     Case: 09-70030     Document: 00511160264          Page: 1    Date Filed: 06/30/2010




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

                                                  FILED
                                                                            June 30, 2010

                                       No. 09-70030                         Lyle W. Cayce
                                                                                 Clerk

CAREY D KERR,

                                                   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 Northern District of Texas
                              USDC No. 4:06-CV-372


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Cary Kerr (spelled “Carey Kerr” in some court records) was convicted of
capital murder and sentenced to death. Kerr brought an application for a writ
of habeas corpus in the appropriate federal district court. The application was
denied and so was a Certificate of Appealability (“COA”). Upon review of his
application here, we also DENY a COA.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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      In March of 2003, a jury in Tarrant County, Texas convicted Kerr of
sexually assaulting and murdering Pamela Horton.            The Texas Court of
Criminal Appeals affirmed Kerr’s conviction. During the pendency of his appeal,
Kerr sought a writ of habeas corpus in a Texas trial court, which was denied.
Subsequently, he petitioned the district court for habeas relief under 28 U.S.C.
§ 2254. The court determined that Kerr had not made an adequate showing of
entitlement to a writ of habeas corpus. It further denied a COA.
      In order to appeal the district court’s denial of habeas relief, a petitioner
must obtain a COA either from the district court or from this court. 28 U.S.C.
§ 2253(c)(1)(A). We will grant a COA only if the petitioner makes “a substantial
showing of the denial of a constitutional right.” Id. § 2253(c)(2). That showing
requires a petitioner to “demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.”
Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation omitted). When habeas
relief is denied on procedural grounds, “a COA should issue when the prisoner
shows, at least, 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 v. McDaniel, 529 U.S. 473, 484 (2000). “Any
doubt regarding whether to grant a COA is resolved in favor of the petitioner,
and the severity of the penalty may be considered in making this determination.”
ShisInday v. Quarterman, 511 F.3d 514, 520 (5th Cir. 2007) (citation omitted).
      Kerr seeks a COA on the grounds that his constitutional rights were
violated in these ways: (1) the indictment failed to set forth aggravating factors
later submitted as special issues; (2) the prosecution was not required to
disprove mitigation beyond a reasonable doubt; (3) the grand jury was not
required to consider the aggravating factors warranting the capital murder
charge; (4) the instructions did not inform the jury of the consequences of its

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failure to agree on a special issue; (5) the trial court rejected Petitioner’s
requested jury charge on a special issue relating to future dangerousness; (6) the
future dangerousness special issue did not properly charge the burden of proof;
and (7) the current method of execution by lethal injection violates the Eighth
Amendment.
        We will group some of his arguments for analysis.
A.      Defects in the Indictment
        Kerr’s first and third claims allege deficiencies in the indictment.
Specifically, Kerr asserts that his Fifth and Fourteenth Amendment rights were
violated because the indictment failed to allege aggravating factors that were
later submitted to the jury in the punishment phase of his trial. Kerr relies on
the Fifth Amendment’s right to a grand jury indictment in support of this
argument. He also cites one of our decisions which held that aggravating factors
rendering a defendant eligible for the death penalty in a federal prosecution
must be stated in the indictment. See United States v. Robinson, 367 F.3d 278,
288 (5th Cir. 2004).
        As the district court noted, however, the right to a grand jury indictment
has not been extended to the States through the Fourteenth Amendment. See
Albright v. Oliver, 510 U.S. 266, 272 (1994). Indeed, in Robinson, we addressed
only the requirement of a grand jury indictment in a federal prosecution. See
Robinson, 367 F.3d at 288. Although Kerr argues that the grand jury clause
“could and should be” extended to the states, neither the Supreme Court nor this
court has done so to date.
        To the extent that Kerr argues that the inadequate indictment
impermissibly expands the prosecutor’s discretion to seek the death penalty, he
has not identified any precedent depriving state prosecutors of that discretion.
Accordingly, reasonable jurists would not find the district court’s resolution of
these claims to be debatable or wrong.

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B.      Burden of Proof for the Mitigation Special Issue
        Kerr alleges that his Sixth and Fourteenth Amendment rights to a jury
trial were violated because the State was not required to prove beyond a
reasonable doubt that no sufficient mitigating evidence warranted a sentence less
than death. In Texas, once a defendant is found guilty of capital murder, the jury
must answer two special issues unanimously to impose death. See Tex. Code
Crim. Proc. Ann. art. 37.071 § 2. The first assesses the “future dangerousness”
of the defendant, which the State is required to prove beyond a reasonable doubt.
Id. § 2(c). The jury is asked “[w]hether there is a probability that the defendant
would commit criminal acts of violence that would constitute a continuing threat
to society.” Id. § 2(b)(1). If answered in the affirmative, the jury next addresses
issues of mitigation, asking “whether, taking into consideration all of the
evidence, including the circumstances of the offense, the defendant’s character
and background, and the personal moral culpability of the defendant, there is a
sufficient mitigating circumstance or circumstances to warrant that a sentence
of life imprisonment without parole rather than a death sentence be imposed.”
Id. § 2(e)(1). The mitigation issue assigns no burden of proof. If the jury answers
“yes,” the defendant receives a life sentence. Id. § 2(g) If it answers “no,” the
punishment is death. Id.
        Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000) and Ring v.
Arizona, 536 U.S. 584 (2002), Kerr asserts that a jury must be required to find
a lack of mitigation beyond a reasonable doubt in order to impose death. We
disagree. We have previously addressed the necessity of an assigned burden of
proof for the mitigation special issue in Texas’s death penalty scheme. See Rowell
v. Dretke, 398 F.3d 370, 376-78 (5th Cir. 2005). We observed in Rowell that no
Supreme Court or Circuit precedent requires mitigation to be proved beyond a
reasonable doubt. Id. Consequently, we concluded that relief was not available
under the AEDPA standard. Id. Kerr’s claim in this regard is foreclosed. See

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also Avila v. Quarterman, 560 F.3d 299, 314-15 (5th Cir. 2009) (finding that the
court was bound by precedent to reject petitioner’s argument that the jury was
required to find a lack of mitigating evidence beyond a reasonable doubt).
C.      Jury Instructions About Failure to Agree on a Special Issue
        Kerr claims that his due process rights, as well as his Eighth and
Fourteenth Amendment rights, required that the jury be instructed on the
consequences of failing to agree on the special issues alleged in the punishment
phase. The crux of Kerr’s complaint is that jurors were not informed that a single
“hold-out” juror could prevent the imposition of the death penalty and effectuate
a life sentence. The Texas sentencing scheme requires a unanimous “yes” as to
the future dangerousness issue and a unanimous “no” on the mitigation issue in
order to impose the death penalty. Tex. Code Crim. Proc. Ann. art. 37.071 §
2(d)(2) & (e). The statute also requires that ten or more jurors vote together to
answer the future dangerousness issue “no” or the mitigation issue “yes” – either
of which would result in a life sentence. Id. The statutory instruction does not
inform the jury that a failure to meet the “ten vote” requirement results in a de
facto life sentence.
        The Supreme Court has previously rejected this argument. Jones v. United
States, 527 U.S. 373, 381-83 (1999). The Court concluded that a jury need not be
told what happens procedurally when a verdict cannot be reached. While the jury
may not be “affirmatively misled regarding its role in the sentencing process,” a
court is not required to instruct the jury “as to the consequences of a breakdown
in the deliberative process.” Id. at 381-82. The instruction in this case accurately
recited the governing law. Kerr’s claim that the court’s failure to instruct the
jury on the effect of a deadlock is without merit.




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D.      Denial of Kerr’s Requested Jury Instruction on the Future Dangerousness
        Special Issue
        Kerr’s habeas petition argued that the trial court improperly rejected Kerr’s
requested jury charge on the burden of proof for the future dangerousness special
issue in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments.
However, Kerr has not identified where in the record he requested a special
instruction on this issue nor an instance where the court rejected it. He also did
not argue on direct appeal or when seeking state habeas relief that any such
instruction was refused. Habeas relief is precluded where the applicant has not
exhausted his state court remedies. See 28 U.S.C. § 2254(b). Kerr’s claim is
therefore unexhausted and procedurally barred.
E.      The Burden of Proof on the Future Dangerousness Special Issue
        Kerr further asserts that the use of the word “probability” in the future
dangerousness special issue impermissibly lowers the State’s burden of proof. As
previously discussed, the State must prove future dangerousness beyond a
reasonable doubt. The word “probability,” Kerr claims, is unconstitutionally
vague.
        Kerr cites no authority supporting his theory that reasonable jurists could
disagree that the wording of the special issue lowers the burden of proof. A claim
not adequately briefed is deemed abandoned. Yohey v. Collins, 985 F.2d 222, 224-
25 (5th Cir. 1993).     Moreover, we have previously refused to entertain an
identical argument, because its application would violate the anti-retroactivity
doctrine of Teague v. Lane, 489 U.S. 288, 316 (1989). See Rowell, 398 F.3d at 377-
78. Pursuant to Teague, Kerr may not obtain habeas relief based on rules of
constitutional law not yet announced at the time his conviction became final.
Teague, 489 U.S. at 310.        Granting relief here would require retroactive
application of a new rule of constitutional law on federal habeas review. Because




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no court has previously found the wording of Texas’s future dangerousness
special issue to be unconstitutionally vague, Kerr is not entitled to relief.
F.      The State’s Use of Pancuronium Bromide in its Execution Process
        In his final argument, Kerr insists that Texas’s use of pancuronium
bromide in the lethal injection process violates the Eighth Amendment
prohibition against cruel and unusual punishment. This claim is foreclosed by
the Supreme Court’s decision in Baze v. Rees, 553 U.S. 35 (2008), in which the
Court upheld the constitutionality of using pancuronium bromide in lethal
injections. Kerr’s argument is thus without merit.
        Kerr has not demonstrated that reasonable jurists would debate the district
court’s resolution of his claims. Accordingly, we DENY a COA.




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