                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                       REVISED AUGUST 23, 2006
                                                            January 9, 2006
              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT           Charles R. Fulbruge III
                                                                Clerk
                       ______________________

                             No. 05-70004

                       ______________________

                          JUSTIN CHAZ FULLER

                        Petitioner-Appellant

                                versus

  DOUG DRETKE, DIRECTOR, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

           JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                          Respondent-Appellee

       ___________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
                        (1:03-cv-01416-TH)
       ___________________________________________________


Before DAVIS, SMITH, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:*

      Fuller was convicted of capital murder on March 4, 1998 and

subsequently sentenced to death in the      241st District Court of

Smith County, Texas.      Fuller’s direct appeal was denied by 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opinion should not be published and is not precedent except under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.


                                   1
Texas Court of Criminal Appeals, as was his first state application

for post-conviction relief. Fuller filed an application for a writ

of habeas corpus in the U.S. District Court for the Eastern

District of Texas, but dismissed the application in order to return

to state court.      His second state application was denied and Fuller

once again filed a habeas application in district court.              Again, he

dismissed the federal application and returned to state court a

third time.     Fuller’s third state application for post-conviction

relief   was    dismissed    and    Fuller    subsequently   filed    a   third

application in district court, raising twenty six claims.

     The district court denied Fuller’s habeas petition, but later

granted Certificate of Appealability (“COA”) on four issues: (1)

whether the trial court erred in not allowing Fuller to present

evidence of the relative culpability of a co-perpetrator during the

punishment determination phase of his trial; (2) whether the trial

court erred in refusing to allow a witness to discuss future

dangerousness in the context of life in prison; (3) whether the

prosecution improperly excluded venirepersons on the basis of their

race; and (4) whether the district court’s refusal to consider the

merits of Fuller’s fourteenth through twenty-sixth claims because

they are procedurally defaulted resulted in a miscarriage of

justice.       We   AFFIRM   the   district   court’s   denial   of   Fuller’s

petition for habeas corpus relief.




                                       2
                            BACKGROUND

     On April 21, 1997, Petitioner Justin Fuller and three friends

kidnaped Donald Whittington from his apartment, made him withdraw

money from an ATM, then drove him to a wooded area and shot him

once in the arm and twice in the head, killing him.    That evening,

Fuller took two high school students to see Whittington’s body and

told them what had happened.    Those two students invited Kevin

Ballard, Kevin’s brother, and three other youths to view the body

the next day.   Later, Kevin saw on a television broadcast that

Whittington’s body had been discovered, and he contacted the police

and led them to the body.   The police interviewed the youths and

were told what Fuller had said about killing Whittington.      After

searching Fuller’s dwelling, the police found Whittington’s ATM

card in Fuller’s wallet and his watch in Fuller’s living room.

After being arrested, Fuller confessed to being involved in the

crime, but denied being the trigger man.     Fuller was subsequently

convicted of capital murder and sentenced to death.   He brings this

habeas petition to challenge several happenings during the pre-

trial, trial, and punishment phases of his case.

                        STANDARD OF REVIEW

     This Court applies the same standard of review to the state

court’s decision as does the district court. In reviewing Fuller’s

constitutional claims that have been adjudicated on the merits by

state court, habeas relief may not be granted unless the state


                                3
court decision was “contrary to, or involved an unreasonable

application of, clearly established federal law as determined by

the United States Supreme Court, or resulted in a decision 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)(1)-

(2). A state court decision is contrary to Supreme Court precedent

“if the state court applies a rule that contradicts the governing

law set forth” in Supreme Court cases or if it “confronts a set of

facts that are materially indistinguishable from a decision of [the

Supreme Court] and nevertheless arrives at a result different from

[Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-

06 (2000).     “[A]n unreasonable application of federal law is

different from an incorrect or erroneous application of federal

law.”   Id. at 412.

                                 DISCUSSION

I. Evidence of Co-Perpetrator’s Moral Culpability

     During the trial and the punishment phase, Fuller’s defense

counsel repeatedly attempted to introduce evidence of the moral

culpability    of   separately     tried   co-perpetrator   Samhermendre

Wideman.     Fuller wanted to demonstrate Wideman’s propensity to

violence and that Wideman was the organizer of the crime, thus

diminishing Fuller’s role in the offense. The trial court excluded

the evidence because it had no probative value. Fuller argues that

he was denied the opportunity to present a co-defendant’s relative


                                     4
culpability as a mitigating factor in the punishment phase of

trial, in violation of Penry v. Lynaugh.1           We disagree.

       Penry held that the “Constitution limits a State’s ability to

narrow a sentencer’s discretion to consider relevant evidence that

might cause it to decline to impose the death sentence.”              492 U.S.

at 327. As the district court correctly noted, the trial court did

not    prohibit    Fuller   from   introducing      evidence    of   Wideman’s

culpability for the crime at issue.               Rather, the trial court

refused to admit evidence of Wideman’s character and background

during Fuller’s punishment phase.           Certainly, Penry holds 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.”       Id. at 328. However, Penry’s holding

is based on a general evidentiary standard of relevance, and, under

such    a   standard,   information       about   Wideman’s    character   and

background have little, if any, relevance to Fuller’s character and

background.       See Tennard v. Dretke, 542 U.S. 274, 284 (2004).

Therefore, the state court’s rejection of this claim was not

contrary to, or an unreasonable application of, the Supreme Court’s

precedent concerning mitigating evidence and the death penalty.

II. Future Dangerousness and Life in Prison

       During the punishment phase, Fuller sought to introduce the



  1
       492, U.S. 302 (1989).


                                      5
testimony of Larry Fitzgerald, the Director of Information for the

Texas Department of Criminal Justice, Institutional Division, to

speak to the future dangerousness special issue.                  In prohibiting

Fitzgerald    from    testifying,       the   trial    court    determined     that

Fitzgerald would only have testified to the details and procedures

of an actual execution, which the trail court deemed irrelevant to

the Texas    special       issues.     Fuller      maintains    that    to   exclude

Fitzgerald’s testimony in this way denied his right to due process

and a fair trial.

      The record demonstrates that the trial court’s determination

about the substance of Fitzgerald’s testimony was correct.                        The

trial court    allowed       the    defense   to    summarize    the    content    of

Fitzgerald’s testimony in order to determine whether that testimony

was relevant. The defense explained that Fitzgerald would describe

the days leading up to the execution date, the execution itself,

and what happens afterwards.              Defense counsel also said that

Fitzgerald would offer into evidence a standard press release that

goes along with executions.           In light of the evidence before it,

the trial court made a reasonable determination of the facts.

Given the court’s factual determination (that Fitzgerald would be

testifying about how an execution is carried out), the state court

did   not   apply    the   law     unreasonably     when   it   ruled   that    such

testimony was not relevant to the special issues.                The method used

in executing prisoners, though it may turn some jurors against the



                                         6
death penalty, does not have any relevance as to whether Fuller

would be dangerous in the future, whether he acted deliberately, or

to any mitigating circumstance of the crime or Fuller’s character.2

The defendant hasn’t shown any unreasonableness on the part of the

trial court regarding this issue that would warrant habeas relief.

III.    The Merits of Fuller’s Batson Challenge

       Fuller claims that the prosecutor impermissibly exercised his

peremptory challenges on the basis of race, in violation of Batson

v. Kentucky.3 In United States v. Seals4, this Court reiterated the

three-step process for Batson challenges:

       First, the defendant [or any litigant] must make a prima

       facie showing that the prosecution [or other party]

       exercised peremptory challenges on the basis of a juror’s

       cognizable racial background.         Second, the burden shifts

       to the prosecution [or challenged party] to articulate a

       race-neutral    explanation     for    removing    the   juror   in

       question.      Finally,   the   trial    court    must   determine

       whether the defendant has met his burden of proving

       purposeful discrimination.


  2
    See Fed. R. Evid. 401 (“‘Relevant evidence’ means evidence
having a tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.”).
  3
       476 U.S. 79, 89 (1986).
  4
       987 F.2d 1102, 1108 - 09 (5th Cir. 1993).


                                       7
Here, The trial court held that the defense established a prima

facie    case    of   racial      discrimination        by   objecting       to   the

prosecutor’s striking of six of the seven black potential jurors.

The     prosecution      then    articulated       race-neutral        reasons    for

challenging     the   black      venirepersons.         Defense    counsel    cross-

examined the prosecutor about his questioning of minority jurors,

and the trial court ultimately denied the Batson motion.                   The Texas

Court of Criminal Appeals affirmed the decision.

      The state court was not unreasonable in its determination that

the prosecution’s race neutral reasons were not pretextual and used

to mask discriminatory intent.            The state court found that:

      The prosecution struck Juror Pace because she opposed the

      death penalty, Juror Nichols because of his opposition to

      the death penalty and for his relationship to a known

      drug dealer, Juror Campbell because of her opposition to

      the death penalty, Juror Dixon because he thought the

      death     penalty    should    never    be   invoked       and   because

      [Fuller] mentioned Dixon’s brother in a letter, Juror

      Busby     because    he    stated   that     he   believed       youthful

      offenders could not grasp the effect of their conduct,

      and Juror Gossett because of opposition to the death

      penalty      and     his      friendship      with     a      convicted

      murderer...The State articulated plausible race related

      neutral explanations for its peremptory elimination of



                                          8
      the   six   black   venire   members:    none   seemed   patently

      contrived or disingenuous.5

Fuller claims that the State’s reasons were not honest given the

history of Smith County prosecutors questioning minority potential

jurors differently from white ones.           However, the record supports

the state court’s factual determination regarding the State’s race-

neutral reasons for striking the jurors at issue. The prosecutors’

reasons are supported by the verbal and written answers given by

the potential jurors during voir dire.                Therefore, the state

court’s factual determination that the prosecutors’ reasons were

not pretext for racial discrimination was reasonable given the

evidence before the court.

      Fuller also argues that the Texas Court of Criminal Appeals

made a decision contrary to federal law because the court used the

phrase “patently contrived or disingenuous” in denying the Batson

challenge.   Fuller contends that this is a higher standard than the

“dishonest” standard required by federal law.              However, as the

district court noted, it is not convincing that “‘disingenuous’ has

a significantly different meaning from ‘dishonest’”.              The state

court applied the correct legal standard, and there is no reason to

warrant habeas relief on this issue.

IV.   Procedurally Defaulted Claims


  5
    Fuller v. State, No. 73, 106 (Tex. Crim. App. Dec. 20, 2002)
Slip op. p. 13.


                                      9
      Fuller brought a 26-claim habeas petition before the district

court in which claims fourteen through 26 were raised for the first

time in a successive state court habeas petition.                   Because the

claims   were    not   raised   in    Fuller’s      first   state   court    post-

conviction petition, the state court held that claims fourteen

through twenty-six were procedurally barred and dismissed them as

an abuse of the writ.           The district court granted COA on the

procedurally defaulted claims for this court to determine whether

the district court’s refusal to consider the merits of those claims

resulted in      a   miscarriage     of   justice.      However,    Fuller    only

addresses five of those procedurally defaulted claims in his

petition before this court, therefore, his other claims are deemed

abandoned.6      Those remaining claims are: (1) his trial counsel

rendered ineffective assistance by serving under a conflict of

interest; (2) his attorney rendered ineffective assistance by

failing to communicate a plea offer to him; (3) the trial court’s

error in finding that Fuller had a right to competent habeas

counsel now entitles Fuller to bring an ineffective assistance

claim against his habeas counsel ; (4) the prosecutors presented

false    and    misleading   testimony         in   explaining   their   use    of

peremptory strikes during the Batson hearing, following a pattern



  6
    See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999); see
also Fed.R.App. P. 28(a)(9); see also Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).


                                          10
of discrimination against Black jurors in Smith County that goes

beyond the issues raised on direct appeal; and (5) Fuller’s actual

innocence.

      Claims that are defaulted at the state level are barred from

review on the federal level unless the defendant shows “cause for

the default and actual prejudice as a result of the alleged

violation    of    federal      law,   or    demonstrate[s]    that   failure    to

consider the claims will result in a fundamental miscarriage of

justice.”7        “Cause   is    defined     as   ‘something   external   to    the

petitioner, something that cannot be fairly attributed to him’ that
                                                                                  8
impedes his efforts to comply with the [state] procedural rule.”

To establish a “miscarriage of justice” exception, Fuller must

demonstrate actual innocence.9

      The district court only granted COA on whether its refusal to

consider the merits of Fuller’s defaulted claims resulted in a

miscarriage of justice.           It did not grant COA on whether Fuller

demonstrated cause for default and actual prejudice resulting the

violations.       However, in his appellate brief, Fuller does address


  7
      Coleman v. Thompson, 501 U.S. 722, 750 (1991).
  8
    Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir. 2004), citing,
Moore v. Roberts, 83 F.3d 699, 704 (5th Cir. 1996).
  9
    Coleman, 501 U.S. at 748, citing, Murray v. Carrier, 477 U.S.
478, 496 (1986) (“[W]here a constitutional violation has probably
resulted in the conviction of one who is actually innocent, a
federal habeas court may grant the writ even in the absence of a
showing of cause for the procedural default.”).


                                            11
the    cause   and    prejudice      standard.        Though     Fuller    has   not

specifically asked this Court for a COA on the issue of cause and

prejudice on his procedurally defaulted claims, we                     construe his

appeal raising these issues as such a request.10                 A COA may issue

“only if the applicant has made a substantial showing of the denial

of a constitutional right.”11            In death penalty cases, “any doubts

as to whether COA should be issued must be resolved in the

petitioner’s favor.”12          Fuller’s case, being a death penalty case

in which he raises constitutional issues that were procedurally

barred, satisfies the requirements for a COA regarding whether

Fuller has fulfilled the cause and prejudice standard of the

procedurally        defaulted      claims      that   he   has   not     abandoned.

Therefore,     we    grant   COA    to   determine     whether    cause    for   the

procedural defaults exist and whether Fuller was prejudiced by the

alleged violations.

       (1) Ineffective Assistance of Counsel: Conflict of Interest

       The district court did not address whether Fuller met the



  10
     See Allen v. Musgrove, 96 Fed.Appx. 957 (5th Cir. 2004)
(“Although [defendant] has not requested COA to appeal the
dismissal of his habeas corpus claims, this court may construe his
notice of appeal as such a request.); see also Mosley v. Johnson,
192 F.3d 126 (5th Cir. 1999) (“We construe [defendant’s] notice of
appeal as a motion for COA.”).
  11
       28 U.S.C. § 2253(c)(2).
  12
     Matchett, 380 F.3d at 848, citing, Bigby v. Cockrell, 340 F.3d
259, 265-66 (5th Cir. 2003).


                                          12
cause and prejudice standard for the procedurally defaulted claims

because it held that Fuller’s “cause” for the default was the

ineffective assistance of habeas counsel.                The district court was

correct in holding that ineffective assistance of habeas counsel

cannot constitute cause to overcome procedural default.13                  However,

Fuller also raises claims of ineffective assistance of trial

counsel. Therefore, we will apply the usual ineffective assistance

of counsel analysis to this first procedurally defaulted claim.

       “[A]bsent unusual circumstances, ineffective assistance of

counsel, if       shown,   is    sufficient       to   establish    the   cause   and

prejudice necessary to overcome a procedural default.”14                   However,

to show ineffective assistance of counsel, Fuller must prove: (1)

that his counsel’s performance was deficient (cause); and (2) that

the deficient performance prejudiced his defense (prejudice).15 “An

attorney’s performance, which employs a strong presumption of

adequacy,    is    deficient      if   it    is   objectively      unreasonable.”16

Further,     counsel’s          deficient        performance       prejudiced     the

petitioner’s defense if “counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is

  13
     See Matchett, 380 F.3d at 849; Beazley v. Johnson, 242 F.3d
248, 271 (5th Cir. 2001).
  14
     United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995),
citing, United States v. Aklen, 47 F.3d 739, 742 (5th Cir. 1995).
  15
       See Strickland v. Washington, 466 U.S. 668 (1984).
  16
       Aklen, 47 F.3d at 742.


                                            13
reliable.”17

       Fuller explains that Donald Killingsworth was appointed to

represent him in his state criminal trial.               Killingsworth enlisted

the assistance of James Volberding, an attorney who had little to

no significant criminal law experience and was not on the approved

list of second chair counsel for capital cases.                  On October 1,

1997, prior to jury selection, Killingsworth was suspended from the

practice of law for failure to pay dues to the State Bar of Texas.

Volberding     took   over   as   lead   counsel    on    Fuller’s   case   until

Killingsworth was re-instated on October 21, 1997. Volberding

drafted a letter to Fuller explaining that Killingsworth had a

potential conflict of interest because he would be defending Fuller

against David Dobbs, a prosecutor who was also enlisted against

Killingsworth regarding his practice without a license. The letter

advises that,     because     the   situation      regarding   Killingsworth’s

practice without a license was likely to be resolved without

prosecution, Fuller did not need to seek appointment of new counsel

and should waive the conflict.           Fuller claims that the letter was

never sent to him.

       The record also contains various motions and memoranda in

which Volberding sought advice from the court as well as from other

attorneys as to what his role was in the defense of Fuller and what


  17
       Strickland, 466 U.S. at 687.


                                         14
he should do about Killingsworth’s perceived conflict.                     The record

contains memos written by Volberding in which Volberding indicates

that   he   was    being   overwhelmed         by   picking    up   the    slack    for

Killingsworth and that he believed that Killingsworth was not

providing effective assistance.                However, in a memo written to

himself     on     December    18,        1997,      Volberding        stated      that

Killingsworth’s performance had improved and that the problem was

eliminated.        On   December    29,    1997,     a   few   weeks    before     jury

selection, Killingsworth notified the court of the conflict and the

court received assurance from the prosecution that Killingsworth

was not facing indictment.

       Fuller     argues   that     his        counsel    rendered        ineffective

assistance, thus violating his Sixth Amendment right, by not

disclosing to him the potential conflict and by leaving Volberding,

inexperienced in criminal trials, to act as both first and second

chair.      While the record appears to show that Killingsworth’s

performance was deficient during a portion of the pre-trial phase

of Fuller’s case, Fuller has not demonstrated that the deficient

performance prejudiced his defense.                 Volberding’s own notes show

that Killingsworth’s performance improved after a short lapse.

Further, the potential conflict of interest was disclosed to the

trial court and was promptly resolved. Therefore, on this claim of

ineffective       assistance   of   counsel,        Fuller     cannot     prove    that

Killingswoth’s deficiency and his conflict of interest were so


                                          15
serious as to have deprived Fuller of a fair trial.

       (2) Ineffective Assistance of Counsel: Failure to Disclose

       Plea Agreement

       Fuller claims that his trial counsel failed to relay a plea

agreement offer, thus violating his Sixth Amendment right to

effective counsel.          The record contains a memorandum in which

Volberding states that, around January 29, 1998, the prosecutor

approached Killingsworth and Volberding and suggested that they

talk to Fuller about pleading to a life sentence.                Both Volberding

and Killingsworth doubted the sincerity of the prosecutor’s offer,

nonetheless, Volberding advised Killingsworth to communicate the

plea offer to Fuller in writing.           Volberding also advised that the

written     communication     to    Fuller     should    make    clear   that   the

prosecutor was not planning to make a real offer.                The memo states,

“To    my   knowledge,   as    of   this      date,   [Killingsworth]     has   not

discussed     the    matter    with   [Fuller],         nor   sent   a   letter.”18

Volberding concludes his notes by indicating that there had been no

further indication from the prosecutor that a plea was possible.

       In Teague v. Scott, 60 F.3d 1167, 1171 (5th Cir. 1995), the

Court “agree[d] that failing to inform the defendant of a plea

offer could amount to ineffective assistance of counsel.”                        In

Fuller’s     case,    the     evidence     suggests       that   Killingsworth’s


  18
       Federal Court Record at 93.


                                         16
performance may have been deficient in not discussion the plea

possibility with Fuller.     However, it is less clear that Fuller

suffered any actual prejudice as a result of this failure.         The

evidence suggests that the prosecutor never sincerely intended to

enter into any sort      of plea bargain with Fuller for a life

sentence. The State provided the district court with affidavits of

Don Killingsworth (Fuller’s trial attorney) and David Dobbs (the

trial prosecutor), in which both assert that a plea for life was

never seriously offered.     Therefore, there is sufficient evidence

to conclude that Fuller was not deprived of a fair trial by not

being told of a disingenuous mentioning of a plea for a life

sentence by a prosecutor who had no intention of agreeing to such

a plea.    Consequently, Fuller is not entitled to habeas relief on

this issue

     (3) Ineffective assistance of habeas counsel

     Fuller contends that he was deprived the effective assistance

of habeas counsel to which the state court concluded he was

entitled.    According to Fuller, under the law of the case doctrine,

state     law   guaranteed   him   the   right   to   assistance   of

constitutionally effective post-conviction counsel.     However, even

if the state court did conclude that state law entitled Fuller to

effective habeas counsel, ineffective assistance of counsel during

post-conviction proceedings cannot constitute cause to excuse a




                                   17
procedural default.19       Therefore, Fuller cannot overcome the cause

and prejudice requirements to revive this procedurally defaulted

claim.

       (4) Smith County’s pattern of discrimination against Black

jurors

       Fuller alleges that there is a history of purposeful racial

discrimination     in    the   selection   of    juries   in    Smith   County.

According to Fuller, the prosecutors in his case presented false

and misleading testimony in explaining their use of peremptory

strikes   during   the     Batson   hearing,    following      the   pattern   of

discrimination against Black jurors that has been used repeatedly

in Smith County.        It is unclear from Fuller’s brief whether he is

bringing a claim against Smith County as a whole; or if he is

referring to the history of Smith County’s voir dire practices as

a way to bolster his previously-made claim that the prosecutors’

race neutral reasons for striking Black jurors were pretext.

However, in either scenario, Fuller has not addressed the cause and

prejudice standard for this procedurally defaulted claim.               Even if

this Court were to reach the merits of this claim, a habeas

petition is not the proper forum in which to bring a claim of

discrimination against the county.              If Fuller merely meant to


  19
     See Matchett, 380 F.3d at 849, citing Henderson v. Cockrell,
333 F.3d 592, 606 (5th Cir. 2003) and Martinez c. Johnson, 255 F.3d
229, 239-41 (5th Cir. 2001).


                                      18
reiterate his Batson challenge against the prosecutors’ use of

peremptory challenges, then his claim fails for the reasons given

above in section III.    However this issue is construed, it does not

warrant habeas relief.

       (5) Actual Innocence

       Because Fuller cannot show the requisite cause and prejudice

for his procedurally defaulted claims, he can only succeed on those

claims if he can show that failure to consider the claims will

result in a fundamental miscarriage of justice.20     To establish a

“miscarriage    of   justice”,   Fuller   must   demonstrate   actual

innocence.21   Fuller is entitled to relief only if he can show that

“it is more likely than not that no reasonable juror would have

found him guilty beyond a reasonable doubt.”22       Further, in the

context of a death penalty sentence, Fuller is only entitled to

relief if he can demonstrate by clear and convincing evidence that,

but for the error complained of, no reasonable juror would have

sentenced him to death.23


  20
        See Coleman, 501 U.S. at 750.
  21
     Id. at 748, citing Murray v. Carrier, 477 U.S. 478, 496 (1986)
(“[W]here a constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas court
may grant the writ even in the absence of a showing of cause for
the procedural default.”).
  22
       Schlup v. Delo, 513 U.S. 298 (1995).
  23
       See Sawyer v. Whitley, 505 U.S. 333, 336 (1992).


                                  19
       Fuller argues that he is actually innocent and would not have

been sentenced to death had the jurors known that he was not the

triggerman. Fuller’s argument hinges on a newly obtained statement

made by Elaine Hays, a co-defendant, in which she asserts that,

after co-defendant Wideman and Fuller returned to the car following

the shooting, Wideman said that it felt good to shoot somebody.

Fuller’s claims that this statement proves his actual innocence.

His argument fails for two reasons.

      First, under Texas law, the jurors could have convicted Fuller

of   capital    murder   under     the   law   of    parties    based   upon   his

participation in the criminal activity.               Therefore, even if the

jury believed the statement of Hays - a statement given a co-

defendant serving prison time and based on the hearsay testimony of

another convicted co-defendant - they could have still convicted

Fuller of      capital   murder,    making     him   eligible    for    the   death

penalty.    Second, as the district court pointed out, “Fuller has

produced no evidence whatsoever, much less clear and convincing

evidence, that reasonable jurors in Texas never sentence non-

triggerman to death...”      Therefore, even if the jury believed that

Fuller was not the triggerman, they could have still sentenced him

to death as guilty of capital murder.                 Consequently, Fuller’s

evidence of innocence is not sufficient to result in a miscarriage

of justice for failing to consider the merits of his procedurally

defaulted claims.


                                         20
                               CONCLUSION

     For the foregoing reasons, Fuller has not demonstrated that he

is entitled to relief on any of the claims for which the district

court   and   this   Court   granted    Certificate   of   Appealability.

Accordingly, the district court’s denial of Fuller’s petition for

habeas corpus relief is AFFIRMED.                     AFFIRMED.




                                   21
