                    UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT


                          __________________

                             No. 01-20308
                          __________________



     STANLEY ALLISON BAKER, Jr.

                                            Petitioner-Appellant,

                                versus

     JANIE COCKRELL, DIRECTOR,
     TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
     INSTITUTIONAL DIVISION,

                                            Respondent-Appellee.

            ______________________________________________

         Appeal from the United States District Court for the
                      Southern District of Texas
                             (4:99-CV-806)
            ______________________________________________
                           October 19, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:*

     Petitioner Stanley Allison Baker (Baker), convicted of capital

murder in Texas and sentenced to death, requests from this Court a

Certificate    of   Appealability   (COA)   pursuant   to   28   U.S.C.   §

2253(c)(2). In an attempt to make a substantial showing of the denial

     *
      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opinion should not be published and is not precedent except under the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.
of a constitutional right, Baker raises the following issues in his COA:

(1) the Texas Court of Criminal Appeals’ refusal to determine the

sufficiency of the evidence to support the jury’s negative answer to the

mitigation special issue; and (2) the trial court’s failure to submit

a parole instruction. Concluding that Baker has failed to make the

requisite showing, we DENY his request for a COA.

      I.   FACTUAL AND PROCEDURAL HISTORY

      In 1995, a jury convicted Baker of the capital offense of the

intentional murder of Wayne Walters while in the course of committing

and attempting to commit robbery pursuant to § 19.03(a)(2) of the Texas

Penal Code.   At the conclusion of the punishment phase, two special

issues were submitted to the jury pursuant to article 37.071 § 2(b)

and (e) of the Texas Code of Criminal Procedure. Based on the jury’s

responses, the trial court sentenced Baker to death.         On direct

appeal, the Texas Court of Criminal Appeals affirmed the conviction

and   sentence.     Baker   v.   State   of   Texas,   956   S.W.2d   19

(Tex.Crim.App. 1997).

      Baker filed an application for state habeas relief, and, after

conducting an evidentiary hearing, the trial court recommended denying

relief. In an unpublished order, the Texas Court of Criminal Appeals

denied relief, stating that the trial court’s findings of fact and

conclusions of law were supported by the record and that Baker’s

allegations were without merit.

      Subsequently, Baker filed the instant federal habeas petition in



                                   2
district court. The district court denied his petition and his request

for a COA.    Baker now requests a COA from this Court.

     II.    ANALYSIS

     A.     STANDARDS OF REVIEW

     Baker filed his section 2254 application for habeas relief

after the April 24, 1996 effective date of the Antiterrorism and

Effective Death Penalty Act (AEDPA).       His application is therefore

subject to the AEDPA.         Lindh v. Murphy, 521 U.S. 320, 336, 117

S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997).            Under the AEDPA, a

petitioner must obtain a COA.      28 U.S.C. § 2253(c)(2).    A COA will

be granted only if the petitioner makes “a substantial showing of

the denial of a constitutional right.”      28 U.S.C. § 2253(c)(2).    To

make such a showing, a petitioner “must demonstrate that the issues

are debatable among jurists of reason; that a court could resolve

the issues [in a different manner]; or that the questions are

adequate to deserve encouragement to proceed further.” Barefoot v.

Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 3394 n.4 (1983)

(citation    and   internal   quotation   marks   omitted).   Any   doubt

regarding whether to grant a COA is resolved in favor of the

petitioner, and the severity of the penalty may be considered in

making this determination.       Fuller v. Johnson, 114 F.3d 491, 495

(5th Cir. 1997).

     To determine whether a COA should be granted, we must be

mindful of the deferential scheme set forth in the AEDPA.       Hill v.


                                     3
Johnson, 210 F.3d 481, 484-85 (5th Cir.                    2000).           Pursuant to 28

U.S.C. § 2254(d), we defer to a state court’s adjudication of

petitioner’s claims on the merits unless the state court’s decision

was: (1) “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.” A state court’s

decision is deemed contrary to clearly established federal law if

it reaches a legal conclusion in direct conflict with a prior

decision   of   the    Supreme    Court       or    if    it     reaches         a    different

conclusion      than     the     Supreme       Court           based        on       materially

indistinguishable facts.          Williams v.            Taylor, 529 U.S. 362, 120

S.Ct.   1495, 1519-20 (2000).        A state court’s decision constitutes

an unreasonable application of clearly established federal law if

it is objectively unreasonable.               Id.   at 1521.

     Further, state court findings of fact are presumed to be

correct, and     the    petitioner    has       the      burden        of    rebutting      the

presumption     of    correctness    by    clear         and    convincing           evidence.

Section 2254(e)(1).

     B.    DENIAL OF MEANINGFUL APPELLATE REVIEW

     On direct appeal, Baker argued that the evidence was insufficient

to support a finding that there were no mitigating circumstances to




                                          4
warrant that a sentence of life imprisonment be imposed.1 The Texas

Court of Criminal Appeals refused to review the claim, opining as

follows:

           [W]e have previously stated that we will not
           review sufficiency of the evidence as regards the
           mitigation special issue. McFarland v. State, 928
           S.W.2d 482 (Tex.Cr.App. 1996). The weighing of
           mitigating evidence is a subjective determination
           undertaken by each individual juror, and we
           decline to review that evidence for sufficiency.
           Id. at 498. Finally, we have previously held that
           article 44.251 does not require this Court to
           conduct a sufficiency review of the mitigation
           issue. Id.

Baker v. State, 956 S.W.2d 19, 22 (Tex.Crim.App. 1997).

     In his state habeas application, Baker did not argue that he had

been denied meaningful appellate review of the jury’s determination of

the mitigating special issue.    Based on his failure to exhaust the

claim, the respondent argued in federal district court that Baker’s

claim should be procedurally barred. See Nobles v. Johnson, 127 F.3d



     1
       Article 37.071(e)(1) of the Texas Code of Criminal Procedure
mandates that:

           The court shall instruct the jury that if the jury
           returns an affirmative finding to each issue
           submitted under Subsection (b) of this article, 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 rather than a death
           sentence be imposed.


                                   5
409, 423 (5th Cir. 1997). Notwithstanding the respondent’s argument,

the district court denied Baker’s claim on the merits as permitted by

28 U.S.C. § 2254(b)(2).

     On appeal, the respondent reurges its argument that Baker’s claim

is procedurally barred. We, like the district court, deny relief based

on the merits of the claim under 28 U.S.C. § 2254(b)(2).2

     In Hughes v. Johnson, 191 F.3d 607, 622-23 (5th Cir. 1999), the

petitioner argued that due process requires independent appellate review

of whether the mitigating evidence undermines his deathworthiness. We

recognized that when a state provides for the imposition of a death

sentence within the discretion of a jury, the defendant “has a

substantial and legitimate expectation that he will be deprived of his

liberty only to the extent determined by the jury in the exercise of its

statutory discretion, and that liberty interest is one that the

Fourteenth Amendment preserves against arbitrary deprivations by the

State.” Id. at 623 (quoting Hicks v. Oklahoma, 447 U.S. 343, 346, 100

S.Ct. 2227, 2229 (1980)).

     We explained, however, that while some states require independent

review of a death sentence, Texas has no such requirement. “Texas is

a ‘non-weighing state’ in that its capital-sentencing scheme does not

direct the appellate court or even the jury to ‘weigh’ aggravating


     2
        We note our precedent suggests that, absent an applicable
exception to the exhaustion requirement, federal courts lack the power
to grant relief on unexhausted claims. See Alexander v. Johnson, 163
F.3d 906, 908 (5th Cir. 1998); Jones v. Jones, 163 F.3d 285, 299 (5th
Cir. 1998).

                                   6
factors against mitigating ones.” Id. at 623 (citing James v. Collins,

987 F.2d 1116, 1120 (5th Cir. 1993); Williams v. Cain, 125 F.3d 269,

281, 283 (5th Cir. 1997)).     In non-weighing states, the statutory

aggravating factors fulfill the Eighth Amendment purpose of “narrow[ing]

and channel[ing] the jury’s discretion by separating the class of

murders eligible for the death penalty from those that are not.” Id.

We therefore rejected his claim, stating that precedent did not support

his argument that due process requires independent appellate review of

the mitigating circumstances.     Id.

     Additionally, in Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir.

2001), the petitioner similarly challenged the Court of Criminal

Appeals’ practice of refusing to review the sufficiency of mitigating

evidence. This Court concluded that “[t]o the extent Beazley raises a

constitutional claim, we conclude that, regardless of whether the Texas

court reviews the jury verdict under the mitigation special issue or the

future dangerousness special issue, ‘meaningful appellate review’ has

been afforded.” Id. at 261 (quoting McFarland v. Texas, 928 S.W.2d 482,

498 (Tex.Crim.App. 1996)).

     In the case at bar, it is undisputed that the Court of Criminal

Appeals reviewed the sufficiency of the evidence with respect to the

jury’s finding of future dangerousness. See Baker, 956 S.W.2d at 21

(holding that the evidence was sufficient to support the jury’s finding




                                   7
of future dangerousness).3

     As such, under our precedent, Baker has not made a substantial

showing of the denial of a constitutional right.

     C.   JURY INSTRUCTION REGARDING PAROLE ELIGIBILITY

     Baker next contends that he is entitled to a COA based on the

state trial court’s failure “to sua sponte instruct the jury on the

minimum time    he   would   have   to   serve   before   attaining   parole

eligibility.”

     Shortly after beginning its deliberations at the penalty phase, the

     3
       Before concluding that the evidence was sufficient to show
future dangerousness, the Court reviewed the evidence as follows:

          The evidence, viewed in a light most favorable to
          the jury's finding, shows the following: Appellant
          intended to kill his former employer.        After
          walking nearly two miles in pursuit of his plan,
          he became hot and decided to steal a truck. He
          went into the Adult Video Store in College
          Station, where Wayne Williams, the night clerk,
          was working alone. Appellant took from Williams
          the keys to his truck, the currency from the cash
          register, and the night's receipts. Appellant then
          shot Williams three times. Appellant fled the
          scene in William's vehicle, returned home and
          loaded the stolen vehicle with his gear. The items
          found in the vehicle included the murder weapon,
          ammunition, a brass knuckled stiletto, a
          bulletproof vest, a garrote, and a variety of
          survival gear. In a notebook seized by police,
          appellant had written his goals for the year,
          which included, "30+ victims dead. 30+ armed
          robberies. Steal a lot of cars." Furthermore,
          on the day of his arrest appellant showed no
          remorse. We hold that the evidence presented in
          the instant case is sufficient to support the
          jury's finding regarding appellant's future
          dangerousness.

956 S.W.2d at 21.

                                     8
jury sent a note to the trial court with the following question: “Is

life in prison really life in prison, or is the prisoner able to be

paroled at some future date[?]” The trial court proposed responding

with an instruction that no further instructions could be given. The

court then inquired as to the position of the State. The prosecutor

stated that he would defer to defense counsel.                         Defense counsel

expressly stated that “we would go with the instruction that the judge

prepared.”4

     In Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187

(1994), the     Supreme     Court    held       that    if     a    defendant’s    future

dangerousness is at issue and state law prohibits the defendant’s

release on parole, due process requires that the sentencing jury be

informed that the defendant is ineligible for parole.                          This Court

has explained Simmons requires that a jury be informed with respect

to a defendant's parole ineligibility only when (1) the state

argues that a defendant represents a future danger to society, and

(2) the defendant is legally ineligible for parole.                        Allridge v.

Scott,   41   F.3d   213,   222     (5th       Cir.    1994)       (footnote    omitted).

Simmons is inapposite.       The defendant in Simmons was not eligible

for parole.     Because Baker would have been eligible for parole

under Texas law if sentenced to life, our precedent renders his




     4
        Subsequently, during a hearing on a motion for new trial,
defense counsel explained that he had “hoped [the jury] would think life
meant life.”

                                           9
reliance on Simmons “unavailing.”      Id.5   See also Johnson v. Scott,

68 F.3d 106, 112 (5th Cir. 1995) (“We have consistently held,

however, that   neither   the   due   process   clause   nor   the   Eighth

Amendment compels instructions on parole in Texas.”)

     Here, it is undisputed that Texas did not statutorily provide a

sentence of life without parole at the penalty stage. Indeed, Baker

concedes that prior Fifth Circuit law “is against him.” Nonetheless,

he asserts that in light of a study that “confirms that the more

accurate knowledge a jury has of a defendant’s actual time to be served

with a life sentence, the greater likelihood of a defendant receiving

that sentence,” we should look at this claim anew.6 Of course, pursuant

to our intra-circuit rule of stare decisis, one panel may not overrule

a prior decision of this Court in the absence of an intervening contrary

or superseding decision by this Court sitting en banc or by the United


     5
        Recently, the Supreme Court has reaffirmed the application
of its decision in Simmons. See Shafer v. South Carolina, __ U.S.
__, 121 S.Ct. 1263 (2001). Under South Carolina’s new sentencing
scheme, if the jury does not unanimously find a statutory
aggravating circumstance, a life sentence with parole eligibility
after thirty years is an option. S.C.Code Ann. § 16-3-20(A) (Supp.
1993).    However, upon finding the presence of a statutory
aggravating circumstance, the jury has no choice other than to
recommend a sentence of either death or life imprisonment without
parole. In Shafer, the Supreme Court held that “whenever future
dangerousness is at issue in a capital sentencing proceeding under
South Carolina’s new scheme, due process requires that the jury be
informed that a life sentence carries no possibility of parole.”
Id. at 1273.

     6
        The study Baker cites is William J. Bowers and Benjamin D.
Steiner, Death by Default: An Empirical Demonstration of False and
Forced Choices in Capital Sentencing, 77 Tex.L.Rev. 605 (1999).

                                  10
States Supreme Court. Billiot v. Puckett, 135 F.3d 311, 316 (5th Cir.

1998).

     Accordingly, in light of this Court’s precedent, Baker cannot

make a substantial showing of the denial of a constitutional right with

respect to his challenge to the jury instructions.7

     For the above reasons, we conclude that Baker has not made a

substantial showing of the denial of a constitutional right and DENY


     7
           Finally, under the heading of “Ineffective Assistance of
Counsel Claims,” Baker asserts that the district court “applied a far
too restrictive degree of deference to the state legal conclusions.
Under the appropriate standard of Williams v. Taylor, [he] would be
entitled to relief.” That is the entirety of his argument. Because
Baker failed to brief any claim of ineffective assistance of counsel,
he has effectively abandoned any such claim. See Trevino v. Johnson,
168 F.3d 173, 181 n.3 (5th Cir. 1999) (explaining that a list of 11
additional, undeveloped arguments were waived); see also Martin v. Cain,
246 F.3d 471, 475 n.1 (5th Cir. 2001) (noting that we refused to
consider claims that were not briefed even though petitioner requested
a COA with respect to the “full range” of ineffective assistance
claims).
     In any event, the district court denied Baker’s petition prior to
the Supreme Court’s decision in Williams v. Taylor, 529 U.S. 362, 120
S.Ct. 1495. In Williams, the Supreme Court explained that when making
the “unreasonable application” determination, federal courts should
inquire whether the state court’s application of clearly established
federal law was objectively unreasonable. 120 S.Ct. at 1521. The Court
specifically noted that, in Drinkard v. Johnson, 97 F.3d 751 (5th Cir.
1996), we apparently had applied the reasonable jurist standard in a
subjective manner. Id. at 1522.
     Here, although the district court did cite Drinkard in its opinion,
it did not appear to apply the overly stringent standard. Indeed, it
properly analyzed Baker’s non-procedurally defaulted claims of
ineffective assistance under Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052 (1984), and concluded at one point that the “state
court’s findings and conclusions comport with established federal law.”
The district court agreed with the state court’s determinations under
Strickland. In other words, because the district court agreed with the
state court’s application of federal law, it never had to decide whether
the application of law was objectively or subjectively unreasonable.


                                  11
his request for a COA.

DENIED.




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