                    UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                          __________________

                             No. 99-11260
                          __________________



     JEFFREY DILLINGHAM,

                                          Petitioner-Appellant,

                                 versus

     GARY L. JOHNSON, DIRECTOR,
     TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
     INSTITUTIONAL DIVISION,

                                          Respondent-Appellee.

            ______________________________________________

         Appeal from the United States District Court for the
                      Northern District of Texas
                             (4:98-CV-480)
            ______________________________________________

                             April 18, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:1

     Petitioner    Jeffrey   Dillingham   (Dillingham),   convicted   of

capital murder in Texas and sentenced to death, appeals from the

district court’s order denying federal habeas relief.         The sole

issue he raises on appeal is that the district court erred in

determining    the state trial court’s refusal to instruct the jury


     1
       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this opinion should not be published and is not precedent except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.
that a life sentence for capital murder would require Dillingham to

serve       35   calendar     years    before    becoming   eligible    for   parole

constituted a deprivation of due process under the Fourteenth

Amendment.2        Finding that we are bound by our precedent, we AFFIRM.

     I.          BACKGROUND

     In 1983, a jury convicted Dillingham of the capital offense of

murdering        Caren   Koslow       for   remuneration    and   the   promise   of

remuneration pursuant to § 19.03(a)(3) of the Texas Penal Code.

After a punishment hearing, a jury answered the three special

sentencing issues such that the trial court assessed Dillingham’s

punishment at death.3

        2
        The district court issued a certificate of appealability
only with respect to this claim.
    3
       The following questions were submitted pursuant to article
37.071(b) and (e) of the Texas Code of Criminal Procedure:

                 Do you find from the evidence beyond a
                 reasonable doubt that there is a probability
                 that the defendant would commit criminal acts
                 of violence that would constitute a continuing
                 threat to society?

                 Do you find from the evidence beyond a
                 reasonable doubt that the defendant actually
                 caused the death of Caren Koslow or did not
                 actually cause the death of Caren Koslow but
                 intended to kill Caren Koslow or another or
                 anticipated that a human life would be taken?

                 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?


                                             2
     On February 14, 1996, in an unpublished opinion, the Texas

Court of Criminal Appeals affirmed Dillingham’s conviction and

sentence    of    death.        Dillingham    v.     State,     No.     71,778

(Tex.Crim.App.), cert. denied, 117 S.Ct. 204 (1996).             Dillingham

subsequently filed a state application for writ of habeas corpus.

The trial court entered findings of fact and conclusions of law

recommending that    his application be denied.        The Texas Court of

Criminal Appeals, in an unpublished order, denied relief based on

its own review and the findings of the trial court.                   Ex parte

Dillingham, No. 36,789-01 (Tex.Crim.App.), cert. denied, 119 S.Ct.

343 (1998).

     On August 31, 1998, Dillingham, through appointed counsel,

filed a petition for writ of habeas corpus in federal district

court.     The respondent filed an answer and motion for summary

judgment.     The magistrate judge issued findings and conclusions,

recommending that relief be denied. The district court adopted the

findings,     conclusion,     and   recommendation    denying    relief     on

September 29, 1999.         Dillingham filed his notice of appeal and

moved for a certificate of appealability (COA). The district court

granted a COA as to the contention that the state trial court’s

refusal to instruct the jury that a life sentence for capital

murder would require Dillingham to serve 35 calendar years before

becoming eligible for parole constituted a deprivation of due

process under the Fourteenth Amendment.



The jury answered the first two questions “yes” and the third
question “no.”

                                      3
       II.   ANALYSIS

             A.      STANDARD OF REVIEW

       Dillingham filed his section 2254 application for habeas

relief on July 7, 1998, which was after the April 24, 1996

effective date of the Antiterrorism and Effective Death Penalty Act

(AEDPA).      Therefore, his application is subject to the AEDPA.

Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068, 138

L.Ed.2d 481 (1997).         Under the AEDPA, a petitioner must obtain a

COA.     28 U.S.C. § 2253(c)(2).                As set forth above, the district

court granted Dillingham a COA with respect to the issue he now

raises on appeal.

       The state court adjudicated Dillingham’s instant claim on the

merits.      Accordingly, we cannot grant habeas relief unless the

state court’s adjudication of the claim “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.”           § 2254(d)(1).

       Dillingham’s claim is purely legal--there are no facts in

dispute.      We review pure questions of law under § 2254(d)(1).

Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir. 1996).                      Under §

2254(d)(1), “an application of law to facts is unreasonable only

when it      can    be   said    that    reasonable      jurists    considering   the

question would be of one view that the state court ruling was

incorrect.”        Drinkard, 97 F.3d at 769.          Thus, this court “can grant

habeas    relief     only   if    a     state    court   decision    is   so   clearly

incorrect that it would not be debatable among reasonable jurists.”


                                            4
Id.

             B.     REFUSAL TO INSTRUCT ON PAROLE ELIGIBILITY

      Dillingham argues that his due process rights under the

Fourteenth Amendment were violated by the trial court’s refusal to

inform the jury in the punishment charge that he would not be

eligible for parole for 35 calendar years.                     More specifically,

relying on Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187

(1994), he contends that “the jury never had the opportunity to

consider what effect, if any, parole would have had on their

particularized        assessment          of     the       petitioner’s      future

dangerousness.”       (emphasis deleted).

      In Simmons, the Supreme Court held that if the defendant’s

future dangerousness is at issue and state law prohibits the

defendant’s       release   on    parole,      due   process   demands    that   the

sentencing jury be informed the defendant is ineligible for parole.

512   U.S.   at    156,     114   S.Ct.     at   2190.      Although     Dillingham

acknowledges that Texas law does not require defendants convicted

of capital murder to serve life without parole, he asserts that it

is a distinction without a difference.

      We have explained that Simmons requires a jury be informed

about a defendant's parole ineligibility only when (1) the state

argues that a defendant represents a future danger to society, and

(2) the defendant is legally ineligible for parole.                    Allridge v.

Scott, 41 F.3d 213, 222 (5th Cir. 1994).4                Because Dillingham would

       4
          While recognizing our holding in Allridge, Dillingham
nevertheless asserts that it rested, at least in part, on faulty
reasoning. He points to our statement that Texas had chosen to

                                          5
have been eligible for parole if sentenced to life imprisonment,

our precedent precludes this claim.

     Finally, although Dillingham’s direct appeal became final

after Simmons, we have explained that “an extension of Simmons to

encompass situations in which a defendant was eligible for parole

would be barred under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060



(1989).”   See Montoya v. Scott, 65 F.3d 405, 416   (5th Cir. 1995).5


keep evidence or instruction of parole eligibility from juries.
Id. (citing Rose v. State, 752 S.W.2d 529, 534-35 (Tex.Crim.App.
1987)).   He asserts that this analysis ignored the opinion in
Oakley v. State, 830 S.W.2d 107 (Tex.Crim.App. 1992), in which the
Court of Criminal Appeals upheld the reenactment of a statute that
required juries to be instructed regarding parole eligibility in
certain noncapital cases because it had been authorized by an
amendment to the Texas Constitution. In a footnote, Dillingham
also states that the Texas legislature has now amended the capital
sentencing statute to allow juries to be informed of parole
eligibility with respect to a life sentence.
     We find this criticism to be ill-founded for three reasons.
First, the Court of Criminal Appeals made clear that their decision
in Oakley was not based on a federal constitutional claim, but
instead involved only the Texas Constitution. 830 S.W.2d at 108
n.1. Simmons is, of course, based upon the Due Process Clause of
the Fourteenth Amendment, and federal habeas proceedings are
limited to claims involving the United States Constitution.
     Second, although the Texas legislature has decided to allow
capital juries to be informed regarding parole eligibility, that
provision became effective September 1, 1999, several years after
Dillingham’s conviction became final. In other words, Texas has
not afforded this right to Dillingham.
     Third and most important, one panel of this Court may not
overrule another absent an intervening decision to the contrary by
the Supreme Court or this Court en banc. See Hogue v. Johnson, 131
F.3d 466, 491 (5th Cir. 1997).       Thus, Allridge controls and
precludes relief for Dillingham.
     5
          We note that Dillingham cites to an opinion written by
Justice Stevens (and joined by three other Justices) respecting the
denial of the petition for a writ of certiorari in Brown v. Texas,
118 S.Ct. 354 (1997).    Justice Stevens stated that “[t]here is
obvious tension between this rule and our basic holding in
[Simmons].” Of course, that opinion did not constitute a decision

                                 6
AFFIRMED.




on the merits.   Indeed, even if the Supreme Court now granted
certiorari in such a case, we would be bound by our precedent.
Martin v. Cain, 2000 WL 257182, at *3 (5th Cir. March 8, 2000).

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