                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 30, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 03-11244


     ROBERT MADRID SALAZAR

                          Petitioner - Appellant

     v.

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

                          Respondent - Appellee



          Appeal from the United States District Court
               for the Northern District of Texas
                        No. 5:02-CV-224-C


Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.

PER CURIAM:*

     Petitioner-Appellant Robert Madrid Salazar seeks a

certificate of appealability (COA) to appeal the district court’s

dismissal of his 28 U.S.C. § 2254 habeas corpus application.         For

the following reasons, we DENY Salazar’s request for a COA with

respect to his claim that the state trial court failed to

instruct the jury on parole eligibility, but we GRANT Salazar’s

request for a COA on his claim that the jury impermissibly



     *
         Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                           No. 03-11244
                                -2-

considered inaccurate, extrinsic evidence regarding parole.

                          I.   Background

     On March 9, 1999, Robert Salazar was convicted by a Texas

jury of capital murder.   During the sentencing phase of his

trial, Salazar asked the trial court to instruct the jury that he

would be eligible for parole after forty years if he received

life in prison rather than death.1   The trial court declined to

give the instruction but did instruct the jury that it should not

consider the possibility of parole during deliberation.

     The jury found that Salazar presented a future threat to

society and that there was insufficient mitigating evidence to

warrant life in prison rather than death.     Consequently, the

trial court sentenced Salazar to death.     It was subsequently

revealed through an interview by television reporters that,

contrary to the trial court’s instruction, the jury had discussed

the possibility that Salazar could be released on parole if he

were sentenced to life in prison.

     In light of this discovery, Salazar moved for a new trial,

arguing that the jury’s parole discussion violated state law and


     1
        Texas state law provides that a criminal convict who is
sentenced to life in prison will not be eligible for parole until
he has served forty years. TEX. GOV’T CODE ANN. § 508.145 (Vernon
2003) (“An inmate serving a life sentence for a capital felony is
not eligible for release on parole until the actual calendar time
the inmate has served, without consideration of good conduct
time, equals 40 calendar years.”).
                           No. 03-11244
                                -3-

his federal and state constitutional rights.   The trial court

conducted a hearing to consider Salazar’s motion.   At the

hearing, Salazar presented testimony from four jurors: Voyles,

Ashley, Kelly, and Hamlin.2   Voyles explained that during

deliberations, the jurors learned that Kelly was a police

officer.   According to Voyles and Ashley, Kelly professed to know

the applicable parole law and incorrectly asserted as fact that

Salazar would be eligible for parole in twenty years.    Both

Voyles and Ashley testified that they relied on Kelly’s statement

in considering Salazar’s punishment.   Ashley asserted that

Kelly’s comments contributed to her decision to change her vote

from life to death.   Kelly admitted that he had given his opinion

on the parole laws to the other jurors, but he maintained that he

had not held himself out as an expert on parole law.    Finally,

Hamlin testified that he vaguely remembered someone mentioning

that Salazar could be eligible for parole in twenty to twenty-

five years.

     In rebuttal, the State presented affidavits from four jurors

(Holdridge, Sanford, Tinney, and Perez), stating that although

     2
        The Texas Rules of Evidence normally would bar this
testimony. See TEX. R. EVID. 606(b)(prohibiting jurors from
testifying about their deliberations except for the purposes of
showing that an outside influence was brought to bear upon a
juror or to rebut a claim that the juror was not qualified to
serve). However, Salazar and the State both withdrew their
initial evidentiary objections to the jurors’ testimony and
affidavits.
                           No. 03-11244
                                -4-

Kelly may have offered his opinion on parole law, Kelly never

held himself out as an expert or professed to have specific

knowledge about parole law.   Based on this evidence, the state

trial court ruled from the bench and denied Salazar’s motion for

a new trial.

     Salazar appealed to the Texas Court of Criminal Appeals

(TCCA), arguing, inter alia, that the trial court’s failure to

instruct the jury regarding his parole eligibility violated his

federal constitutional rights and that the jury’s discussion of

parole violated state law and his federal and state

constitutional rights.   Salazar v. State, 38 S.W.3d 141, 146-47

(Tex. Crim. App. 2001), cert. denied, 534 U.S. 855 (2001).      The

TCCA affirmed.   First, the court rejected Salazar’s contention

that the failure to give an instruction regarding parole

eligibility violated his federal constitutional rights.      Second,

the court dismissed Salazar’s federal and state constitutional

claims based on jury misconduct because Salazar’s “brief

present[ed] no authority in support of his argument . . . .”

Salazar, 38 S.W.3d at 147.3   In addressing Salazar’s non-



     3
        The State did not invoke the procedural bar doctrine in
the state habeas proceeding, and the state habeas court therefore
reached the merits of Salazar’s claim. The State subsequently
attempted to argue procedural bar in the federal district court,
but the district court concluded that the State had waived the
argument and that it was appropriate to reach the merits of
Salazar’s constitutional claim. The State has abandoned its
procedural bar argument on appeal to this court.
                           No. 03-11244
                                -5-

constitutional state-law claim for jury misconduct, the court

determined that the evidence presented to the trial court

supported the conclusion that Salazar had failed to satisfy the

elements of a state-law claim for jury misconduct under Sneed v.

State, 670 S.W. 2d 262, 266 (Tex. Crim. App. 1984).4   The court

reached this conclusion because there was conflicting evidence

regarding whether Kelly held himself out as an expert, whether he

asserted his opinion as fact, and whether Ashley changed her vote

as a result of Kelly’s misstatement.

     On October 13, 2000, while his direct criminal appeal was

pending, Salazar filed a petition for a writ of habeas corpus in

state court.   The trial court (the same judge that had presided

over Salazar’s trial and sentencing) adopted the State’s proposed

findings of fact and conclusions of law and recommended that

relief be denied.   The TCCA, in turn, adopted the trial court’s

findings and conclusions and denied Salazar’s habeas petition.

     On September 6, 2002, Salazar filed a petition for habeas

relief in federal district court.   Salazar argued, inter alia,

that his due process rights were violated by the trial court’s

refusal to instruct the jury regarding the applicable parole laws


     4
        Under Sneed, “[a] jury’s discussion of parole constitutes
reversible error when a defendant shows (1) a misstatement of
law; (2) asserted as a fact (3) by one professing to know the law
(4) which is relied upon by other jurors (5) who for that reason
changed their vote to a harsher punishment.” Salazar, 38 S.W.3d
at 147 (footnote omitted) (citing Sneed, 670 S.W.2d at 266).
                             No. 03-11244
                                  -6-

and by the jury’s discussion of parole during its deliberations.

After concluding that the state court’s adjudication of these

claims was not contrary to or an unreasonable application of

Supreme Court law, the district court denied Salazar’s petition

on August 27, 2003.   Salazar filed a motion under Rule 59 on

September 11, 2003, requesting that the district court reconsider

its judgment.   On October 27, 2003, the district court denied

Salazar’s motion.

     Salazar filed a notice of appeal and a motion for a COA.

Shortly thereafter, the district court denied Salazar’s motion

for a COA.   Salazar now seeks a COA from this court.

                            II.    Discussion

A.   Timeliness of Appeal

     We must first address the State’s argument that Salazar did

not timely file his notice of appeal.       When a party has filed a

Rule 59 motion to reconsider, the party need not appeal the

adverse judgment until thirty days from the entry of the order

denying the Rule 59 motion.       FED. R. APP. P. 4(a)(4)(A)(iv).   The

State argues, however, that Salazar’s Rule 59 motion itself was

not timely and, therefore, that the time limit for filing the

motion to reconsider was not extended by Rule 4(a)(4)(A)(iv).

     A Rule 59 motion to reconsider must be filed within ten days

after entry of the judgment.       FED. R. CIV. P. 59(e).   The district

court entered judgment against Salazar on August 27, 2003.
                            No. 03-11244
                                 -7-

Salazar filed his Rule 59 motion on September 11, 2003--fifteen

calendar days after the district court’s judgment.     However, Rule

6(a) provides that “the day of the act, event, or default from

which the designated period of time begins to run shall not be

included” in the computation, and that when “the period of time

prescribed or allowed is less than 11 days, intermediate

Saturdays, Sundays, and legal holidays shall be excluded in the

computation.”   FED. R. CIV. P. 6(a).   Between August 27 and

September 11, there were two Saturdays, two Sundays, and one

legal holiday (Labor Day on September 1).     Once we exclude these

days under Rule 6(a), Salazar’s Rule 59 motion was filed on the

tenth day after the entry of judgment and therefore was timely.

     Because Salazar filed a timely Rule 59 motion, he had thirty

days after the district court denied his motion within which to

file a notice of appeal.   The district court denied Salazar’s

motion on October 27, 2003.   Salazar filed a notice of appeal

twenty-eight days later, on November 24, 2003.     Thus, his notice

of appeal was timely, and the State’s argument is without merit.

B.   Standard of Review

     Under the Antiterrorism and Effective Death Penalty Act

(AEDPA),5 a state habeas petitioner may appeal a district court’s



     5
        AEDPA applies because Salazar filed his § 2254 habeas
petition on September 6, 2002, well after AEDPA’s effective date
of April 24, 1996. See Fisher v. Johnson, 174 F.3d 710, 711 (5th
Cir. 1999).
                           No. 03-11244
                                -8-

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) (2004);

Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (explaining that

a COA is a “jurisdictional prerequisite” without which “federal

courts of appeals lack jurisdiction to rule on the merits of

appeals from habeas petitioners”).   “[W]hen a habeas applicant

seeks permission to initiate appellate review of the dismissal of

his petition, the court of appeals should limit its examination

to a threshold inquiry into the underlying merit of his 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.

     A COA will be granted “only if the applicant has made a

substantial showing of the denial of a constitutional right.”       28

U.S.C. § 2253(c)(2) (2004).   “A petitioner satisfies this

standard by demonstrating 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, 537

U.S. at 327 (citing Slack, 529 U.S. at 484).      In other words,

“[t]he petitioner must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims

debatable or wrong.”   Id. at 338.   Hence, “[t]he question is the
                           No. 03-11244
                                -9-

debatability of the underlying constitutional claim, not the

resolution of that debate.”    Id. at 342.   “[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.”     Id. at 338.

Finally, any doubt as to whether a COA should issue in a death-

penalty case must be resolved in favor of the petitioner.        Newton

v. Dretke, 371 F.3d 250, 254 (5th Cir. 2004); Medellin v. Dretke,

371 F.3d 270, 275 (5th Cir. 2004).

     In determining whether the district court’s denial of

Salazar’s petition was debatable, we must keep in mind the

deferential standard of review that AEDPA requires a district

court to apply when considering a petition for habeas relief.

Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir. 2003); see also

Miller-El, 537 U.S. at 336-37 (“We look to the District Court’s

application of AEDPA to petitioner’s constitutional claims and

ask whether that resolution was debatable amongst jurists of

reason.”).   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.”    28 U.S.C. § 2254(d)(1); see also
                              No. 03-11244
                                  -10-

Williams v. Taylor, 529 U.S. 362, 402-13 (2000) (opinion of

O’Connor, J.) (interpreting the statutory language “contrary to,

or involved an unreasonable application of”).

     A writ of habeas corpus may issue also if the state court’s

adjudication of a claim “resulted in a decision that was based on

an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.”      28 U.S.C.

§ 2254(d)(2).     Furthermore, “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.”      28 U.S.C. § 2254(e)(1).   This presumption of

correctness attaches not only to explicit findings, but also to

“unarticulated findings which are necessary to the state court’s

conclusions of mixed law and fact.”       Pondexter v. Dretke, 346

F.3d 142, 148 (5th Cir. 2003) (quotation marks omitted).

     We review the district court’s findings of fact for clear

error and its conclusions of law de novo.       Collier v. Cockrell,

300 F.3d 577, 582 (5th Cir. 2002).

C.   Analysis

     1.   Jury Instruction

     Salazar, relying on Simmons v. South Carolina, 512 U.S. 154

(1994), argues that the state trial court violated his Fourteenth

Amendment due process rights by refusing to instruct the jury

that he would not be eligible for parole until he had served
                           No. 03-11244
                               -11-

forty years in prison.   The TCCA, noting that it has previously

rejected similar claims, denied relief.   Applying the AEDPA

standard to Salazar’s habeas petition, the district court found

that the state court’s adjudication was not contrary to, or an

unreasonable application of, clearly established Supreme Court

law and therefore rejected Salazar’s petition.

     Jurists of reason would not find the district court’s

assessment of Salazar’s constitutional claim debatable or wrong.

The Supreme Court has explained that, under Simmons, a jury

instruction is required only if the defendant would be ineligible

for parole if he were to receive a life sentence.   See Kelly v.

South Carolina, 534 U.S. 246, 248 (2002) (“[W]hen a capital

defendant’s future dangerousness is at issue, and the only

sentencing alternative to death available to the jury is life

imprisonment without possibility of parole, due process entitles

the defendant to inform the jury of [his] parole ineligibility,

either by a jury instruction or in arguments by counsel.”)

(internal quotation marks omitted) (second alteration in

original); Ramdass v. Angelone, 530 U.S. 156, 166 (2000)

(plurality opinion) (“The parole-ineligibility instruction is

required only when, assuming the jury fixes the sentence at life,

the defendant is ineligible for parole under state law.”); see

also Simmons, 512 U.S. at 171.   Salazar concedes, however, that

had he been sentenced to life, he would have been eligible for
                             No. 03-11244
                                 -12-

parole after forty years.    Thus, under Simmons and its progeny,

Salazar was not entitled to an instruction on parole.     See Jones

v. Dretke, 375 F.3d 352, 357 (5th Cir. 2004);     Tigner v.

Cockrell, 264 F.3d 521, 525 (5th Cir. 2001).    Therefore, Salazar

has failed to make a substantial showing of a denial of his due

process rights and his request for a COA with respect to this

claim is denied.

      2.   Jury Misconduct

      With respect to Salazar’s claim of jury misconduct, however,

we find the district court’s denial of habeas relief debatable

among jurists of reason.     We therefore grant Salazar a COA on the

question whether juror Kelly’s alleged conveyance to the other

jurors of inaccurate information regarding parole during

deliberations violated Salazar’s right to due process of law.

      In order to assist this court in its adjudication, but

without any intention of limiting the parties from briefing the

issues as they see fit, we request that the parties submit

supplemental briefing on the following questions:

(1)   What is “the clearly established Federal law, as determined

      by the Supreme Court of the United States” on which

      Salazar’s federal constitutional claim is based?   Be

      specific.

(2)   Did any of the state courts specifically address Salazar’s

      federal constitutional claim (as distinguished from his
                           No. 03-11244
                               -13-

      state-law claim under Sneed), and if so, what specifically

      did each such court that addressed the federal

      constitutional claim find with respect to that claim?

(3)   What was the rationale supporting each state court finding

      on the federal constitutional claim?

      (a) Was the rationale based on findings of fact or was it

      purely a legal conclusion?

      (b) Did the application of the Sneed test arguably inform

      the state court’s adjudication of Salazar’s federal

      constitutional claim and, if so, how?

(4)   Did the federal district court correctly identify each state

      court finding on Salazar’s federal constitutional claim?

      Did the court correctly apply AEDPA by determining whether

      each state court finding on Salazar’s federal constitutional

      claim “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?”

We hope that the parties’ briefs will shed more light upon these

issues than has previously been the case.

                         III.   Conclusion

      For the foregoing reasons, we DENY Salazar’s request for a

COA on his claim that the state trial court failed to instruct

the jury that he would not be eligible for parole for forty
                           No. 03-11244
                               -14-

years, but we GRANT Salazar a COA on his claim that the jury

impermissibly considered inaccurate extrinsic evidence concerning

his parole eligibility.   It is further ORDERED that the Clerk

will specify a briefing schedule for supplemental briefs.
