilt/innocense phase. See Griffith v. State, 983 S.W.2d 282, 288 (Tex. Crim.



       5
        The district court granted a COA on whether trial counsel should have conducted
more searching inquiries of Carty’s family and of her life in St. Kitts to uncover mitigation
evidence for use in the punishment phase of trial.

                                             8
App. 1998). Next, Dr. Brown’s opinion that bandage scissors could not cut
human flesh was not relevant to the prosecution’s use of that evidence—to
provide evidence of Carty’s willingness to do anything to kidnap the baby—and
was not necessary because trial counsel presented that argument to the jury,
which did not need expert testimony to reach that conclusion. Finally, that
Carty could not have passed the baby off as her own due to its ethnicity is not
relevant to whether she wanted to do so, ignores Corona’s ethnicity, and ignores
Carty’s statements that Rodriguez was pregnant with Corona’s child. Regarding
cross-examination, an issue that Carty raised in state habeas court, she has
failed to rebut the fact that Dr. Brown was familiar with her case,
characteristics, and crimes, even if he did not know her theory of the case, and
has failed to show any prejudice arising from the alleged deficient preparation.
Carty has failed to rebut with clear and convincing evidence the state habeas
court’s finding that the prosecutor properly questioned Dr. Brown about
hypothetical characteristics and has failed to show that the state habeas court
unreasonably applied federal law to conclude that trial counsel was not
ineffective during Dr. Brown’s cross-examination. Overall, the district court’s
holding—that trial counsel’s performance did not fall below an objective
standard of reasonableness and did not prejudice the defense—is not debatable
by jurists of reason.
      Third, Carty contends that trial counsel rendered ineffective assistance by
failing to present additional evidence that would have rebutted the special issue
of future dangerousness. Carty’s cursory argument on this issue fails to address
any of the district court’s comprehensive discussion of trial counsel’s tactics in
countering future dangerousness. Cf. Williams v. Cain, 125 F.3d 269, 278–79
(5th Cir. 1997) (holding that the trial attorney’s tactic of not presenting certain
evidence was not prejudicial to the defendant because it avoided harmful cross-
examination).    The district court’s thorough holding—that trial counsel’s




                                        9
performance did not fall below an objective standard of reasonableness—is not
debatable by jurists of reason.
       Fourth, Carty asserts that trial counsel rendered ineffective assistance by
failing to contradict the prosecution’s evidence of the cause of Rodriquez’s death,
particularly as it relates to Carty’s intent. The state habeas court denied Carty
relief on this claim because, inter alia, trial counsel pursued a reasonable tactic
of attacking the prosecution’s expert and elicited beneficial testimony during
cross-examination. The federal district court held that the state habeas court
did not unreasonably apply federal law in denying Carty’s claim. Carty now
contends that had trial counsel pursued a different tactic, her defense would
have been stronger. This argument is insufficient to show that reasonable
jurists could debate the district court’s conclusion. See Schaetzle, 343 F.3d at
444.
       Carty maintains that trial counsel provided ineffective assistance by
permitting the dismissal of over 80% of potential jurors, by inappropriately
questioning potential jurors, and by failing to object to prosecutor and court
statements during jury voir dire. Carty fails to show that the exclusion of
potential jurors, trial counsel’s statements, or trial counsel’s decisions not to
object gave rise to constitutional violations. See, e.g., Penry v. Johnson, 532 U.S.
782, 801–02 (2001) (“The comments of the court and counsel during voir dire
were surely a distant and convoluted memory by the time the jurors began their
deliberations on [the defendant’s] sentence.”); Zafiro v. United States, 506 U.S.
534, 540–41 (1993) (“[E]ven if there were some risk of prejudice, here it is of the
type that can be cured with proper instructions, and ‘juries are presumed to
follow their instructions.’”); Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir.
1998) (“Because failure to make a frivolous objection does not cause counsel’s
performance to fall below an objective level of reasonableness, [the defendant]
has not established deficient performance.”).         Thus, the district court’s




                                        10
holding—that trial counsel’s performance did not fall below an objective
standard of reasonableness—is not debatable by jurists of reason.
      Sixth, Carty claims, as she did in state habeas court, that trial counsel
rendered ineffective assistance by failing to advise her of her rights under the
Vienna Convention on Consular Relations (“VCCR”), Apr. 24, 1963, 21 U.S.T. 77,
596 U.N.T.S. 261.       The district court held that whether Carty has an
individually enforceable right under the VCCR is not clearly established for
purposes of AEDPA; that Carty did not claim prejudice distinct from her
unsuccessful claim of cumulative prejudice resulting from ineffective assistance
of counsel; and that, in any case, Carty was not prejudiced because even when
state officials notified her of VCCR-based rights, she failed to assert her foreign
nationality. Carty is a citizen of St. Kitts and the United Kingdom. As such,
Article 36 of the VCCR obligated the United States to notify the consular officers
of St. Kitts and the United Kingdom of Carty’s detention if she requested that
they do so and also to inform her without delay of her notification rights. See
Sanchez-Llamas v. Oregon, 548 U.S. 331, 338–39 (2006). While the United
States has undertaken that treaty obligation, the Supreme Court has not
answered whether the VCCR creates rights enforceable by individuals. See, e.g.,
Medellín v. Texas, --- U.S. ----, 128 S. Ct. 1346, 1357 n.4 (2008). Filling that void,
we have previously held that “‘Article 36 of the Vienna Convention does not
create an individually enforceable right.’” See, e.g., Leal Garcia v. Quarterman,
--- F.3d ----, 2009 WL 1800141, at *2 n.19 (5th Cir. 2009) (quoting Medellín v.
Dretke, 371 F.3d 270, 280 (5th Cir. 2004)).        Carty nonetheless recites that
“numerous other courts have held the opposite, that the Vienna Convention does
create an individually enforceable right,” see id. (citing, e.g., Osagiede v. United
States, 543 F.3d 399, 409–10 (7th Cir. 2008), thus evidencing debate among
jurists of reason. While there may be a vibrant debate in the courts of appeals
about whether the VCCR conveys an individual right, that split does not mean
that the state court judgment was “contrary to, or involved an unreasonable


                                         11
application of, clearly established Federal law, as determined by the Supreme
Court of the United States.” See § 2254(d)(1) (emphasis added). There can be no
debate among jurists of reason that the purported individual right is not at this
time clearly established by Supreme Court precedent. Yet, Carty continues to
assert her VCCR claim by reference to various forms of purported ineffective
assistance rendered by trial counsel, such as trial counsel’s failure to make
inquiries about her life on St. Kitts. Even assuming without deciding that trial
counsel erred by failing to advise Carty of the availability of consular assistance,
which may have resulted in such an inquiry, we conclude she has failed show
that jurists of reason could debate that she has suffered any actionable prejudice
resulting from trial counsel’s deficient representation.6 This is particularly true
where she failed to assert her status as a foreign national after state officials
notified her that foreign nationals would be permitted to contact their consuls
under the VCCR. The district court’s holding that the state habeas court’s ruling
was not contrary to clearly established federal law and the district court’s
conclusion that trial counsel’s performance did not prejudice the defense are not
debatable by jurists of reason.
       Seventh, Carty asserts, as she did in state habeas court, that trial counsel
should have objected when the prosecutor mentioned numerous baby items
during his opening statement, items that the trial court later excluded from
evidence, and also asserts that trial counsel should have sought instructions on
and objected to evidence and argument relating to Anderson’s, Caston’s, and
Combs’s statuses as accomplice witnesses. The baby items were not excluded at
trial until after opening arguments, and numerous other baby items were
admissible evidence; thus, trial counsel did not act unreasonably, and the


       6
         This conclusion is without prejudice to Carty’s claim that trial counsel’s alleged
inadequate development of mitigation evidence constituted prejudicial deficient performance,
an issue for which the district court granted a COA and that remains before us on appeal. To
the extent Carty’s VCCR claim is relevant to the development of facts supporting mitigation,
we reserve judgment for our consideration of her pending appeal.

                                            12
purported error was only cumulative of existing evidence. In addition, because
questions existed as to the alleged accomplices’ statuses and the issue was thus
submitted to the jury with proper instructions, trial counsel was not deficient in
handling the accomplice witnesses. See Blake v. State, 971 S.W.2d 451, 455 (Tex.
Crim. App. 1998) (“If the evidence is conflicting, it is proper to leave the question
of whether an inculpatory witness is an accomplice witness as a matter of fact
to the jury under instructions defining the term accomplice.”). Thus, the district
court’s holding—that trial counsel’s performance did not fall below an objective
standard of reasonableness—is not debatable by jurists of reason, especially
when viewed through AEDPA’s multiple prisms.
      Eighth, Carty argues that trial counsel should have resigned due to
excessive workload and due to Carty’s uncooperative interaction with trial
counsel.   The district court held that Carty has failed to raise an issue of
constitutional magnitude, and that holding is not debatable by jurists of reason.
      Carty’s ninth and final ineffective assistance of counsel claim is that the
cumulative errors of trial counsel deprived her of a fair trial. Carty preserved
this claim in state habeas court. Most of the alleged errors that Carty recites did
not constitute deficient performance and thus could not be the basis of a claim
of cumulative prejudice. See Miller v. Johnson, 200 F.3d 274, 286 n.6 (5th Cir.
2000). Moreover, without prejudice to the merits of Carty’s pending appeal, the
ostensible errors that did occur did not “‘so infect[] the entire trial that the
resulting conviction violates due process.’” Derden v. McNeel, 978 F.2d 1453,
1454 (5th Cir. 1992) (en banc). Thus, jurists of reason could not debate the
district court’s holding denying Carty relief based on ineffective assistance due
to the alleged cumulative errors of trial counsel.
      Overall, we deny a COA for Carty’s ineffective assistance of counsel claims.
      2. Violation of VCCR-derived rights
      Carty argues that the state erred by failing to inform her of her rights
under the VCCR. As noted above, we have previously held that “‘Article 36 of


                                         13
the Vienna Convention does not create an individually enforceable right.’” See
Leal Garcia, 2009 WL 1800141, at *2 n.19 (quoting Medellín, 371 F.3d at 280).
Thus, as Carty at this time lacks an individual right, she has failed to show that
jurists of reason could debate the validity of her claim. See, e.g., Cardenas v.
Dretke, 405 F.3d 244, 253 (5th Cir. 2005) (“[The petitioner’s] claim fails because
this court has determined in the past that the Vienna Convention does not
confer individually enforceable rights.”). In any case, even presuming a debate
about whether the VCCR gives rise to an individually enforceable right, see Leal
Garcia, 2009 WL 1800141, at *2 n.19, we do not find that the merits of Carty’s
claim could be debated by jurists of reason because the state habeas court found
that, as a matter of fact, Carty was twice notified of the availability of VCCR-
derived rights, and she denied that she was a foreign national on both occasions.
Carty has not rebutted that conclusion with clear and convincing evidence.
Because Carty has failed to show that jurists of reason would find it debatable
whether her petition states a valid claim of the denial of a constitutional right
based on the United States’s obligations under the VCCR, we deny a COA.
      3. Trial court errors
      Carty asserts three errors by the trial court. Carty first argues that,
during jury voir dire, the trial court improperly instructed the jury regarding
capital murder by omitting reference to specific intent. See T EX. P ENAL C ODE
§ 19.03(a). Assuming that instruction was incorrect, “the question is . . . whether
the ailing instruction by itself so infected the entire trial that the resulting
conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147 (1973).
In this case the ailing instruction did not infect the ensuing trial. The trial court
properly instructed the jury regarding the requirement of intent immediately
before submitting the case to the jury, the court also instructed the jury to
resolve any doubt in favor of Carty when deciding between felony-murder and
capital murder, and the parties argued at length about whether the prosecution
had proven intent. See Penry, 532 U.S. at 801–02; Zafiro, 506 U.S. at 540.


                                         14
Jurists of reason could not debate that Carty has failed to show a due process
violation.
      Carty next argues that the trial court erroneously instructed the jury
about criminal acts of violence, again during jury voir dire. See T EX. C ODE C RIM.
P ROC. A NN. art. 37.071 § 2(b)(1). Carty has failed to show that the trial court’s
instruction was contrary to state law (even without reference to the oft-stated
principle that state-law errors typically do not give rise to a right to relief in
federal habeas proceedings) and has not shown that the purported error made
the fundamental fairness of trial debatable. See Little v. Johnson, 162 F.3d 855,
862 (5th Cir. 1998) (holding that state law violations must play “a crucial,
critical, and highly significant role in the trial” to warrant habeas relief). Jurists
of reason could not debate that Carty has failed to show a due process violation.
      Carty finally argues that Texas law unconstitutionally permits the jury to
answer “no” to the special mitigation question without concluding beyond a
reasonable doubt that the state had shown that the facts do not warrant
otherwise. Carty exhausted this claim in state court, and it is foreclosed by our
precedent. See Ortiz v. Quarterman, 504 F.3d 492, 504–505 (5th Cir. 2007) (“The
Texas death penalty scheme does not violate [Supreme Court precedent] by
failing to require the State to prove beyond a reasonable doubt the absence of
mitigating circumstances.” (citing Scheanette v. Quarterman, 482 F.3d 815,
828–29 (5th Cir. 2007)). Again, jurists of reason could not debate that Carty has
failed to show a due process violation.
      Because Carty has failed to show that jurists of reason would find it
debatable whether her petition states a valid claim of court error resulting in a
constitutionally deficient trial, we deny a COA.
      4. Insufficient evidence of intent to kill
      Carty argues, as she did to the state habeas court, that the evidence
proving her intent to kill was legally insufficient. Texas law premises a murder
conviction on whether the actor “intentionally or knowingly causes the death of


                                          15
an individual.” T EX. P ENAL C ODE § 19.02(a)(1); see Moreno v. Dretke, 450 F.3d
158, 172 (5th Cir. 2006). Carty contends her statements—for example, that she
wanted to cut the baby from Rodriguez’s body—were insufficient to show
intentional conduct because the baby was already born at the time of Rodriguez’s
murder, the scissors Carty intended to use were not capable of the abhorrent
task, and she accomplished Rodriguez’s murder by the alternative method of
suffocation. Carty’s statements did nothing more than evidence her willingness
and desire to kill Rodriguez to accomplish the kidnaping of Rodriguez’s baby,
and the state offered sufficient evidence that, when viewed in the light most
favorable to the it, see Jackson v. Virginia, 443 U.S. 307 (1979), proved that, as
the state habeas found, “placing a person face down in the trunk, taping that
person’s hands, feet, and mouth, and then placing a plastic bag over that
person’s head . . . show[s] an intent to kill or cause serious bodily injury.” Carty
has failed to show that jurists of reason could debate whether the state habeas
court reasonably applied federal law; we deny a COA.
      5. Prosecutorial misconduct
      Carty asserts two claims of prosecutorial misconduct.         “Prosecutorial
misconduct is not a ground for relief unless it casts serious doubt upon the
correctness of the jury’s verdict.” Styron v. Johnson, 262 F.3d 438, 449 (5th Cir.
2001). Carty first asseverates that the prosecutor should have notified Corona
of his right not to testify against Carty because she was his common-law wife.
Carty has failed to show prosecutorial misconduct in putting Corona on the
stand to testify. See Benitez v. State, 5 S.W.3d 915, 918–19 (Tex. App.—Amarillo
1999, pet. refused) (“[C]alling the spouse is not ipso facto error. [T]he State has
no duty to prove that she testified voluntarily.”). Nor has Carty shown the
marital privilege is a constitutionally derived rule. See Port v. Heard, 764 F.2d
423, 430 (5th Cir. 1985) (“[T]he marital privilege has never been placed on a
constitutional footing.”). While it is debatable in fact whether Corona was




                                        16
Carty’s common-law husband, reasonable jurists could not debate the absences
of a constitutional violation by the prosecutors in putting Corona on the stand.
       Carty next maintains that the prosecutors incorrectly argued that
Anderson, Caston, and Combs were not accomplices because they were not
present during the kidnaping and murder. See Singletary v. State, 509 S.W.2d
572, 575 (Tex. Crim. App. 1974). She also argues that the prosecutors misstated
the law by asserting that corroboration required only evidence that the crime
occurred. See T EX. C ODE C RIM. P ROC. A NN. art. 38.14.7 For alleged misconduct
based on the prosecutor’s argument to the jury, an applicant is entitled to relief
where “the prosecutors’ comments ‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.’” Darden v. Wainwright,
477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). The district court held that Carty did not object to the prosecutor’s
comments at trial, subjecting these errors to procedural default under Texas’s
contemporary objection rule. See, e.g., Barrientes v. Johnson, 221 F.3d 741, 779
(5th Cir. 2000). Carty has offered no challenge to that conclusion, and it is not
debatable by jurists of reason. The district court alternatively held that the
instruction by the trial court provided the jury with adequate guidance to
overcome any misstatement by the prosecutor and that any misstatement did
not cast serious doubt upon the jury’s verdict. See, e.g., Ward v. Whitley, 21 F.3d
1355, 1366 (5th Cir. 1994) (“The arguments of counsel perforce do not have the
same force as an instruction from the court.”). Jurists of reason could not debate
that no due process violation resulted from these purported errors.
       Because Carty has failed to show that jurists of reason would find it
debatable whether her petition states a valid claim of prosecutorial misconduct
that casts doubt upon the correctness of the jury’s verdict, we deny a COA.

       7
          Article 38.14 provides: “A conviction cannot be had upon the testimony of an
accomplice unless corroborated by other evidence tending to connect the defendant with the
offense committed; and the corroboration is not sufficient if it merely shows the commission
of the offense.”

                                            17
      6. Cumulative error
      Carty alleges cumulative error by the trial court, prosecutor, and trial
counsel.   “The cumulative error doctrine provides relief only when the
constitutional errors committed in the state trial court so ‘fatally infected the
trial’ that they violated the trial’s ‘fundamental fairness.’” Spence v. Johnson,
80 F.3d 989, 1000 (5th Cir. 1996) (citing Derden, 978 F.2d at 1457). To provide
relief, cumulative errors must have “more likely than not caused a suspect
verdict.” Id. at 1001 (quotation marks omitted). In this case, without prejudice
to the merits of Carty’s pending appeal, and jurists of reason could not debate
that the summation of otherwise non-prejudicial errors did not cause a suspect
verdict or effect the fundamental fairness of the result. We deny a COA.
B. Procedural Default
      Carty also seeks a COA on the district court’s procedural default holdings.
The district court concluded that Carty failed to exhaust numerous claims by
improperly raising them in her Additional Further Response; that Texas courts
would consider her unexhausted claims an abuse of writ if she filed them now,
resulting in procedural default barring federal habeas review; and that
exceptions to procedural default did not apply. See Carty, No. 06-614, slip op. at
53–55 (citing Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997) (“A procedural
default also occurs when a prisoner fails to exhaust available state remedies and
the court to which the petitioner would be required to present his claims in order
to meet the exhaustion requirement would now find the claims procedurally
barred.” (quotation marks and citation omitted))). The district court granted “a
COA on the question of whether [Carty] sufficiently exhausted state court
remedies,” but it did not specifically mention its corresponding procedural
default rulings.
      We initially note that the district court’s underlying procedural default
ruling was entirely dependent on its failure-to-exhaust ruling; thus, Carty’s
success on her appeal of the exhaustion issue would by definition remove the


                                       18
procedural default bar to federal review. Both parties addressed that issue in
their main briefs, and we do not rule on it here. Presently, Carty asks us to
grant a COA on the additional, alternative basis that jurists of reason could
debate the district court’s conclusion that exceptions to procedural default did
not apply.    Although the interplay of these various procedural rulings and
exceptions raises some interesting legal questions, see O’Sullivan v. Boerckel,
526 U.S. 838, 851–857 (1999) (Stevens, J., dissenting), we need not here delve
into those nuances, as a COA is not warranted in any case.
       Carty initially claims that it is debatable whether Texas state courts
would apply an equitable exception to procedural default. See Ex parte Hood,
Nos. WR-41, 168-10, AP-75,370, 2008 WL 4151666, at *2 (Tex. Crim. App. Sept.
9, 2008). In Ex parte Hood, the Court of Criminal Appeals opted to reconsider
a prior dismissal of a subsequent application for a writ of habeas corpus based
on “developments in the law regarding nullification instructions.” Id.;8 see also
Ex Parte Hathorn,--- S.W.3d ----, 2009 WL 929095 (Tex. Crim. App. 2009) (same);
Ex parte Briseno, No. AP-76132, 2009 WL 949075 (Tex. Crim. App. Apr. 8, 2009)
(ordering briefing on same). In this case, Carty alleges neither legal nor factual
post-application developments similar to those that existed in Ex parte Hood and
its progeny; thus, she has failed to show that the district court’s procedural
default ruling is debatable by jurists of reason based on these cases.
       Carty next argues that the government waived the issue of procedural
default. See Fisher v. Texas, 169 F.3d 295, 301 (5th Cir. 1999) (“A state waives
a procedural bar defense by failing to raise the defense in the district court.”).
While exhaustion and procedural default are two distinct concepts, in cases
where procedural default is based on the failure to exhaust, waiver of exhaustion
waives both. See Bledsue v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999) (“[T]he

       8
        Ex parte Hood and its progeny considered the atypically complex development of
Supreme Court precedent in Smith v. Texas, 550 U.S. 297 (2007); Brewer v. Quarterman, 550
U.S. 286 (2007); Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007); Penry v. Johnson, 532 U.S.
782 (2001); and Penry v. Lynaugh, 492 U.S. 302 (1989).

                                            19
state has waived any independent exhaustion argument, as well as the
exhaustion argument included within the doctrine of procedural default.”). To
the extent that the government’s waiver of procedural default is dependent on
its purported waiver of exhaustion, both parties have briefed that issue in their
main briefs, and we will consider the issue in our review of Carty’s appeal.
Otherwise, it is undisputed that, after prompting by the district court, the
government asserted procedural default and Carty received notice and had an
opportunity to respond. See Magouirk v. Phillips, 144 F.3d 348, 359 (5th Cir.
1998).9 Thus, jurists of reason could not debate that the state did not waive its
procedural default defense.
       Carty additionally claims that she had shown cause and actual prejudice
to excuse her procedural default because the state habeas court and state habeas
counsel agreed to an extended period for filing her claims, a period that the state
habeas court then did not honor. See generally Coleman v. Thompson, 501 U.S.
722, 750 (1991) (recognizing the cause and actual prejudice exception). The
district court held that this claim, at its base, was one for ineffective assistance
of habeas counsel. Because Carty showed no reason why appointed counsel did
not file the claims in her initial application for post-conviction relief, the court
concluded that cause did not apply. See Ries v. Quarterman, 522 F.3d 517, 526
n.5 (5th Cir. 2008) (“[I]neffective assistance of state habeas counsel cannot
provide cause to excuse a procedural default.”). Carty has provided no basis on
which a jurist of reason could debate the district court’s conclusion.
       Carty finally claims that a fundamental miscarriage of justice will result
if her claims are procedurally defaulted because of her “actual innocence of the



       9
         As such, we need not address Carty’s argument that the state can waive a procedural
default that is exclusively dependent on the exhaustion requirement by a means other than
counsel’s express statement. Cf. Jackson v. Johnson, 194 F.3d 641, 652 & n.35 (5th Cir. 1999)
(“Although a ‘State shall not be deemed to have waived the exhaustion requirement . . . unless
the State, through counsel, expressly waives the requirement,’ 28 U.S.C. § 2254(b)(3), the
exhaustion requirement is related but distinct from that of procedural default.”).

                                             20
death penalty.” Carty asserts that a fundamental miscarriage of justice occurred
in the punishment phase of trial, but only in sufficient depth regarding trial
counsel’s assistance in presenting mitigating evidence.      See Lookingbill v.
Cockrell, 293 F.3d 256, 263 (5th Cir. 2002) (“Where a habeas petitioner fails to
brief an argument adequately, we consider it waived.”). Mitigation evidence
cannot be the basis of a claim of a fundamental miscarriage of justice. See
Sawyer v. Whitley, 505 U.S. 333, 347 (1992) (“[T]he ‘actual innocence’
requirement must focus on those elements that render a defendant eligible for
the death penalty, and not on additional mitigating evidence that was prevented
from being introduced as a result of a claimed constitutional error.”). Carty has
again provided no basis on which a jurist of reason could debate the district
court’s conclusion.
      Because jurists of reason could not debate the district court’s procedural
rulings, we deny Carty’s request for a COA on the applicability of exceptions to
procedural default.
                             IV. CONCLUSION
      For the above-described reasons, Carty’s motion for an additional COA is
DENIED. Her request for oral argument on the claims for which the district
court issued a COA is GRANTED, and we reserve opinion on those claims until
after oral argument.




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