                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS          August 15, 2003

                         FOR THE FIFTH CIRCUIT           Charles R. Fulbruge III
                                                                 Clerk
                         _____________________

                              No. 03-40492
                         _____________________



     JASEN SHANE BUSBY


                                      Petitioner – Appellant

          v.

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


                                      Respondent – Appellee

_________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
                          No. 5:02-CV-264
_________________________________________________________________

Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.

KING, Chief Judge:*

     Petitioner-Appellant Jasen Shane Busby applies for a

certificate of appealability on five issues raised as part of a

petition for a writ of habeas corpus pursuant to 28 U.S.C. §



     *
        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that this opinion should not be published and is not precedent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.
2254.   We deny Busby’s request for a certificate of appealability

on each contested issue.

I.   FACTS AND PROCEDURAL BACKGROUND

     On April 16, 1995, Jasen Busby spent the day with friends

Christopher Kelly, Brandy Gray, and Tennille Thompson.       The next

day they were joined by another friend, Darrell Smith.       After

several hours of partying, Smith and Busby left the trailer where

the group was staying.    Shortly thereafter, Busby returned and

shot Kelly, Gray, and Thompson; Gray and Thompson died

immediately, but Kelly survived.       After Busby and Smith left,

Kelly walked to a neighbor’s house and reported that Busby had

killed two people.   Kelly described Busby and the vehicle which

he and Smith had departed in to the police, and Busby was

arrested soon afterward.

     Busby was indicted on June 20, 1995 for capital murder under

Texas Penal Code § 19.03(a)(7)(A).       After a jury trial, Busby was

convicted on July 19, 1996.    A week later, after a separate trial

on punishment, the jury answered the statutory capital punishment

issues such that the trial court sentenced Busby to death.       Busby

appealed to the Texas Court of Criminal Appeals, which affirmed

his conviction and sentence.    Busby v. Texas, 990 S.W.2d 263

(Tex. Crim. App. 1999).    The Supreme Court denied Busby’s

petition for certiorari review.        Busby v. Texas, 528 U.S. 1081

(2000).



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      On November 20, 1998, Busby filed an application in state

court for post-conviction relief.     Following a hearing, the court

entered findings of fact and conclusions of law and recommended

that Busby’s request for relief be denied.    The Court of Criminal

Appeals adopted the lower court’s findings, conclusions, and

recommendation.    Ex parte Busby, no. 28,761-01 (Tex. Crim. App.

Sept. 13, 2000).

      On September 12, 2001, Busby filed a § 2254 petition in the

United States District Court for the Eastern District of Texas.

Busby raised ten grounds for relief.    While the district court

denied Busby’s request for relief on all of the issues presented,

the court did grant Busby’s request for a certificate of

appealability (COA) on four of the issues: (1) whether Busby’s

appellate counsel’s decision not to appeal the trial court’s

denial of Busby’s motion to suppress his prison correspondence

constituted ineffective assistance of counsel; (2) whether the

trial court’s denial of Busby’s motion to suppress the prison

letters violated his First Amendment rights; (3) whether the

trial court’s denial of Busby’s motion for change of venue

violated his right to a fair trial; and (4) whether Busby had

properly exhausted his change of venue claim.    Busby now seeks a

COA on five additional issues raised before that court.

II.   APPLICABLE LAW

      Busby filed his federal habeas petition after the effective

date of the Anti-Terrorism and Effective Death Penalty Act of

                                  3
1996 (“AEDPA”).     Lindh v. Murphy, 521 U.S. 320, 326-27 (1997)

(stating that the AEDPA applies to all cases pending as of April

24, 1996).   The AEDPA requires that Busby obtain a COA before he

may receive full appellate review of the district court’s denial

of his request for habeas relief.      28 U.S.C. § 2253(c)(1)(A)

(2000) (“Unless a circuit justice or judge issues a certificate

of appealability, an appeal may not be taken to the court of

appeals from the final order in a habeas corpus proceeding in

which the detention complained of arises out of process issued by

a State court.”).

     We may grant Busby’s request for a COA only if he can make a

“substantial showing of the denial of a constitutional right.”

Id. § 2253(c)(2).    To make such a showing, Busby must demonstrate

that “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.”      Dowthitt v. Johnson,

230 F.3d 733, 740 (5th Cir. 2000), cert. denied, 532 U.S. 915

(2001) (quoting Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)).

If the district court’s denial of some or all of the petitioner’s

claims rests on procedural grounds, then in order to obtain a COA

the petitioner must demonstrate both 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

                                   4
correct in its procedural ruling.”     Slack, 529 U.S. at 484.    When

considering the petitioner’s request for a COA, the ultimate

determination turns on “the debatability of the underlying

constitutional claim, not the resolution of that debate.”        Henry

v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003) (quoting Miller-El

v. Cockrell, 537 U.S. 322, ___ (2003)).

     Our review of whether Busby makes a substantial showing of

the denial of a constitutional right is also constrained by the

applicable AEDPA standards of review.     Moore v. Johnson, 225 F.3d

495, 501 (5th Cir. 2000), cert. denied, 532 U.S. 949 (2001).       On

questions of law, the state court’s conclusions will be disturbed

only upon a showing that they were “contrary to, or an

unreasonable application of, clearly established” Supreme Court

precedent.   28 U.S.C. § 2254(d)(1).   In addition, state court

findings of fact are presumed correct unless the petitioner

rebuts them by clear and convincing evidence.     Id. § 2254(e)(1).

III. BUSBY’S CLAIMS ON APPEAL

     Busby raises five claims rejected by the district court as

potential grounds for a COA: (1) whether the trial court’s

admission of the prison letters violated his Fourteenth Amendment

due process rights; (2) whether the trial court’s jury charge

concerning the voluntariness of Busby’s confession violated his

Fourteenth Amendment due process rights; (3) whether the trial

court’s denial of Busby’s request for an expert jury consultant

violated his Sixth and Fourteenth Amendment rights to a fair

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trial; (4) whether the trial court’s denial of Busby’s request

for a drug abuse expert violated his Sixth and Fourteenth

Amendment rights to a fair trial; and (5) whether the trial

court’s failure to instruct the jury concerning parole

eligibility violated Busby’s Eight Amendment and Equal Protection

rights.

     A.     Busby’s Prison Correspondence and the Fourteenth
            Amendment

     Busby’s first claim is that he was denied his Fourteenth

Amendment due process rights when the trial court admitted into

evidence, over objection, copies of his personal letters written

from jail while he awaited trial.1    Busby argues that his

Fourteenth Amendment rights were violated because the letters

were obtained pursuant to “an irrational, arbitrary and

capricious procedure” given that whether mail was seized and

copied was left to the individual discretion of each prison

employee.    Turner v. Safley, 482 U.S. 78, 90 (1987) (holding that

prison regulations restricting an inmate’s constitutional rights

do not violate due process so long as they are reasonably related

to a legitimate penological interest, provided that the



     1
        In the district court, Busby raised First, Fourth, and
Fourteenth Amendment challenges based on the prison’s reading and
copying of his outgoing mail. The district court denied relief
on all three issues but granted a COA on the First Amendment
issue. Busby has apparently abandoned the Fourth Amendment issue
and asserts on application to this court only the Fourteenth
Amendment issue.

                                  6
regulations do not have merely an arbitrary or irrational

connection to the interest being served).

     The state habeas court found that “reading and copying an

inmate’s outgoing non-privileged mail serves a valid penological

purpose” and thus does not violate the inmate’s Fourteenth

Amendment due process rights.    The district court concluded that

this finding was not contrary to, or an unreasonable application

of, clearly established law.    We do not think that reasonable

jurists would find this debatable.    The letters involved here

concerned threats to witnesses, the trial judge and other

inmates, plans for escape, suicidal thoughts, and prison drug

use, letters that predictably would attract the attention of jail

supervisors.    Busby’s arguments that the selection of his letters

for reading and copying was arbitrary (and, by extension, that

the letters should have been suppressed) are meritless.    He has

failed to make a substantial showing of the denial of a

constitutional right, and we decline to issue a COA on this

issue.

     B.   Jury Instruction on the Voluntariness of Busby’s
          Confession

     Busby’s second claim is that he was denied due process and

the right to a fair trial when the trial court failed to instruct

the jury properly on the issue of the voluntariness of his

confession.    Texas law requires that, once the issue of the

voluntariness of a defendant’s confession has been raised before


                                  7
the jury, the jury must be charged “generally, on the law

pertaining to such statement.”    TEX. CRIM. PRO. CODE ANN. art. 38.22

§ 7 (Vernon 1979).   Busby claims that he raised the issue of the

voluntariness of his confession on Miranda grounds but that the

trial court instructed the jury only on the law as it relates to

intoxication and voluntariness.    The state habeas court found

that there was “no evidence raising the issue of voluntariness of

Applicant’s confession, only as it related to drug intoxication,

which was given.”

     The district court considered the evidence presented at

trial and concluded that the state habeas court’s finding that

there was no evidence raising the issue of voluntariness in the

Miranda context was not unreasonable.       Busby presents no new

evidence or arguments before this court that would convince us

that the district court erred in reaching this conclusion.       That

(as Busby argues) the confession was “core” to the state’s case

does not in itself require that the jury be instructed on the

voluntariness of the confession.       Busby has not shown that he

sufficiently raised the Miranda issue at trial to warrant the

statutorily required voluntariness instruction.

     Busby has failed to demonstrate that jurists of reason would

find the district court’s resolution of this issue debatable.

Therefore, he has not made a substantial showing of the denial of

a constitutional right, and we decline to grant a COA on this

issue.

                                   8
     C.   Busby’s Requests for an Expert Jury Consultant and for
          a Drug Abuse Expert

     Busby’s third and fourth claims are that the trial court

violated his Sixth and Fourteenth Amendment rights by rejecting

his requests for appointment of an expert jury consultant and a

drug abuse expert.     Ake v. Oklahoma, 470 U.S. 68 (1985) (holding

that the Due Process Clause of the Fourteenth Amendment requires

the appointment of an expert for an indigent defendant if an

expert would be necessary to provide the defendant with the

“basic tools” to present a defense). Prior to trial, Busby moved

to have these experts appointed, and the trial court, after a

hearing, denied the motions.    On direct appeal, the Court of

Criminal Appeals concluded that an expert jury consultant was not

a “basic tool” of the defense and that the court-appointed

psychiatrist was ably qualified to assist and testify as a drug

abuse expert.   Busby v. State, 990 S.W.2d at 270-71.

     The district court considered the evidence and applicable

law and concluded that the state court’s findings were not

contrary to, or an unreasonable application of, clearly

established law.     See, e.g., Moore v. Johnson, 225 F.3d 495, 503

(5th Cir. 2000), cert. denied, 532 U.S. 949 (2001) (rejecting a

defendant’s claim that the trial court violated Ake by denying

his request for a court-appointed expert jury consultant); White

v. Johnson, 153 F.3d 197, 202 (5th Cir. 1998) (stating that the




                                   9
denial of a request for a court-appointed expert in violation of

Ake is subject only to harmless error analysis).

     Busby presents no new evidence or arguments in this court to

persuade us that the district court erred in its conclusion.

Jurists of reason would not find it debatable whether the

district court properly resolved these issues.   Because Busby has

failed to make a substantial showing of the denial of the

constitutional right to a court-appointed expert, we decline to

grant a COA on either of these issues.

     D.   Busby’s Request for a Jury Instruction on Parole
          Eligibility

     Busby’s final claim is that the trial court violated his

Eighth and Fourteenth Amendment rights by instructing the jury

that they were not to consider the possibility of parole during

the sentencing phase of the trial.   Busby argues that, in giving

such an instruction, the court made the jury aware that parole

was a possibility and therefore should have also informed them

that, under the Texas capital sentencing statutes, Busby would

not have been parole eligible for at least forty years.   Busby

contends that he could have used this information to rebut the

government’s arguments on the future dangerousness special issue.

See Simmons v. South Carolina, 512 U.S. 154, 156 (1994) (holding

that, where a defendant’s future dangerousness is at issue and

the sentencing options are either death or life without the




                               10
possibility of parole, due process requires that defendant be

allowed to inform the jury of his ineligibility for parole).

      On direct appeal the Court of Criminal Appeals rejected this

claim on the merits.   Busby, 960 S.W.2d at 271-72.    The district

court found that this decision was not contrary to, or an

unreasonable application of, clearly established law.     See, e.g.,

Collier v. Cockrell, 300 F.3d 577, 583 (5th Cir.), cert. denied,

123 S.Ct. 690 (2002) (rejecting the applicability of Simmons to

the Texas sentencing scheme because Texas provides more

sentencing options than death or life without the possibility of

parole); Rudd v. Johnson, 256 F.3d 317, 320-21 (5th Cir.), cert.

denied, 534 U.S. 1001 (2001) (same).

      Busby presents no new arguments to this court calling the

district court’s conclusion into question.     This court has

consistently and repeatedly rejected Simmons challenges to the

Texas capital sentencing system.     Jurists of reason would not

find the district court’s resolution of this issue debatable.

Busby has failed to make a substantial showing of the denial of a

constitutional right, and he is therefore not entitled to a COA

on this issue.

IV.   CONCLUSION

      We decline Busby’s application for a COA on each of the

issues presented.




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