     Case: 18-70014      Document: 00514753693         Page: 1    Date Filed: 12/10/2018




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

                                                                                 FILED
                                      No. 18-70014                       December 10, 2018
                                                                            Lyle W. Cayce
CHRISTOPHER DEVON JACKSON,                                                       Clerk


              Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:15-CV-208


Before CLEMENT, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       Christopher Jackson was convicted and sentenced to death for killing
Eric Smith after carjacking the SUV that Smith was driving. Jackson seeks a
certificate of appealability (“COA”) as to his allegations of ineffective assistance
of counsel. Finding his arguments unpersuasive, we DENY his request.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 18-70014    Document: 00514753693     Page: 2   Date Filed: 12/10/2018



                                 No. 18-70014
                       FACTS AND PROCEEDINGS
      A jury convicted and sentenced Jackson to death for killing Smith while
committing or attempting to commit robbery. The Texas Court of Criminal
Appeals (“TCCA”) upheld Jackson’s conviction. Jackson v. State, 2010 WL
114409 (Tex. Crim. App. Jan. 12, 2010). The Supreme Court denied certiorari.
Jackson v. Texas, 562 U.S. 844 (2010).
      Jackson then filed a state application for habeas corpus. After briefing
and a hearing, the trial court recommended that the TCCA deny relief and
submitted proposed findings of fact and conclusions of law. Following its own
review, the TCCA adopted the trial court’s position and denied Jackson’s
application. Ex parte Jackson, 2014 WL 5372347 (Tex. Crim. App. Aug. 20,
2014) (per curiam).
      Jackson filed a federal petition for habeas corpus. After briefing was
complete, and limited discovery, the district court denied habeas relief and a
COA in a memorandum opinion and order. Jackson now requests a COA from
this court.
                          STANDARD OF REVIEW
      Jackson’s COA request is governed by the Antiterrorism and Effective
Death Penalty Act (“AEDPA”). We will grant a COA under AEDPA only if
Jackson can make a “substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). This standard is met if “reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In a death-penalty case,
we resolve any doubts over whether a COA is proper in the petitioner’s favor.
Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005).
      In deciding Jackson’s COA question, we must keep in mind the
extraordinary deference that AEDPA places around the TCCA’s conclusions of
law and findings of fact—it is through this deferential lens that the district
                                         2
    Case: 18-70014     Document: 00514753693      Page: 3    Date Filed: 12/10/2018



                                  No. 18-70014
court evaluated Jackson’s constitutional claims. Under AEDPA, a federal court
cannot grant habeas relief to a state prisoner on any claim adjudicated on its
merits by the state court unless the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States . . . or . . . 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)(1)–(2). And our inquiry is
“limited to the record that was before the state court” and “focuses on what a
state court knew and did.” Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011).
      A decision is contrary to federal law when it either reaches a conclusion
opposite to that of the Supreme Court on a question of law, or arrives at an
opposite result on facts that are materially indistinguishable from those
confronted by a relevant Supreme Court case. Sprouse v. Stephens, 748 F.3d
609, 616 (5th Cir. 2014). A decision involves an unreasonable application of
federal law if it “correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner’s case.” Perez v. Cain, 529
F.3d 588, 594 (5th Cir. 2008) (quoting Williams v. Taylor, 529 U.S. 362, 407–
08 (2000)). The state court’s decision must not just be wrong; it must be
unreasonable—meaning no “fairminded jurist” could possibly agree with it.
Harrington v. Richter, 562 U.S. 86, 101 (2011).
      On appeal, we review “the district court’s findings of fact for clear error
and its conclusions of law de novo.” Dorsey v. Stephens, 720 F.3d 309, 314 (5th
Cir. 2013). An appellate court “will not disturb a district court’s factual findings
unless they are implausible in light of the record considered as a whole.” Wiley
v. Epps, 625 F.3d 199, 213 (5th Cir. 2010). “Where there are two permissible
views of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.” Id. (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564,
574 (1985)).
                                         3
    Case: 18-70014     Document: 00514753693      Page: 4    Date Filed: 12/10/2018



                                  No. 18-70014
                                 DISCUSSION
      In the district court, Jackson argued that his counsel performed
ineffectively by failing to investigate and present mitigating evidence during
the punishment phase. Jackson had raised the same claim in state court.
      Jackson reasserted the claim in the original state petition, along with
additional grounds for relief not presented to the state court. The district court
held that the new grounds were procedurally defaulted because they had not
been exhausted in state court. Aside from a conclusory footnote asserting that
the district court should not have “split” his claim, Jackson has offered no
argument contesting the procedural default.
      Jackson’s reply argues that “Respondent[] . . . artificially segregate[es]
Mr. Jackson’s . . . claim into a supposed ‘exhausted’ and an ‘unexhausted’
portion.” But Respondent did no such thing; it simply adopted the same
framework articulated by the district court. If Jackson had wanted to challenge
that framework, he should have done so clearly and explicitly in his opening
brief. Cf. Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1546 n.9 (5th Cir. 1991)
(“Customarily we decline even to consider arguments raised for the first time
in a reply brief.”). Accordingly, any challenge to the procedural default is
waived, and we will consider only the rejection of the claims characterized by
the district court as properly exhausted. Summers v. Dretke, 431 F.3d 861, 870
(5th Cir. 2005) (A failure “to adequately brief . . . issues” results in waiver).
      We will consider Jackson’s assertion that his trial counsel failed to
properly investigate, develop, and present mitigation evidence concerning
Jackson’s mental health. To succeed under Strickland, Jackson must show
that counsel’s performance was deficient, and that this deficiency prejudiced
his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
      The district court painstakingly reviewed the evidence and arguments
Jackson now wishes trial counsel would have presented to the jury. It cogently
                                         4
      Case: 18-70014   Document: 00514753693    Page: 5   Date Filed: 12/10/2018



                                 No. 18-70014
explained why the state habeas court rejected these claims and, attentive to
the deferential standard of review, independently determined that those
conclusions were consistent with Strickland and its progeny.
       There is no reason to repeat that analysis here. In short, trial counsel
did not abdicate his responsibility to prepare for and conduct the punishment
phase. He hired experts, called family members and a mitigation investigator
to the stand to discuss Jackson’s background, and made reasoned decisions
about what kind of evidence or lines of inquiry he thought would do more harm
than good. In other words, he had sufficient familiarity with Jackson’s mental-
health history and family background to make the tactical decisions that he
made about the evidence to put before the jury and the vehicle by which to put
it.
       And even if the evidence and experts had been presented as Jackson now
wishes, the jury would still have had to consider Jackson’s long-standing,
intensifying, and consistent—even throughout the trial—violent behavior.
Given the weight of this overwhelming evidence, Jackson has not shown any
reasonable probability of a different result at sentencing.
                               CONCLUSION
       The district court’s opinion is thorough and well-reasoned with respect
to all of the preserved issues. No reasonable jurist could disagree. Jackson’s
request for COA is DENIED.




                                       5
