     Case: 15-70040      Document: 00514473761        Page: 1    Date Filed: 05/15/2018




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

                                                                              FILED
                                     No. 15-70040                         May 15, 2018
                                                                         Lyle W. Cayce
SHELTON DENORIA JONES,                                                        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


Before OWEN and SOUTHWICK, Circuit Judges.*
PRISCILLA R. OWEN, Circuit Judge:
      Shelton Denoria Jones’s petition for panel rehearing is denied. The
panel’s prior opinion, issued March 27, 2018, is withdrawn. This opinion is
substituted in its place.
      Jones was convicted of the capital murder of a police officer and
sentenced to death in Texas state court. Jones asserts he is entitled to federal
habeas relief on his claim that the press coverage of the crime and the presence


      *  Judge Edward Prado, a member of the original panel in this case, retired from the
Court on April 2, 2018, and therefore did not participate in the revised opinion. The new
opinion is issued by a quorum. 28 U.S.C. § 46(d).
     Case: 15-70040      Document: 00514473761        Page: 2     Date Filed: 05/15/2018



                                     No. 15-70040
of uniformed police officers in the gallery during his trial created an inherently
prejudicial atmosphere that violated his right to a fair trial. The federal
district court denied Jones’s request for discovery on this issue and denied
relief on the merits, but granted a Certificate of Appealability (COA). We
affirm the judgment of the district court.
      In prior proceedings Jones sought and has been granted a new
sentencing phase on his claim that, in violation of Penry v. Lynaugh, 1 the Texas
special issues did not provide an adequate vehicle for the jury to give full
consideration to his mitigation evidence. 2           His fair trial claim therefore
pertains only to the guilt/innocence phase of his trial.
                                            I
       Jones was charged with capital murder of a police officer in Houston,
Texas. Media coverage followed the crime, including an editorial calling for
charges to be filed against Jones and a letter to the editor suggesting Jones be
hung from a “tall tree” with a “short rope.” Jones moved unsuccessfully for a
change of venue to diminish the effects of the pre-trial publicity. Uniformed
officers attended each day of Jones’s trial, in varying numbers. Jones was
convicted of capital murder and sentenced to death.               The Texas Court of
Criminal Appeals (TCCA) affirmed Jones’s conviction and sentence on direct
appeal. 3
      The TCCA appointed habeas counsel. With leave of the state habeas
court, Jones submitted an incomplete application for state habeas relief in
order to comply with newly-enacted filing deadlines under the Antiterrorism
and Effective Death Penalty Act (AEDPA). 4 As the state-law imposed deadline


      1  492 U.S. 302 (1989).
      2  Jones v. Stephens, 541 F. App’x 399, 400 (5th Cir. 2013) (per curiam).
       3 Jones v. State, No. 71,369 (Tex. Crim. App. May 4, 1994) (en banc) (not designated

for publication).
       4 Pub. L. No. 104-132, 110 Stat. 1214 (1996).

                                            2
     Case: 15-70040       Document: 00514473761      Page: 3    Date Filed: 05/15/2018



                                      No. 15-70040
approached, Jones filed an amended application that raised several grounds
for relief but did not raise the fair trial claim presented here. Attributing the
omission of the fair trial claim to a “fault in the word processor used by his
counsel,” Jones then filed—before the state-law deadline had passed—a
document styled Errata and Corrections to Amended Application, which
included the claim at issue here. After the deadline had passed, Jones filed a
supplemental application consolidating both previous filings for ease of
reference. This petition included evidence of the officers’ attendance at the
trial, but much of the evidence of media coverage that was included in Jones’s
federal petition was not included in his state application.
          The state trial court recommended that the TCCA deny relief on all of
Jones’s claims. The trial court’s recommendation noted that Jones “failed to
urge [the fair trial claim] as a point of error on direct appeal” and that in any
event, Jones had not shown that the presence of the officers was either
inherently or actually prejudicial.        The TCCA rejected Jones’s claim on
procedural grounds. Determining, without reference to the Errata, that the
fair trial claim was not raised until after the filing deadline for the state habeas
petition, it concluded that the supplemental application was a subsequent
application for writ of habeas corpus under section 5 of Texas Code of Criminal
Procedure article 11.071 and dismissed the fair trial claim as an abuse of the
writ. 5       The TCCA “also expressly reject[ed] all findings and conclusions
related” to the fair trial claim. 6
          Jones filed his initial federal habeas petition in 2006, and, after various
procedural delays not relevant here, the district court granted Jones a new



         Jones v. Texas, Nos. WR-62,589-01 & WR-62,589-02, slip op. at 2 (Tex. Crim. App.
          5

Oct. 26, 2005) (per curiam) (not designated for publication).
       6 Id.



                                           3
    Case: 15-70040       Document: 00514473761         Page: 4     Date Filed: 05/15/2018



                                     No. 15-70040
sentencing hearing based on his Penry claim and denied the remaining claims,
including the fair trial claim. 7 The district court held that federal review of
the fair trial claim was barred because the TCCA’s dismissal was based on an
independent and adequate state procedural ground, but it granted a certificate
of appealability (COA) on that issue. 8 This court affirmed the district court’s
grant of relief on Jones’s Penry claim. 9 Because the district court granted the
COA on the fair trial claim without making the required determination that
“reasonable jurists could find it debatable whether the petition states a valid
claim of the denial of a constitutional right,” we vacated the COA and
remanded the case for the district court to consider the question in the first
instance. 10 We dismissed or denied Jones’s cross-appeal and applications for
COAs on other claims. 11 On remand, the district court issued a COA supported
by appropriate findings. 12
      We subsequently held Jones’s fair trial claim was not procedurally
barred and remanded the case to the district court for a decision on the
merits. 13 The district court ordered supplemental briefing but denied Jones’s
motions for discovery and investigative services.                   The district court
subsequently determined that Jones was not entitled to relief on the fair trial
claim but issued a COA. 14




      7 Jones v. Thaler, 2011 WL 1044469, at *5, *18 (S.D. Tex. Mar. 3, 2011).
      8 Id. at *7.
      9 Jones v. Stephens, 541 F. App’x 399, 400 (5th Cir. 2013) (per curiam).
      10 Id. at 409-10.
      11 Id. at 413.
      12 Jones v. Stephens, 2014 WL 243251, at *2 (S.D. Tex. Jan. 22, 2014).
      13 Jones v. Stephens, 612 F. App’x 723, 729-30 (5th Cir. 2015) (per curiam).
      14 Jones v. Stephens, 2015 WL 6553855, at *5-6 (S.D. Tex. Oct. 28, 2015).



                                             4
     Case: 15-70040      Document: 00514473761        Page: 5    Date Filed: 05/15/2018



                                     No. 15-70040
                                           II
      The State contends that Jones’s fair trial claim is barred by the non-
retroactivity principle announced in Teague v. Lane, which precludes the
creation of “new constitutional rules of criminal procedure” on federal habeas
review. 15 The State argues that Jones seeks to have this court recognize the
applicability of the test announced in Holbrook v. Flynn 16 to purely private
spectator activity.      Jones counters that he relies on a rule of general
applicability to a specific set of facts but does not seek a new rule. 17 The State
acknowledges that it failed to raise this issue before the district court. This
court has previously determined, however, that “absent a compelling,
competing interest of justice in a particular case, a federal court should apply
Teague even though the State has failed to argue it.” 18
      It is not clear whether the challenged conduct is purely private. Jones’s
primary complaint is that the Houston Police Department officers were in their
uniforms during his trial. At the very least, this raises a question as to whether
there was some state involvement in the officers’ presence at trial. But this
court is not the proper court to consider this fact-bound issue in the first
instance. The State’s failure to present this issue in the district court, despite
raising it in a prior appeal before this court, and despite the district court’s
order to provide supplemental briefing on the fair trial claim, has prevented
the development of the record on this issue. Given this lack of development
below, we pretermit the Teague analysis and review the district court’s decision
on the merits.



      15 Teague v. Lane, 489 U.S. 288, 316 (1989) (plurality opinion); see also Chaidez v.
United States, 133 S. Ct. 1103, 1107 (2013).
      16 475 U.S. 560, 567-68 (1986).
      17 See Chaidez, 133 S. Ct. at 1107.
      18 Jackson v. Johnson, 217 F.3d 360, 363 (5th Cir. 2000).



                                            5
     Case: 15-70040        Document: 00514473761          Page: 6     Date Filed: 05/15/2018



                                        No. 15-70040
                                              III
       The TCCA expressly denied Jones’s fair trial claim on procedural
grounds and rejected “all findings and conclusions” made by the trial court with
respect to that claim. 19 The State asserts that much of the media-related
evidence Jones presented in his federal habeas petition should not be
considered because it was not presented to the state court and is therefore
barred from consideration under 28 U.S.C. § 2254(e)(2).                     “Although state
prisoners may sometimes submit new evidence in federal court, AEDPA’s
statutory scheme is designed to strongly discourage them from doing so.” 20
AEDPA limits a federal habeas court’s review of a claim that has been
adjudicated on the merits in state court to the state court record. 21 However,
the highest state court expressly rejected all findings and conclusions made by
the lower habeas court and decided the case on procedural grounds. 22 Because
there was no decision on the merits, 28 U.S.C. § 2254(d) is inapplicable to this
claim. 23 Similarly, because the TCCA decided the case on procedural grounds,
there was no “determination of a factual issue made by a State court” to which
the federal court could have deferred under § 2254(e)(1). 24


       19   Jones v. Texas, Nos. WR-62,589-01 & WR-62,589-02, slip op. at 2 (Tex. Crim. App.
Oct. 26, 2005) (per curiam) (not designated for publication).
         20 Cullen v. Pinholster, 563 U.S. 170, 186 (2011).
         21 28 U.S.C. § 2254(d).
         22 Jones, slip op. at 2.
         23 See Pinholster, 563 U.S. at 185-86 (explaining the difference in applicability of

§ 2254(d)(1) to cases decided on the merits and of § 2254(e)(2) to cases not decided on the
merits in state court); see also Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999) (determining
AEDPA to be inapplicable when the state court rejected the claim on purely procedural
grounds).
         24 28 U.S.C. § 2254(e)(1) (affording state court determinations of fact a presumption of

correctness); see Williams v. Quarterman, 551 F.3d 352, 358-59 (5th Cir. 2008) (explaining
that “a state habeas trial court’s factual findings do not survive review by the [TCCA] where
they [are] neither adopted nor incorporated into the appellate court’s peremptory denial of
relief”); see also Williams v. Taylor, 529 U.S. 420, 434-37 (2000) (holding that a prisoner who
does not diligently endeavor to develop material facts in state court cannot obtain an

                                               6
     Case: 15-70040        Document: 00514473761           Page: 7      Date Filed: 05/15/2018



                                         No. 15-70040
       The State points out that § 2254(e)(2) applies regardless of whether there
was a merits determination in state court. 25 Section 2254(e)(2) provides that
federal district courts “shall not hold an evidentiary hearing” to consider
evidence if the habeas applicant “has failed to develop the factual basis of a
claim in State court proceedings” unless the stringent requirements of
§ 2254(e)(2)(A) and (B) are met. 26 The Supreme Court has established that an
applicant “fail[s] to develop” the factual basis of claim if there is a “lack of
diligence” in presenting the evidence in state court. 27                   Section 2254(e)(2)
accordingly requires us to determine whether Jones was diligent in attempting



evidentiary hearing in federal court); Pinholster, 563 U.S. at 185-86 (explaining the difference
in applicability of § 2254(d)(1) and § 2254(e)(2), and noting that the latter retains significance
for cases not decided on the merits in state court); Fisher, 169 F.3d at 300 (holding that a
state court’s “awareness of, and explicit reliance on, a procedural ground to dismiss [the
petitioner’s] claim is determinative . . . and [the court] therefore cannot apply the AEDPA
deference standards to the state court’s findings and conclusions”).
        25 See Pinholster, 563 U.S. at 185-86.
        26 28 U.S.C. § 2254(e)(2) provides:

        If the applicant has failed to develop the factual basis of a claim in State court
        proceedings, the court shall not hold an evidentiary hearing on the claim unless
        the applicant shows that—
                (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.
        27 Williams, 529 U.S. at 432, 434-37 (“For state courts to have their rightful

opportunity to adjudicate federal rights, the prisoner must be diligent in developing the
record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do
so, himself or herself contributing to the absence of a full and fair adjudication in state court,
§ 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court,
unless the statute's other stringent requirements are met. Federal courts sitting in habeas
are not an alternative forum for trying facts and issues which a prisoner made insufficient
effort to pursue in state proceedings.”); see also Pinholster, 563 U.S. at 186; McDonald v.
Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998).

                                                7
     Case: 15-70040       Document: 00514473761         Page: 8    Date Filed: 05/15/2018



                                      No. 15-70040
to present the media reports in the state proceeding. 28 We conclude that he
was not.
       Jones failed to exercise due diligence by not introducing the media
reports until more than a decade after they were written, his attempts to
obtain discovery and investigative services notwithstanding. “Diligence for
purposes of the opening clause [of § 2254(e)(2)] depends upon whether the
prisoner made a reasonable attempt, in light of the information available at
the time, to investigate and pursue claims in state court.” 29 When the evidence
the applicant seeks to present before a federal tribunal could have been easily
obtained and introduced to the state court, the due diligence requirement is
not satisfied. In Holland v. Jackson, 30 for example, a habeas applicant sought
to introduce testimony to impeach the credibility of an eyewitness seven years
after his conviction. 31 The Supreme Court observed that under § 2254(e)(2), it
was “difficult to see . . . how [the applicant] could claim due diligence given the
7-year delay.” 32 Similarly, in Dowthitt v. Johnson, this court held that because
the applicant could have easily obtained and introduced the affidavits from
family members that he sought to introduce in federal court, he did not exercise
due diligence merely by requesting an evidentiary hearing in state habeas
proceedings. 33 A “reasonable person in [the applicant’s] place,” we said, would
have obtained the inexpensive affidavits and attempted to present them in
state court. 34




       28  See Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000) (“[T]he petitioner must
be diligent in pursuing the factual development of his claim.”).
        29 Williams, 529 U.S. at 435.
        30 542 U.S. 649 (2004).
        31 Id. at 653.
        32 Id.
        33 230 F.3d at 758.
        34 Id.

                                             8
    Case: 15-70040       Document: 00514473761           Page: 9     Date Filed: 05/15/2018



                                      No. 15-70040
      In this case, all of the articles that Jones seeks to produce were written
in 1991. Jones submitted his proposed conclusions of law on his fair trial claim
in the state-court proceedings on March 24, 2003—twelve years later—without
mentioning the articles. Jones did not introduce the articles until he filed his
federal habeas petition on June 11, 2009, approximately eighteen years after
the reports were published.          Jones’s lengthy delay in producing publicly-
available news reports does not constitute due diligence. That Jones requested
discovery and investigative services in federal district court does not mitigate
his lack of diligence in obtaining the eighteen-years-old media reports. 35 The
publicly-available reports could have been obtained easily and inexpensively
in the twelve years before Jones submitted his proposed conclusions of law to
the state court.
      Because Jones’s lack of diligence means he “failed to develop the factual
basis of a claim,” we must determine whether the media reports Jones proffers
in his federal habeas petition meet the stringent requirements of § 2254(e)(2).
They do not. Jones does not, and could not, allege that the media reports
concern “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.” 36
With regard to § 2254(e)(2)(A)(ii), the media reports Jones seeks to introduce
existed at the time of the state proceeding, so they do not constitute “a factual
predicate that could not have been previously discovered through the exercise
of due diligence.” 37 Because the media reports in Jones’s federal petition do
not satisfy the requirements of § 2254(e)(2)(A)’s conjunctive test, we do not
consider the reports.




      35 See id.
      36 28 U.S.C. § 2254(e)(2)(A)(i).
      37 Id. § 2254(e)(2)(A)(ii); Williams v. Taylor, 529 U.S. 420, 435-36 (2000).

                                              9
    Case: 15-70040       Document: 00514473761          Page: 10     Date Filed: 05/15/2018



                                       No. 15-70040
       We reach this conclusion even though the text of § 2254(e)(2) expressly
limits federal courts from conducting “evidentiary hearings” and Jones sought
only to include documentary evidence of the media reports in his federal
habeas petition.      In Holland, the Supreme Court rejected the applicant’s
attempts to introduce new evidence through means of a motion for a new trial
and observed that § 2254(e)(2)’s restrictions on federal-court fact-finding
“apply a fortiori when a prisoner seeks relief based on new evidence without
an evidentiary hearing.” 38 Accordingly, § 2254(e)(2) bars federal courts from
considering the media reports included in Jones’s federal petition.
                                             IV
       After carefully reviewing the record, we conclude that Jones’s fair trial
claim does not warrant habeas relief.
                                             A
       “A fair trial in a fair tribunal is a basic requirement of due process.” 39
Whenever a courtroom arrangement is challenged as inherently prejudicial,
the question must be not whether jurors actually articulated a consciousness
of some prejudicial effect, but rather whether “an unacceptable risk is
presented of impermissible factors coming into play.” 40                  A federal court
presented with a claim that the trial atmosphere was inherently prejudicial
may only “look at the scene presented to jurors and determine whether what
they saw was so inherently prejudicial as to pose an unacceptable threat to the



       38 Holland v. Jackson, 542 U.S. 649, 653 (2004); see also Boyko v. Parke, 259 F.3d 781,
790 (7th Cir. 2001) (“When expansion of the record is used to achieve the same end as an
evidentiary hearing, the petitioner ought to be subject to the same constraints that would be
imposed if he had sought an evidentiary hearing.”).
       39 Irvin v. Dows, 366 U.S. 717, 722 (1961) (quoting In re Murchison, 349 U.S. 133, 136

(1955)).
       40 Holbrook v. Flynn, 475 U.S. 560, 570 (1986) (quoting Estelle v. Williams, 425 U.S.

501, 505 (1976)).

                                             10
    Case: 15-70040        Document: 00514473761          Page: 11      Date Filed: 05/15/2018



                                        No. 15-70040
defendant’s right to a fair trial.” 41 The reviewing court should consider the
totality of the circumstances in rendering its decision. 42 The Supreme Court
addressed the presence of uniformed security personnel in the courtroom in
Holbrook v. Flynn. Determining that the officer’s presence was not inherently
prejudicial, 43 the Court noted that a “wide[] range of inferences” might be
drawn from officer presence in the courtroom, contrasting prior cases that had
focused on “unmistakable mark[s] of guilt” 44 such as prisoner attire, shackles,
and gags. 45 Without “minimiz[ing] the threat that a roomful of uniformed and
armed policemen might pose to a defendant’s chances of receiving a fair trial,” 46
the Court noted that a “case-by-case” approach, rather than a presumption of
prejudice, was appropriate. 47           Whether the officers’ presence created an
“unacceptable risk” of “impermissible factors coming into play” should be based
on an evaluation of the scene presented to the jury. 48 The mere presence of
four uniformed state troopers “quietly sitting in the first row of a courtroom’s
spectator section” was insufficient to create such a risk. 49
       More recently, in Carey v. Musladin, the Supreme Court considered a
state court ruling that buttons displaying the victim’s image worn by a victim’s
family during trial did not deny a defendant his right to a fair trial. 50 The state
appellate court applied the test announced in Flynn and, though noting that



       41 Id. at 572.
       42 See Sheppard v. Maxwell, 384 U.S. 333, 352 (1966).
       43 Flynn, 475 U.S. at 569, 572.
       44 Id. at 569, 571 (citing Williams, 425 U.S. at 518).
       45 Id. at 568-69 (noting various practices that are a threat to the fairness of the trial,

including forcing the defendant to appear in prisoner’s clothing throughout trial and binding
and gagging the defendant before the jury).
       46 Id. at 570-71.
       47 Id. at 569.
       48 Id. at 570-71.
       49 Id. at 571.
       50 549 U.S. 70 (2006).



                                              11
    Case: 15-70040       Document: 00514473761        Page: 12     Date Filed: 05/15/2018



                                      No. 15-70040
button-wearing should be discouraged, determined that the buttons had not
resulted in inherent prejudice to the defendant. 51 On federal habeas review,
the Ninth Circuit, citing its own precedent, concluded that the state court’s
application of Flynn “was contrary to, or involved an unreasonable application
of, clearly established federal law.” 52 The Supreme Court pointed out that the
application of the test to spectators was “an open question” in its jurisprudence
and observed that the “lack of guidance” on the issue had resulted in divergent
treatment of spectator conduct claims in lower courts. 53 It vacated the Ninth
Circuit’s judgment because “[n]o holding of [the Supreme Court] required the
California Court of Appeal to apply the test of Williams and Flynn” to spectator
conduct. 54
       In Musladin, the Supreme Court suggested that Flynn might not apply
to claims involving purely spectator conduct, but it did not affirmatively
resolve that issue, nor did it have occasion to consider the test’s applicability
to cases involving conduct, like that at issue in this case, that is neither clearly
private nor clearly state action. 55 The Supreme Court has recognized that a
“carnival atmosphere,” 56 “considerable disruption,” 57 or a case in which the
trial judge “los[es] his ability to supervise [the trial] environment” 58 may
provide a basis for relief in contexts involving the conduct of the press and the
public during trial, 59 suggesting activity not attributable to the state may



       51  Id. at 73.
       52  Id. at 73-74 (quoting 28 U.S.C. § 2254(d)(1)).
        53 Id. at 76 (suggesting that Flynn and Williams might apply only to state-sponsored

practices, but concluding only that the state court had not unreasonably applied the Flynn
test in denying relief to the petitioner).
        54 Id. at 77.
        55 Id. at 76.
        56 Sheppard v. Maxwell, 384 U.S. 333, 358 (1966).
        57 Estes v. Texas, 381 U.S. 532, 536 (1965).
        58 Sheppard, 384 U.S. at 355.
        59 Estes, 381 U.S. at 536.

                                            12
    Case: 15-70040       Document: 00514473761          Page: 13     Date Filed: 05/15/2018



                                       No. 15-70040
provide a viable basis for a due process claim premised on the violation of the
right to a fair trial.
       Our court has not previously assessed the merits of a fair trial claim
premised on the conduct of persons in the gallery, though we did note in Mata
v. Johnson that “the combined effects of excessive pretrial publicity,
conspicuous presence of heavily armed security personnel in and around the
courtroom, installation of surveillance and metal detectors for the duration of
the trial, and the intimidating presence of 30–40 uniformed prison guards as
spectators in the courtroom throughout [the] trial” could provide the basis of a
cognizable constitutional claim. 60 Though we ultimately remanded the case
for the district court to hold an evidentiary hearing, there was no further
development of the fair trial claim in federal court. 61
       Jones relies heavily on the Eleventh Circuit’s opinion in Woods v.
Dugger, referenced by this court’s opinion in Mata. 62 The petitioner in Woods
was tried for the murder of a prison guard. 63 The trial occurred in a rural
county of just over 10,000 people, one-third of whom were prisoners, where the
prison system constituted a substantial portion of the local economy. 64 The
jurors were all drawn from the county where the guard was killed and where,
prior to the trial, the officer’s death had “bec[o]me a focal point for the lobbying
efforts” of the local correctional facility’s employee union. 65 The officer’s sister
had circulated a petition, which garnered more than 5,000 signatures, calling


       60  Mata v. Johnson, 99 F.3d 1261, 1271 (5th Cir. 1996) (citing Woods v. Dugger, 923
F.2d 1454 (11th Cir. 1991)), vacated in part on reh’g, 105 F.3d 209 (5th Cir. 1997).
        61 See Mata v. Johnson, 210 F.3d 324 (5th Cir. 2000) (considering petitioner’s

competency to waive collateral review);
        62 See Mata, 99 F.3d at 1271 n.34.
        63 Woods, 923 F.2d at 1455.
        64 Id. at 1457-58.
        65 Id. at 1458 (noting that most of the jurors who were excused either had relatives or

close friends who worked in the prison system, knew of the case, or knew witnesses).

                                             13
    Case: 15-70040      Document: 00514473761         Page: 14    Date Filed: 05/15/2018



                                     No. 15-70040
for the death penalty for those who kill prison guards. 66 Of the jurors finally
selected, only four neither knew of the case nor had relatives working in the
prison system. 67     Photographs of the trial showed that the gallery was
completely filled with spectators, about half of whom were uniformed prison
guards, 68 and the trial judge had to admonish the spectators to be quiet several
times. 69
      The Eleventh Circuit determined that “prejudice ar[ose] from the
presence of the uniformed corrections officers in the context of a trial being
held in the midst of an angry community.” 70 The court distinguished the
presence of the correctional officers from the additional security in Flynn,
noting that the correctional officers in this case were not providing security or
escorting witnesses; rather, they were present solely to “show solidarity with
the killed correctional officer” and to communicate to the jury that they
“wanted a conviction followed by the imposition of the death penalty.” 71 This
scene, combined with the extensive pre-trial publicity, resulted in the
conclusion that the trial presented an extreme case that posed “an
unacceptable risk [of] impermissible factors coming into play.” 72
        In Hill v. Ozmint, the Fourth Circuit addressed a fair trial claim based
on a large number of uniformed officers in the courtroom and courthouse
during trial. 73 Hill was on trial for the murder of a police officer in a small



      66   Id. (noting, however, that not all the signatures were from the county where the
officer was killed).
        67 Id.
        68 Id.
        69 Id. at 1459.
        70 Id.
        71 Id. at 1459-60.
        72 Id. at 1459 (quoting Holbrook v. Flynn, 475 U.S. 560, 570 (1986)) (alteration in

original).
        73 339 F.3d 187, 197-98 (4th Cir. 2003).



                                            14
    Case: 15-70040       Document: 00514473761         Page: 15   Date Filed: 05/15/2018



                                      No. 15-70040
town and challenged the fairness of his trial in light of pretrial publicity and
“rampant . . . emotionalism” in a small community. 74 Though the community
was “greatly impacted,” nothing in the record suggested the courtroom was
filled with officers or that those present were not dispersed. 75 Further, the
witnesses were not sequestered, and many officers testified, making their
presence in court less likely to suggest the defendant’s guilt. 76 The Court
determined that the scene presented to the jury did not unacceptably threaten
Hill’s right to a fair trial. 77
       In United States v. Thomas, the Seventh Circuit addressed a fair trial
claim premised on the presence of uniformed firefighters, applying many of the
same factors considered in similar cases, but without citing Flynn. 78 The
victim’s son was a firefighter, and approximately twenty uniformed firefighters
attended closing arguments. 79          Though there were no objections to their
presence at closing, the defense moved for a new trial after the verdict. 80 The
appellate court noted that no reference to the firefighters’ presence in the
courtroom had been made in closing arguments, they had not in any way
disrupted the proceedings, and nothing suggested they were there for any
reason other than to show support for one of their own. 81 The court also noted
that no evidence was put forth as to the size of the courtroom or what
proportion of the spectators were firemen. 82 The court concluded that the
defendant’s fair trial claim should be denied. 83


       74 Id. at 198 (internal quotation marks omitted).
       75 Id. at 200.
       76 Id.
       77 Id.
       78 794 F.3d 705, 710 (7th Cir. 2015).
       79 Id.
       80 Id.
       81 Id.
       82 Id.
       83 Id.

                                             15
    Case: 15-70040    Document: 00514473761        Page: 16   Date Filed: 05/15/2018



                                  No. 15-70040
                                        B
      In the present case, the district court found that “uniformed police
officers were a visible portion of the spectators in th[e] case,” ranging from “one
quarter [to] one-third of the spectators,” but that nothing “suggest[ed] that
their presence or any pretrial publicity had any undue influence or effect on
the jury.”   The district court further reasoned that “Jones was tried in
Houston—one of the largest cities in the United States—with a jury pool drawn
from the even larger Harris County, Texas” and that “Jones points to no
evidence that any juror had a friend or relative who was a police officer.”
Resting much of its opinion on a comparative analysis of the Eleventh Circuit
decision in Woods, the district court concluded that Jones “fail[ed] to
demonstrate inherent prejudice in his trial” and denied habeas relief.
      We note that the record does not fully support the district court’s
assertion that no jurors had friends of relatives who were officers; however,
this discrepancy does not change the outcome of this case because only
inherent prejudice has been alleged.      Our independent review of the record
supports the district court’s other conclusions.
      Jones’s evidence shows that uniformed officers attended each day of
Jones’s trial. The number of officers in attendance varied, but the highest
estimates were “between fifteen and twenty five,” comprising between one-fifth
and one-third of the spectators. According to one account, officers often arrived
early to reserve the first two rows of seating, and some stood against the
courtroom walls when no seating was available.
      Jones’s argument that the jury could only infer from the officers’
presence that they demanded a guilty verdict is unpersuasive, not least
because it contradicts his own assertions made to the state court, wherein he
alleged the officers might have been present out of curiosity or in support of
the family. Other courts have declined to find the mere presence of officers in
                                        16
    Case: 15-70040        Document: 00514473761           Page: 17      Date Filed: 05/15/2018



                                        No. 15-70040
a courtroom sufficient to support inherent prejudice, 84 and the record before us
does not suggest the police presence intimidated the jury or disrupted the fact-
finding process in any way. 85
                                               C
       Even assuming that § 2254(e)(2) does not bar this court’s consideration
of the media-related evidence presented for the first time in Jones’s federal
habeas petition, his fair trial claim still fails.
       There was extensive newspaper coverage of the aftermath of the
shooting, the officer’s eventual death and funeral, and the investigation and
arrest of Jones. Jones also offers several articles reporting on voir dire and the
commencement of trial. The majority of the articles offer positive support for
the officer—calls for blood donations or commentary on the need for better
procedures to ensure officer safety. The pre-trial articles that do mention
Jones are written in a measured, factual manner, and note that the prosecution
was attempting to avoid the kind of publicity that had resulted in a change of
venue in another case. Jones cites to only one inflammatory remark, made
shortly after the officer died, in a letter to the editor—a comment that “a tall
tree and short rope” would be appropriate for Jones. Another article that Jones
suggests calls for his death merely reports that two suspects had been



       84  See Smith v. Farley, 59 F.3d 659, 664 (7th Cir. 1995) (“[I]f you kill a policem[a]n and
are put on trial for the crime, you must expect the courtroom audience to include policemen.”);
Howard v. State, 941 S.W.2d 102, 118 (Tex. Crim. App. 1996) (en banc) (“[T]his Court cannot
hold that the mute and distant presence of twenty peace officers—comprising roughly one-
fifth of the spectator gallery—is prejudicial, per se, without some other indication of
prejudice.”), on reh’g (Dec. 18, 1996) (en banc), overruled on other grounds by Easley v. State,
424 S.W.3d 535 (Tex. Crim. App. 2014), holding modified by Simpson v. State, 119 S.W.3d
262 (Tex. Crim. App. 2003).
        85 Cf. Sheppard v. Maxwell, 384 U.S. 333, 354 (1966) (noting that “bedlam reigned” in

the courtroom, members of the media “hound[ed]” the trial participants, and a press table
was set up inside the bar in the courtroom); Woods v. Dugger, 923 F.2d 1454, 1459 (11th Cir.
1991) (noting that the trial judge had to admonish the spectators to keep quiet).

                                               17
    Case: 15-70040      Document: 00514473761         Page: 18    Date Filed: 05/15/2018



                                     No. 15-70040
previously charged with attempted capital murder, and, as the officer had died,
it was expected that the charges would be upgraded to capital murder. Jones
provided no evidence of any additional publicity for the nearly six months
between the officer’s death and the start of trial. Articles concerning the trial
itself were likewise objective, reporting on a suppression hearing and the start
of voir dire.
      Jones does not allege the kind of harassing publicity, “carnival
atmosphere,” 86 or “considerable disruption” the Supreme Court has recognized
as unacceptable in contexts involving the press and the public. 87 Nor does he
suggest that the trial judge “lost his ability to supervise [the trial]
environment.” 88 Rather, Jones argues that the pretrial publicity shows the
community was “angry” and “organized behind convicting . . . Mr. Jones.”
However, the evidence, even if considered in the light most favorable to Jones,
does not support this allegation.
      Though it is clear from the press that the community at large was aware
of and troubled by the shooting, Houston, one of the largest cities in the
country, was not a small, close-knit community like that in Woods or Hill. 89
The lack of extensive publicity leading up to the trial further undermines the
argument that the community was “angry” or “organized” with respect to the
shooting of the officer at the time of trial. The trial court questioned each panel
of veniremen about its exposure to the case, and most members of the venire
remembered very little about the case other than the name of the officer who
was killed.




      86 Sheppard, 384 U.S. at 358.
      87 Id. at 353-55; Estes v. Texas, 381 U.S. 532, 536 (1965).
      88 Sheppard, 384 U.S. at 355.
      89 See Jones v. Stephens, 2015 WL 6553855, at *5 (S.D. Tex. Oct. 28, 2015).

                                           18
    Case: 15-70040       Document: 00514473761         Page: 19     Date Filed: 05/15/2018



                                      No. 15-70040
       Finally, media reports suggest some of the officers present may have
worn a black cloth or shroud over their badges with the motto “Nemo me
impune lacessit,” Latin for “no one assails me with impunity.” Jones makes
much of this possibility. Setting aside the dubious assumption that the jurors
could read the words from the jury box and understood Latin, we decline to
hold that mere adornment with a sign of mourning is sufficient to prejudice a
defendant’s right to a fair trial. 90
       Considering the totality of the circumstances at Jones’s trial 91—even
including the media coverage leading up to the trial and the dress of the officers
in attendance—the scene presented does not support a finding of inherent
prejudice. 92 We are mindful of the statement in Flynn that, when reviewing a
state court proceeding, “[a]ll a federal court may do . . . is look at the scene
presented to jurors and determine whether what they saw was so inherently
prejudicial as to pose an unacceptable threat to defendant’s right to a fair
trial.” 93 Jones has not shown that the presence of uniformed officers observing
a criminal trial in solidarity with a fallen officer is such a threat.




       90  See, e.g., In re Woods, 114 P.3d 607, 616-17 (Wash. 2005) (en banc) (holding that
black and orange ribbons without inscription did not express an opinion about the defendant’s
guilt or innocence and, thus, did not cause inherent prejudice); Davis v. State, 223 S.W.3d
466, 474-75 (Tex. App.—Amarillo 2006, pet. dism’d) (rejecting the petitioner’s assertion that
the presence of spectators wearing medallions with the deceased officer’s picture created
inherent prejudice). But see Norris v. Risley, 918 F.2d 828, 830-31 (9th Cir. 1990) (holding
that spectator buttons reading “Women Against Rape” inherently prejudiced the defendant).
        91 See Sheppard, 384 U.S. at 352.
        92 Cf. Mata v. Johnson, 99 F.3d 1261, 1271 & n.34 (5th Cir. 1996) (noting “with some

consternation” that the factual situation described by the petitioner, which was “virtually
indistinguishable” from that in Woods v. Duggar, could “provide the basis of a cognizable
constitutional claim” and remanding the case for an evidentiary hearing after determining
the state’s procedural dismissal did not bar federal review of the claim), vacated in part on
reh’g, 105 F.3d 209 (5th Cir. 1997).
        93 Holbrook v. Flynn, 475 U.S. 560, 572 (1986).



                                             19
    Case: 15-70040        Document: 00514473761           Page: 20      Date Filed: 05/15/2018



                                        No. 15-70040
                                               V
       Jones also appeals the district court’s denial of additional investigative
funding and discovery, arguing that summary judgment was premature absent
further record development. We disagree. After our remand of the case for
consideration of the merits, Jones sought funds for an investigator to conduct
witness interviews and subpoenas for archived media records of the trial.
These requests were denied
       A federal habeas “judge may, for good cause, authorize a party to conduct
discovery.” 94 A petitioner seeking funding for investigative services must show
that the requested services are “reasonably necessary.” 95 The Supreme Court
has recently explained that this phrase “calls for . . . a determination by the
district court, in the exercise of its discretion, as to whether a reasonable
attorney would regard the services as sufficiently important.” 96 The Court
continued, “[p]roper application of the ‘reasonably necessary’ standard thus
requires courts to consider the potential merit of the claims that the applicant
wants to pursue, the likelihood that the services will generate useful and
admissible evidence, and the prospect that the applicant will be able to clear
any procedural hurdles standing in the way.” 97 However, “the ‘reasonably
necessary’ test requires an assessment of the likely utility of the services




       94  Rule 6(a) of Rules Governing § 2254 Cases.
       95  18 U.S.C. § 3599(f) (providing, in part, that “[u]pon a finding that investigative,
expert, or other services are reasonably necessary for the representation of the defendant,
whether in connection with issues relating to guilt or the sentence, the court may authorize
the defendant's attorneys to obtain such services on behalf of the defendant and, if so
authorized, shall order the payment of fees and expenses therefor under subsection (g).”).
        96 Ayestas v. Davis, __ S.Ct. __, __ (slip op. 15-16) (March 21, 2018); see also id. at __

(slip op. 17) (“A natural consideration informing the exercise of that discretion is the
likelihood that the contemplated services will help the applicant win relief.”).
        97 Id. at __ (slip op. 17-18).



                                               20
   Case: 15-70040       Document: 00514473761         Page: 21        Date Filed: 05/15/2018



                                     No. 15-70040
requested, and § 3599(f) cannot be read to guarantee that an applicant will
have enough money to turn over every stone.” 98
      The district court did not abuse its discretion in denying investigative
services because Jones did not show those services were “reasonably
necessary” to develop his fair trial claim. Jones claims that officer presence
during his trial and pre-trial publicity inherently prejudiced his trial. In his
request for investigative services, he notes that the record contains affidavits
of six witnesses as well as multiple media accounts of the number of officers
present in the courtroom. This evidence documents the officers’ positions and
conduct during trial as well as the number present.                       Jones requested
investigative services to interview some 15-20 additional witnesses about the
“courtroom environment,” citing the “somewhat differing accounts” provided
by the current record. However, Jones offers the court no reason the additional
interviews (now 25 years later) would be any more precise or offer less
variation than the accounts he already has. Because we determine he is not
entitled to relief even under the most favorable view of the facts, we see no
purpose served by additional discovery on these issues. 99
      Jones also seeks to subpoena several media outlets to obtain any
archived press coverage, photographs, or video footage from the trial, evidence
which he claims will show the number of officers, their ratio to civilians, and
their location relative to the jury. We note that, upon objection by both parties,
the state trial court specifically disallowed a camera during closing arguments.
Based on the exchange between counsel and the court at that time, there is no
reason to believe cameras were allowed during any other part of the
proceedings prior to sentencing. 100 Further, the articles attached to Jones’s


      98 Id. at __ (slip op. 18).
      99 See Smith v. Dretke, 422 F.3d 269, 288-89 (5th Cir. 2005).
      100 Id.

                                            21
   Case: 15-70040     Document: 00514473761        Page: 22   Date Filed: 05/15/2018



                                    No. 15-70040
petition indicate that at least some are from periodical archives. Jones has
offered no explanation as to how this information is incomplete, or why there
is a reasonable expectation that additional requests would yield differing
information.
      The evidence provided in the habeas petition itself provides the court
with sufficient information as to the number, location, and ratio of officers in
the courtroom—that is, the scene presented to the jury. The evidence also
provides sufficient evidence of the type and quantity of publicity. Jones fails
to show how the discovery he seeks would do more than supplement that which
he has already provided and offers no explanation for why he failed to seek
discovery on these issues until now. We therefore conclude that the district
court did not abuse its discretion in denying discovery, nor did it err in resting
its conclusion on the evidence presented in the federal habeas petition.
                                *        *         *
      For the foregoing reasons, we AFFIRM the judgment of the district court
denying habeas relief on Jones’s fair trial claim.




                                        22
