                   UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                              No. 01-20724


                        KENNETH WAYNE MORRIS,

                                                  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, Houston Division
                              4:00-CV-1286
                             April 18, 2002


Before DeMOSS, PARKER, and DENNIS, Circuit Judges
              *
PER CURIAM:

      Petitioner   Morris,   a   Texas   state   death   penalty   inmate,

requests a certificate of appealability (“COA”) under 28 U.S.C. §

2253, et seq., on three issues.     First, whether the Texas appellate


  *
   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opinion should not be published and is not precedent except under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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court’s refusal to review the trial jury’s determination of the

sufficiency    of   mitigating    evidence    when   selecting   Morris   for

imposition    of    the   death   penalty    violated   constitutional    due

process.      Second, whether the Texas trial court violated due

process by refusing to admit evidence of Morris’s co-defendants’

lesser sentences as mitigation evidence.                Third, whether the

dismissal of venireperson Dreannon constituted error under Batson

v. Kentucky, 476 U.S. 79 (1986).          We deny Morris’s request on each

issue.

I.   BACKGROUND.

     During the early morning hours of May 1, 1991, Morris shot 63-

year-old James Moody Adams four times, killing Adams, during a

violent, home-invasion style burglary.          Morris and two accomplices

kicked in the door of the Adams’ home in Harris County, Texas,

looking for guns and money.        The noise of their entrance awakened

Adams and his wife.       While his wife waited in the locked bedroom,

Adams went to investigate the noise. When Morris encountered Adams

in the house, Morris held a gun on Adams while an accomplice

ordered Adams to produce guns and money.          Adams stated that he had

no guns, but that he would give them what money he had.                   The

intruders kicked down the door leading to the master bedroom and

forced Adams inside.        When she heard the door giving way, Mrs.

Adams hid in the bedroom closet because she had no route of escape

from the bedroom.         Adams retrieved his wallet from his bedroom


                                      2
closet and gave it to Morris.          Mrs. Adams, hiding in this same

bedroom closet, heard the intruders exclaim angrily that there was

no money in the wallet.       She heard Adams respond, “I’ll get you

some.”    Adams then removed his money from a hidden part of the

wallet and gave it to Morris.          Having the money in hand, Morris

shot Adams.   Mrs. Adams heard her husband exclaim, “Oh no!” and

then heard four gunshots in rapid succession.              The first two shots

entered and exited Adams’s face and neck.           The final two shots were

to his back as he lay on the bedroom floor.              Adams fell dead in his

bedroom   closet   at   his   wife’s       feet,   and    she   heard   him   stop

breathing. The intruders fled the scene, leaving behind trash bags

that they brought to the house to carry off stolen property.                  Mrs.

Adams, unsure if the intruders were gone but too terrified to stay

hidden, stepped over her husband’s body and fled the house through

the splintered front door.

     A fingerprint lifted from one of the abandoned trash bags led

to the arrest of one of the intruders, Christopher Montez.                Morris

was arrested in Brenham, Texas, on May 13, 1991.                He made an oral

and then a written statement the night that he was arrested,

confessing to the murder of James Adams.           The written statement was

introduced at trial.      Police also recovered the murder weapon, a

.32 caliber revolver.

     Morris’s trial was conducted before the 339th District Court

of Harris County in December, 1993.           The jury found Morris guilty

of capital murder.      During the punishment phase of Morris’s trial,

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the state reintroduced all evidence introduced during the guilt

phase.    The state also introduced stipulated evidence of Morris’s

criminal   record.    Morris   presented   character    and    psychiatric

testimony in mitigation during the punishment phase, including his

mother’s testimony of environmental factors affecting Morris during

childhood, two psychiatric experts, and a criminologist.           Despite

his mitigating evidence, the jury answered the special issues

presented to them in favor of the death penalty and the court

sentenced Morris to death.

      The conviction was upheld on direct appeal.         See Morris v.

State, 940 S.W.2d 610 (Tex. Crim. App. 1997).          On Morris’s state

habeas petition, the trial court issued findings of fact and

conclusions of law recommending that habeas relief be denied,

including on each of the issues presented to us.              The Court of

Criminal Appeals adopted the trial court’s findings and denied

relief.    Morris then applied to the United States District Court

for the Southern District of Texas for federal habeas relief, which

was denied.   Pursuant to 28 U.S.C. § 2253(c), which provides that

a litigant may not appeal the denial of a petition for habeas

corpus without first obtaining a COA from a circuit judge, Morris

now requests a COA from us.

II.   STANDARD OF REVIEW.

      To prevail on an application for a COA, a petitioner must make

a “substantial showing of the denial of a constitutional right, a


                                   4
demonstration that . . . includes showing that reasonable jurists

could debate whether. . . the petition should have been resolved in

a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.”         Moore v. Johnson, 225

F.3d 495, 500 (5th Cir. 2000), quoting Slack v. McDaniel, 529 U.S.

473, 483 (2000).

       In   assessing   whether   a   petitioner   has   demonstrated   a

substantial showing of the denial of a constitutional right, we

must keep in mind the deference scheme laid out in 28 U.S.C. §

2254(d).    See Moore, 225 F.3d at 501.

       An application for a writ of habeas corpus on behalf of
       a person in custody pursuant to the judgment of a State
       court shall not be granted with respect to any claim that
       was adjudicated on the merits in State court proceedings
       unless the adjudication of the claim--
       (1) 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; or
       (2) resulted in a decision that was based on an
       unreasonable determination of the facts in light of the
       evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).     Under that scheme, we review pure questions

of law and mixed questions of law and fact under § 2254(d)(1) and

review questions of fact under § 2254(d)(2).        See 225 F.3d at 501.

       “Because the present case involves the death penalty, any

doubts as to whether a COA should issue must be resolved in [the

petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th

Cir. 2000).

III.    ANALYSIS.

                                      5
     Morris first argues that the Texas appellate court’s refusal

to review the jury’s determination of whether special mitigating

factors existed to sentence a criminal otherwise fully qualified

for death instead to life in prison, is a violation of due process.

See Morris v. State, 940 S.W.2d 610, 614 (Tex. Crim. App. 1996).

This is precisely the issue we answered in Moore v. Johnson as a

pure question of law.       See Moore, 225 F.3d at 505.

     A capital murder trial in Texas proceeds in a bifurcated

process.    In the first, or “guilt-innocence,” phase, a defendant’s

eligibility for consideration of the death penalty is determined.

Once that eligibility is determined, the trial proceeds to the

second, or “punishment,” phase, wherein the defendant is either

selected    for   death   or   for    the   alternative     sentence   of    life

imprisonment.      In that phase, the state presents the jury with

evidence of certain aggravating factors, including in Morris’s case

whether he deliberately caused Adams’s death and whether Morris

would be a continuing threat to society.                   The defendant also

presents the jury with mitigating evidence, which in Morris’s case

included,     inter   alia,     the    testimony      of    his    mother,    the

psychiatrists, and the criminologist.             The jury is then asked to

determine whether the aggravating factors have been shown beyond a

reasonable doubt, thus qualifying the defendant for selection for

the death penalty.        If so, the jury is then asked whether the

defendant’s    mitigating      evidence     is   sufficient   to   warrant   the


                                        6
imposition of a life sentence rather than the death penalty.               The

Texas Court of Criminal Appeals has explained that:

      [i]n Texas, this mitigating evidence is admissible at the
      punishment phase of a capital murder trial.          Once
      admitted, the jury may then give it weight, if in their
      individual minds it is appropriate, when answering the
      questions which determine sentence.      However, “[t]he
      amount of weight that the factfinder might give any
      particular piece of mitigating evidence is left to ‘the
      range of judgment and discretion’ exercised by each
      juror.”

See   Colella   v.   State,   915   S.W.2d   834,   844   (Tex.   Crim.   App.

1995)(quoting Banda v. State, 890 S.W.2d 42, 54 (Tex. Crim. App.

1994); Johnson v. State, 773 S.W.2d 322, 331 (Tex. Crim. App.

1989), aff’d, Johnson v. Texas, 509 U.S. 350 (1993)).             No burden of

proof exists for either the state or the defendant to disprove or

prove the mitigating evidence.        Colella, 915 S.W.2d at 844.         Thus,

each juror individually and subjectively determines what evidence,

if any, is sufficient to mitigate against the imposition of the

death penalty.

      The Texas Court of Criminal Appeals has consistently refused

to review such a subjective determination on the part of individual

jurors. See Colella, 915 S.W.2d at 845 (“[b]ecause the weighing of

‘mitigating evidence’ is a subjective determination undertaken by

each individual juror, we decline to review the evidence for

sufficiency”).

      We held in Moore that Texas is within the ambit of federal law

as interpreted by the United States Supreme Court.           See Moore, 225


                                      7
F.3d at 507.   We did so in view of Tuilaepa v. California, 512 U.S.

967 (1994), in which the Supreme Court distinguished between a

jury’s “eligibility decision” and its “selection decision.”                       It is

the   eligibility      decision      that      must    be    made     with    maximum

transparency    to   “make       rationally        reviewable   the    process     for

imposing a sentence of death.”                Moore, 225 F.3d at 506 (quoting

Tuilaepa, 512 U.S. at 973).          On the other hand, a jury is free to

consider a “myriad of factors to determine whether death is the

appropriate    punishment.         Indeed,      the    sentencer      may    be   given

unbridled discretion in determining whether the death penalty

should be imposed after it has found that the defendant is a member

of the class made eligible for that penalty.”                    225 F.3d at 506

(quoting 512 U.S. at 979-80).             It is the jury’s subjective and

“narrowly    cabined       but   unbridled      discretion      to    consider      any

mitigating factors,” 225 F.3d at 507, that Texas refrains from

independently reviewing.          We held then, as we do now, that Texas

may correctly do so.

      Morris argues that the Supreme Court’s rulings in Clemons v.

Mississippi, 494 U.S. 738 (1990), Parker v. Dugger, 498 U.S. 308

(1991), and Zant v. Stephens, 462 U.S. 862 (1983), among others,

militate    toward     a    requirement       to    review   jurors’        subjective

determinations in weighing mitigating evidence.                       We disagree.

Those cases reinforce the Court’s emphasis on “meaningful appellate

review of death sentences to promote reliability and consistency,”


                                          8
Clemons, 494 U.S. at 749, to “ensur[e] that the death penalty is

not imposed arbitrarily or irrationally,” Parker, 498 U.S. at 321.

Morris has made no showing of unreliability in Texas’s method of

selecting defendants for the imposition of the death penalty and

Texas has been nothing if not consistent in its refusal to reweigh

mitigating evidence on appellate review.

     Morris’s reliance on the Court’s language in Clemons that

“[w]e see no reason to believe that careful appellate weighing of

aggravating against mitigation circumstances in cases such as this

would not produce ‘measured consistent application’ of the death

penalty or in any way be unfair to the defendant” is misplaced.

See Clemons, 494 U.S. at 748.             Rather than imposing such an

appellate review requirement, as Morris suggests, the Court merely

held that such review was permissible in a situation where a death

sentence had been based in part on an invalid or improperly defined

aggravating circumstance.      We decline to read Clemons as Morris

propounds. We instead reiterate our previous holding on this issue

in Moore and rule that Morris has not made a substantial showing of

the denial of a constitutional right.

     Next, Morris asserts that the trial court violated due process

by refusing to admit evidence of Morris’s co-defendants’ lesser

sentences as mitigation evidence.         To advance his position, Morris

insists that he “was entitled under Lockett v. Ohio, 438 U.S. 586

(1978)   to   offer   the   jury   this    mitigating   evidence.”   See


                                     9
Application for COA at 11.     He makes no effort to explain or

substantiate   this   otherwise-bare   assertion,   however,   while

conceding that the case law of this circuit has held exactly the

opposite.   Brogdon v. Blackburn, 790 F.2d 1164 (5th Cir. 1986).

     The Supreme Court has established that a “jury must be able to

consider and give effect to any mitigating evidence relevant to a

defendant’s background and character or the circumstances of the

crime.”   See Penry v. Lynaugh, 492 U.S. 302, 328 (1989).   Further,

the Court has established that evidence that is not relevant to the

defendant’s character, prior record, or the circumstances of his

offense may properly be excluded from evidence.     See Lockett, 438

U.S. at 604 n.12; see also Skipper v. South Carolina, 476 U.S. 1,

7 n.2 (1986)(not all facets of a defendant’s ability to adjust to

prison life, such as how often he will take a shower, are relevant

to the sentencing determination).

     On this foundation, we reiterate our holding in Brogdon, that

the sentences imposed on the co-defendants of a capital crime

defendant are not constitutionally relevant mitigating evidence to

include in the determinations of the jurors.    Morris has offered

absolutely nothing in contradiction and so we again rule that

Morris has not made a substantial showing of the denial of a

constitutional right.

     Finally, Morris contends that the dismissal of venireperson

Dreannon constituted error under Batson v. Kentucky, supra.    This


                                10
contention is based on (1) Mr. Dreannon being black and (2) that

Mr. Dreannon indicated on his jury questionnaire that he was

strongly in favor of the death penalty.         Following voir dire, the

prosecutor peremptorily struck Mr. Dreannon.           Morris claims that

this establishes a prima facie Batson case.

     Under Batson, to prove that the prosecutor has impermissibly

used the power to peremptorily strike jurors, (1) the petitioner

must make a prima facie showing that the prosecutor exercised his

peremptory   strikes   on   the   basis   of   race;   (2)   the   burden    of

production then shifts to the prosecutor to articulate a race-

neutral reason for challenging the venire member; and (3) finally,

the trial court must decide whether the petitioner has sustained

his burden of proving purposeful discrimination. Soria v. Johnson,

207 F.3d 232, 237 (5th Cir. 2000).         It is unclear whether Morris

had established a prima facie case in the Texas trial court.            That

court did, however, conduct a Batson hearing wherein the prosecutor

explained that he was uncomfortable with Mr. Dreannon’s ability to

impose the death penalty on a defendant of Morris’s age, which was

close to Mr. Dreannon’s son’s age.        Mr. Dreannon’s answers on this

issue were equivocal, evasive and ultimately unresponsive.                  The

trial judge’s observations during voir dire were consistent with

the prosecutor’s and she further noted that the same prosecutor had

seated several black jurors in a separate but recent capital

punishment trial. On those bases, the trial judge held that Morris


                                    11
had not sustained the burden of proving purposeful discrimination.

See Morris v. Texas, 940 S.W.2d at 612 (affirming the trial court).

      Morris has adduced nothing additional to substantially show

the denial of a constitutional right.   The federal district court,

reviewing Morris’s federal habeas petition, noted that Morris’s

allegation is not that his rights were violated, but instead that

the trial court committed reversible error.     The district court

stated that such a claim is not a basis for a federal habeas

petition nor is it the role of a federal district court to sit in

appellate review of a state trial court.        We agree with the

district court’s assessment. Further, because such a determination

in the state court was neither contrary to, nor involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States, we would be

unable to grant a COA in any case.

IV.   CONCLUSION.

      For the reasons stated herein, we deny Morris’s request for a

COA on each of his three issues.




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