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

                                                                            FILED
                                                                           May 29, 2012

                                       No. 11-70021                        Lyle W. Cayce
                                                                                Clerk

JAMIE BRUCE MCCOSKEY

                                                  Petitioner–Appellant
v.

RICK THALER, 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. 4:10-cv-00123


Before KING, GARZA, and ELROD, Circuit Judges.
PER CURIAM:*
        Jamie Bruce McCoskey was convicted of capital murder and sentenced to
death. The Texas Court of Criminal Appeals affirmed his conviction and
sentence on direct appeal, and McCoskey unsuccessfully sought state post-
conviction relief. McCoskey then filed for federal habeas relief. The district court
denied habeas relief, but granted a certificate of appealability pursuant to 28
U.S.C. § 2253 for two of his claims regarding the jury instructions delivered


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-70021

during the punishment phase of his trial. McCoskey now seeks habeas relief on
these two claims, as well as an additional certificate of appealability to challenge
the district court’s denial of habeas relief on several other claims regarding the
jury instructions. For the reasons stated below, we AFFIRM the district court’s
judgment denying his request for habeas relief and DENY his request for a
certificate of appealability.
            I. FACTUAL AND PROCEDURAL BACKGROUND
      In November of 1992, Jamie Bruce McCoskey was convicted of capital
murder. At the penalty phase of his trial, the state trial court gave written
instructions to the jury. McCoskey v. Thaler, No. H-10-0123, 2011 WL 2162176,
at *4 (S.D. Tex. May 31, 2011). The relevant portion of the instructions stated:
      You are instructed that when you deliberate on the questions posed
      in the special issues, you are to consider all relevant mitigating
      circumstances, if any, supported by the evidence presented in both
      phases of the trial, whether presented by the State or the defendant.
      A mitigating circumstance may include, but is not limited to, any
      aspect of the defendant’s character, background, record, emotional
      instability, intelligence or circumstances of the crime which you
      believe could make a death sentence inappropriate in this case. If
      you find that there are any mitigating circumstances in this case, you
      must decide how much weight they deserve, if any, and thereafter,
      give effect and consideration to them in assessing the defendant’s
      personal moral culpability at the time you answer the special issue.
      If you determine, when giving effect to the mitigating evidence, if
      any, that a life sentence, as reflected by a [sic] affirmative finding to
      the issue under consideration, rather than a death sentence, is an
      appropriate response to the personal moral culpability of the
      defendant, a [sic] affirmative finding should be given to that special
      issue under consideration.
Id. (emphasis added). The trial court then delivered the following two statutory
special issues to the jury:




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       SPECIAL ISSUE NO. 1
       Is there a probability that the defendant, Jamie Bruce McCoskey,
       would commit criminal acts of violence that would constitute a
       continuing threat to society?
       SPECIAL ISSUE NO. 2
       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, do
       you find that there is a sufficient mitigating circumstance or
       circumstances to warrant that a sentence of life imprisonment
       rather than a death sentence be imposed?
       You are instructed that the term “mitigating evidence” or
       “mitigating” circumstances means evidence that a juror might
       regard as reducing the defendant’s moral blameworthiness.
The jury answered Special Issue No. 1 in the affirmative, and Special Issue No.
2 in the negative. Id. at *2.1 The trial court sentenced McCoskey to death. Id.
       On direct appeal, McCoskey raised, inter alia, a challenge against the
punishment-phase jury instructions under Penry v. Lynaugh, 492 U.S. 302
(1989) (Penry I), claiming that they prevented the jury from giving effect to
evidence that McCoskey would not be a future danger to society. The Texas
Court of Criminal Appeals (“TCCA”) found the instructions to be erroneous, but
rejected McCoskey’s argument. McCoskey v. State, No. 71,629 (Tex. Crim. App.
May 22, 1996), at 29–30. The TCCA first observed that McCoskey’s trial counsel
had failed to object to this error during the trial itself, meaning that under
Article 36.14 of Texas Criminal Code, the error must have been “so egregious
and have created such harm that appellant was denied a fair and impartial




       1
        McCoskey attempted to rebut the State’s evidence regarding his future dangerousness
with evidence that McCoskey suffered from mental illness that could be successfully treated
in prison. See McCoskey, 2011 WL 2162176, at *5. McCoskey contends that this evidence
showed that he would not pose a future danger, even if it did not reduce his culpability for the
murder.

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trial.” Id. at 30 (citations omitted). The court then reasoned that whatever error
existed was harmless:
      [H]ad the jury completely disregarded the instruction, then no harm
      would have resulted because the jury would have been ignoring
      exactly what the appellant says caused him harm. On the other
      hand, had the jury followed the court’s instruction to the letter . . . ,
      then two possibilities could have occurred. Had the jury wanted to
      recommend a life sentence as opposed to death, it would have
      responded in the affirmative to both of the special issues, thus
      yielding appellant’s desired result of a life sentence. But, if the jury
      had expressly wanted to recommend a death sentence, then under
      the court’s instruction, it would have answered both of the questions
      “no,” thus also resulting to appellant’s benefit, albeit contrary to the
      jury’s intention, in a life sentence. Hence, appellant would have
      suffered no harm.
Id. at 31 (emphases in original).
      McCoskey proceeded to file for state post-conviction relief, raising among
other claims, an ineffective assistance of counsel claim. See Ex parte McCoskey,
No. WR-56,820-02 (Tex. Crim. App. Mar. 11, 2009). McCoskey argued that the
failure of his trial counsel to object to the erroneous jury instructions constituted
grounds for setting aside his death sentence under Strickland v. Washington,
466 U.S. 669 (1984). The state habeas court found that the TCCA had
“essentially . . . rejected” this argument on direct appeal when it found the
instructions to be harmless and, in the alternative, that the harmlessness of the
instructions precluded the necessary showing of prejudice to establish ineffective
assistance of counsel. On appeal, the TCCA also rejected McCoskey’s arguments,
adopting the reasoning of the state post-conviction court.
      McCoskey then filed for federal habeas relief on several grounds,
challenging the punishment-phase instructions and asserting ineffective
assistance of his trial counsel. McCoskey, 2011 WL 2162176, at *4–8, *12.
Relevant for this appeal, McCoskey challenged the punishment-phase jury
instructions under Penry I. He claimed that the instructions prevented the jury

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from giving effect to evidence that McCoskey would not be a future danger to
society by telling the jury to weigh mitigating evidence “in assessing the
defendant’s personal moral culpability.” McCoskey posited that this instruction
might have led the jury to disregard mitigating evidence regarding his future
dangerousness that did not also go towards his moral culpability. The district
court rejected this argument, pointing to the instructions’ broad definition of
mitigating evidence. Id. at *6. The district court, however, noted that reasonable
jurists might disagree as to “whether the instruction was confusing in a way that
might have led the jury to believe it could only consider mitigating evidence that
reduced McCoskey’s moral culpability, regardless of whether it tended to show
that he would not pose a future danger.” Id. It thus granted a certificate of
appealability (“COA”) on this claim.2
       The district court also granted McCoskey a COA on his ineffectiveness
claim, itself an extension of his Penry claim. McCoskey argued that his trial
counsel’s failure to object to the flawed instructions fell below an objective
standard of reasonableness and resulted in a reasonable probability that but for
counsel’s failure to object, McCoskey might not have received the death penalty.
Id. at *11 (citing Strickland, 466 U.S. at 687). Emphasizing the Antiterrorism
and Effective Death Penalty Act’s (“AEDPA”) deferential standard, the district
court reiterated its conclusion that the TCCA’s finding—that the instructions,
while flawed, nonetheless did not prevent the jury from considering and giving
effect to McCoskey’s mitigating evidence—was reasonable. Id. at *12. However,



       2
         McCoskey also made an argument similar to that he made before the TCCA—namely,
that his death sentence violated the due process requirements of the Eighth and Fourteenth
Amendments because the jury had answered the special instructions in a way that required
imposition of a life sentence. The district court found the TCCA’s determination that any error
in the instructions was harmless to be a reasonable one under the deferential review
established by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254. McCoskey,
2011 WL 2162176, at *4–5.

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the district court again granted a COA, positing that reasonable jurists could
disagree about its conclusion. Id.
        The district court rejected the remainder of McCoskey’s claims for habeas
relief and granted no further COAs. Id. at *16. McCoskey now appeals the
district court’s denial of habeas relief on his Penry and ineffective assistance of
counsel claims, and also seeks a certificate of appealability on four other issues
related to the punishment-phase instructions. We first analyze the merits of
McCoskey’s interrelated Penry and ineffective assistance claims. We then turn
to whether a COA should issue for any of the other claims he raises.
                              II. HABEAS CLAIMS
A.      Standard of Review
        “In an appeal of the district court’s denial of habeas relief, ‘this court
reviews the district court’s findings of fact for clear error and its conclusions of
law de novo, applying the same standard of review that the district court applied
to the state court decision.’” Austin v. Cain, 660 F.3d 880, 884 (5th Cir. 2011)
(quoting Jones v. Cain, 600 F.3d 527, 535 (5th Cir. 2010)). McCoskey’s appeal is
governed by AEDPA, 28 U.S.C. § 2254. Under § 2254(d), a federal court may
grant habeas corpus relief only if the state court’s adjudication of his claim on
the merits “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.” 28 U.S.C. § 2254(d). To be clear, “a
federal habeas court may not issue the writ simply because that court concludes
in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411
(2000) (emphasis added). “A state court’s decision is contrary to clearly
established federal law if it applies a rule that contradicts the governing law set
forth in Supreme Court cases . . . or if the state court decide[s] a case differently

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than the United States Supreme Court previously decided a case on a set of
nearly identical facts.” Jones, 600 F.3d at 535 (citations and internal quotation
marks omitted). Similarly, “[a] state court’s decision involves an unreasonable
application of clearly established federal law if the state court ‘correctly
identifies the governing legal rule but applies it unreasonably to the facts of a
particular prisoner’s case.’” Fields v. Thaler, 588 F.3d 270, 273 (5th Cir. 2009)
(quoting Williams, 529 U.S. at 407–08).
B.       The Penry Issue
         McCoskey’s first argues that habeas relief is warranted because the jury
instructions made “it . . . impossible for the jury to give any ‘meaningful effect’
to any evidence supporting a finding that Mr. McCoskey was a future danger.”
McCoskey Br. at 10–11. In other words, McCoskey contends that because “the
charge provided the jury with no vehicle for expressing its ‘reasoned moral
response’ to substantial evidence having significance only to Mr. McCoskey’s
propensity to commit crimes, the denial of habeas relief should be reversed.” Id.
at 14.
         McCoskey’s claim is governed by Penry I and its progeny. In Penry I, the
Supreme Court held that habeas relief was appropriate because a juror
presented with the Texas special issues could not have given effect to the full
scope of the mitigating evidence regarding mental retardation and childhood
abuse that had been presented by the petitioner at his sentencing phase. Penry
I, 492 U.S. at 340. The Penry I Court held that “it is not enough simply to allow
the defendant to present mitigating evidence to the sentencer. The sentencer
must also be able to consider and give effect to that evidence in imposing
sentence.” Penry I, 492 U.S. at 319 (emphasis added). Only then would “‘the
sentence imposed at the penalty stage . . . reflect a reasoned moral response to
the defendant’s background, character, and crime.’” Id. (quoting California v.
Brown, 479 U.S. 538, 545 (1987) (O’Connor, J., concurring)).

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      In Penry v. Johnson, 532 U.S. 782 (2001) (Penry II), the Court had occasion
to apply the principles of Penry I to a situation similar to the present case. In
that case, the jury had “had to determine whether Penry acted deliberately when
he killed [the victim]; whether there was a probability that Penry would be
dangerous in the future; and whether Penry acted unreasonably in response to
provocation.” Id. at 789. The Court rejected a supplemental instruction3 which
created “‘a reasonable likelihood that the jury . . . applied the challenged
instruction in a way that prevent[ed] the consideration’ of Penry’s [mitigating
evidence].” Id. at 800 (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). In
arriving at this holding, the Court emphasized that “the key under Penry I is
that the jury be able to ‘consider and give effect to [a defendant’s mitigating]
evidence in imposing sentence.’” Penry II, 532 U.S. at 797 (quoting Penry I, 492
U.S. at 319) (alteration in original). Put differently, the special issues must be
“broad enough to provide a vehicle t[o] allow[] the jury to express its reasoned
moral response to the full mitigating impact of all the evidence.” Nelson v.
Quarterman, 472 F.3d 287, 300 (5th Cir. 2006) (en banc). Thus, the Court
concluded, the TCCA’s acceptance of these instructions was an unreasonable


      3
          The instruction stated:
      You are instructed that when you deliberate on the questions posed in the
      special issues, you are to consider mitigating circumstances, if any, supported
      by the evidence presented in both phases of the trial, whether presented by the
      state or the defendant. A mitigating circumstance may include, but is not
      limited to, any aspect of the defendant’s character and record or circumstances
      of the crime which you believe could make a death sentence inappropriate in
      this case. If you find that there are any mitigating circumstances in this case,
      you must decide how much weight they deserve, if any, and therefore, give
      effect and consideration to them in assessing the defendant’s personal
      culpability at the time you answer the special issue. If you determine, when
      giving effect to the mitigating evidence, if any, that a life sentence, as reflected
      by a negative finding to the issue under consideration, rather than a death
      sentence, is an appropriate response to the personal culpability of the
      defendant, a negative finding should be given to one of the special issues.
Id. at 789–90 (emphasis added).

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application of Penry I. Penry II, 532 U.S. at 803–04. But the Court observed that
“[a] clearly drafted catchall instruction on mitigating evidence . . . might . . .
compl[y] with Penry I.” Id. at 803. The Court noted that even Penry’s counsel
“would have [had] a tough time” arguing that the amended Texas capital
statute—under which McCoskey was sentenced—did not comply with Penry I.
Id.
         In the wake of Penry I and II, we have understood the proper inquiry to be
“whether there is a reasonable likelihood that the special issues precluded the
jury from giving full consideration and full effect to the defendant’s mitigating
evidence, including evidence that has mitigating relevance outside the scope of
the special issues because it speaks to a defendant’s moral culpability.” Nelson,
472 F.3d at 303. The capacious definition of “mitigating evidence” employed in
the Texas statute can “encompass[] ‘virtually any mitigating evidence.’” Roach
v. Quarterman, 220 F. App’x 270, 277 (5th Cir. 2007). This is because “[t]his jury
instruction ‘does not unconstitutionally ‘preclude[ ] [the jury] 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.’” Id. at 277 (quoting Lockett v. Ohio, 438 U.S. 586, 604
(1978)) (alterations in original).
         McCoskey urges that his case is materially indistinguishable from Penry
II because the erroneous instructions in his situation created “internal
contradictions” between the instructions and the special issues that “imped[ed]
a reasoned response to substantial evidence mitigating future dangerousness.”
McCoskey Reply Br. at 1–2 (citing Penry II, 532 U.S. at 797–800). However,
McCoskey misapprehends the Court’s holding in Penry II. The Court rejected the
supplemental instructions in that case “[b]ecause Penry’s mitigating evidence
did not fit within the scope of the special issues, [so that] answering those issues
in the manner prescribed on the verdict form necessarily meant ignoring the

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command of the supplemental instruction.” Penry II, 532 U.S. at 799. Given that
the Penry II special issues covered only the deliberateness of the killing, future
dangerousness, and whether Penry had acted unreasonably in response to
provocation, id. at 789, the Court’s concerns about contradiction and limitation
were self-evident.
      McCoskey’s case is different. Here, there is no indication that the TCCA
unreasonably applied Penry II to McCoskey’s case. Williams, 529 U.S. at 411.
The instructions made clear that mitigating evidence could “include, but is not
limited to, any aspect of the defendant’s character, background, record,
emotional instability, intelligence or circumstances of the crime which you
believe could make a death sentence inappropriate in this case.” Likewise,
Special Issue No. 2 instructed jurors to consider “all of the evidence, including
the circumstances of the offense, the defendant’s character and background, and
the personal moral culpability of the defendant,” in determining whether to
assess the death penalty. Moreover, the instructions as a whole encompassed
such a wide breadth of evidence as to encompass mitigating evidence dealing
with moral blameworthiness, as well as mitigating evidence going towards
future dangerousness. Cf. United States v. Conner, 537 F.3d 480, 486 (5th Cir.
2008) (reviewing jury instructions as a whole for error). In sum, the jurors in
McCoskey’s case were directly asked whether mitigation evidence, broadly
defined, warranted a life sentence rather than death. Consequently, there is no
indication that it was unreasonable for the TCCA to conclude that the jury was
not prevented from considering and giving effect to the defendant’s mitigating
evidence. See Penry II, 532 U.S. at 797.
      The deferential standard of review, as well as the recognized breadth of
Texas’s jury instructions, indicate that the district court was correct in
determining that the TCCA did not unreasonably apply Supreme Court
precedent in finding that McCoskey’s jury instructions did not prevent the jury

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from considering and giving effect to the mitigating evidence he presented. We
therefore affirm the district court’s denial of McCoskey’s request for habeas relief
on this ground.
C.      The Strickland Issue
        McCoskey also raises an ineffective assistance of counsel challenge based
on his trial counsel’s failure to object to the erroneous jury instructions.
McCoskey’s argument on this issue is essentially the same as in the previous
issue. The State effectively concedes that trial counsel committed error, instead
arguing that this claim is procedurally defaulted or, in the alternative,
McCoskey cannot show that he was prejudiced by counsel’s error. Under
AEDPA, there is no need to reach procedural default if McCoskey cannot prevail
on the merits of his ineffective assistance claim. See 28 U.S.C. § 2254(b)(2).
Accordingly, we first examine the substance of his Strickland claim.
        Ineffective assistance of counsel claims are governed by the standard laid
out in Strickland v. Washington:
        First, the defendant must show that counsel’s performance was
        deficient. . . . Second, the defendant must show that the deficient
        performance prejudiced the defense. This requires showing that
        counsel’s errors were so serious as to deprive the defendant of a fair
        trial, a trial whose result is reliable.
466 U.S. at 687. The district court agreed with McCoskey that trial counsel’s
failure to object to the flawed jury instructions was deficient. McCoskey, 2011
WL 2162176, at *12. Our question, then, is whether the prejudice prong is met.
“When a defendant challenges a death sentence . . . , the question is whether
there is a reasonable probability that, absent the errors, the sentencer . . . would
have concluded that the balance of aggravating and mitigating circumstances
did not warrant death.” Strickland, 466 U.S. at 695. In this context, “[a]
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. Put differently, “[i]n assessing prejudice under Strickland,


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the question is not whether a court can be certain counsel’s performance had no
effect on the outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. . . . Instead, Strickland asks
whether it is ‘reasonably likely’ the result would have been different.”
Harrington v. Richter, 131 S. Ct. 770, 791–92 (2011) (citations and internal
quotation marks omitted). Thus, Strickland demands that likelihood of a
different result “must be substantial, not just conceivable.” Id. at 792.
      McCoskey’s lack of success on his Penry claim precludes his ability to show
prejudice for Strickland purposes. Given the high bar established by the
intersection of Strickland and § 2254(d), the TCCA’s conclusion that the jury was
able to consider and give effect to the mitigating evidence that McCoskey
presented was reasonable. Under the above standard, McCoskey would have to
show that “there is [no] reasonable argument that counsel satisfied Strickland’s
deferential standard.” Harrington, 131 S. Ct. at 787. McCoskey cannot do this.
Even assuming that trial counsel’s performance was deficient, McCoskey’s
inability to make out a viable Penry claim defeats his ability to show a
“reasonable probability that . . . but for counsel’s unprofessional errors, the
result of the proceeding would have been different. . . .[,] sufficient[ly] to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Consequently, we deny McCoskey’s request for habeas relief on this point and
affirm the district court’s decision. There is no need to reach the issue of
procedural default.
D.    Conclusion
      McCoskey has failed to show that the TCCA unreasonably applied federal
law in adjudicating his Penry and Strickland claims. The district court correctly
denied his request for habeas relief.




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                  III. CERTIFICATE OF APPEALABILITY
A.      Standard of Review
        In order to pursue any other habeas claims, McCoskey must first obtain
a COA, which is a jurisdictional prerequisite to the panel’s ability to review the
district court’s dismissal of a habeas petition and denial of relief. See 28 U.S.C.
§ 2254(c)(1)(A); Miller–El v. Cockrell, 537 U.S. 322, 335–36 (2003). This adds a
further layer of review to the analysis of McCoskey’s claims. See 28 U.S.C.
§ 2253. The panel may grant a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). “Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). This does not require that McCoskey
demonstrate success on the merits of his claims, as “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.”
Miller-El, 537 U.S. at 338. When the district court rejects a habeas claim on
procedural grounds, a COA should issue if the petitioner shows “that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right, and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack, 529 U.S.
at 478.
        In assessing whether to grant a COA, the panel is restricted “to a
threshold inquiry into the underlying merit of [McCoskey’s] claims.” Miller-El,
537 U.S. at 327. Put differently, the panel is constrained to conducting “an
overview of the claims in [McCoskey’s] habeas petition and a general assessment
of their merits.” Id. at 336. The panel should make “the determination of

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                                    No. 11-70021
whether a COA should issue . . . 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). In capital cases, doubts as to
whether a COA should issue should be resolved in the petitioner’s favor. Foster
v. Quarterman, 466 F.3d 359, 364–65 (5th Cir. 2006).
B.      McCoskey’s Four COA Requests
        1. The Jury and the Instructions
        McCoskey first seeks to persuade us that reasonable jurists might debate
whether the jury’s response to the special issues indicates that they followed the
erroneous instructions and sought to deliver a life sentence to McCoskey. He
argues, citing Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985), that jurors are
presumed to follow the instructions given to them by courts.
        McCoskey is right that there is a presumption that “‘jurors, conscious of
the gravity of their task, attend closely the particular language of the trial
court’s instructions in a criminal case and strive to understand, make sense of,
and follow the instructions given them.’” United States v. Olano, 507 U.S. 725,
740 (1993) (quoting Francis, 471 U.S. at 324 n. 9). However, “[t]he rule that
juries are presumed to follow their instructions is a pragmatic one, rooted less
in the absolute certitude that the presumption is true than in the belief that it
represents a reasonable practical accommodation of the interests of the state and
the defendant in the criminal justice process.” Richardson v. Marsh, 481 U.S.
200, 211 (1987). Where there is good reason to believe that the presumption is
unwarranted by the facts of a particular case, it does not apply. Id. The district
court, drawing on the TCCA’s reasoning, found McCoskey’s situation to be such
a case:
        In this case it is obvious that the jury did not follow the instruction.
        If it had, then the answers to the two special issues would have been
        the same—“yes” if the jury wished to impose a life sentence, or “no”
        if it did not. The fact that the jury answered one special issue “yes”

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                                   No. 11-70021
      and the other “no” makes it clear that the jury did not follow the
      instruction, and that it answered the special issues in a direct and
      straightforward manner, i.e., it found that McCoskey posed a future
      danger to society and that the mitigating evidence did not warrant
      a life sentence.
McCoskey, 2011 WL 2162176, at *5. This reasoning is clearer and more
persuasive than what McCoskey offers. Given that at the COA stage, we ask
only whether “reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further,”
this is sufficient to meet that threshold. Miller–El, 537 U.S. at 336 (citation and
internal quotation marks omitted). Consequently, we reject McCoskey’s request
for a COA on this issue.
      2. The Principle of Lenity
      McCoskey next tries to reframe his previous argument in light of the
principle of lenity. McCoskey draws on Mills v. Maryland, 486 U.S. 367 (1988),
to posit that a death sentence must be vacated if a reviewing court “cannot
conclude, with any degree of certainty, that the jury did not adopt petitioner’s
interpretation of the jury instruction.” Id. at 377. McCoskey then reiterates his
view that “the nullification instruction treated the special issues independently
and allowed the jury to express a preference for a life sentence by answering
either one of the special issues affirmatively.”
      The general principle for which Mills stands can be found just above the
section McCoskey quotes:
      With respect to findings of guilt on criminal charges, the Court
      consistently has followed the rule that the jury’s verdict must be set
      aside if it could be supported on one ground but not on another, and
      the reviewing court was uncertain which of the two grounds was
      relied upon by the jury in reaching the verdict. . . . In reviewing
      death sentences, the Court has demanded even greater certainty
      that the jury’s conclusions rested on proper grounds. . . . Unless we
      can rule out the substantial possibility that the jury may have

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                                  No. 11-70021
      rested its verdict on the “improper” ground, we must remand for
      resentencing.
Id. at 376–77 (citations omitted). The Court announced this proposition in the
context of a capital case involving a jury instruction form that left “a substantial
probability that reasonable jurors, upon receiving the judge’s instructions in this
case, and in attempting to complete the verdict form as instructed, well may
have thought they were precluded from considering any mitigating evidence
unless all 12 jurors agreed on the existence of a particular such circumstance.”
Id. at 384. Similar to the present case, the Court lacked “extrinsic evidence of
what the jury in th[e] case actually thought,” but concluded that there was a
“substantial risk that the jury was misinformed.” Id. at 381.
      It is difficult to see a similar “substantial risk” of misinformation in
McCoskey’s case. As the district court observed, and the TCCA before it, there
is a “straightforward” reading of the jury’s responses: It ignored the instructions
and elected to sentence McCoskey to death. McCoskey, 2011 WL 2162176, at *5.
Moreover, McCoskey’s preferred interpretation—that the jurors understood the
instructions to mean that affirmative answer to either special issue would result
in a life sentence for him—leaves open the question of why the jurors answered
the future dangerousness special issue in the affirmative, but the life
imprisonment special issue in the negative. Given the limited nature of the COA
inquiry and the absence of any compelling arguments from McCoskey, there is
no reason to allow this claim to proceed further. We deny McCoskey’s request for
a COA on this issue.
      3. Logical Consistency
      McCoskey’s third claim for a COA is that the district court erred by
inquiring into the “logic” or “consistency” of the jury’s verdict. McCoskey’s claim
appears to be that the district court demanded that the jury’s verdict be logically
consistent in contravention of Supreme Court precedent to the contrary. This


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                                       No. 11-70021
claim, however, was not properly presented to the district court. McCoskey made
no mention of this claim in his amended habeas petition. His first reference to
this argument arose in his reply to the State’s answer to his amended habeas
petition. Indeed, the district court did not consider this claim in its opinion,
perhaps because it did not appear in McCoskey’s petition. Moreover, McCoskey
did not seek, pursuant to Federal Rule of Civil Procedure 15, to amend his
petition to include this argument as a new claim nor does he currently argue
that the district court has somehow abused it discretion by failing to consider it.
See FED. R. CIV. P. 15(a)(2); United States v. Cervantes, 132 F.3d 1106, 1111 (5th
Cir. 1998). A contention not raised by a habeas petitioner in the district court
cannot be considered for the first time on appeal from that court’s denial of
habeas relief. See Goodrum v. Quarterman, 547 F.3d 249, 259 n.49 (5th Cir.
2008); see also United States v. Sangs, 31 F. App’x 152, 2001 WL 1747884, at *1
(5th Cir. Dec. 11, 2001) (affirming, in § 2255 context, district court’s refusal to
consider issue raised for the first time in reply to government’s answer to habeas
petition).4 Given the above analysis, we reject McCoskey’s request as his claim
was never presented to the district court.
       4. The Harmless Error Analysis
       Lastly, McCoskey appears to contest the district court’s agreement with
the TCCA that any jury instruction error was harmless. McCoskey argues that
this conclusion “rests on the mistaken belief that the jury following the
instruction could only answer the special issues in one of two ways, either both,
Yes, or both, No. Since that is false, the harm analysis is false as well.”



       4
         To circumvent these problems, McCoskey contends that this argument is not actually
a novel habeas claim, but instead merely shows that the district court’s and the TCCA’s
rejection of his due process claim were debatable by reasonable jurists; that he is not making
a new and unpresented claim, but fleshing out a preexisting one. McCoskey’s opening brief,
however, never seeks to connect this claim back to any due process arguments he offered
before the district court. This belies his contention that this is a new twist on an old claim.

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                                  No. 11-70021
McCoskey’s argument misstates the position of both the district court and the
TCCA. McCoskey’s position is that the jury instructions were flawed and this
caused him harm in the form of his death sentence. However, if the jury simply
disregarded the erroneous instructions, then there was no harm to McCoskey
because the instructions played no role in sentencing. In contrast, if the jury did
properly follow the erroneous instructions, as McCoskey argues, then even if it
had intended to sentence McCoskey to death, it would have responded “no” to
both special issues since the error in the instructions was to conflate both special
issues and state that the jury should answer both in the affirmative to choose a
life sentence for McCoskey. Accordingly, no harm resulted from the instructions
to McCoskey. Since McCoskey has offered no rebuttal to this position, it is clear
that reasonable jurists could not debate this conclusion.
C.      Conclusion
        McCoskey cannot meet the standard required for the issuance of a COA.
Either reasonable jurists could not debate the general merits of the district
court’s conclusions or his claims were not properly preserved for appellate
review. We deny his request for a COA on these other issues.
                               IV. CONCLUSION
        For the aforementioned reasons, we AFFIRM the district court’s judgment
denying McCoskey’s request for habeas relief, and DENY his request for another
COA.




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