     Case: 15-70023        Document: 00514039843      Page: 1   Date Filed: 06/20/2017




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

                                       No. 15-70023                             FILED
                                                                            June 20, 2017
                                                                           Lyle W. Cayce
CHRISTOPHER YOUNG,                                                              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 Western District of Texas


Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      After a Texas jury sentenced Christopher Young to death for the murder
of Hasmukh Patel, he unsuccessfully challenged the constitutionality of his
sentence in the Texas state courts and in the federal district court. We granted
a certificate of appealability on two issues: (1) a Mills 1 claim that the omission
of a jury instruction—required under Texas law—that jurors need not agree
on what particular evidence they found mitigating created a substantial risk
that the jurors may have mistakenly believed mitigating evidence needed to be



      1   Mills v. Maryland, 486 U.S. 367 (1988).
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                                    No. 15-70023
accepted unanimously and (2) that Young’s trial counsel’s failure to object to
the missing instruction constituted ineffective assistance of counsel under
Strickland. 2 We hold that the state courts’ rejection of these claims was not “an
unreasonable application of[] clearly established Federal law, as determined
by the Supreme Court of the United States.” 3
                                           I.
      On the morning of November 21, 2004, Young forced his way into the
apartment of Daphne Edwards, where she lived with her three young
daughters. 4 Pressing a revolver to her head, he demanded money. 5 She gave
him $28—all she had. 6 Young demanded Edwards undress. 7 When she did not
do so fast enough, Young fired a shot into the ground at her feet. 8 He then
sexually assaulted Edwards, with her girls nearby where he could keep an eye
on them. 9 On leaving, he “walked over to the children and kissed each of them
on the cheek and told them that their mommy would be back.” 10
      Young then forced Edwards, still at gunpoint, into her red Mazda
Protégé and had her drive to the front of the apartment complex. 11 At that
point, Young decided he wanted to drive. 12 He exited the passenger side of the
car, telling Edwards not to drive off or he would go back to the apartment and
kill her daughters. 13 Circling around to the driver’s side, Young ordered




      2 Strickland v. Washington, 466 U.S. 668 (1984).
      3 28 U.S.C. § 2254(d)(1) (2012).
      4 Young v. State, 283 S.W.3d 854, 864 (Tex. Crim. App. 2009).
      5 Id.
      6 Id.
      7 Id.
      8 Id.
      9 Id.
      10 Id.
      11 Id.
      12 Id.
      13 Id.

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                                     No. 15-70023
Edwards to scoot over to the passenger seat. 14 Edwards seized her opportunity
to escape through the still-open passenger-side door. 15 Young drove off in
Edwards’ car. 16
      Minutes later, Young entered the mini-mart/dry cleaners owned by
Patel. 17 Young moved behind Patel, threatening him: “Alright, give up the
money. I’m not playing. I’m not f[******] playing.” 18 Patel moved behind the
counter toward the cash register. 19 While continuing to demand that he “give
up the money,” Young shot Patel twice. 20 Patel tripped the alarm between
shots as he attempted to flee. 21 Young pursued him momentarily, yelling once
more for money, before concealing the revolver under his shirt and exiting the
store. 22 All of the interactions between Young and Patel were captured by a
surveillance camera.
      As Young fled, a customer in the parking lot was able to make out the
letter “W” on the license plate of Edwards’ car. 23 Another customer provided a
description of Young and the red Mazda, leading to his arrest later that
morning. 24 Patel died as a result of his wounds. 25
      Convicted of capital murder and sentenced to death, Young, on direct
appeal, alleged fifteen points of error, which the Texas Court of Criminal
Appeals rejected. 26 The Supreme Court denied certiorari. 27 Young then sought


      14 Id.
      15 Id. at 864-65.
      16 Id. at 865.
      17 Id. at 860.
      18 Id.
      19 Id.
      20 Id. at 860-61.
      21 Id. at 861.
      22 Id.
      23 Id.
      24 Id.
      25 Id.
      26 Id. at 860.
      27 Young v. Texas, 558 U.S. 1093 (2009).

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                                       No. 15-70023
state habeas relief. After an evidentiary hearing, the Texas trial court
recommended rejection of each of his twenty claims for relief. 28 The Texas
Court of Criminal Appeals adopted that recommendation. 29
       In 2014, Young filed a petition for a writ of habeas corpus in the Western
District of Texas. The petition, as amended, alleged in relevant part that the
trial court’s jury instructions were constitutionally deficient and that trial
counsel was ineffective for failing to object to those deficiencies. After rejecting
his request for an evidentiary hearing, the district court denied Young’s claims
and a certificate of appealability. 30 We in turn granted a certificate of
appealability on claims of flawed jury instructions and ineffective assistance of
counsel. 31 The Supreme Court denied certiorari on Young’s other claims. 32
                                              II.
       As all claims before us were adjudicated on the merits in the Texas
courts, our review is constrained by the deferential standard of review
mandated by the Antiterrorism and Effective Death Penalty Act. 33 The


       28  See Findings of Fact & Conclusions of Law, Ex parte Young, No. 2005-CR-1183-W1
(187th Dist. Ct., Bexar County, Tex. Nov. 28, 2012) (hereinafter “187th District Court
Opinion”).
        29 Ex parte Young, No. WR-70,513-01, 2013 WL 2446428 (Tex. Crim. App. June 5,

2013) (unpublished).
        30 Young v. Stephens, No. SA-13-CA-500-XR, 2015 WL 4276196 (W.D. Tex. July 13,

2015).
        31 Young v. Davis, 835 F.3d 520, 530 (5th Cir. 2016).
        32 Young v. Davis, 137 S. Ct. 1224 (2017).
        33 “An application for a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) 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;
or (2) 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); see also
McWilliams v. Dunn, No. 16-5294, 2017 WL 2621324, at *14 (U.S. June 19, 2017) (“Put
another way, ‘[w]hen reviewing state criminal convictions on collateral review, federal judges
are required to afford state courts due respect by overturning their decisions only when there
could be no reasonable dispute that they were wrong.’”) (quoting Woods v. Donald, 135 S. Ct.
1372, 1376 (2015) (per curiam)).
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                                       No. 15-70023
Supreme Court has instructed that “‘clearly established Federal law’ under
§ 2254(d)(1) is the governing legal principle or principles set forth by the
Supreme Court at the time the state court renders its decision” 34; “that “‘clearly
established Federal law” for purposes of § 2254(d)(1) includes only the
holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.’” 35
       The “contrary to” and “unreasonable application” clauses of § 2254(d)(1)
provide two separate avenues for federal habeas relief. 36 A state court’s
decision is “contrary to” clearly established federal law of the Supreme Court
if it either (1) “applies a rule that contradicts the governing law set forth” in
the Supreme Court’s opinions or (2) “confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and nevertheless
arrives at a result different from [Supreme Court] precedent.” 37 “The
‘unreasonable application’ clause of § 2254(d)(1) applies when the ‘state court
identifies the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s
case.’” 38
       Our question is whether the Texas courts unreasonably applied the
principles of Mills and Strickland to Young’s claims. 39 In reviewing state court
decisions, we are mindful that “[s]ection 2254(d)(1) provides a remedy for
instances in which a state court unreasonably applies [the Supreme] Court’s
precedent; it does not require state courts to extend that precedent or license



       34 Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
       35 Woods, 135 S. Ct. at 1376 (quoting White v. Woodall, 134 S. Ct. 1697, 1702 (2014)).
       36 Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams v. Taylor, 529 U.S. 362, 404-

05 (2000)).
       37 Williams, 529 U.S. 362, 405-406.
       38 Holland v. Jackson, 542 U.S. 649, 652 (2004) (quoting Williams, 529 U.S. at 413).
       39 See Young, 283 S.W.3d at 878-79; Ex Parte Young, No. WR-70513-01, 2013 WL

2446428 (Tex. Crim. App. June 5, 2013) (adopting Findings of Fact and Conclusions of Law,
Ex Parte Young, No. 2005-CR-1183-W1 (187th Dist. Ct., Bexar County, Tex. Nov. 28, 2012)).
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                                        No. 15-70023
federal courts to treat the failure to do so as error.” 40 “[A]n ‘unreasonable
application of’ those holdings must be objectively unreasonable, not merely
wrong; even clear error will not suffice.” 41 “A state court’s determination that
a claim lacks merit precludes federal habeas relief so long as ‘fairminded
jurists could disagree’ on the correctness of the state court’s decision.” 42 We are
also limited to claims for which the factual basis was developed in state court
unless:
       (A) the claim relies on—(i) a new rule of constitutional law, made
       retroactive to cases on collateral review by the Supreme Court,
       that was previously unavailable; or (ii) a factual predicate that
       could not have been previously discovered through the exercise of
       due diligence; and

       (B) the facts underlying the claim would be sufficient to establish
       by clear and convincing evidence that but for constitutional error,
       no reasonable factfinder would have found the applicant guilty of
       the underlying offense. 43

                                              III.
       We turn first to whether the Texas trial court’s failure to give a jury
instruction required by Article 37.071, Section 2(f)(3) of the Texas Code of
Criminal Procedure subjected Young to a substantial risk that the individual
jurors would believe they had to unanimously agree on what evidence was
mitigating in violation of Mills.



       40  White, 134 S. Ct. at 1706 (citation omitted).
       41  Woods, 135 S. Ct. at 1376 (quoting White, 134 S. Ct. at 1702); see also Virginia v.
LeBlanc, No. 16-1177, 2017 WL 2507375, at *3 (U.S. June 12, 2017) (“In other words, a
litigant must ‘show that the state court’s ruling . . . was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.’”) (quoting Woods, 135 S. Ct. at 1376)).
        42 Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)).
        43 28 U.S.C. § 2254(e)(2); see also Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011)

(limiting our review “to the record that was before the state court that adjudicated the claim
on the merits”).
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                                                A.
       In Lockett, the Supreme Court held that the Eighth and Fourteenth
Amendments require that, in imposing a death sentence, the sentencer be able
to consider all relevant mitigating evidence. 44 Ohio’s then-applicable capital
punishment statute required a death sentence unless the trial judge found, by
a preponderance of the evidence, that “(1) the victim had induced or facilitated
the offense, (2) it was unlikely that [the defendant] would have committed the
offense but for the fact that she ‘was under duress, coercion, or strong
provocation,’ or (3) the offense was ‘primarily the product of [the defendant’s]
psychosis or mental deficiency.’” 45 In striking down the Ohio law, the Court
held that:
       [A] statute that prevents the sentencer in all capital cases from
       giving independent mitigating weight to aspects of the defendant’s
       character and record and to circumstances of the offense proffered
       in mitigation creates the risk that the death penalty will be
       imposed in spite of factors which may call for a less severe penalty.
       When the choice is between life and death, that risk is
       unacceptable and incompatible with the commands of the Eighth
       and Fourteenth Amendments. 46

       Four years later, the Court extended Lockett, holding “[j]ust as the State
may not by statute preclude the sentencer from considering any mitigating
factor, neither may the sentencer refuse to consider, as a matter of law, any
relevant mitigating evidence.” 47 Another four years later, Skipper extended
Lockett to evidentiary rulings. 48 The following year, the Court ruled that a
Florida judge’s instructions to the jury that Florida’s death penalty law limited



       44    Lockett v. Ohio, 438 U.S. 586 (1978).
       45    Id. at 593-94 (citing OHIO REV. CODE §§ 2929.03-2929.04(B) (1975)) (alterations in
original).
       46 Id. at 605.
       47 Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982).
       48 Skipper v. South Carolina, 476 U.S. 1, 8 (1986).

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                                     No. 15-70023
mitigation evidence to the types specifically enumerated in the statute violated
the constitutional rights of the defendant. 49
      In Mills, the Court applied Lockett to Maryland’s capital murder jury
instructions. 50 The verdict form there provided the instruction: “Based upon
the evidence we unanimously find that each of the following mitigating
circumstances which is marked ‘yes’ has been proven to exist by A
PREPONDERANCE OF THE EVIDENCE and each mitigating circumstance
marked ‘no’ has not been proven by A PREPONDERANCE OF THE
EVIDENCE,” followed by a list of mitigating circumstances, each with an
option to check either yes or no. 51 “No instruction was given indicating what
the jury should do if some but not all of the jurors were willing to recognize
something about the petitioner, his background, or the circumstances of the
crime as a mitigating factor.” 52 The Court held that the verdict form and jury
instructions created “a substantial probability that reasonable jurors, upon
receiving the judge’s instructions in this case, and in attempting to complete
the verdict form as instructed, well may have thought they were precluded
from considering any mitigating evidence unless all 12 jurors agreed on the
existence of a particular such circumstance.” 53
      In Boyde, the Court addressed the lack of clarity in its “standard for
reviewing jury instructions claimed to restrict impermissibly a jury’s




      49 Hitchcock v. Dugger, 481 U.S. 393, 398-99 (1987).
      50 Mills, 486 U.S. at 376-77.
      51 Id. at 387.
      52 Id. at 379.
      53 Id. at 384.

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                                       No. 15-70023
consideration of relevant evidence” 54 under Mills, 55 Francis v. Franklin, 56 and
California v. Brown. 57 In cases where the instructions were claimed to be
“ambiguous, and therefore subject to an erroneous interpretation,” the Court
provided that “the proper inquiry . . . is whether there is a reasonable likelihood
that the jury has applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence.” 58 That same term, the
Court struck down North Carolina’s requirement that juries unanimously
decide which evidence is mitigating, even where the jury could opt for life
imprisonment without agreeing on mitigating evidence, because, as in Mills,
“it would be the ‘height of arbitrariness to allow or require the imposition of
the death penalty’ where 1 juror was able to prevent the other 11 from giving
effect to mitigating evidence.” 59 “Mills,” the Court explained, “requires that
each juror be permitted to consider and give effect to mitigating evidence when
deciding the ultimate question whether to vote for a sentence of death.” 60
       Most recently, the Court again examined jury forms and instructions in
Smith v. Spisak. 61 There, the trial court gave the following jury instructions:
       [Y]ou, the trial jury, must consider all of the relevant evidence
       raised at trial, the evidence and testimony received in this hearing

       54  Boyde v. California, 494 U.S. 370, 378 (1990).
       55  486 U.S. at 375-77 (offering, alternatively, “whether petitioner’s interpretation of
the sentencing process is one a reasonable jury could have drawn from the instructions given
by the trial judge and from the verdict form employed in this case,” and whether there is a
“substantial possibility that the jury may have rested its verdict on the ‘improper’ ground”);
see also id. at 389-90 (White, J., concurring) (“The issue in this case is how reasonable jurors
would have understood and applied their instructions.”). We need not pause to ask whether
these expressions insist on the same level of stringency. Each insists upon more than a
“possibility.”
        56 471 U.S. 307, 315-16 (1985) (framing the question as “what a reasonable juror could

have understood the charge as meaning).
        57 479 U.S. 538, 541 (1987) (asking what a reasonable juror “could” have done and

what a reasonable juror “would” have done).
        58 Boyde, 494 U.S. at 380.
        59 McKoy v. North Carolina, 494 U.S. 433, 440 (1990) (quoting Mills, 486 U.S. at 374).
        60 Id. at 442-43.
        61 558 U.S. 139 (2010).

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                                     No. 15-70023
      and the arguments of counsel. From this you must determine
      whether, beyond a reasonable doubt, the aggravating
      circumstances, which [Spisak] has been found guilty of committing
      in the separate counts are sufficient to outweigh the mitigating
      factors present in this case.

      If all twelve members of the jury find by proof beyond a reasonable
      doubt that the aggravating circumstance in each separate count
      outweighs the mitigating factors, then you must return that
      finding to the Court.

      ...

      On the other hand, if after considering all of the relevant evidence
      raised at trial, the evidence and the testimony received at this
      hearing and the arguments of counsel, you find that the State
      failed to prove beyond a reasonable doubt that the aggravating
      circumstances which [Spisak] has been found guilty of committing
      in the separate counts outweigh the mitigating factors, you will
      then proceed to determine which of two possible life imprisonment
      sentences to recommend to the Court. 62

Importantly, “the instructions did not say that the jury must determine the
existence of each individual mitigating factor unanimously. Neither the
instructions nor the forms said anything about how—or even whether—the
jury should make individual determinations that each particular mitigating
circumstance existed.” 63 Still, the Court “conclude[d] that the state court’s
decision upholding these forms and instructions was not ‘contrary to, or . . . an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States’ in Mills.” 64 In a per curiam opinion
the following year, the Court again upheld “virtually the same Ohio jury
instructions” under both Mills and Beck. 65



      62 Id. at 147.
      63 Id. at 148.
      64 Id. at 148-49 (citing 28 U.S.C. § 2254(d)(1)).
      65 Bobby v. Mitts, 563 U.S. 395, 396-97 (2011) (per curiam).

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                                        No. 15-70023
                                              B.
      The Texas Code of Criminal Procedure provides:
      (e)(1) The court shall instruct the jury that . . . it shall answer the
      following issue:
      Whether, taking into consideration all of the evidence, including
      the circumstances of the offense, the defendant’s character and
      background, and the personal moral culpability of the defendant,
      there is a sufficient mitigating circumstance or circumstances to
      warrant that a sentence of life imprisonment without parole rather
      than a death sentence be imposed.
      ...
      (f) The court shall charge the jury that in answering the issue
      submitted under Subsection (e) of this article, the jury:
      ...
      (3) need not agree on what particular evidence supports an
      affirmative finding on the issue. 66

      During the punishment phase of Young’s trial, the judge instructed the
jury as follows:
            Ladies and gentlemen, as before, I’m going to read to you the
      Charge of the Court. This is the law that you need to apply to what
      you heard and believed on the witness stand. And, of course, you’re
      to use everything you heard in the first phase of the trial as well
      as everything you heard in the second phase of the trial in
      determining the answers to these questions before you.
            ...
            By your verdict returned in this case, you have found the
      defendant, Christopher Young, guilty of capital murder, as alleged
      in the indictment.
            You are instructed that a sentence of life or death is
      mandatory upon conviction of a capital felony.
            It now becomes your duty to consider all the evidence in this
      case and determine the answers to certain questions which will be
      set forth for your consideration. The questions will be termed
      “issues” in this charge, and must be answered “Yes” or “No”; the
      punishment to be assessed the defendant will be assessed based on
      your answers to these issues.


      66   TEX. CODE CRIM. PROC. ANN. art. 37.071 §§ (e)(1)-(f)(3) (West 2017).
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                             No. 15-70023
         If the jury returns an affirmative finding on the first special
  issue submitted, and a negative finding on the second special issue,
  this Court shall sentence the defendant to death. If the jury
  returns a negative finding on the first special issue or an
  affirmative finding as to the second special issue, the Court shall
  sentence the defendant to confinement in the Institutional
  Division of the Texas Department of Criminal Justice for life.
         In deliberating upon the special issues, you shall consider all
  evidence admitted at the guilt or innocence stage and the
  punishment stage, including evidence of the defendant’s
  background or character or the circumstances of the offense that
  militates for or mitigates against the imposition of the death
  penalty.
         You are instructed that the State must prove the first issue
  beyond a reasonable doubt.
         The jury may not answer the first issue “Yes” unless there is
  unanimous agreement of the individual jurors upon that answer.
  The jury may not answer the first issue “No” unless ten or more
  jurors agree upon that answer, however, the ten jurors need
  not agree on what particular evidence supports a “No”
  answer to the issue.
         The first issue is:
         Do you find from the evidence beyond a reasonable doubt
  that there is a probability that the defendant, Christopher Young,
  would commit criminal acts of violence that would constitute a
  continuing threat to society?
         Answer: We the jury unanimously find and determine
  beyond a reasonable doubt the answer to this special issue is “Yes”.
  Or Answer: We the jury, because at least ten (10) jurors have a
  reasonable doubt as to the probability that the defendant would
  commit criminal acts of violence that would constitute a continuing
  threat to society, answer this special issue “No”.
         If you have answered the first special issue “Yes”, then you
  will answer special issue number two.
         The second issue is:
         State whether, taking into consideration all of the evidence,
  including the circumstances of the offense, the defendant’s
  character and background, and the personal moral culpability of
  the defendant, there is a sufficient mitigating circumstance or are
  sufficient mitigating circumstances to warrant that a sentence of
  life imprisonment rather than a death sentence be imposed.

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                                 No. 15-70023
            Answer: We, the jury, unanimously find and determine that
      the answer to this Special Issue is “No”. Or Answer: We, the jury,
      because at least ten (10) jurors find that there is a sufficient
      mitigating circumstance or are sufficient mitigating circumstances
      to warrant that a sentence of life imprisonment rather than a
      death sentence be imposed, answer this Special Issue “Yes.”

      That the trial court failed to give Young’s jury the instruction required
under Section 2(f)(3) is not disputed. Young attacks the jury charge as deficient
under Mills on two fronts. First, he argues that it is a Mills error where a
statutorily mandated jury instruction that jurors need not agree on which
evidence they find mitigating is omitted. Second, he argues that the language
in the instruction regarding special issue two could reasonably be interpreted
to require agreement of at least ten jurors on the mitigating circumstance or
circumstances they found sufficient to warrant a sentence of life imprisonment
instead of death. Young argues that this instruction, when viewed in
connection with the instruction for special issue one—which did include the
instruction that “the ten jurors need not agree on what particular evidence
supports a ‘No’ answer”—created a substantial probability that his jurors did
not believe they could consider relevant mitigating evidence unless at least ten
of them agreed on the evidence they found mitigating.
      The Texas Court of Criminal Appeals rejected these claims on the merits
on direct review, reasoning that:
      [E]ven when presented with the circumstances in Mills, the
      Supreme Court did not go so far as to say it is a constitutional
      requirement that every jury deliberating punishment in a capital
      case should be explicitly instructed that the jurors need not agree
      on the particular mitigating circumstances.

      In this case, while jurors were not given the statutorily required
      instruction that they need not agree on the particular mitigating
      evidence, they unanimously found that no sufficient mitigating
      circumstance or circumstances warranted that a life sentence be
      imposed. The foreman signed the answer that stated: “We, the
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                                      No. 15-70023
      jury, unanimously find and determine that the answer to this
      Special Issue is ‘No.’” Because no juror believed there was a
      circumstance or circumstances that warranted a life sentence,
      there was no possibility that the jurors would be confused about a
      need to agree on a particular circumstance or circumstances.

      Although the trial court erred in failing to give the statutory
      instruction, in this case, the appellant was not deprived of the
      constitutional guarantee of a unanimous verdict and did not suffer
      egregious harm. Nor was the appellant denied a fair trial. 67

      On state habeas review, the Texas trial court, in a thoughtful decision
adopted by the Texas Court of Criminal Appeals, looked to Spisak, observing
that it:
      [D]istinguished the jury instructions and verdict forms from those
      in Mills. . . . found that jury instructions and jury forms did not
      create a “substantial probability” that the jury believed it was
      precluded from finding a mitigating circumstance that had not
      been unanimously agreed upon. . . . found significant the fact that
      the “instructions did not say that the jury must determine the
      existence of each individual mitigating factor unanimously” and
      that “the instructions repeatedly told the jury to consider all the
      relevant evidence.”

      Similarly, the jury instructions and verdict forms in this case did
      not say that the jury had to determine the existence of each
      individual mitigating factor unanimously. They also repeatedly
      told the jury to consider all the evidence. In fact, the second special
      issue is written to require consideration of a vast quantity of
      potential mitigating evidence.

      ...

      [T]hat both the future danger and mitigation special issues carried
      similar unanimity requirements for answers that would negatively
      impact [Young]. . . . that this . . . demonstrates that the jury
      understood the general instructions addressing the future danger
      special issue to be unique to that issue and the absence of similar



      67   Young, 283 S.W.3d at 878-89.
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                                       No. 15-70023
      instructions for the mitigation special issue not to indicate that it
      should be treated any differently.

      ...

      [T]hat the verdict form, together with the jury instructions, show
      that the jury understood the right to have each juror consider
      different mitigating evidence in reaching a unanimous verdict that
      there was no mitigating circumstance or combination of
      circumstances that called for a life sentence rather than one of
      death. Consequently, the jury had an adequate vehicle in which to
      give effect to matters each juror may have considered mitigating. 68

      And, of course, the court’s charge is not the sole source of relevant jury
instruction. Nothing in the court’s other admonitions or the arguments of
counsel created a reasonable likelihood that a juror would conclude that
unanimity was required to give effect to mitigating evidence. At the outset,
during voir dire, the court described the penalty phase of the trial, emphasizing
the need for the jury to consider all of the evidence in answering the special
issues:
      [Y]ou’re to consider, in answering the questions, the evidence that
      you hear, the circumstances of the offense – you know, what
      happened, is it bad, is it not as bad as you think – the criminal
      history, the good history of the defendant; mitigating
      circumstances, the background, the mental background of the
      defendant, all kinds of things. You’re to consider it all. If it’s given
      to you, you’re to consider it. You don’t disregard anything. You
      don’t have to answer it in a certain way, no matter what the
      evidence is for you. You’re entitled to rule on it as you see fit. You
      can give it what weight you want yourself. But you’re to consider
      it and listen to it all, and give it whatever weight you want.

      In other words, if you think this is a mitigating circumstance,
      that’s fine. If you think it’s not, that’s also fine. It’s up to you. It’s
      your decision and your decision alone, the twelve of you. But you’re
      to listen to it all and take it all into account, and disregard what


      68   187th District Court Opinion at 10-14.
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                                 No. 15-70023
      you like, take into account what you don’t like, or do like, and go
      from there.

      At the end of the penalty phase, in charging the jury, the court
instructed: “use everything you heard in the first phase of the trial as well as
everything you heard in the second phase of the trial in determining the
answers to these questions before you.” While the court’s statements do not
disclaim a unanimity requirement, neither do they suggest one—the evil
forbidden by Mills.
      Nor did counsels’ arguments suggest that the jury had to agree
unanimously on what evidence was mitigating. In her closing argument at the
end of the penalty phase, Ms. Skinner, on behalf of the state, repeatedly urged
the jury to consider all of the evidence in answering the special issues:
      [T]ake a look at all of the evidence that you heard in the case and
      decide the answers to those special issues . . . . Stand back and ask
      yourself, is there a sufficient mitigating circumstance or
      circumstances to warrant imposing a life sentence instead of a
      death sentence in this case. . . . Then take a look at his character
      and his background. Look at everything you know. . . . And is there
      really anything that you’ve heard that calls you to think, “oh, now
      I understand this, now I understand it”? . . . Take a look at all the
      character and the background.

Finally, Young’s counsel’s closing argument urged the jury to weigh all of the
evidence in answering the special issues, and, as would be expected, appears
to accent the role of the individual juror. At the least, nothing in counsel’s
argument sustains a reasonable likelihood of unanimity:
      The issue is for you to have a framework, to have background
      information, and to take everything into account, everything about
      Christopher Young in deciding if he should paid [sic] the ultimate
      price. . . . And when you take into account everything that you’ve
      heard, and you [sic] looking at that mitigation issue, I think you
      will find that there are sufficient mitigating circumstances to
      warrant that life imprisonment . . . . some of you, your minds may
      be made up already. But I appeal to you jurors that the [sic]
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                                          No. 15-70023
      courage and the conviction to follow your oath as a juror. . . . Think
      about that when you decide what is mitigation. Mitigation, as we
      told you, you’ll know it when you see it. You will either
      believe it or you won’t. That is the function of a juror. . . .
      But even if you do think, in your heart, in your mind, during
      deliberation, he’s going to be a future threat, look at the issue of
      mitigation.

      It is possible—in the sense that anything is possible—that Young’s jurors
mistakenly believed that they had to agree on whether each piece of allegedly
mitigating evidence was, in fact, mitigating, or else were forbidden to consider
that evidence in answering special issue two. That said, the admittedly
incomplete charge is not contrary to Mills. As the Texas state habeas court
discussed, and as in Spisak, the jury instructions here did not say “anything
about how—or even whether—the jury should make individual determinations
that each particular mitigating circumstance existed.” 69 Given the record
before us, we cannot say there existed a reasonable likelihood or “a substantial
probability that reasonable jurors . . . may have thought they were precluded
from considering any mitigating evidence unless all 12 jurors agreed on the
existence of a particular such circumstance.” 70 A fortiori, we cannot conclude
that the state courts unreasonably applied Mills.
                                               C.
      Young argues that we have never held that Spisak teaches that Mills is
categorically inapplicable to Texas’s current death penalty sentencing scheme.
That is true, and we do not so hold today. Young also argues that we should
not consider Spisak because it followed after Young’s trial and direct appeals
and was not “clearly established law” for the purposes of this case. We do not
cite to Spisak for that purpose, nor did the Texas trial court. Rather than



      69   Spisak, 558 U.S. 139 at 148.
      70   Mills, 486 U.S. at 384.
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                                    No. 15-70023
establishing a new rule of criminal law, Spisak does just the opposite—
rejecting the idea that Mills requires a prophylactic instruction—a requisite
not clearly established by Mills and not the law post-Spisak.
      Additionally, Young argues that Spisak is not applicable here as it was
a case-specific application of Mills to Ohio’s “weighing scheme” while Texas is
a non-weighing jurisdiction. Distinctions between weighing and non-weighing
jurisdictions arrive here without a difference. Referring to some jurisdictions
as “weighing” and others as “non-weighing”—a distinction that “was adopted
relatively early in the development of [the Supreme Court’s] death penalty
jurisprudence”—“is somewhat misleading, since [the Supreme Court has] held
that in all capital cases the sentencer must be allowed to weigh the facts and
circumstances that arguably justify a death sentence against the defendant’s
mitigating evidence.” 71
      To be clear, under Furman and progeny, states must narrow the class of
murderers eligible for capital punishment, a requirement “usually met when
the trier of fact finds at least one statutorily defined eligibility factor.” 72 After
the defendant is found eligible to receive a death sentence:
      Some States tell the jury: “Consider all the mitigating factors and
      weigh them against the specific aggravating factors that you
      found, at Stage One, made the defendant eligible for the death
      penalty. If the aggravating factors predominate, you must
      sentence the defendant to death; otherwise, you may not.” Because
      the law in these States tells the jury to weigh only statutory
      aggravating factors (typically the same factors considered at Stage
      One) against the mitigating factors, this Court has called these
      States “weighing States.” This is something of a misnomer because
      the jury cannot weigh everything but is instead limited to weighing




      71  Brown v. Sanders, 546 U.S. 212, 216-17 (2006) (citing Eddings v. Oklahoma, 455
U.S. 104, 110 (1982)).
       72 Brown, 546 U.S. at 216.

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                                         No. 15-70023
       certain statutorily defined aggravating factors. The Court has
       identified Mississippi as a classic example of a weighing State. 73

In contrast:
       Other States tell the jury: “Consider all the mitigating factors and
       weigh them, not simply against the statutory aggravating factors
       you previously found at Stage One, but against any and all factors
       you consider aggravating.” Because the balance includes all
       aggravating factors and not only those on the Stage One eligibility
       list, this Court has called such States “nonweighing States.”
       Although it might be clearer to call these States “complete
       weighing” States (for the jury can weigh everything that is
       properly admissible), I shall continue to use the traditional
       terminology. The Court has identified Georgia as the prototypical
       example of a State that has adopted this complete weighing
       approach. 74

       The principles articulated in Mills and Spisak, though treating
“weighing” jurisdictions, are not so limited. Rather, they demand that capital
jurors be allowed to consider and give effect to all relevant mitigating evidence,
whether or not the entire jury agrees on whether a given piece of evidence is
mitigating. That Mills addressed Maryland’s weighing scheme does not
diminish its precedential reach. Insofar as individual jurors are able to
consider mitigating evidence through their own eyes, free of a required level of
consensus, the constitution is satisfied. Mills requires that much, and no more.
                                                D.
       Young argues that declarations from two of his jurors show that the
jurors thought they had to agree upon evidence before they could consider it in
mitigation. 75 We have found affidavits of this genre—seeking to disclose jury


       73 Id. at 229 (Breyer, J., dissenting) (citing Stringer v. Black, 503 U.S. 222, 229 (1992)).
       74 Id. at 229-30 (Breyer, J., dissenting).
       75 Young’s habeas petition contains four juror affidavits, three of which are typed and

one that is handwritten. Two of those affidavits are relevant here, stating that “When we
were deliberating punishment, we as jurors thought that all of us had to agree about what
evidence was mitigating” and “At the trial, I thought that the jurors had to agree on what
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                                       No. 15-70023
deliberations—inadmissible under Federal Rule of Evidence 606(b), Summers
v. Dretke, 76 and United States v. Jones. 77
       The Supreme Court has since opened, narrowly we think, this door
thought closed—a retreat from the traditional rule, adopted into the Federal
Rules of Evidence, precluding juror testimony from being used to impeach a
jury’s verdict. 78 In Pena-Rodriguez, Justice Kennedy wrote of the “substantial
merit” of Rule 606(b), which “promotes full and vigorous discussion by
providing jurors with considerable assurance that after being discharged they
will not be summoned to recount their deliberations, and they will not
otherwise be harassed or annoyed by litigants seeking to challenge the
verdict.” 79 Then, citing to the Fourteenth Amendment’s purpose of “eliminating



evidence was mitigating in order to find there was sufficient mitigating circumstances to
sentence him to life instead of death.” Each affidavit contains precisely worded paragraphs
that appear calculated to challenge various aspects of the penalty phase, such as the 10-12
instruction and the lack of an instruction regarding the outcome if jury deliberations broke
down. The language across the typed affidavits is nearly identical. See Declaration of Robert
Gonzales at ¶ 8 (“When we were deliberating punishment, I initially considered a life
sentence an appropriate punishment, but I thought that ten or more jurors had to agree in
order for Mr. Young to receive a life sentence. I did not know that if only one juror had found
that there was sufficient mitigating evidence to warrant a life sentence, that Mr. Young
would have received a life sentence.”); Declaration of Ramon Luna at ¶ 10 (“When we were
deliberating punishment, we as jurors thought that in order for Chris Young to receive a life
sentence instead of death, all of us had to agree that a life sentence was the appropriate
punishment. I did not know that if only one juror had found that there was sufficient
mitigating evidence to warrant a life sentence, that Mr. Young would have received a life
sentence.”); Declaration of Jason Olivarri at ¶ 10 (“When we were deliberating punishment,
we as jurors thought that in order for Chris Young to receive a life sentence instead of death,
all of us had to agree that a life sentence was the appropriate punishment. I did not know
that if only one juror had found that there was sufficient mitigating evidence to warrant a
life sentence, that Mr. Young would have received a life sentence.”). The language in the
handwritten affidavit differs slightly, expressing the same sentiment. See Declaration of
Monique Pathaphone at ¶ 5 (“I did not realize that if only one person believed there were
sufficient mitigating circumstances to warrant sentencing him to life instead of death he
would be sentenced to life.”).
        76 431 F.3d 861, 873 (5th Cir. 2005).
        77 132 F.3d 232, 245 (5th Cir. 1998).
        78 Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017).
        79 Id. at 865.

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                                       No. 15-70023
racial discrimination emanating from official sources in the States,” 80 as well
as the especially invidious threat posed by racial bias on jury panels, 81 the
Court held “that where a juror makes a clear statement that indicates he or
she relied on racial stereotypes or animus to convict a criminal defendant, the
Sixth Amendment requires that the no-impeachment rule give way in order to
permit the trial court to consider the evidence of the juror’s statement and any
resulting denial of the jury trial guarantee.” 82
       The Court’s emphasis on our long struggle against racial prejudice, and
the “constitutional[] and institutional concerns” 83 attending that history,
evince its constrained relaxing of a traditionally inviolate rule. Prohibition of
racial discrimination lies at the core of the Fourteenth Amendment. And in the
erratic but relentless march toward a color-blind justice, its role in criminal
proceedings has been salient. We decline the invitation to extend further the
reach of Pena-Rodriguez, one antithetical to the privacy of jury deliberations—
a principle whose loss would be attended by such high costs as to explain its
veneration.
       Nor will we ignore that Young never presented these affidavits to the
Texas courts. In determining whether a state court misapplied federal law
under § 2254(d), Pinholster precludes our consideration of evidence that was
not before the state court that adjudicated the claim on the merits. 84



       80 Id. at 867 (quoting McLaughlin v. Florida, 379 U.S. 184, 192 (1964)).
       81 Pena-Rodriguez, 137 S. Ct. at 868.
       82 Id. at 869.
       83 Id. at 868.
       84 Pinholster, 563 U.S. at 182 (“This backward-looking language [of § 2254(d)(1)]

requires an examination of the state-court decision at the time it was made. It follows that
the record under review is limited to the record in existence at that same time i.e., the record
before the state court.”); see also id. at 182-83 (“It would be strange to ask federal courts to
analyze whether a state court’s adjudication resulted in a decision that unreasonably applied
federal law to facts not before the state court.”); Lewis v. Thaler, 701 F.3d 783, 791 (5th Cir.
2012) (“The import of Pinholster is clear: because [the petitioner’s] claims have already been
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                                      No. 15-70023
                                            IV.
       Young next claims that his trial counsel’s failure to object to the missing
Section 2(f)(3) instruction constituted ineffective assistance of counsel. We
review claims of ineffective assistance of counsel under the standard set by the
Supreme Court in Strickland v. Washington. 85 “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 trial cannot be relied on
as having produced a just result.” 86 Ineffective assistance of counsel under
Strickland consists of two elements: (1) deficient performance and (2) resulting
prejudice. 87 “The first prong—constitutional deficiency—is necessarily linked
to the practice and expectations of the legal community: The proper measure
of attorney performance remains simply reasonableness under prevailing
professional norms.” 88
       For the second prong—prejudice—“[t]he defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” 89 “When a defendant
challenges a death sentence such as the one at issue in this case, the question
is whether there is a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” 90




adjudicated on the merits, § 2254 limits our review to the record that was before the state
court.”).
        85 466 U.S. at 686-87.
        86 Id. at 686.
        87 Id. at 687.
        88 Hinton v. Alabama, 134 S. Ct. 1081, 1088 (2014) (quoting Padilla v. Kentucky, 559

U.S. 356, 366 (2010)).
        89 Strickland, 466 U.S. at 694.
        90 Id. at 695.

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                                       No. 15-70023
       The Texas state trial court, whose opinion was adopted by the Texas
Court of Criminal Appeals, applied Strickland in finding that Young failed to
show prejudice as a result of the failure to object to the missing jury
instruction. 91 Assuming arguendo—as the Texas state trial court did—that
failing to object to the absent jury instruction was deficient performance,
Young here fails to show prejudice. The Texas state courts’ application of
Strickland to Young’s ineffective assistance of counsel claims was not
unreasonable. 92
                                            ****
       The judgment of the United States District Court denying federal habeas
relief is affirmed.




       91 187th District Court Opinion at 17.
       92 Harrington v. Richter, 562 U.S. 86, 101 (2011) (“The pivotal question is whether the
state court’s application of the Strickland standard was unreasonable”); see also Druery v.
Thaler, 647 F.3d 535, 539 (5th Cir. 2011) (holding, in regards to an ineffective assistance of
counsel claim reviewed by the federal courts under AEDPA, “in order to obtain habeas relief,
‘a state prisoner must show that the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.’” (quoting
Harrington, 562 U.S. at 786-87)).
                                             23
