               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT
                         _____________________

                              No. 01-20822
                         _____________________

RON SCOTT SHAMBURGER,
                                                 Petitioner-Appellant,

                                versus

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

                                                 Respondent-Appellee.

__________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. 4:00-CV-1868
_________________________________________________________________
                           March 25, 2002

Before JOLLY, SMITH, and STEWART, Circuit Judges.

PER CURIAM:*

     Ron Scott Shamburger was convicted and sentenced to death in

Texas state court for the murder of Lori Baker during the course of

a burglary of her residence.    The Texas Court of Criminal Appeals

affirmed his sentence.    After the state courts denied his request

for post-conviction relief, Shamburger filed a habeas petition in

federal district court.     The district court also denied relief.

Shamburger now seeks a certificate of appealability (“COA”) from


     *
       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this opinion should not be published and is not precedent except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.

                                   1
this Court on two issues related to the imposition of the death

penalty in his case.    Because we find that Shamburger has not made

a substantial showing of the denial of a constitutional right with

respect to either issue, we deny his application for a COA.

                                       I

       In 1994, Shamburger became obsessed with the victim, Lori

Baker, while they were both students at Texas A & M University.               On

two separate occasions in August and September of 1994, Shamburger

unsuccessfully attempted to burglarize Baker’s home.                    In late

September 1994, Shamburger succeeded in breaking into Baker’s

house.    Several days later, Shamburger returned to Baker’s house

with a can of gasoline, a 9mm semi-automatic pistol, and duct tape.

He entered the house through a window and broke into Baker’s locked

bedroom where she was sleeping.        As Shamburger was binding Baker’s

hands together with the duct tape, he heard Baker’s roommate return

home.    Shamburger immediately shot Baker in the head and killed

her.     Shamburger   then   located       Baker’s   roommate,   held   her   at

gunpoint, and locked her in the trunk of her car.           After Shamburger

released the roommate some distance away, he returned to Baker’s

house and used the gasoline to light the house on fire in an

attempt to conceal the murder.     Later that night, after consulting

with his minister, Shamburger turned himself in to the police and

confessed to Baker’s murder.

       At his October 1995 capital murder trial, Shamburger did not

contest his guilt.      During the sentencing phase of the trial,

                                       2
Shamburger presented a number of witnesses who attested to his good

character.     The state countered by emphasizing the nature of the

murder and by presenting evidence of related burglaries and other

misconduct.     After hearing this evidence, the jury found that

“there is a probability that the defendant . . . would commit

criminal acts of violence that would constitute a continuing threat

to society.”    The jury also found that, “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,” the mitigating circumstances were

not sufficient to warrant a sentence of life imprisonment rather

than a death sentence.        As required by statute, the trial court

sentenced Shamburger to death.       He appealed his sentence.

      In an unpublished opinion, the Texas Court of Criminal Appeals

affirmed Shamburger’s death sentence based on its determination

that the jury heard sufficient evidence to support its finding on

future dangerousness.         The United States Supreme Court denied

certiorari.      In   2000,   Shamburger    filed   a   petition   for   post-

conviction relief in state court raising eight claims of error.

The state habeas court recommended that relief be denied, and the

Texas Court of Criminal Appeals adopted that recommendation in July

2000 without a written opinion.            After retaining new counsel,

Shamburger filed a federal habeas petition in the Southern District

of Texas.    In his petition, Shamburger attacked only his sentence

and   raised    claims    concerning       juror    bias,   improper     jury

                                     3
instructions, improper remarks by the prosecutor, the introduction

of testimony by the victim’s parents, and the constitutionality of

the Texas death penalty scheme. The district court granted summary

judgment in favor of the government and dismissed Shamburger’s

petition.   The court also denied Shamburger’s request for a COA.

Shamburger has now requested a COA from this Court on two issues.

                                      II

     Because Shamburger filed his federal habeas petition after

April 24, 1996, the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) governs his case.         Under the AEDPA, we may issue 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).    To satisfy

this requirement, Shamburger must show “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.’” Slack v. McDaniel, 529 U.S. 473, 482 (2000) (citations

and internal quotation marks omitted). In conducting this inquiry,

we must determine whether reasonable jurists would find debatable

the district court’s conclusion that the state habeas court did not

unreasonably apply clearly established federal law. See Beazley v.

Johnson, 242 F.3d 248, 263 (5th Cir.), cert. denied, 122 S.Ct. 329

(2001); see also 28 U.S.C. § 2254(d) (establishing the standard for

federal habeas review of state court determinations).

     Shamburger requests a COA with respect to two issues.           First,

                                      4
he argues that the Texas Court of Criminal Appeals unreasonably

applied federal law by declining to review the jury’s findings on

mitigating circumstances.            Second, Shamburger argues that the

district court erred in holding that his claim of juror misconduct

was procedurally barred. We now turn to address whether Shamburger

is entitled to a COA on either of these claims.

                                         A

     During the sentencing phase of his trial, Shamburger presented

the testimony of various teachers, ministers, and other community

leaders as evidence of his good character and his service to the

community. The jury nevertheless found that Shamburger’s character

and background were not mitigating circumstances sufficient to

warrant   a   sentence     of   life   imprisonment     instead   of    a   death

sentence.     The Court of Criminal Appeals did not specifically

review this finding to determine whether it was consistent with the

evidence presented at trial and, instead, confined its review to

the sufficiency of the evidence supporting the jury’s future

dangerousness finding. This review was consistent with the court’s

position that it is impossible to review the sufficiency of the

evidence concerning mitigation because “the weighing of ‘mitigating

evidence’     is    a   subjective     determination    undertaken     by     each

individual    juror.”       Colella     v.    Texas,   915   S.W.2d    834,   845

(Tex.Crim.App. 1995) (en banc);              McFarland v. Texas, 928 S.W.2d

482, 498 (Tex.Crim.App. 1996) (en banc), cert. denied, 519 U.S.

1119 (1997).       Because the Texas death penalty statute authorizes a

                                         5
death sentence only where the jury finds insufficient mitigating

circumstances,      however,   Shamburger    argues   that   the   Court   of

Criminal Appeals is obligated to review the mitigation evidence

presented at trial to ensure that the jury’s finding was not

arbitrary. Shamburger argues that the appellate court’s refusal to

conduct a separate review of the jury’s mitigation finding deprived

him of his right to “meaningful appellate review” of the jury’s

sentencing decision.1       The state responds that Shamburger does not

have a constitutional right to appellate review of mitigation

evidence.2

     We have already decided this issue.          Although a defendant in

a capital case is entitled to “meaningful appellate review” of a

death    sentence   under    the   Eighth   and   Fourteenth   Amendments,3

appellate courts are not required to conduct an independent review

of the jury’s mitigation finding.         Specifically, we have held that

     1
      The Texas death penalty statute does not require the jury or
the appellate court to “weigh” the aggravating factors against the
mitigating factors before imposing a death sentence. See Hughes v.
Johnson, 191 F.3d 607, 623 (5th Cir. 1999).
     2
      The state also argues that (1) this argument is procedurally
barred because Shamburger did not present it “in its present form”
to the state court and (2) Shamburger’s argument is based on a
proposed constitutional rule that was not in effect at the time of
his conviction as required by Teague v. Lane, 489 U.S. 288, 301
(1989). Because we find that Shamburger’s argument is foreclosed by
our precedent, we do not address these arguments.
     3
       Parker v. Dugger, 498 U.S. 308, 321 (1991) (“We have
emphasized repeatedly the crucial role of meaningful appellate
review in ensuring that the death penalty is not imposed
arbitrarily or irrationally.”); Clemons v. Mississippi, 494 U.S.
738, 748-50 (1990) (same).

                                      6
a state appellate court satisfies the requirements under the

federal constitution if it provides a meaningful review of the

evidence of future dangerousness. See Beazley v. Johnson, 242 F.3d

248, 261 (5th Cir.), cert. denied, 122 S.Ct. 329 (2001).4

     In the present case, the Texas Court of Criminal Appeals

reviewed the sufficiency of the evidence supporting the jury’s

finding on future dangerousness, which included consideration of

the mitigation evidence presented at trial.5    This review of the

trial record provided an “‘individualized determination on the

basis of the character of the individual and the circumstances of

the crime’” and therefore satisfied the requirements of the Eighth

and Fourteenth Amendments.    Parker, 498 U.S. at 321 (citations

omitted).   Accordingly, we agree with the district court that

Shamburger has not made a substantial showing of the denial of his

constitutional rights and is not entitled to a COA on this issue.

                                B

     4
       See also Hughes v. Johnson, 191 F.3d 607, 621-23 (5th Cir.
1999) (rejecting the argument that “the Court of Criminal Appeals's
refusal to review the mitigating factors independently violated his
right to ‘meaningful appellate review of his death sentence’ under
the Constitution”), cert. denied, 528 U.S. 1145 (2000); Martinez v.
Johnson, 255 F.3d 229, 241 n.17 (5th Cir. 2001) (“[T]he Eighth and
Fourteenth Amendments impose a constitutional floor on the
sufficiency of evidence required to sustain the jury's verdict on
the special issue of future dangerousness.” (emphasis added)).
     5
      The court considered Shamburger’s mitigation evidence in the
course of comparing the circumstances of this case to cases in
which the state presented insufficient evidence of future
dangerousness. The court’s analysis makes it clear that
Shamburger’s   sentence    was   not   arbitrarily   imposed    or
disproportionately severe compared with those cases.

                                7
     Shamburger also argues that one of the jurors who participated

in the sentencing phase of his trial engaged in serious misconduct

and refused to consider the mitigation evidence presented at

trial.6   Shamburger concedes that he has not exhausted state

remedies on this claim because he did not raise it in his direct

appeal or in his state habeas petition.              As a result, we may

consider the claim only if Shamburger can show cause for his

procedural default -- that is, he must show that “some objective

factor external to the defense impeded counsel's efforts to comply

with the State's procedural rule.”          Murray v. Carrier, 477 U.S.

478, 488 (1986).

     Reduced to its essence, Shamburger’s argument is that his

habeas counsel was ineffective because he failed to conduct an

investigation     that   would   have     revealed    the   alleged   juror

misconduct.    Although an attorney’s error may constitute cause for

a procedural default if the error is serious enough to constitute

a violation of the defendant’s Sixth Amendment right to effective

assistance of counsel, see Coleman v. Thompson, 501 U.S. 722, 753-

54   (1991),    the   Sixth   Amendment    does   not   apply   in    habeas

proceedings.     See Pennsylvania v. Finley, 481 U.S. 551, 555-56



     6
       Shamburger asserts that, shortly before trial, a religious
advisor instructed one of the jurors to sentence Shamburger to
death if the juror concluded that he was guilty of murder.
Following this advice, the juror allegedly refused to consider any
mitigating evidence and believed that he was bound to vote for the
death penalty “based on scripture” once Shamburger conceded guilt.

                                    8
(1987).7     It follows that the ineffectiveness of state habeas

counsel cannot excuse a petitioner’s failure to exhaust state

remedies before raising a claim in a federal habeas petition.     See

Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir. 2001) (“[W]e easily

conclude that the district court properly dismissed, as without

merit, any claim of ineffective assistance of habeas counsel as

‘cause’ for procedural default.”).8

     Shamburger nevertheless argues that his procedural default

should be excused because the ineffectiveness of his state habeas

counsel was attributable to an external impediment:     the state’s

“arbitrary” limitation on the funds available to compensate counsel

in   state   court   post-conviction   proceedings.9   Because   this

     7
        See also Coleman, 501 U.S. at 752 (“There is no
constitutional right to an attorney in state post-conviction
proceedings. . . .     Consequently, a petitioner cannot claim
constitutionally ineffective assistance of counsel in such
proceedings.” (citations omitted)).
     8
       See also Coleman, 501 U.S. at 753-54 (“In the absence of a
constitutional violation [of the Sixth Amendment right to effective
assistance of counsel], the petitioner bears the risk in federal
habeas for all attorney errors made in the course of the
representation.”). Shamburger also argues that this case presents
a question not decided by Coleman: Do petitioners have a right to
effective assistance of counsel in the first forum in which a
federal claim can be raised? As Shamburger concedes, however, this
argument is foreclosed by our precedent. See Martinez v. Johnson,
255 F.3d 229, 240-41 (5th Cir. 2001) (rejecting petitioner’s claim
that he had a “constitutional right to effective assistance of
counsel in his first state habeas corpus proceeding so that he
could raise his claims of ineffective assistance of trial
counsel”).
     9
       At the time of Shamburger’s petition, the applicable Texas
statute provided up to $15,000 to compensate state habeas counsel.
Texas now provides up to $25,000 for this purpose. See Tex. Code

                                  9
limitation nullified his state law right to competent counsel, see

Tex. Code Crim. Proc. art. 11.071 § 2(a), Shamburger also contends

that he was deprived of meaningful access to the courts and due

process of law.

     These arguments, too, are foreclosed by precedent.          As noted

above, petitioners do not have a federal constitutional right to

effective habeas counsel -- even where they have a state law right

to counsel in post-conviction proceedings. See Finley, 481 U.S. at

555-56.   Stated differently, Shamburger had no federal right to

funding (adequate or otherwise) for his state habeas petition. The

alleged inadequacies of the Texas compensation scheme for habeas

counsel therefore do not violate any federal constitutional right

and cannot constitute cause for Shamburger’s failure to raise his

juror misconduct claim in his state habeas petition.           See Beazley

v. Johnson, 242 F.3d 248, 271 (5th Cir. 2001) (“‘[I]nfirmities in

state habeas proceedings do not constitute grounds for relief in

federal court.’” (citation omitted)).     Because Shamburger shows no

deprivation   of   a   federal   constitutional   right   to    effective

assistance of counsel, we agree with the district court that his

juror misconduct claim is procedurally barred in these proceedings.

                                   IV

     For the reasons set out above, we conclude that Shamburger has

not made a substantial showing of the denial of a constitutional



Crim. Proc. art. 11.071 § 2A(a).

                                   10
right, as   required   by   28   U.S.C.   §   2253(c)(2).   Accordingly,

Shamburger’s request for a COA on each of his two claims is

                                                                DENIED.




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