                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                         F I L E D
                                                                                         January 7, 2004
                            UNITED STATES COURT OF APPEALS
                                 FOR THE FIFTH CIRCUIT
                                                                                     Charles R. Fulbruge III
                                                                                             Clerk
                                       __________________

                                          No. 03-20326
                                       __________________


                                       CLYDE SMITH, JR.,

                                        Petitioner-Appellant,

                                                  v.

                              DOUG DRETKE, DIRECTOR,
                       TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                        CORRECTIONAL INSTITUTIONS DIVISION,

                                       Respondent-Appellee.

                     ______________________________________________


                        Appeal from the United States District Court for the
                               Southern District of Texas, Houston
                                         H-01-CV-4294

                     ______________________________________________


Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

       Petitioner Clyde Smith, Jr., was convicted of capital murder in Texas and sentenced to death.

Smith filed a petition for a writ of habeas corpus in the United States District Court for the Southern

District of Texas pursuant to 28 U.S.C. § 2254. The district court denied Smith’s petition. The



       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
district court also sua sponte denied Smith a certificate of appealability (“COA”). Smith now

requests a COA from this Court pursuant to 28 U.S.C. § 2253(c)(2). For the following reasons,

Smith’s Motion for a Certificate of Appealability is GRANTED IN PART and DENIED IN PART.

                                         I. BACKGROUND

        After Petitioner was convicted and his sentence imposed, the Texas Court of Criminal Appeals

affirmed the conviction and sentence on direct appeal in 1996. Petitioner did not seek certiorari in

the Supreme Court of the United States.

        In 1997, Petitioner filed a state application for a writ of habeas corpus. The state trial-level

habeas court, without holding an evidentiary hearing on Petitioner’s claims, recommended to the

Texas Court of Criminal Appeals that Petitioner’s application be denied. In 2001, the Texas Court

of Criminal Appeals agreed and denied Petitioner’s application. Later that year, Petitioner filed the

federal petition for a writ of habeas corpus, the denial of which he seeks to appeal, in the United

States District Court for the Southern District of Texas.

        Petitioner raised the same issues in the district court that he presents in his request for a COA.

Petitioner’s primary argument in the district court was that his state trial counsel was ineffective

because that counsel failed to properly investigate abuse that Petitioner suffered as a child. Petitioner

claims that evidence of this abuse should have been presented to the jury during the punishment phase

of his trial, and that the failure to do so deprived him of his constitutional right to adequate counsel.

        The district court did not fully consider all of the evidence presented to it by Petitioner.

Petitioner submitted affidavits supporting his claim to the district court that were not presented to the

state courts. The district court held that, although Petitioner “proceeds in federal court under the

same constitutional provision and with the same general arguments as in state court, his failure to


                                                    2
raise a defensible and supported claim in state court, combined with his choice to provide this Court

with substantial previously-discoverable evidence, render his reliance on the affidavits unexhausted.”

Mem. Op. and Order at 23 (Mar. 10, 2003) (Dist. Ct. Doc. 25); see Barrientos v. Johnson, 221 F.3d

741, 761 (5th Cir. 2000). Because Petitioner did not show cause and prejudice to overcome the

procedural bar to the district court considerat ion of the unexhausted material, the district court

disregarded the material. See Goodwin v. Johnson, 132 F.3d 162, 190 (5th Cir. 1997). Accordingly,

the district court looked only to the evidence presented to the state courts and, based upon that

evidence, denied the petition.

                                   II. STANDARD OF REVIEW

        Smith filed his Section 2254 petition for a writ of habeas corpus after the effective date of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). The petition, therefore, is subject to the

procedures imposed by the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).

        Under the AEDPA, a petitioner must obtain a COA before an appeal can be taken to this

Court. See 28 U.S.C. § 2253(c)(2) (2003); see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)

(“[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of

appeals from habeas petitioners.”). “[W]hen a habeas applicant seeks permission to initiate appellate

review of the dismissal of his petition, the court of appeals should limit its examination to a threshold

inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327. “This threshold inquiry

does not require full consideration of the factual or legal bases adduced in support of the claims. In

fact, the statute forbids it.” Id. at 336.

        A COA will be granted if the petitioner makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2) (2003). “A pet itioner satisfies this standard by


                                                   3
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. “The question is the debatability of

the underlying constitutional claim, not the resolution of that debate.” Id. 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. Finally,

“[b]ecause the present case involves the death penalty, any doubts as to whether a COA should issue

must be resolved in [Petitioner's] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).

       Though the district court did address the merits of the petition, the court did so after

excluding evidence presented to it. The district court held that the presentation of such evidence was

procedurally barred because the evidence was partially unexhausted in state court. The district court

made its substantive determination based upon less than all of the information available to it. If the

procedural ruling was incorrect, then the district court did not fully reach Petitioner’s underlying

constitutional claim. The district court’s denial of Petitioner’s application, therefore, is properly

characterized as a procedural denial. “[W]hen the district court denies a habeas petition on

procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should

issue (and an appeal of the district court's order may be taken) if the prisoner shows, at least, that

jurist s 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, 478 (2000).




                                                  4
                                           III. ANALYSIS

                                         a. Foreclosed issues

        Petitioner bases his petition for a writ of habeas corpus upon five issues. Petitioner concedes

that four of the issues are foreclosed by directly contrary Fifth Circuit precedent that binds this panel.

As such, it is not debatable that these claims would fail on appeal to a panel of this Court.

Accordingly, Petitioner raises the foreclosed issues only to preserve them for possible en banc or

Supreme Court review. The foreclosed issues are: 1) that Petitioner’s property was seized in

violation of the Fourth Amendment and statements he made to Police resulted from that seizure, and

the state trial court erred by not excluding the evidence, 2) that the state trial court refused to inform

the jury that Petitioner would have been required to serve a minimum of 35 years in prison before he

would have become eligible for parole had he been sentenced to life imprisonment, 3) that the state

trial court did not require the State to prove a lack of mitigating circumstances beyond a reasonable

doubt, and 4) that the state trial court limited the concept of mitigation to factors that render a

defendant less “morally blameworthy” for the offense charged. We agree that these issues are

foreclosed as conceded in Petitioner’s brief and deny the request for a certificate of appealability with

respect to the same.

                                 b. Ineffective assistance of counsel

        The single issue Petitioner does not concede as being foreclosed is Petitioner’s claim that his

trial counsel was ineffective at the punishment stage of his trial for failing to investigate and present

evidence of Petitioner’s childhood abuse. We review this claim under the two-pronged Slack test.

See Slack, 529 U.S. at 478.




                                                    5
      1. Debatability of whether there is a valid claim of the denial of a constitutional right

        To prevail on a claim of ineffective assistance of counsel, Petitioner must show (1) that his

counsel’s performance was deficient in that it fell below an objective standard of reasonableness, and

(2) that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668,

689-94 (1984). The district court noted that had it considered all of the evidence presented to it, the

court’s determination as to the first prong would have been a more difficult question. See Mem. Op.

and Order at 30 n16 (Mar. 10, 2003) (Dist. Ct. Doc. 25). We agree with the district court and hold

that resolution of the first Strickland prong is debatable.

        The district court also noted, however, that Petitioner suffered no constitutional prejudice as

a result of any deficiency. See Mem. Op. and Order at 31-32 n.17 (Mar. 10, 2003) (Dist. Ct. Doc.

25). This second-prong analysis is, however, debatable. Citing our case law, the district court

acknowledged that the prejudice inquiry is very difficult. Id. (quoting Tucker v. Johnson, 242 F.3d

617, 623 (5th Cir. 2001)). Moreover, the district court’s analysis in this respect was cursory because,

under the district court’s analysis, this was not the lynchpin issue. Therefore, prior to the exclusion

of evidence, and without undertaking a full review of the issue, “jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional right.” Slack, 529

U.S. at 478. Petitioner has satisfied the first requirement of the Slack COA analysis.

                      2. Debatability of the district court’s procedural ruling

        “[S]upplemental evidence that does not ‘fundamentally alter the legal claim already considered

by the state courts’ does not ‘require that the [habeas petitioner] be remitted to state court for

consideration of that evidence.’” Anderson v. Johnson, 338 F.3d 382, 388 n.24 (quoting Vasquez v.

Hillery, 474 U.S. 254, 262 (1986)).         “[W]hether evidence ‘fundamentally alters’ or merely


                                                   6
‘supplements’ the state petition is an inquiry that is, by necessity, case and fact specific.” Id.

        The district court noted that Petitioner “proceeds in federal court under the same

constitutional provision and with the same general arguments as in state court.” Mem. Op. and Order

at 23 (Mar. 10, 2003) (Dist. Ct. Doc. 25). In reaching its partial exhaustion holding, the district court

found that Petitioner did not support his claim whatever in state court. We note, however, that the

state habeas court did not hold an evidentiary hearing. Even when claims are in a stronger evidentiary

position in the federal habeas proceedings than they were in the state court proceedings, the issue may

still be exhausted. See Anderson, 338 F.3d at 388. “Exhaustion requires only that the federal claim

has been fairly presented to the state's highest court before a petitioner pursues federal relief.” Id.

at 388 n.22. This is a qualitative question that we can not dispose of with any degree of certainty

in our ruling without subjecting the claim to full review. While the district court may have been

correct in its analysis, with the limited review we must undertake at the COA stage, the correctness

of the district court’s procedural ruling is debatable. Petitioner, then, has satisfied the second prong

of the two-pronged Slack COA analysis.

                                         IV. CONCLUSION

        Petitioner has satisfied this Court that reasonable judges would find it debatable whether the

district court was correct in its procedural ruling excluding evidence that tended to indicate his trial

counsel was ineffective. Likewise, in light of the debatability of the procedural ruling, Petitioner has

satisfied the Court that reasonable judges would find it debatable whether the petition states a valid

claim of the denial of a constitutional right. A COA must issue, therefore, as to Petitioner’s claim of

ineffective assistance of counsel so that this Court may fully review the issue. Petitioner’s other

claims are not debatable under this Court’s precedent.


                                                   7
       Petitioner’s Motion for Certificate of Appealability is GRANTED IN PART. Petitioner may

appeal to this Court the district court’s denial of his application for a writ of habeas corpus with

respect to his ineffective assistance of counsel claim, including the district court’s procedural ruling

that it could not consider certain evidence because the evidence was unexhausted in state court. In

all other respects, Petitioner’s Motion for Certificate of Appealability is DENIED.

GRANTED IN PART. DENIED IN PART.




                                                   8
