     Case: 13-70022      Document: 00512802322         Page: 1    Date Filed: 10/14/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-70022                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
RAPHAEL DEON HOLIDAY,                                                    October 14, 2014
                                                                      Lyle W. Cayce
                                                 Petitioner–Appellant      Clerk
v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent–Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-01696


Before JONES, CLEMENT, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:*
       Petitioner Raphael Holiday (“Holiday”) was convicted on multiple counts
of capital murder and sentenced to death in Texas. He applies to this Court
for a certificate of appealability (“COA”) for numerous claims on which the
district court denied him habeas relief and denied him a COA. For the reasons
below, we deny Holiday’s application on each claim he presents.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-70022
         I.   FACTUAL AND PROCEDURAL BACKGROUND
      Tami Lynn Wilkerson (“Wilkerson”) and Holiday lived together with
Wilkerson’s two daughters, Tierra and Jasmine, and with Wilkerson and
Holiday’s baby, Justice. Holiday v. State, Nos. AP-74,446, 74,447, 74,448, 2006
Tex. Crim. App. Unpub. LEXIS 737, *2–3 (Tex. Crim. App. Feb. 8, 2006)
(hereinafter “TCCA Direct App.”). Their home was about a mile or two from
the home of Wilkerson’s mother, Beverly Mitchell (“Mitchell”). At the time of
the instant offenses, Tierra was seven years old, and Jasmine five. Id. at *3.
      On direct appeal, the Texas Court of Criminal Appeals (“TCCA”)
summarized the evidence leading up to the instant offenses as follows:
      In March of 2000, Wilkerson learned that Holiday had sexually
      assaulted Tierra. Wilkerson filed charges against Holiday and
      obtained a protective order against him. Wilkerson continued to
      live in the house in Madison County and Holiday moved out. In
      the following months, Holiday repeatedly contacted Wilkerson by
      phone, stating that he wanted to reconcile and that he wanted to
      see Justice, and threatening to come to the house while the
      children were at home. Despite the protective order, Wilkerson
      met with Holiday numerous times between April and the end of
      August, in an effort to “handle” Holiday and deal with his threats,
      and to allow him to see Justice. In August, Holiday came to the
      restaurant where Wilkerson was working. Wilkerson locked
      herself in the office. When Holiday tried to pick the lock on the
      office door, Wilkerson called the police, who came and removed
      Holiday from the premises. About a week before the instant
      offenses, Holiday called Wilkerson and asked for her help in
      jumping his car. When Wilkerson arrived to assist him, Holiday
      took her keys, told her he had two guns, forced her to have sex with
      him, and then forced her into the car and threatened to crash the
      car and kill them both. Wilkerson finally convinced Holiday to let
      her go. After that incident, Wilkerson stopped taking Holiday’s
      phone calls.
Id. at *3–4. The TCCA then summarized the events surrounding the offenses
as follows:


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                            No. 13-70022
 Around 11 p.m., on the evening of September 5, 2000, one of
 Wilkerson’s daughters heard glass breaking outside. Wilkerson
 looked out of the window and saw a figure walking toward the
 house. She called her mother, Beverly Mitchell, and asked her to
 come over. Mitchell and Wilkerson’s uncle, Terry Keller [“Keller”],
 soon arrived at Wilkerson’s house. Keller had a shotgun and began
 walking around the house and yard. Mitchell took Tierra and
 Jasmine to her car. When she went back inside the house to get
 Justice, she picked up the telephone to dial 911. As she was
 holding the phone, Holiday walked in, grabbed the phone out of
 her hand, and threw it against the wall. When Wilkerson came
 into the room and saw Holiday, she ran out of the house to go for
 help. Holiday asked Mitchell how she had known to come to the
 house because Holiday said he had cut the phone line. Holiday
 said he was going to make Wilkerson pay for what she had done
 by taking his baby away. When Keller came into the house,
 Holiday held Mitchell in a head-lock with a gun to her head until
 Keller put his gun down and Holiday retrieved it. Keller testified
 that Holiday began “ranting and raving” that he was not “going to
 take the rap” on the charges filed against him, that he was “going
 to take care of it,” and that he was “going to burn the house down
 with everyone in it.” Holiday then poured gasoline around and on
 the hood of the car where Tierra and Jasmine were. He again said
 Wilkerson was going to pay for what she had done. He tried to
 light the gasoline, but it would not ignite. Holiday forced everyone
 back into the house, shooting off the guns as they went. He ordered
 everyone to sit on the couch and told them to stay there. He told
 Keller that if he left, he would kill Mitchell. Holiday made
 repeated threats to kill everyone if the police came. He then
 ordered Mitchell to take him to her house to get some more
 gasoline. They retrieved two five gallon cans of gasoline and
 returned to Wilkerson’s house. Keller was gone, but the girls were
 still on the couch. Holiday told Mitchell to “soak” the recliner and
 furniture with the gas. Mitchell poured gas on the recliner in the
 living room, poured it around the room, into the laundry room and
 around the washer and dryer, and into and around Wilkerson’s
 bedroom. She did not pour any gasoline on or around the couch
 where the children were sitting. She saw Holiday bend down and
 then the fire started. The fire followed the path of the gasoline,
 and blocked Mitchell from going back into the living room for the
 children. Mitchell ran outside. Holiday was standing outside

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                                 No. 13-70022
      watching the fire. He told Mitchell to get in the car, but she ran
      into the woods. Holiday left in Mitchell’s car as police were
      arriving. He rammed a police car and drove off.
      In the meantime, Wilkerson had run to the nearest neighbor’s
      house for help. The neighbors called 911. As Wilkerson ran back
      down the road to her house, she saw Mitchell’s car coming toward
      her. The car sped up and attempted to run her down but Wilkerson
      escaped into the woods. The car backed up and sped off as it was
      pursued by a police car. When Wilkerson arrived back at her
      house, it was engulfed in flames. Wilkerson’s three children died
      in the fire.
      Holiday was apprehended by police after a high-speed chase.
      Holiday had two cigarette lighters in his pocket when he was
      arrested. He was treated for burns on his arms, hands, and face.
      Holiday’s pistol and Keller’s shotgun were found later inside the
      house.
Id. at *4–7.
      The State of Texas (“State”) brought three charges of capital murder, in
three separate indictments, for the deaths of each of the three children.
Holiday v. Stephens, No. H-11-1696, 2013 U.S. Dist. LEXIS 98004, *6 (S.D.
Tex. July 10, 2013) (hereinafter “Dist. Ct. Op.”). Each indictment alleged the
capital murder of one of the three children and that Holiday “intentionally or
knowingly cause[d] the death of [the named victim] by burning said individual
with fire.” Id. One indictment charged Holiday with murdering more than one
person during the same criminal transaction, and each of the other two
indictments charged the murder of an individual under the age of six. Id.
      According to the district court on federal habeas review, Holiday’s intent
was “hotly” disputed at trial. Id. The district court summarized the dispute
as follows:
      The prosecution emphasized statements Holiday made
      foreshadowing the murder. The State highlighted Holiday’s
      actions and statements during the crime that manifested a
      murderous intent. The prosecution presented scientific evidence

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                                  No. 13-70022
      excluding the possibility that an appliance had accidentally ignited
      the gasoline. Importantly, Ms. Mitchell testified that she saw
      Holiday “ben[d] down and the fire started.” She did not see a
      match or a lighter in his hand, but the fire started “immediately
      as he reached down.”
      The defense argued that reasonable doubt existed as to whether
      Holiday intended to ignite the gasoline and kill the children. The
      defense challenged Ms. Mitchell’s recollection because she had
      previously recounted the events of that evening without
      mentioning that Holiday bent down before the fire started. The
      defense presented testimony from a fire expert who opined that
      nearby appliances may have accidentally ignited the gasoline
      fumes. The jury, nonetheless, found Holiday guilty on each count
      of capital murder.
Id. at *6–9 (alteration in original) (citations omitted).
      In June 2022, a jury convicted Holiday of capital murder. Though the
three cases were tried together, the jury received a separate charge for each
case, and the court rendered three separate judgments.
      In a separate penalty phase, the jury considered evidence pertaining to
mitigation and future dangerousness, and determined Holiday’s sentence. The
district court summarized the evidence presented during the penalty phase as
follows:
      The State adduced evidence that Holiday confessed to another
      inmate that he had actually sexually assaulted Tierra twice. In
      addition, Holiday had previously sexually assaulted his maternal
      aunt and a cousin. His criminal behavior toward family members
      also included a physical assault on his mother. A forensic
      psychiatrist testified that Holiday suffered from an antisocial
      personality disorder, rendering him likely to commit violent acts
      in the future.
      The defense called several witnesses in an effort to mitigate
      against a death sentence. Friends and family members provided
      background information about Holiday’s childhood, describing him
      as a respectful, church-going individual. The defense also secured
      the services of a psychiatrist who testified that Holiday suffered
      from depression and had poor internal mechanisms for coping with
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                                   No. 13-70022
      stress and frustration. The defense’s closing argument urged the
      jury to give Holiday a life sentence.
Dist. Ct. Op. at *9–10. The jury answered special issues pursuant to Article
37.071 of the Texas Code of Criminal Procedure and the trial court, based on
those answers, sentenced Holiday to death.
      On direct, automatic appeal, the TCCA affirmed Holiday’s conviction and
sentence. Dist. Ct. Op. at *10–11. The United States Supreme Court denied
his petition for a writ of certiorari. Id. at *11.
      While his direct appeal was pending, Holiday filed an application for
state habeas corpus relief. The state habeas trial court denied relief. In doing
so, the court forewent an evidentiary hearing and adopted the State’s proposed
findings of fact and conclusions of law, which recited much of the TCCA’s
opinion on direct appeal. In turn, the TCCA adopted the state habeas court’s
recommendation to deny Holiday’s application for writ of habeas corpus. Dist.
Ct. Op. at *11.
      Holiday then filed a federal petition for a writ of habeas corpus that the
district court denied on July 10, 2013. The district court also denied Holiday
a COA on each of his claims. Holiday now asks this Court to issue a COA on
numerous claims.
         II.   JURISDICTION AND STANDARD OF REVIEW
      To appeal the district court’s denial of his habeas petition, Holiday must
first obtain a COA pursuant to 28 U.S.C. § 2253(c)(1). See Miller–El v. Cockrell,
537 U.S. 322, 335–36 (2003). Because the district court did not grant a COA
on any of Holiday’s claims, we have jurisdiction at this juncture only to
consider whether a COA should issue on any of his claims. E.g., 28 U.S.C.
§ 2253(c); Miller–El, 537 U.S. at 335–36.
      A COA may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner

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                                 No. 13-70022
satisfies this standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller–El, 537 U.S. at 327.
      Specifically, “the petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims
debatable or wrong.” Feldman v. Thaler, 695 F.3d 372, 377 (5th Cir. 2012)
(alteration omitted) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The
issue is “the debatability of the underlying constitutional claim, not the
resolution of that debate.” Miller–El, 537 U.S. at 342. Indeed, “a claim can be
debatable even though every jurist of reason might agree, after the COA has
been granted and the case has received full consideration, that petitioner will
not prevail.” Id. at 338. Thus, this Court’s examination is a “threshold inquiry
[that] does not require full consideration of the factual or legal bases adduced
in support of the claims,” but rather “an overview of the claims in the habeas
petition and a general assessment of their merits.” Id. at 336. “In death
penalty cases, any doubts as to whether the COA should issue are resolved in
favor of the petitioner.” Moore v. Quarterman, 534 F.3d 454, 460 (5th Cir.
2008).
      “[T]he determination of whether a COA should issue must be made by
viewing the petitioner’s arguments through the lens of the deferential scheme
laid out in 28 U.S.C. § 2254(d).” Barrientes v. Johnson, 221 F.3d 741, 772 (5th
Cir. 2000). Section 2254(d) provides that a state prisoner’s application for a
writ of habeas corpus “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”:




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                                  No. 13-70022
      (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).
      Section 2254(d)(1) encompasses two distinct inquiries. A state court
decision is “contrary to” clearly established federal law “if ‘the state court
arrives at a conclusion opposite to that reached by [the Supreme Court] on a
question of law or if the state court decides a case differently than [the
Supreme Court] has on a set of materially indistinguishable facts.’” Hoffman
v. Cain, 752 F.3d 430, 437 (5th Cir. 2014) (alterations in original) (quoting
Williams v. Taylor, 529 U.S. 362, 413 (2000)). By contrast, a state court
decision “involves an ‘unreasonable application’ of clearly established federal
law if ‘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.’” Id. at 437 (alterations in original) (quoting Williams,
529 U.S. at 413). As to this latter inquiry, we “focus on ‘the ultimate legal
conclusion that the state court reached and not on whether the state court
considered and discussed every angle of the evidence.’” Id. (quoting Neal v.
Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc) (per curiam)).            To
determine whether the state court unreasonably applied a Supreme Court
decision, a federal habeas court “must determine what arguments or theories
supported or, . . . could have supported, the state court’s decision; and then it
must ask whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision of
[the Supreme Court].” Harrington v. Richter, 131 S. Ct. 770, 786 (2011).


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                                  No. 13-70022
       A challenge to a state court decision under § 2254(d)(2) challenges the
state court’s determination of the facts. “[A] determination of a factual issue
made by a State court shall be presumed to be correct” and the petitioner “shall
have the burden of rebutting the presumption of correctness by clear and
convincing evidence.”    28 U.S.C. § 2254(e)(1).     “Section 2254(e)(1) is the
‘arguably more deferential standard.’” Hoffman, 752 F.3d at 437 (quoting
Wood v. Allen, 558 U.S. 290, 301 (2010)). A factual determination is “not
unreasonable merely because the federal habeas court would have reached a
different conclusion in the first instance.” Wood, 558 U.S. at 301.
       Overall, § 2254(d) establishes a “highly deferential standard for
evaluating state court rulings, which demands that state-court decisions be
given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
(citation and internal quotation marks omitted).      Indeed, state courts are
presumed to “know and follow the law.” Id. The petitioner has the burden of
showing that “there was no reasonable basis for the state court to deny relief.”
Richter, 131 S. Ct. at 784. “For claims that are not adjudicated on the merits
in the state court,” however, we do not apply the deferential scheme laid out
under § 2254(d) and instead “apply a de novo standard of review.” Hoffman,
752 F.3d at 437 (citation omitted).
                           III.   DISCUSSION
       Holiday’s application for a COA raises numerous claims for appeal. We
address Holiday’s claims by referring to his original numbering, and grouping
certain claims together where appropriate.
 A.    Sufficiency of the Indictments (Claims 5 and 6)
       In claims 5 and 6, Holiday challenges the sufficiency of the indictments.
The Sixth Amendment requires only that a “reasonable construction of the
indictment would charge the offense for which the defendant has been
convicted.” McKay v. Collins, 12 F.3d 66, 69 (5th Cir. 1994) (citation omitted).
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                                  No. 13-70022
This standard should be applied with practical, not technical considerations.
Id. Thus, the indictment “need not be expressed in any specific terms,” but
need only include the “essential elements of the offense” under state law. Id.
(citation omitted). We look to the “plain and sensible meaning of the language
used” in the indictment, and bear in mind that this test “involves minimal
constitutional standards, not whether a better indictment could have been
written.” Id. (citations and internal quotation marks omitted). We will not
consider such claims, however, “[w]hen it appears . . . that the sufficiency of
the indictment was squarely presented to the highest court of the state on
appeal, and that court held that the trial court had jurisdiction over the case.”
Alexander v. McCotter, 775 F.2d 595, 598 (5th Cir. 1985) (alterations in
original) (citation and internal quotation marks omitted).
      Holiday argues that the indictments employed generic terms and did not
allege that he “start[ed] the fire,” but only that he “caused the death of an
individual . . . by burning said individual with fire.” This, Holiday maintains,
“allowed for many possible factual scenarios to result in conviction,” such as
that Mitchell poured gasoline throughout the house which was then
inadvertently ignited by a pilot light. “Unhinged from a constitutionally
specific indictment,” Holiday continues, “the State was able to advance several
theories of guilt based upon a theory that Holiday was criminally responsible
for the conduct of [Mitchell].”
      Reasonable jurists could not debate the district court’s rejection of
Holiday’s claims under McCotter. The TCCA found the indictment sufficient
because it alleged how the victims died—“by being burned in a fire”—and that
“Holiday acted intentionally or knowingly in causing such deaths.” TCCA
Direct App. at *26–27. Indeed, Holiday concedes that the TCCA held, “on the
merits of Holiday’s challenge to the sufficiency of the indictments, that they
satisfied state law.” Because the claims were squarely presented to the TCCA
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                                  No. 13-70022
and upheld, the district court correctly observed that this “should end the
inquiry.” Dist. Ct. Op. at *47 (quoting McCotter, 775 F.2d at 599). Accordingly,
we decline to issue a COA on either claim 5 or 6.
      In any event, we agree with the TCCA. Even if the indictment could
have been better written with a charge that Holiday caused the deaths by
starting the fire, a plain and sensible reading of the indictment would
nevertheless charge Holiday with the offense for which he was convicted.
Holiday fails to show that the indictment was “so fatally defective that under
no circumstances could a valid conviction result from facts provable under the
indictment.” See Liner v. Phelps, 731 F.2d 1201, 1203 (5th Cir. 1984). Jurists
of reason could not debate otherwise.
 B.   Sufficiency of the Evidence (Claim 1)
      In claim 1, Holiday challenges the sufficiency of the evidence. “Our
review of the sufficiency of the evidence is highly deferential to the verdict.”
United States v. Moreno–Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011) (citation
and internal quotation marks omitted). To be sufficient, “[t]he evidence need
not exclude every reasonable hypothesis of innocence or be completely
inconsistent with every conclusion except guilt, so long as a reasonable trier of
fact could find that the evidence established guilt beyond a reasonable doubt.”
United States v. Terrell, 700 F.3d 755, 760 (5th Cir. 2012). Thus, “‘the relevant
question is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Moreno–Gonzalez, 662 F.3d
at 372 (alteration omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
      Holiday contends that the record evidence could not reasonably support
a finding that he intentionally or knowingly started the fire, or that he actually


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                                       No. 13-70022
started the fire. 1 In support, he argues that Mitchell never testified that she
saw him actually set the fire, but only that she saw him bend down as if to do
so, and that his lighters revealed no evidence that he started the fire. Rather,
according to Holiday, “[a]n accidental ignition is a more reasonable inference”
because: Holiday was burned, dropped his pistol, left his shotgun in the house,
and was not near an exit when the fire started; Holiday’s expert found no
evidence to suggest that the fire was started intentionally; and, in contrast to
the state expert’s testimony, the time it takes for vapors to move through the
house cannot be accurately predicted.
       On direct appeal, the TCCA summarized the evidence supporting a
finding that Holiday acted intentionally or knowingly, and found such evidence
sufficient:
       Holiday was worried and angry about the sexual-assault charges
       against him.     In the months before the offenses, Holiday
       continually harassed and threatened Wilkerson. He threatened to
       kill her and “make her pay.” He told others that he was going to
       burn down her house. His actions show a planned and calculated
       effort. He purchased a gun and practiced shooting on the day of
       the offenses. He arranged to be driven out and dropped off at
       Mitchell’s house in the country. He dressed in black clothing and
       armed himself with a can of gasoline, cigarette lighters, a gun, and
       ammunition. He demonstrated his disregard for the lives of the
       children when he poured gasoline on and around the car they were
       sitting in and attempted to light it. When that did not work, he
       ordered everyone into the house with instructions to remain there
       while he went to get more gasoline. He terrorized Mitchell, Keller,
       and the children by ordering them around at gunpoint. If he had
       not wanted to endanger the children, he would not have allowed
       them to remain in the house while he directed the soaking of
       various items of furniture and the pouring of gasoline throughout

       1 At the time of Holiday’s crimes, a person committed capital murder under Texas law
if he committed murder as defined under Tex. Penal Code § 19.02(b)(1) (2003) (“intentionally
or knowingly causes the death of an individual”) and, in pertinent part, “murder[ed] an
individual under six years of age,” id. at § 19.03(a)(8), or “murder[ed] more than one person .
. . during the same criminal transaction,” id. at § 19.03(a)(7)(A).
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                                  No. 13-70022
      the house. Rather than demonstrate shock, remorse, or anguish
      at the fact that the children were unreachable inside the burning
      house, Holiday attempted to apprehend Mitchell, and then fled the
      scene, ramming a police car, and leading police on a manic high-
      speed chase.
TCCA Direct App. at *9–10. Holiday does not dispute these findings. Viewing
such evidence in the light most favorable to the verdict, the TCCA reasonably
concluded that a rational trier of fact could have found beyond a reasonable
doubt that Holiday intentionally or knowingly caused the death of the victims.
This is particularly so given the evidence that Holiday had already once
attempted to cause the children’s death when he attempted to light on fire the
car with the children seated inside. Moreover, Mitchell testified that, after she
spread the gas at Holiday’s direction, she saw Holiday bend down and then the
fire started. Viewed in the light most favorable to the verdict, Mitchell’s
testimony permits a rational trier of fact to find beyond a reasonable doubt
that Holiday actually started the fire.
      Holiday’s argument largely focuses on alternative hypotheses, but a
finding that the evidence was sufficient “need not exclude every reasonable
hypothesis of innocence.” Terrell, 700 F.3d at 760. Accordingly, no reasonable
jurist could debate whether the TCCA reasonably found that a rational trier of
fact could have found beyond a reasonable doubt that Holiday intentionally or
knowingly caused the deaths of the children and actually started the fire.
 C.   Evidentiary Rulings (Multiple Claims)
      This Court “may not consider the correctness of the evidentiary rulings
of the Texas courts” under state law, but only “whether there has been a
constitutional infraction of [petitioner’s] due process rights which would render
the trial as a whole ‘fundamentally unfair.’” Trussell v. Estelle, 699 F.2d 256,
259 (5th Cir. 1983) (quoting Nelson v. Estelle, 642 F.2d 903, 906 (5th Cir. 1981))
(internal quotation marks omitted).            In other words, “[a] state court’s

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                                  No. 13-70022
evidentiary rulings present cognizable habeas claims only if they run afoul of
a specific constitutional right or render the petitioner’s trial fundamentally
unfair.” Johnson v. Puckett, 176 F.3d 809, 820 (5th Cir. 1999).
      Demonstrating fundamental unfairness presents a high burden for the
petitioner to meet:
      Due process is implicated only for rulings “of such a magnitude” or
      “so egregious” that they “render the trial fundamentally unfair.”
      It offers no authority to federal habeas courts to review the mine
      run of evidentiary rulings of state trial courts. Relief will be
      warranted only when the challenged evidence “played a crucial,
      critical, and highly significant role in the trial.”
      The due process inquiry must consider the significance of the
      challenged evidence “in the context of the entire trial.” We have
      held that the Due Process Clause does not afford relief where the
      challenged evidence was not the principal focus at trial and the
      errors were not “‘so pronounced and persistent that it permeates
      the entire atmosphere of the trial.’” This is a high hurdle, even
      without AEDPA’s added level of deference.
Gonzales v. Thaler, 643 F.3d 425, 430–31 (5th Cir. 2011) (citations omitted).
      Put differently, the evidentiary ruling, even if in error, “is still subject to
the doctrine of harmless error.” United States v. Hall, 500 F.3d 439, 443 (5th
Cir. 2007) (citation omitted). To demonstrate actual prejudice, a petitioner
must show that the error had a “substantial and injurious effect or influence
in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637
(1993) (citation and internal quotation marks omitted). “The error will not
require reversal if ‘beyond a reasonable doubt the error complained of did not
contribute to the verdict obtained.’” Hall, 500 F.3d at 443 (citation omitted).
In determining whether the error was harmless, this Court considers “the
importance of the witness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence corroborating
or contradicting the testimony of the witness on material points, the extent of

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                                   No. 13-70022
cross-examination otherwise permitted, and of course, the overall strength of
the prosecution’s case.” United States v. Edwards, 303 F.3d 606, 623 (5th Cir.
2002) (citation and internal quotation marks omitted).
          i.    Nurse Riley’s Testimony (Claims 3 and 4)
      At issue in claims 3 and 4 is the trial court’s admission of testimony from
Nurse Jane Riley (“Nurse Riley”) regarding certain out-of-court statements by
Tierra.        The Confrontation Clause bars the admission of “testimonial
statements of a witness who did not appear at trial unless he was unavailable
to testify, and the defendant had . . . a prior opportunity for cross-examination.”
Crawford v. Washington, 541 U.S. 36, 53–54 (2004). “A statement that is not
testimonial cannot violate the Confrontation Clause.” Brown v. Epps, 686 F.3d
281, 286 (5th Cir. 2012) (alteration and citation omitted). The Supreme Court
has clarified that a “statement is not testimonial if it is procured for the
primary purpose of allowing police to assist in an ongoing emergency or if it is
procured under other circumstances where the primary purpose is not to create
an out-of-court substitute for trial testimony.” Id. at 287 (citation omitted).
      In determining whether such circumstances exist, courts consider
      whether the individual “was speaking about events as they were
      actually happening, rather than ‘describ[ing] past events’”;
      whether the statements enabled police to resolve an ongoing
      emergency; and whether the statements were made in a formal
      setting. The Court has emphasized that “[a]n objective analysis of
      the circumstances of an encounter and the statements and actions
      of the parties to it provides the most accurate assessment of the
      ‘primary purpose of the interrogation.’”
Id. (alterations in original) (emphasis and citations omitted). Moreover, we
have previously held that “statements made for the purposes of obtaining
medical treatment during an ongoing emergency are not testimonial under
Crawford.”       United States v. Santos, 589 F.3d 759, 763 (5th Cir. 2009).
Conversely, “[statements] are testimonial when the circumstances objectively

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                                 No. 13-70022
indicate that there is no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813,
822 (2006).
      Here, upon suspicion that Tierra was sexually assaulted, Wilkerson took
Tierra to see Dr. Ali Al-Himyary (“Dr. Al-Himyary”), who contacted Child
Protective Services (“CPS”). Nurse Riley later examined Tierra on a referral
from CPS. At trial, Nurse Riley testified about Tierra’s statements during this
examination. In relevant part:
      The State: Now, what you can remember or what you can recall
      from reviewing your notes, please use—please tell the jury what
      you said to the child and what the child said to you as you were
      doing this medical history.
      ....
      Nurse Riley: I asked her if she knew why she was there with me
      and she said no. And then I asked her if she knew why there was
      blood in her panties and she said no. And then I asked her if
      something had happened to her and she said yes. And then I asked
      her if anyone was with her when something happened and she
      stated my step daddy. I then asked her—I told her it was
      important for her to tell me what happened to her so that I could
      make sure she was okay. At that point she put her head down and
      she didn’t say anything else. And then I asked her if someone had
      told her not to tell and she said yes, my step daddy. And then I
      asked her what he had said and she said that he said if I told
      anybody he would get in a lot of trouble.
      Holiday argues that Nurse Riley’s testimony about the out-of-court
statements from Tierra violated the Confrontation Clause under Crawford
because the circumstances show that Tierra’s out-of-court statements to Nurse
Riley were testimonial in nature. According to Holiday, the interview occurred
three days after Tierra had been examined by Dr. Al-Himyary, who already
determined that she was sexually assaulted. Nevertheless, Holiday continues,

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                                No. 13-70022
either the Madisonville Police Department or CPS referred Tierra to Nurse
Riley, who worked with a forensic interviewer.        Further, the questions
themselves—who Tierra was with and whether or not that person asked her to
not tell anyone—did not serve the purpose of diagnosis and treatment but
investigation.
      Holiday contends in the alternative that, even if the statements were not
testimonial, they lacked sufficient indicia of reliability and were hearsay
because the interview was not recorded, consisted of leading questions, and
was inconsistent with the recorded interview of the defense’s rebuttal witness,
Dr. Fred Fason, a psychiatrist. Holiday also raises these same claims as a
violation of his Fifth and Fourteenth Amendments Due Process rights.
Whatever the alleged error, Holiday argues that it was harmful because Nurse
Riley’s testimony was the only evidence implicating him as the one who
sexually assaulted Tierra.
      The TCCA proceeded directly to a harmless error analysis and found that
any purported error was harmless:
      Wilkerson testified that she suspected Holiday when she
      discovered the bloody panties. [Dr. Al-Himyary, the first doctor to
      examine Tierra after the alleged sexual assault,] testified that
      Wilkerson informed him that she suspected Holiday of abusing
      Tierra. Wilkerson testified that she filed charges against Holiday,
      that she received a protective order against him, that he was
      evicted from her home, and that he was indicted for sexually
      assaulting Tierra. There was testimony from several witnesses
      referring to the pending charges.
TCCA Direct App. at *24–25. From this, the TCCA reasonably concluded that
“[t]he statements did not inject any new facts or embellish the facts to any
extent beyond that testified to by other witnesses.” Id. at *24. Holiday does
not argue that the TCCA unreasonably determined these facts, which squarely
rebuts his argument that Nurse Riley’s testimony was the only evidence that

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                                 No. 13-70022
he sexually assaulted Tierra. Accordingly, Holiday has not demonstrated that
fairminded jurists could debate the district court’s denial of this claim.
       ii.    Expert Testimony from Dr. DeHaan (Claims 10 and 40–53)
      In numerous claims, Holiday challenges the admission of Dr. John
DeHaan’s (“Dr. DeHaan”) testimony, and contends that the testimony was
false or misleading and that the State withheld related evidence. “To establish
a due process violation based on the government’s use of false or misleading
testimony, the defendant must show (1) that the witness’s testimony was
actually false, (2) that the testimony was material, and (3) that the prosecution
knew the witness’s testimony was false.” Fuller v. Johnson, 114 F.3d 491, 496
(5th Cir. 1997) (citations omitted). And to prevail on a claim that the state
withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), the
petitioner must prove: “(1) that the ‘evidence at issue [is] favorable to the
accused, either because it is exculpatory, or because it is impeaching;’ (2) that
the ‘evidence [has] been suppressed by the State, either willfully or
inadvertently;’ and (3) that ‘prejudice [has] ensued.’” Summers v. Dretke, 431
F.3d 861, 874 (5th Cir. 2005) (quoting Strickler v. Greene, 527 U.S. 263, 281–
82 (1999)).
      Here, the State retained Dr. DeHaan to investigate the ignition and
course of the flames that burned down Wilkerson’s house. Dist. Ct. Op. at *54.
Dr. DeHaan was a forensic scientist who had worked as a criminologist for
thirty-three years; “for the past twenty years his focus had been on fire and
explosion investigations or laboratory analysis.” TCCA Direct App. at *46.
“[He] testified that in twenty-five years of conducting such research and
analysis, he had orchestrated and set about five hundred structure fires, one
hundred and twenty vehicle fires, and about two hundred small-scale tests
involving furniture and fuels.” Id. at *47. The district court noted that:


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                                      No. 13-70022
       Dr. DeHaan’s testimony was especially important to the State
       because (1) he excluded appliances as [a possible] ignition source;
       (2) he opined that burns on Holiday’s hands were consistent with
       the State’s theory that he bent down to light the gasoline; and (3)
       he suggested that Holiday himself may have spread additional
       gasoline unobserved by Ms. Mitchell, bolstering the State’s
       argument that Holiday intended to kill the children.
Dist. Ct. Op. at *54.
       Holiday alleges that Dr. DeHaan’s testimony was false and misleading,
constituted unreliable scientific testimony, and that the State withheld
evidence to the extent it knew of these deficiencies. In essence, Holiday argues
that Dr. DeHaan’s testimony was based on “junk science” because he “did not
try to recreate the factors involved in this fire by modeling [or] rely on any
known scientific principles that relate to the diffusion of gasoline molecules in
a room to determine what possible concentrations might exist at any location
in that room.” Holiday also argues that Dr. DeHaan disregarded certain data
contrary to his hypothesis and misleadingly testified that Holiday’s injuries
were “consistent with” Dr. DeHaan’s theory.                These flaws, according to
Holiday, amounted to false or misleading testimony in violation of his Eighth,
Fifth, and Fourteenth Amendment rights. He further asserts that the court
should have excluded DeHaan’s testimony under Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993), and that there was a Brady violation
“[t]o the extent” that the State was aware of the contradictory data.
       As to his first claim, Holiday makes no attempt to show that the
prosecution knew Dr. DeHaan’s testimony was false. Indeed, under his third
claim, Holiday argues that there was a Brady violation only “[t]o the extent
that the [State was] actually aware 2 of [these] deficiencies.” Because Holiday


       2 We note that a Brady violation is not limited to instances where the prosecutor had
actual knowledge, as Holiday assumes. Rather, “Brady requires the ‘individual prosecutor []
to learn of any favorable evidence known to the others acting on the government’s behalf in
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                                      No. 13-70022
makes no effort to show, as he must, that the State knew of the alleged falsity,
see Fuller, 114 F.3d at 496, or that the State either willfully or inadvertently
suppressed such evidence, Summers, 431 F.3d at 874, Holiday’s application for
a COA on his first (false or misleading testimony) and third (Brady) claims
fails.
         Holiday also requests a COA as to the admissibility of Dr. DeHaan’s
testimony, but this too fails. As the TCCA found:
         [Dr. DeHaan] explained that the process of gathering information
         and assessing evidence during a fire investigation begins with
         observations from witnesses. He also testified that it includes: (1)
         gathering information from the scene, such as the amount of
         damage, the time frames of detection, suppression, and
         extinguishment; (2) testing various possibilities as to manner and
         location of ignition; (3) assessing the way the fire spread and its
         time frames; (4) studying the physical evidence; and (5) testing and
         retesting the possibilities to establish the reliability of the various
         indicators to arrive at a conclusion about the ignition. DeHaan
         testified that this method of gathering information, reviewing the
         physical evidence, and testing possibilities is used in a “very high
         percentage” of fire investigations and is a valid process that has
         been verified through numerous tests, training exercises, and
         demonstration fires. DeHaan testified that he properly applied
         these established and verified techniques in making his
         determination in the instant case.
TCCA Direct App. at *47–48. Holiday simply points to what Dr. DeHaan did
not do, but Holiday does not explain why those omissions rendered this
methodology scientifically unreliable.
         To the extent there existed evidence contradicting Dr. DeHaan’s
findings, “[c]ommon sense dictates that some speculation is involved in
attempting to reconstruct a scene that was destroyed by fire, or in assessing a



the case, including the police.’” Pitonyak v. Stephens, 732 F.3d 525, 533 (5th Cir. 2013)
(quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)). This clarification does not affect our
holding.
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                                  No. 13-70022
burn injury based upon numerous variables.” Id. at *49. “That a factfinder
will have to assess how much those matters bear upon evaluating DeHaan’s
overall conclusions in light of the expertise he brings to the issues goes to the
weight of DeHaan’s testimony and not its admissibility.” Id. We do not find
the TCCA’s approach here unreasonable or that the admission of Dr. DeHaan’s
testimony rendered the trial fundamentally unfair. See Story v. Collins, 920
F.2d 1247, 1255–56 (5th Cir. 1991) (holding admission of allegedly
inadmissible expert testimony not fundamentally unfair because “[petitioner’s]
attorney had ample opportunity to cross-examine [the expert] on her
testimony; and in light of [the expert’s] professional status, education, and
experience, [petitioner had] not shown that the admission of [the expert’s]
testimony rendered his trial fundamentally unfair”). Reasonable jurists could
not debate otherwise.
      iii.   Evidence of Rape Offense (Claim 11)
      In this claim, Holiday disputes the trial court’s admission of evidence
pertaining to the sexual assault of Tierra and claims that its admission was
unfairly prejudicial.
      In Old Chief v. United States, 519 U.S. 172 (1997), the Supreme Court
noted “the familiar, standard rule that the prosecution is entitled to prove its
case by evidence of its own choice, or, more exactly, that a criminal defendant
may not stipulate or admit his way out of the full evidentiary force of the case
as the Government chooses to present it.” Id. at 186–87. The Court described
this rule as “unquestionably true as a general matter.” Id. at 187. But the rule
has “virtually no application when the point at issue is a defendant’s legal
status, dependent on some judgment rendered wholly independently of the
concrete events of later criminal behavior charged against him.” Id. at 190.
Thus, the Court held that if the purpose of the evidence is to prove the
defendant’s status as a convict (to satisfy a prior-conviction element of the
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                                  No. 13-70022
offense), then a court abuses its discretion by denying a defendant’s offer to
stipulate to that status. Id. at 191–92; see also United States v. Hollis, 506
F.3d 415, 419 (5th Cir. 2007) (“As recognized in Old Chief v. United States, a
defendant has the right to admit or stipulate to the fact of a prior felony
conviction for purposes of proof of felon status.” (citing Old Chief, 519 U.S. at
190–91)).
      Holiday argues that the State should have been required, under Old
Chief, to accept his stipulation to the sexual assault of Tierra because “offering
detailed evidence” of the assault “went far beyond establishing motive and
fundamentally deprived Holiday of a fair trial.” Holiday, however, does not
elaborate why Old Chief should apply to this case. We hold it does not.
      The Supreme Court expressly stated in Old Chief that its holding “is
limited to cases involving proof of felon status.” 519 U.S. at 183 n.7. As the
Court described:
      What we have said shows why this will be the general rule when
      proof of convict status is at issue, just as the prosecutor’s choice
      will generally survive a Rule 403 analysis when a defendant seeks
      to force the substitution of an admission for evidence creating a
      coherent narrative of his thoughts and actions in perpetrating the
      offense for which he is being tried.
Id. at 191–92. We reject Holiday’s attempt to fit this case under the former
scenario—his legal status is simply not a point of issue here. Rather, this case
falls squarely under the latter scenario. Indeed, the district court found that
“Holiday’s sexual assault of Tierra set into motion a series of circumstances
leading to his actions on the night of the murder. In connecting a line from the
extraneous sexual assault to the murders, the State did not cross an
impermissible boundary that violated fundamental fairness.” Dist. Ct. Op. at
*74. In other words, the evidence “creat[ed] a coherent narrative of [Holiday’s]
thoughts and actions in perpetrating the offense.” See Old Chief, 519 U.S. at

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                                  No. 13-70022
192. Presenting such evidence was the State’s choice to make, and to require
the State “[t]o substitute for such a picture a naked admission might have the
effect to rob the evidence of much of its fair and legitimate weight.” See id. at
187 (quoting Parr v. United States, 255 F.2d 86, 88 (5th Cir. 1958)) (internal
quotation marks omitted).
      Holiday does not dispute the high probative value of the challenged
evidence that he sexually assaulted Tierra. Nor does he cite any authority
requiring, as a constitutional right, the State to accept his stipulation to the
same effect. Holiday’s only cited authority in support of his argument, Old
Chief, does not apply to this case. Accordingly, Holiday has not demonstrated
that the admission of the evidence was so prejudicial that it ran afoul of a
specific constitutional right or rendered his trial fundamentally unfair.
Reasonable jurists could not find this debatable.
      iv.   Expert Testimony of Dr. Gripon (Claims 14 and 15)
      In claims 14 and 15, Holiday challenges the trial court’s admission of the
expert testimony of Dr. Edward B. Gripon (“Dr. Gripon”).
      The district court summarized Dr. Gripon’s testimony:
      During the penalty phase of trial, the prosecution called Dr.
      Edward B. Gripon, a board-certified psychiatrist, as a rebuttal
      witness to testify to Holiday’s future threat to society. Dr. Gripon
      did not interview or examine Holiday, but reviewed information
      that included offense reports, school records, and historical
      information. Before Dr. Gripon testified before the jury, the trial
      court held a Daubert hearing regarding his opinions. Dr. Gripon
      detailed his extensive experience evaluating criminal defendants.
      With specific relevance to his role at this trial, Dr. Gripon testified
      that the psychological community recognizes several scientifically
      valid methods of assessing future dangerousness, including: (1) a
      pure clinical model; (2) a clinical approach that includes
      consideration of certain demographic and actuarial information;
      and (3) a pure actuarial model. Dr. Gripon explained that his
      evaluations generally followed the second approach, allowing for
      mental-health history, past behavior, and demographics to
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                                 No. 13-70022
      influence his assessment. Dr. Gripon specifically rejected the use
      of the actuarial approach because it lacked adequate controls and
      involved immeasurable variables.
Dist. Ct. Op. at *84–85 (footnote omitted).
      Holiday generally argues that the American Psychiatric Association
finds future dangerousness predictions to be unreliable in capital trials.
Additionally, Holiday contends that Gripon used an “unstructured clinical
approach” as he “intuitively selected factors he believed were likely to predict
future violence, [age and education,] rather than relying on factors that have
been empirically demonstrated to relate to the risk of future violence among
individuals in a particular context.”
      The Supreme Court, however, has already rejected general challenges—
like Holiday’s—to the use of future dangerousness predictions. In Barefoot v.
Estelle, 463 U.S. 880 (1983), the Court explained that “[t]he suggestion that no
psychiatrist’s testimony may be presented with respect to a defendant’s future
dangerousness is somewhat like asking us to disinvent the wheel.” Id. at 896.
In this regard, “it makes little sense, if any, to submit that psychiatrists, out
of the entire universe of persons who might have an opinion on the issue, would
know so little about the subject that they should not be permitted to testify.”
Id. at 897.
      Holiday’s passing suggestion that such testimony would not “satisfy
ordinary Daubert-like evidentiary standards” is unavailing.        Granted, the
viability of this holding in Barefoot has been questioned in light of the Supreme
Court’s ruling in Daubert. See, e.g., Flores v. Johnson, 210 F.3d 456, 463–65
(5th Cir. 2000) (Garza, J., concurring). But even if questionable, Holiday’s
suggestion does not show that the state trial court’s decision was “contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court.” See 28 U.S.C. § 2254(d)(1). In fact, we

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                                 No. 13-70022
have held that “Daubert does not apply to the standards governing the
admissibility of expert evidence at a capital sentencing hearing.” Williams v.
Stephens, — F.3d –––, 2014 U.S. App. LEXIS 14816, *20 (5th Cir. Aug. 1, 2014)
(citing United States v. Fields, 483 F.3d 313, 341–46 (5th Cir. 2007)).
      As to the reliability of Dr. Gripon’s testimony, the TCCA found that, “[a]s
a board-certified psychiatrist with years of experience and specializing in
forensic psychology, Gripon was shown to be qualified. . . . Gripon testified
that his method of assessing future-dangerousness was considered valid.”
TCCA Direct App. at *74–75. Holiday, at best, points us to his own expert’s
testimony that “explained in detail the deficiencies of the methodology used by
Dr. Gripon.” But, “[w]hile Holiday points to issues that were legitimate areas
for cross-examination, his objections went to the weight and not the
admissibility of Gripon’s testimony.”       TCCA Direct App. at *75.      Indeed,
Holiday’s counsel had ample opportunity to cross-examine Gripon, and Holiday
does not challenge Gripon’s qualifications. See, e.g., Fields, 483 F.3d at 345
(“[A]s Barefoot noted, the adversarial system reduces any prejudicial
unreliability in future dangerousness expert testimony because it can expose
the flaws in such testimony.”); Story v. Collins, 920 F.2d 1247, 1255–56 (5th
Cir. 1991). Holiday therefore fails to show that the trial court’s admission of
Dr. Gripon’s testimony rendered the trial fundamentally unfair, much less that
the TCCA’s assessment was unreasonable. Reasonable jurists could not debate
otherwise.
       v.    Expert Testimony of Reverend Pickett (Claims 16–19)
      In these claims, Holiday contends that the trial court erred when it
excluded the expert testimony of Reverend Carol Pickett (“Rev. Pickett”).
Under the Eighth and Fourteenth Amendments, a sentencer may “not be
precluded from considering, as a mitigating factor, any aspect of a defendant’s
character or record and any of the circumstances of the offense that the
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                                     No. 13-70022
defendant proffers as a basis for a sentence less than death.” Jackson v. Dretke,
450 F.3d 614, 616–17 (5th Cir. 2006) (quoting Lockett v. Ohio, 438 U.S. 586,
604 (1978) (plurality opinion)).
      Holiday argues that Lockett v. Ohio permits the sentencer to “consider . . .
and base a decision to impose a life sentence upon any relevant mitigating
factor.” On this ground, Holiday sought to introduce Rev. Pickett to testify on
what Holiday alleges to be mitigating factors: the negative effect on prison
employees carrying out the execution, the lack of positive effect on victim’s
family, and the positive changes that an inmate can make during
incarceration.
       The district court denied these claims and we do not find that outcome
debatable.     To be sure, Lockett stated that the “Eighth and Fourteenth
Amendments require that the sentencer . . . not be precluded from considering,
as a mitigating factor, any aspect of a defendant’s character or record and any
of the circumstances of the offense that the defendant proffers as a basis for a
sentence less than death.” 438 U.S. at 604. In turn, Holiday premises his
argument upon the broad notion that “any relevant mitigating factor” must be
permitted. But the quoted language from Lockett does not exist in a vacuum.
Holiday ignores the footnote appended to that quoted language: “Nothing in
this opinion limits the traditional authority of a court to exclude, as irrelevant,
evidence not bearing on the defendant’s character, prior record, or the
circumstances of his offense.” Id. at 604 n.12. This traditional authority is
precisely what the state trial court exercised here. 3




      3  By the same token, we reject Holiday’s contention that these claims should be
reviewed wholly de novo. He argues that the TCCA denied these claims on state law grounds
without addressing the merits of his constitutional claims. But we must afford deference to
the “traditional authority” the state court exercised under Lockett.
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                                 No. 13-70022
      In this regard, the TCCA held that the trial court did not abuse its
discretion when it excluded Rev. Pickett’s testimony as irrelevant. The TCCA
reasoned that “Pickett’s testimony was not offered to provide the jury with
information regarding Holiday or the circumstances of his case in particular.”
TCCA Direct App. at *77. “Even if Pickett’s testimony could be viewed as
marginally relevant,” the TCCA continued, “the trial court was within its
discretion to exclude it under Rule 403.” Id. Thus, “[b]ecause the evidence was
not particularized to the defendant, the trial court might reasonably conclude
that the risk of confusing and distracting the jury substantially outweighed
any probative value such evidence might have.” Id.
      We find nothing unreasonable in the TCCA’s analysis. In fact, this Court
has previously held that “[e]vidence of impact on friends and family does not
reflect on [petitioner’s] background or character or the circumstances of his
crime, so [petitioner’s] proffer of that evidence does not satisfy the second
avenue available to him to obtain habeas relief.” Jackson, 450 F.3d at 618. In
a similar vein, it was reasonable for the TCCA to find minimal probative value
in generalized testimony concerning the positive changes inmates can make—
such testimony says nothing about Holiday’s character and his propensity to
rehabilitate. The district court’s denial of these claims is beyond debate.
      vi.   Cross-Examination of Mitchell During the Penalty Phase (Claims
            20–22)
      Claims 20–22 concern Holiday’s counsel’s attempt to cross-examine
Mitchell during the penalty phase.       Because the State does not dispute
Holiday’s contention that this claim be reviewed de novo, we assume without
deciding that de novo review applies.
      In Holland v. Anderson, 583 F.3d 267, 273–80 (5th Cir. 2009), we
distinguished between innocence-related evidence and evidence of the
circumstances of the offense:

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                                 No. 13-70022
      The only testimony and evidence that the court prohibited [during
      the penalty phase] was [evidence] related to an element of the
      crime: the commission of a rape. As explained above, rape was an
      essential element of the original jury’s capital murder conviction.
      Without finding rape, the jury could not have found Holland guilty
      of capital murder; rape was therefore not a circumstance of the
      crime. . . . The fact that Holland sought to introduce evidence to
      dispute an actual element of his crime of conviction—not merely
      evidence to explain the crime or to describe the circumstances of
      the crime—distinguishes this case from Lockett [v. Ohio, 438 U.S.
      586 (1978) (plurality opinion)], Eddings [v. Oklahoma, 455 U.S.
      104 (1982)], and their progeny.
Id. at 275–76 (footnote omitted). Based on this distinction, this Court held that
a state was constitutionally permitted to “prohibit the introduction of new
evidence of innocence at resentencing.”       Id. at 278.    We reasoned that
“sentencing traditionally concerns how, not whether, a defendant committed
the crime.” Id. (quoting Oregon v. Guzek, 546 U.S. 517, 526 (2006)) (internal
quotation marks omitted). Additionally, “‘the parties previously litigated the
issue to which the evidence [petitioner sought to introduce at sentencing] is
relevant—whether [he] committed the basic crime,’ which is ‘a previously
determined matter.’” Id. (quoting Guzek, 546 U.S. at 526).
      Holiday argues that during the guilt–innocence phase of the trial,
Mitchell “was the only person to testify that Holiday took affirmative steps to
light the house on fire.”     Holiday recounts that his “lawyer impeached
[Mitchell] with prior statements and testimony she made, asserting that she
did not see Holiday do anything to start the fire, and never before mentioned
observing Holiday bending down at the moment the fire started.” In closing
argument at the guilt–innocence phase, the State attempted to explain away
any inconsistency.   Consequently, Holiday contends, he should have been
permitted to then additionally cross-examine Mitchell during the penalty
phase because he is “entitled to present evidence relevant to the mitigation

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                                 No. 13-70022
issue that would reduce his moral blameworthiness.”         In Holiday’s view,
evidence that Mitchell was not as certain about her testimony reduces his
moral blameworthiness.       This is, he maintains, “precisely the type of
exonerating defense to which a defendant has a due process right to under
Holmes [v. South Carolina, 547 U.S. 319 (2006),] and Crane [v. Kentucky, 476
U.S. 683 (1986)].” Holiday concludes that if the jury were allowed to hear of
such inconsistency, then “at least one juror may have concluded that Holiday
did not bend over and ignite the fire and, therefore, a sentence of less than
death imposed.”
       By Holiday’s own words, he contends that he should have been permitted
to introduce innocence-related evidence—i.e., “exonerating” evidence that
would show he “did not bend over and ignite the fire”—during the penalty
phase of his trial. But as the TCCA found, “Mitchell had already responded to
numerous pointed questions from defense counsel regarding the context in
which her earlier statement and testimony were made.” TCCA Direct App. at
*80.   Indeed, Holiday noted in briefing that his trial counsel impeached
Mitchell.   Moreover, Holiday does not cite any authority that a second
opportunity to present innocence-related evidence during the penalty phase is
constitutionally mandated. Thus, as the TCCA held, “[t]he trial court did not
abuse its discretion in limiting continued questioning of Mitchell on an issue
on which there had already been considerable testimony.” TCCA Direct App.
at *80. We do not find this conclusion unreasonable and hold that fairminded
jurists could not debate otherwise.
 D. Removal of Juror Sessions (Claim 2)
       Claim 2 pertains to the removal of juror Servaine Sessions (“Sessions”).
The Sixth and Fourteenth Amendments “guarantee a defendant on trial for his
life the right to an impartial jury.” Ross v. Oklahoma, 487 U.S. 81, 85 (1988).
Under the Witherspoon-Witt rule, “a veniremember may not be excluded from
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                                 No. 13-70022
sitting on a capital jury simply because she voices general objection to the
death penalty or expresses conscientious or religious scruples against its
infliction.” Ortiz v. Quarterman, 504 F.3d 492, 500 (5th Cir. 2007) (citation
omitted). Rather, a potential juror may be removed for cause if the individual’s
views “prevent or substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S.
412, 424 (1985) (internal quotation marks omitted).          “Whether a juror is
excludable under the Witherspoon-Witt standard is a question of fact.” Ortiz,
504 F.3d at 501. Thus, if the trial court removed a venireperson for cause,
“[c]ourts reviewing claims of Witherspoon-Witt error, . . . especially federal
courts considering habeas petitions, owe deference to the trial court, which is
in a superior position to determine the demeanor and qualifications of a
potential juror.” Uttecht v. Brown, 551 U.S. 1, 22 (2007).
      Holiday argues that the removal of Sessions violated his right to a fair
jury trial under the Sixth and Fourteenth Amendments. The trial court had
granted the State’s challenge of Sessions for cause, over Holiday’s objections,
on the basis that her religious views were of such a nature that would “prevent
or impair her performance of her duties” in accordance with her instructions
and her oath. In Holiday’s view, Sessions was not “irrevocably committed” to
vote against the death penalty as required under Witherspoon v. Illinois, 391
U.S. 510, 522 n.21 (1968). Rather, he maintains, the TCCA unreasonably
found Sessions excludable because the dismissal was only based upon her
being “distressed” and having prayed, among other things.           Holiday cites
Adams v. Texas, 448 U.S. 38 (1980), for the proposition that “conflicting
feelings” about the death penalty do not disqualify a person from jury service
“who is able to put those feelings aside and impartially serve the simple fact-
finding function called for under the special issues.”


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                                 No. 13-70022
      The State responds that, after the panel was selected but before it was
sworn, Sessions approached the trial court with her concerns regarding the
death penalty sentencing phase. Sessions vacillated about whether she could
impose the death penalty, but both parties declined to question Sessions
further. According to the State, the trial court correctly exercised its wide
discretion in conducting voir dire and considered Session’s uncertainty and
agony because she was, in the TCCA’s words, “distressed enough to approach
the trial court after she was selected and just days before evidence was to be
presented.”   TCCA Direct App. at *19.      The State maintains that, under
questioning by the judge, she repeatedly stated that she was “not sure” and
could not say “one way or the other” whether she would be able to answer the
special issues. Id. at *19–20.
      We agree with the State. The district court summarized the TCCA’s
findings on direct appeal:
      The Court of Criminal Appeals reasoned that, “[e]ven though the
      nature of the sentencing phase and the jury’s role in answering the
      special issues had been fully explained to Sessions,” she still
      testified in a manner suggesting that “she would be impaired as a
      juror.” The Court of Criminal Appeals emphasized that “she was
      distressed enough to approach the trial court after she was
      selected and just days before evidence was to be presented.” In
      fact, “after receiving word of her selection,” Ms. Sessions “had
      prayed, had read her Bible, and had not slept for two nights.” Also,
      she expressed that she was “not sure” but “repeatedly contend[ed]
      that she could not say ‘one way or the other’ whether she would be
      able to answer the special issues.” Ms. Sessions voluntarily
      “conveyed that she did not know how she would react when seated
      or how she would consider the special issues in the sentencing
      phase involving a potential death sentence.” Because she was
      “persistently uncertain about [her] ability to follow the law,” the
      record supported her removal from the jury.
Dist. Ct. Op. at *29–30 (alterations in original) (quoting TCCA Direct App. at
*19–20). On this record, and in light of the deference owed to the state trial

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                                   No. 13-70022
court, we hold that Holiday has not shown by clear and convincing evidence
that the TCCA unreasonably determined that Sessions’s concerns would
prevent or substantially impair her ability to make a sentencing decision. No
reasonable jurists could debate this outcome.
 E.     Denial of Challenges for Cause of Prospective Jurors Masters
        and Penny (Claims 8 and 9)
        Holiday argues that the trial court erroneously denied his challenges for
cause against prospective jurors Linda Masters and Kenny Penny. Where the
trial court denied a challenge for cause, “the inquiry turns not on the . . . court’s
alleged failure to remove for cause certain prospective jurors, but rather on
whether the jurors who ultimately sat were impartial.” United States v. Snarr,
704 F.3d 368, 386 (5th Cir. 2013) (citing Ross v. Oklahoma, 487 U.S. 81, 86
(1988)).    Therefore, a “court’s erroneous refusal to grant a defendant’s
challenge for cause is only grounds for reversal if the defendant establishes
that the jury which actually sat to decide his guilt or innocence was not
impartial.” Id. (citation and internal quotation marks omitted).
        Here, Holiday removed both of these prospective jurors from the panel
by peremptory strike. But Holiday does not argue in the present claim that
the “jurors who ultimately sat were impartial.” See Snarr, 704 F.3d at 386
(citation omitted).    Accordingly, the district court’s denial of this claim is
beyond debate.
 F.     “Law of Parties” Jury Instruction (Claim 12)
        In claim 12, Holiday disputes the trial court’s failure to instruct the jury
to consider whether Mitchell was a party to the murders. “Whether rooted
directly in the Due Process Clause of the Fourteenth Amendment or in the
Compulsory Process or Confrontation Clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants ‘a meaningful opportunity to
present a complete defense.’” Holmes v. South Carolina, 547 U.S. 319, 324

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                                  No. 13-70022
(2006) (citation omitted).     Because the State does not dispute Holiday’s
contention that this claim be reviewed de novo, we assume without deciding
that de novo review applies.
      Holiday argues that the jury charge did not properly instruct the jury “as
to the proper consideration of what circumstances must be found before they
[could] conclude Holiday [was] criminally responsible for the conduct of
Beverly Mitchell,” who had spread gasoline around the house. Indeed, in
Texas, a person in some circumstances may be “criminally responsible for an
offense committed by the conduct of another.” Tex. Penal Code § 7.02. The
failure to instruct the jury as such, according to Holiday, prevented him from
presenting a complete defense that someone else committed the crime. In
Holiday’s view, there was sufficient evidence to show that Mitchell was also
responsible for the deaths.
      Here, as the TCCA found, “[t]he evidence showed that Holiday terrorized
Mitchell, Keller, and the three children at gunpoint, made repeated threats of
violence and murder, and randomly shot off the guns.” TCCA Direct App. at
*64. As to Mitchell specifically, “[a]t one point [Holiday] held Mitchell in a
head-lock with a gun to her head. He forced her into her car to retrieve more
gasoline and then ordered her to pour it around the house.” Id. at *64–65.
Thus, the TCCA concluded that the trial court properly denied any such
instruction, finding that “Mitchell was not a party because Mitchell could not
have been convicted of the offenses. Acting under duress and at gunpoint, she
did not possess the requisite mental state to be charged with the offenses.” Id.
at *65.
      Beyond Holiday’s conclusory argument that Mitchell was also
responsible for the deaths, Holiday makes no effort to rebut the finding that
she was acting under duress and, therefore, lacked the requisite mental state
to be charged with the offense.     Rather, the record supports the TCCA’s
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                                    No. 13-70022
findings and we adopt those findings here.           The district court’s denial of
Holiday’s present claim is not debatable.
 G. Prosecutorial Comments Regarding Holiday’s Failure to Testify
    (Claim 13)
      Claim 13 challenges, under the Fifth Amendment right to remain silent,
certain statements made during the prosecution’s closing argument.                “For
there to have been a denial of one’s [F]ifth [A]mendment right to remain silent,
the prosecutor’s manifest intent in making the remark must have been to
comment on the defendant’s silence, or the character of the remark must have
been such that the jury would naturally and necessarily construe it as a
comment on the defendant’s silence.” Jackson v. Johnson, 194 F.3d 641, 652
(5th Cir. 1999) (citation omitted).
      The district court divided the challenged closing arguments into three
categories. The first is the State’s use of hypotheticals. Dist. Ct. Op. at *80
(“If I was charged with murder . . ., but at my trial I got up and testified . . . .”).
The second is the State’s observation that the defendant failed to refute certain
facts. Id. at *80–81 (“There is no dispute that there were three children killed
here which means two or more people.”). And the third is reference to the
defense’s failure to refute Holiday’s inculpatory statements. Id. at *82 (“Those
statements have not been refuted . . . .”).
      Holiday complains that the TCCA, as to the first two categories, used an
improper test by requiring a showing of the State’s “subjective investigation
into the prosecutor’s intent, or as the [TCCA] terms, ‘manifestly intended,’ or
subjective investigation into the jurors’ interpretation, who would ‘necessarily
and naturally take it as a comment.’” We disagree. In Jackson, we expressly
endorsed the two elements Holiday now complains of—the prosecutor’s
“manifest intent” and whether the “jury would naturally and necessarily
construe it as a comment on the defendant’s silence.” 194 F.3d at 652.

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                                    No. 13-70022
      As to the third category, the failure to refute, Holiday alleges that the
TCCA “summarily concluded that it was cured by instruction, without a
Chapman [v. California, 386 U.S. 18 (1967)] analysis.” 4 But, Holiday does not
elaborate upon his argument that the TCCA unreasonably applied law to fact
when it found the comment cured by instruction. His conclusory argument
does not suffice. See Trottie v. Stephens, 720 F.3d 231, 255 (5th Cir. 2013)
(finding no debatable due process violation where petitioner “offer[ed] no more
than speculation that the court’s curative instructions and its response to the
jury note were insufficient to neutralize the prosecutor’s statements”).
Regardless, the Supreme Court has held that “[i]t is reasonable enough to
expect a jury to comply with [a curative] instruction since, as we observed in
Griffin [v. California, 380 U.S. 609 (1965)], the inference of guilt from silence
is not always ‘natural or irresistible.’” Portuondo v. Agard, 529 U.S. 61, 67
(2000) (quoting Griffin, 380 U.S. at 615). No reasonable jurist could debate
that the TCCA’s decision was not contrary to, or an unreasonable application
of, federal law.
 H. Texas’s Death Penalty Procedure (Claims 7 and 23–32)
      Holiday presents an assortment of constitutional challenges to Texas’s
“12-10” rule jury instructions. We have previously described Texas’s procedure
under Texas Code of Criminal Procedure article 37.071 as follows:
      Under Texas law, the jury must consider two special issues before
      the death penalty is imposed on a capital defendant. First, the
      trial court is required to submit the following “aggravating” special
      issue to the jury: “whether there is a probability that the defendant
      would commit criminal acts of violence that would constitute a
      continuing threat to society.” Tex. Code Crim. Proc. Ann.
      art. 37.071(2)(b)(1). If the jury unanimously answers “yes,” the


      4  The Chapman standard of review requires a court on direct review to ask whether
any Fifth Amendment violation was harmless beyond a reasonable doubt. See Chapman, 386
U.S. at 24.
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                                 No. 13-70022
      jury must then answer the following “mitigation” issue:
      “[w]hether, 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.” Id. art. 37.071(2)(e)(1). If the
      jury unanimously answers “no,” then the defendant is sentenced
      to death. Id. art. 37.071(2)(g).
      Pursuant to these provisions, the trial court was also required to
      instruct the jury that it must have at least 10 “no” votes to answer
      “no” on the aggravating special issue, and at least 10 “yes” votes to
      answer “yes” on the mitigation special issue—either of which
      answers would result in a life sentence, not death.               Id.
      art. 37.071(2)(g).
Druery v. Thaler, 647 F.3d 535, 542 (5th Cir. 2011). The Texas Code, however,
expressly prohibits informing the jury of the effect of a failure to agree on the
special issues. Tex. Code Crim. Proc. Ann. art. 37.071(2)(a)(1). And with
respect to mitigation evidence, article 37.071(2)(f)(4) instructs that the jury
“shall consider mitigating evidence to be evidence that a juror might regard as
reducing the defendant’s moral blameworthiness.”
      Holiday first challenges the constitutionality of article 37.071(2)(a)(1).
He argues that the 12-10 rule violates the Eighth Amendment because it
misleads jurors into believing that a sentence of life imprisonment is only
possible when at least ten jurors vote “no” on the aggravating special issue or
at least ten jurors vote “yes” on the mitigation special issue. In support, he
cites Mills v. Maryland, 486 U.S. 367 (1988), and Caldwell v. Mississippi, 472
U.S. 320 (1985), but this argument is foreclosed by circuit precedent. See, e.g.,
Druery, 647 F.3d at 542–44; Miller v. Johnson, 200 F.3d 274, 288–89 (5th Cir.
2000).
      Holiday also argues that limiting mitigation evidence to only evidence
that reduces moral blameworthiness is unconstitutional in light of McCleskey

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                                  No. 13-70022
v. Kemp, 481 U.S. 279, 306 (1986). As Holiday correctly concedes, we have
already rejected such an argument. See, e.g., Blue v. Thaler, 665 F.3d 647,
666–67 (5th Cir. 2011).
      Finally, Holiday argues that the 12-10 rule is unconstitutional “because
it does not place the burden of proof on the State that would require the jury
to find beyond a reasonable doubt that there are no mitigating circumstances
sufficient to warrant the imposition of life rather than death.” Holiday also
argues that “the charging instrument does not give notice of the facts that will
[be] proven to statutorily qualify a particular defendant for the death penalty.”
Holiday concedes that this Court has rejected such attacks on the 12-10 rule,
but suggests that this Court’s en banc decision in Nelson v. Quarterman, 472
F.3d 287 (5th Cir. 2006) (en banc), has “derogated” all such rejections. Holiday
does not explain Nelson beyond this conclusory assertion. Moreover, we have
continued to reject such attacks on the 12-10 rule after Nelson. See, e.g.,
Druery, 647 F.3d at 544–45, 546–47. Holiday does not show that reasonable
jurists could debate the district court’s disposition of these claims.
                           IV.    CONCLUSION
      We conclude that the district court’s disposition of Holiday’s claims could
not be the subject of debate amongst reasonable jurists. In addition to the
reasons stated herein, we adopt the district court’s detailed and well-reasoned
memorandum opinion and order with respect to each claim.             Accordingly,
Holiday’s application for a COA on the claims presented here is DENIED.




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