                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit                     March 26, 2007

                                                             Charles R. Fulbruge III
                                                                     Clerk
                              No. 06-70015




                        DALE DEVON SCHEANETTE

                                                 Petitioner - Appellant


                                 VERSUS


  NATHANIEL QUARTERMAN, Director, Texas Department of Criminal
           Justice, Correctional Institutions Division


                                                   Respondent - Appellee



  Appeal from the United States District Court for the Northern
              District of Texas, Fort Worth Division




Before JOLLY, DAVIS, and OWEN, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

     Convicted of capital murder and sentenced to death, Dale Devon

Scheanette   (“Scheanette”)     petitions    for    a   Certificate       of

Appealability (“COA”) from the district court’s denial of federal

habeas corpus relief.     Because we find that reasonable jurists

could not debate the propriety of the district court’s decisions

regarding Scheanette’s multiple alleged constitutional errors, we

deny Scheanette’s application for a COA.
                     I.   FACTS AND PROCEEDINGS

     The district court summarized the facts in its opinion denying

Scheanette’s habeas corpus petition as follows:

     On Christmas Eve of 1996, Norman and Brenda Norwood
     became worried about their twenty-year old niece, Wendie
     Prescott, when she failed to show-up for a planned
     shopping trip with her sister. Around 11:00 p.m., Norman
     went to Prescott’s apartment, only to discover her naked
     body lying face down in a partially filled bathtub. Her
     neck, hands and feet were tied in duct tape, which
     trailed from her neck down behind her back to her hands
     and feet. The medical examiner believed that she had
     been bound in this fashion prior to death. The autopsy
     revealed that Prescott had been manually strangled, with
     the possibility that her immersion in the tub also played
     a role in her death. A sexual assault examination was
     conducted and sperm samples collected and preserved for
     DNA testing.

     Though investigators found a high-quality dust print at
     Prescott’s apartment, initial comparisons yielded no
     matches. In the summer of 2000, however, the print was
     resubmitted to the FBI computer system, which, through
     the use of new technology, was able to narrow the list of
     possible matches. One of the matches scored over 2500
     points, almost a 1000 points more than the next highest
     score.   A FBI analyst concluded the print found in
     Prescott’s apartment matched the known print of
     Scheanette. This conclusion was later confirmed by two
     Arlington investigators. After obtaining a search
     warrant,   officers    obtained   saliva   samples   from
     Scheanette. DNA testing matched the DNA extracted from
     these samples to the DNA extracted from Prescott’s corpse
     with a statistical certainty of one in 763 million.

     At the punishment phase, the State connected Scheanette
     to yet another capital murder, that of twenty-six year
     old Christine Vu.
                            . . . .

     [The State also tied Scheanette to five brutal sexual
     assaults.]
                           . . . .

     The   State   also   introduced   evidence   that,   while


                                  2
      incarcerated awaiting trial, jail guards found concealed
      in Scheanette’s cell a contraband triangular piece of
      plexiglass that could have been used as a weapon.
      Finally, the State introduced evidence of a burglary
      conviction from 1999.

      During the punishment phase, various family members and
      a chaplain testified on Scheanette’s behalf. A retired
      employee of the Texas Department of Criminal Justice,
      S.O. Woods, also testified concerning the security
      measures taken in prison for handling violent inmates.
      Finally,   Dr.  Gilda   Kessner  testified   concerning
      Scheanette’s future dangerousness.1

      In January 2003, a Texas jury convicted Scheanette of capital

murder and sentenced him to death for the murder of Wendi Prescott

while in the course of committing or attempting to commit sexual

assault on her.        The Texas Court of Criminal Appeals (the “TCCA”)

affirmed Scheanette’s conviction and sentence.2                  The Supreme Court

denied Scheanette’s pro se petition for writ of certiorari in

January 2005.3

      Scheanette subsequently initiated state habeas proceedings.

The trial court entered findings of fact and conclusions of law

recommending the denial of state habeas relief.                  However, on April

13, 2005, the TCCA remanded Scheanette’s case to the trial court

for   the    development       of   additional       facts    pertaining       to   his




      1
        Scheanette v. Dretke, No. 4:05-CV-718-A, Memorandum Opinion and Order (N.D. Tex.
Apr. 10, 2006).
      2
       Scheanette v. State, 144 S.W.3d 503 (Tex. Crim. App. 2004).
      3
       Scheanette v. Texas, 543 U.S. 1059 (2005).

                                           3
ineffective assistance of counsel claims.4

      While his state application was pending before the TCCA,

Scheanette filed a pro se federal habeas petition in the Eastern

District of Texas.            The case was transferred to the Northern

District of Texas.        The district court granted Director Dretke’s

motion to dismiss without prejudice so that Scheanette could

exhaust all available state court remedies.5

      After the TCCA denied all habeas relief,6 Scheanette filed a

federal habeas petition in the district court.                  The district court

denied relief.7        Scheanette filed a notice of appeal, which the

district      court    construed     as    a    request    for    certificate    of

appealability (“COA”), which was denied.8 Scheanette now petitions

this court directly for a COA.

                            II. STANDARD OF REVIEW

      Scheanette      filed    his   federal      habeas   petition     after   the

effective date of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”).         Accordingly,      the       petition    is    subject   to   the




      4
       Ex parte Scheanette, No. WR-59466-01, 2005 WL 913120 (Tex. Crim. App.
Apr. 13, 2005).
      5
         Scheanette v. Dretke, No. 4:05-CV-489-A (N.D. Tex. Aug. 25, 2005).
      6
       Ex parte Scheanette, No. WR-59466-01, 2005 WL 3429304 (Tex. Crim. App.
Dec. 14, 2005).
      7
       Scheanette v. Dretke, No. 4:05-CV-718-A, Memorandum Opinion and Order
(N.D. Tex. Apr. 10, 2006).
      8
         Scheanette v. Dretke, No. 4:05-CV-718-A, Order (N.D. Tex. Apr. 11,
2006).

                                           4
requirements imposed by AEDPA.9                      Under AEDPA, Scheanette must

obtain a COA before an appeal can be taken to this court.10                       In

determining whether a COA should issue, we limit our examination to

a   “threshold          inquiry         into   the    underlying   merit   of   [the

petitioner’s] claims.”11                “This threshold inquiry does not require

full consideration of the factual or legal basis adduced in support

of the claims.           In fact, the statute forbids it.”12

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

showing of the denial of a constitutional right.”13                   Meeting this

standard requires a petitioner to demonstrate 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.”14           At issue is the debatability of the underlying

constitutional claim, but not the resolution of that debate.15

     Where the district court dismisses the application based on


     9
      See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
     10
       See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322,
336 (2003).

     11
          Miller-El, 537 U.S. at 327.
     12
          Id. at 337.
     13
       28 U.S.C. § 2253(c)(2); e.g., Miller-El, 537 U.S. at 336; Slack v.
McDaniel, 529 U.S. 473, 483 (2000).
     14
       Miller-El, 537 U.S. at 336 (internal citation and quotations omitted);
Moreno v. Dretke, 450 F.3d 158, 163 (5th Cir. 2006).

     15
          Miller-El, 537 U.S. at 342.

                                               5
procedural          grounds        without    reaching      the    prisoner’s   underlying

constitutional claim(s), a COA should issue if the petitioner

demonstrates both that reasonable jurists would find it debatable

whether the district court was correct in its procedural ruling and

that    reasonable          jurists     would        find   it    debatable   whether   the

petition states a valid claim of the denial of a constitutional

right.16        “Because the present case involved the death penalty, any

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

[petitioner’s] favor.”17

       Under 28 U.S.C. § 2254(d), a federal court cannot grant habeas

corpus relief with respect to any claim that was adjudicated on the

merits in state court proceedings unless the adjudication of that

claim either (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.18                         “[A] determination of

a factual issue made by a State court shall be presumed to be

correct,”19 and a federal habeas petitioner “has the burden of


       16
            Slack, 529 U.S. at 478.
       17
            Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).

       18
            28 U.S.C. § 2254(d).
       19
            28 U.S.C. § 2254(e)(1).

                                                 6
rebutting this presumption with clear and convincing evidence.”20

                                        III. DISCUSSION

       Scheanette requests a COA on seven separate claims. We review

the claims in turn.

                                   A. Claims One and Two

       Scheanette             argues      that         his       defense      counsel    were

constitutionally ineffective because they called two punishment

phase witnesses, Dr. Gilda Kessner (“Dr. Kessner”) and S.O. Woods

(“Woods”), whose testimony provided little or no benefit to the

petitioner, but rather helped the State establish his future

dangerousness.

       To establish ineffective assistance of counsel, Scheanette

must    satisfy         the    two-prong        test      set    forth   in   Strickland   v.

Washington.21            First, Scheanette must show that his counsel’s

performance          was      deficient.22        We      determine      whether   counsel’s

performance was deficient “by examining whether the challenged

representation              fell        below        an         objective     standard     of

reasonableness.”23             “Strickland does not allow second guessing of

trial strategy and must be applied with keen awareness that this is



       20
       Hughes v. Dretke, 412 F.3d 582, 589 (5th Cir. 2005) (citing 28 U.S.C.
§ 2254(e)(1)).

       21
            466 U.S. 668, 687 (1984).
       22
            Id.
       23
       Cotton v. Cockrell, 343 F.3d 746, 752 (5th Cir. 2003) (citing Kitchens
v. Johnson, 190 F.3d 698, 701 (5th Cir. 1999)).

                                                 7
an after-the-fact inquiry.”24              Therefore, Scheanette must overcome

a strong presumption that his counsel’s conduct falls within the

wide range of reasonable professional assistance.25

      To prevail, Scheanette must also show that his counsel’s

deficient performance was prejudicial, i.e., that the errors were

so serious as to “deprive [him] of a fair trial, a trial whose

result       is       reliable.”26      But    because,      as   will      be    discussed

immediately below, no reasonable jurist could debate the district

court’s conclusion that Scheanette’s counsel rendered adequate

performance, we will not consider whether the alleged errors

Scheanette relies on could have prejudiced his defense.

      In light of the horrendous evidence the state produced against

Scheanette, defense counsel sought to offer mitigating evidence to

support an argument that Scheanette would not pose a future danger

if   given        a    life   sentence.       Counsel     presented      testimony       from

Scheanette’s sister, Scheanette’s mother, and a chaplain concerning

positive          evidence    of     Scheanette’s        background    and       character.

Defense       counsel      also      presented     the   testimony     of    Dr.    Kessner

regarding          risk    assessment      evidence,        which     focused       on   the

statistically low probability of prison violence.                                In defense

counsel’s “strategic view, evidence, such as risk assessment, that


      24
           Granados v. Quarterman, 455 F.3d 529, 534 (5th Cir. 2006).

      25
           Strickland, 466 U.S. at 689.
      26
           Id. at 687.

                                               8
focused on statistically low prison violence, would enhance [the]

theme that the jury would not have to kill” Scheanette.27                       On direct

examination, Dr. Kessner testified that there was an 18.8% chance

that Scheanette would commit acts of violence in prison, which was

just over the standard base rate of 16.4% for all individuals

serving life sentences for murder.                          Dr. Kessner also testified

concerning Scheanette’s decreased risk factors, such as his age,

and remarked on Scheanette’s good family support network, average

intelligence, and vocational ability.                          Dr. Kessner noted that

Scheanette was among other inmates when he was in county jail, and

he did not exhibit assaultive behavior.                       In its closing arguments,

the State argued that the 18.8% figure provided by Dr. Kessner is

a “probability that the defendant would commit criminal acts of

violence,” as required by Tex. Code Crim. Proc. Ann. art. 37.071,

§ 2(b); and therefore, the jurors “know what the answer to the

[future dangerousness] question is.”

     As additional mitigation evidence, defense counsel presented

the testimony of Woods regarding institutional evidence, which

emphasized the heightened security provided for prisoners such as

Scheanette.         Defense counsel “concurred with the leading capital

litigators that Woods would appeal well to a practical juror who

would      be    impressed       with     the       professional    expertise    of   the




     27
          Affidavit of defense counsel, David A. Pearson.

                                                9
Institutional Division at controlling life sentenced offenders.”28

On direct examination, Woods generally testified about how inmates

are   classified           at   the     Texas     Department         of   Criminal      Justice

(“TDCJ”).         He also testified that, if sentenced to life in prison,

Scheanette would likely be assigned to a high-risk “level-five”

security institution.                 The State then used cross-examination to

establish that a wide range of weapons are available to the inmates

in the penitentiary system, and the penitentiary does not guarantee

a   violence-free           environment.              The     prosecutor      also     elicited

testimony that a shank found in Scheanette’s cell at the Dallas

County jail is a stabbing/puncture instrument.29                               On re-direct,

Woods testified that the shank led to a disciplinary infraction

which       must     be   reported       under     state       law   when     Scheanette         is

transferred such that the classification committee would take it

into consideration.

      The TCCA reviewed these claims on direct appeal and found the



      28
           Affidavit of defense counsel, David A. Pearson.
      29
           Scheanette also complains of the following testimony elicited on cross-examination:

                Q. [The Prosecutor]: From your review of the reports, did it appear to you that
                                     Dale Scheanette had exercised a level of planning in each of
                                     these cases?

                A. [Woods]:            Very much so.

                Q. [The Prosecutor]: Just like the Texas Seven?

                A. [Woods]:                   Very similar.

                                                 10
record insufficient to support a claim of ineffective assistance of

counsel.30         In reaching its conclusion, the TCCA presumed that

defense counsel acted pursuant to a reasonable trial strategy.                    On

state habeas review, the convicting court made findings of fact and

conclusions         of     law     concerning       Scheanette’s   allegations    of

ineffective assistance of counsel and found that defense counsel

had “sound and strategic tactical reasons for introducing” the

expert testimony of Woods and Dr. Kessner.                 The TCCA adopted all of

the trial judge’s findings and conclusions.31

     After considering Scheanette’s arguments, the federal district

court also denied relief, concluding that Scheanette                     failed to

meet either Strickland prong. Regarding deficient performance, the

court      concluded        that     trial     counsel   objectively   employed   a

reasonable strategy and it was “at a loss as to what other types of

evidence . . . counsel could have introduced on his behalf to rebut

the existing evidence as to his future dangerousness,” given the

State’s evidence establishing Scheanette as a brutal murderer and

serial rapist.

     The state court reasonably concluded that Scheanette’s defense

counsel did not render ineffective assistance by offering the

punishment phase testimony of Woods and Dr. Kessner.                   “[S]trategic

choices made after thorough investigation of law and facts relevant


     30
          Scheanette v. State, 144 S.W.3d at 510.
     31
          Ex parte Scheanette, No. WR-59466-01, 2005 WL 3429304.

                                               11
to plausible options are virtually unchallengeable.”32                                  In light of

the    thorough           investigation            conducted      by    Scheanette’s         trial

counsel,33 we conclude that these carefully considered tactical

decisions introduced at the punishment phase were objectively

reasonable. Scheanette has not demonstrated that the state court’s

decision is contrary to, or an unreasonable application of, clearly

established           federal        law.        Accordingly,       the     district       court’s

assessment was not debatable.

                                          B.    Claim Three

       For the first time, Scheanette argues that his defense counsel

were ineffective for failing to object to an instruction limiting

the statutory effect of the mitigation special issue.34

       We need not consider whether jurists of reason would find the

       32
            Wiggins v. Smith, 539 U.S. 510, 521 (2003) (internal citation and quotations omitted).
       33
          For example, defense counsel employed a mitigation specialist, and obtained mental
health and juvenile records in an attempt to uncover potential mitigation evidence. Defense
counsel Pearson attended a seminar focused on presenting risk assessment evidence and
personally observed the use of such risk assessment evidence in capital cases. In addition, a
featured speaker at the seminar recommended that litigators present the institutional evidence
offered by Woods and Pearson knew that two defense attorneys had been successful in obtaining
a life sentence in a death penalty case using similar evidence. In preparation for Woods’s
testimony, Pearson read a transcript of Woods’s testimony in another capital case and also
personally observed Woods’s testimony in a capital case.
       34
            Specifically, the jury was instructed that:

                  In deliberating on Special Issue No. 1 and Special Issue No. 2, the
                  Jury shall consider all of the evidence admitted at the guilt or
                  innocence phase and the punishment phase, including evidence of
                  the defendant’s background or character or circumstances of the
                  offense that militates for or mitigates against imposition of the
                  death penalty.

                                                     12
district          court’s      resolution        of     this    issue        debatable     because

Scheanette did not first raise this claim in the district court.35

We have stated that “[a] district court must deny the COA before a

petitioner can request one from this court.”36                                  Thus, prior to

appellate review, the district court must “deny COA as to each

issue presented by the applicant.”37                       Because Scheanette failed to

seek a COA from the district court on this issue, we will not

consider the issue.38

                                          C.    Claim Four

       In his fourth claim, Scheanette argues that the trial court

violated his Eighth and Fourteenth Amendment rights when its

instruction went beyond the language of the mitigation special

issue (Special Issue No. 2). Specifically, the jury was instructed

that:

       In deliberating on Special Issue No.                            139 and Special
       Issue No. 2, the Jury shall consider all                        of the evidence
       admitted at the guilt or innocence                              phase and the
       punishment phase, including evidence of                         the defendant’s

       35
            See Brewer v. Quarterman, 466 F.3d 344, 346 (5th Cir. 2006).
       36
         Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998) (internal citation and
quotations omitted).
       37
            Id.
       38
          Scheanette’s claim also fails on the merits because the two-prong Strickland test is not
satisfied. Assuming that prong one of Strickland is satisfied by trial counsel’s failure to object to
the instruction, Scheanette was not prejudiced because the instruction gave adequate guidance to
the jury to consider both aggravating and mitigating evidence when determining its response to
the special issues.
       39
            Special Issue No. 1 is the future dangerousness special issue.

                                                   13
     background or character or circumstances of the offense
     that militates for or mitigates against imposition of the
     death penalty.

Scheanette argues that, contrary to the instruction, the statute

requiring       the    jury     to   consider       the    special         mitigation   issue

prohibits the jury - in its consideration of this issue - from

considering evidence that militates for the death penalty.

     Tex. Code Crim. Proc. art. 37.071, § 2(e)(1) requires Texas

juries in        capital      cases     to    answer      the   following       question   on

mitigation:

     Whether, 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, there is sufficient
     mitigating circumstance or circumstances to warrant that
     a sentence of life imprisonment without parole rather
     than a death sentence be imposed.40

     On direct appeal, Scheanette argued, as he does now, that the

charge in question violated his Eighth and Fourteenth Amendment

rights.41       However, before the district court, Scheanette argued

violations        of   the    Sixth     and    Fourteenth        Amendments.        Because

Scheanette did not first request a COA from the district court on

Eighth Amendment grounds, we will not consider his claim in that

regard.42

     Scheanette’s            Fourteenth       Amendment         claim      is   procedurally


     40
          Tex. Code Crim. Proc. art. 37.071, § 2(e)(1) (emphasis added).
     41
          See Scheanette v. State, 144 S.W.2d at 507.
     42
          See Whitehead, 157 F.3d at 388.

                                               14
barred. A federal habeas court “will not consider a claim that the

last    state         court    rejected       on      the    basis   of   an     adequate    and

independent state procedural ground.”43 Scheanette failed to object

to the jury charge at the time of trial.                             We have recognized a

federal          petitioner’s          failure          to    comply      with     the    Texas

contemporaneous objection rule as an adequate and independent state

procedural bar to federal habeas review.44

       On direct appeal, the TCCA specifically stated that because

Scheanette failed to object to the jury instruction, he would have

to show egregious harm from any error in the instruction in order

to obtain relief.45              The TCCA found no harm from the instruction

because the jury was entitled under the law to consider all of the

evidence in determining its answer to the mitigation issue.                                  For

this reason, the TCCA denied Scheanette’s claim.                            On state habeas

review,         the    TCCA     adopted      the      trial    court’s     conclusion       that

Scheanette’s claim was “not cognizable because the issue[] had

already been raised and rejected on direct appeal.”46                                     After

recognizing that Scheanette failed to object to the jury charge in



       43
        Busby v. Dretke, 359 F.3d 708, 718 (5th Cir. 2004)(citing Coleman v. Thompson, 501
U.S. 722, 729-32 (1991)).
       44
        See Rowell v. Dretke, 398 F.3d 370, 375 (5th Cir. 2005); Graves v. Cockrell, 351 F.3d
143, 152 (5th Cir. 2003).
       45
            Scheanette v. State, 144 S.W.3d at 507.
       46
         See Ex parte Scheanette, No. WR-59466-01, 2005 WL 3429304. This issue was
designated as points of error twenty-one and twenty-two in Scheanette’s state habeas application.

                                                   15
the trial court, the district court agreed with the TCCA that any

improper language in the jury instruction did not harm Scheanette,

and thus, concluded that Scheanette failed to show that the TCCA’s

decision was contrary to, or involved an unreasonable application

of, clearly established federal law.

       As a result, Scheanette’s Fourteenth Amendment challenge to

the jury instruction is procedurally barred unless Scheanette can

show cause and actual prejudice for the default or that failure to

address the merits of the procedurally defaulted claim will work a

fundamental miscarriage of justice.47 Scheanette has failed to show

cause for his counsel’s failure to object.48                             In addition, even

assuming Scheanette could show cause for his default, he is unable

to show any resultant prejudice because, as stated by the TCCA on

direct appeal:

     Article 37.071, § 2(e)(1) directs the court to instruct
     the jury to “tak[e] into consideration all of the
     evidence” when determining whether there are sufficient
     mitigating circumstance[s] to warrant the imposition of a
     sentence of life imprisonment. By its plain language, the
     statute requires the jury to look at all of the evidence
     and not just evidence a juror might consider to be
     mitigating.49



       47
            Coleman v. Thompson, 501 U.S. at 750.
       48
          Scheanette now raises a Strickland claim regarding this issue. However, he does not
allege his counsel’s ineffectiveness as cause to excuse the procedural default. Regardless, a
constitutional claim alleged as cause for a procedural default must itself be exhausted; and, as
previously discussed, Scheanette’s ineffective assistance of counsel claim in this regard is
unexhausted. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000).
       49
            Scheanette v. State, 144 S.W.3d at 507-508 (emphasis in original).

                                                 16
Scheanette has offered no contrary clearly established federal law

to dispute this finding.                     Furthermore, Scheanette presents no

evidence indicating that our dismissal of this claim for procedural

default would work a “fundamental miscarriage of justice.”                                   As a

result, reasonable jurists could not debate whether the district

court was correct in its ruling of procedural default.50

                                          D. Claim Five

        Scheanette argues that the mitigation instruction was not

 effective in telling the jury how to consider the mitigating

 evidence because it sent “mixed signals” in violation of the Eighth

 Amendment as interpreted in Penry v. Johnson51 (“Penry II”).                                 More

 specifically, Scheanette argues that the amended jury instruction

 prevented the jury from considering and giving effect to any

 mitigating evidence when answering the mitigation special issue,

 and that any mitigating evidence could not be given effect in the

 future dangerousness special issue.

        On direct appeal, the TCCA noted that it had “previously

 addressed and rejected this claim,” and denied Scheanette relief.52



        50
           Even if Scheanette’s claim was not procedurally barred, the state court’s resolution of
 the issue raised by Scheanette did not involve an unreasonable application of federal law. No
 clearly established federal law supports Scheanette’s argument that the jury is precluded from
 considering all of the evidence when determining its answer to the mitigation special issue, and we
 have never adopted such a rule. At most, the judge’s amendment to the mitigation instruction
 amounts to a violation of the Texas statute, and not a constitutional violation.
        51
             532 U.S. 782 (2001).
        52
             Scheanette v. State, 114 S.W.3d at 506.

                                                  17
On    state          habeas      review,      the     TCCA     adopted      the    trial      court’s

conclusion that this claim was not cognizable because the issue was

already raised and rejected on direct appeal.53                                         The federal

district court concluded that Scheanette “failed to show that the

complained-of              instructions          were      contrary      to,     or   involved      an

unreasonable application of, clearly established federal law.”54

Specifically, Scheanette failed to persuade the court that the jury

was      not        able    to   consider       and     give    effect      to    his    mitigating

evidence, as required by Penry II.55                          Reasonable jurists could not

debate the district court’s decision.

         In Penry II the Supreme Court reiterated its previous holding

in Penry v. Lynaugh56 (“Penry I”) that the key is “that the jury be

able to ‘consider and give effect to [a defendant’s mitigating]

evidence in imposing sentence.’”57                          In order to grant relief on a

Penry I claim, this court must determine: “(1)                                          whether the

mitigation evidence has met the low threshold for relevance, and,

if so, (2) that the evidence was beyond the effective scope of the




         53
              Ex parte Scheanette, No. WR-59466-01, 2005 WL 3429304 (Tex. Crim. App. Dec. 14,
2005).
         54
        Scheanette v. Dretke, No. 4:05-CV-718-A, Memorandum Opinion and Order (N.D.
Tex. Apr. 10, 2006).
         55
              Id.
         56
              492 U.S. 302 (1989).
         57
              Penry II, 532 U.S. at 797 (citing Penry I, 492 U.S. at 319) (emphasis in original).

                                                      18
jury.”58

       The Supreme Court defined relevant mitigating evidence as

“evidence which tends logically to prove or disprove some fact or

circumstance which a fact-finder could reasonably deem to have

mitigating          value.”59        Scheanette         presented      testimony       from    Dr.

Kessner         and    from     Woods,     both     concerning        Scheanette’s         future

dangerousness; and testimony from Scheanette’s sister, a chaplain,

and     Scheanette’s            mother       to     provide       positive       evidence        of

Scheanette’s           background        and      character.         “Relevant       mitigating

evidence does not have to be linked to his conduct, but only show

that it could lead a jury to find that a sentence other than death

is warranted.”60              Applying the low threshold articulated by the

Supreme Court in Tennard v. Dretke,61 it is clear that the evidence

submitted by Scheanette constitutes relevant mitigating evidence.

Thus, Scheanette must have been - and was - allowed to present this

evidence to the jury.

       We       now    turn     to    Scheanette’s         contention        concerning        the

constitutionality of the jury instruction given by the trial judge

during the sentencing phase.                   A mere possibility that the jury was



       58
         Bigby v. Dretke, 402 F.3d 551, 564-65 (5th Cir. 2005) (internal citation and quotations
omitted).
       59
            Tennard v. Dretke, 542 U.S. 274, 284 (2004) (internal citation and quotation omitted).
       60
            Coble v. Dretke, 444 F.3d 345, 360 (5th Cir. 2006).
       61
            542 U.S. 274.

                                                   19
precluded from considering mitigating evidence does not establish

Penry I error.62          “[T]he proper inquiry              . . . is whether there is

a reasonable likelihood that the jury has applied the challenged

instruction          in    a    way     that     prevents          the   consideration   of

constitutionally relevant evidence.”63

     We conclude that the jury was able to consider and give effect

to Scheanette’s relevant mitigating evidence.                             In Scheanette’s

case, the jury was required to answer the following special issues:

                                   Special Issue No. 1

     Do you find 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?

                                   Special Issue No. 2

     Taking into consideration all of the evidence, including
     the circumstances of the offense, the defendant’s
     character or 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?

     Unlike Penry II, the trial judge’s instruction in this case

did not suggest to the jury that it should provide false answers to

either of these special issues.                         Scheanette’s claim that the

instruction in effect “nullified” the mitigation special issue is

unsupported.         As discussed above, in determining its answer to the



     62
          See Boyde v. California, 494 U.S. 370, 380 (1990).
     63
          Id.; see Saffle v. Parks, 494 U.S. 484, 490-92 (1990).

                                                 20
mitigation issue, the jury was entitled to consider all of the

evidence.       In addition, we have no reason to believe that the jury

was confused or misled in answering the mitigation special issue.

       Moreover, even assuming that Scheanette is correct that the

instruction “nullified” the mitigation special issue, Scheanette’s

mitigating evidence could be considered and given effect under the

future dangerousness special issue.64                      Specifically, the testimony

of Woods addressing the rigorous security measures at TDCJ and Dr.

Kessner regarding Scheanette’s relative likelihood of committing a

serious violent act in prison over the course of a capital life

term could be fully considered within the future dangerousness

special issue.           In addition, Scheanette’s familial and chaplain

mitigation testimony is good character evidence, recognized as

falling within the future dangerousness special issue.

       In sum, the state court’s decision was neither contrary to,



       64
          See Johnson v. Texas, 509 U.S. 350, 368 (1993) (“We believe that there is ample room
in the assessment of future dangerousness for a juror to take account of the difficulties of youth as
a mitigating force in the sentencing determination.”); Graham v. Collins, 506 U.S. 461, 475-76
(1993) (holding that Texas special issues permitted jurors to consider mitigating evidence of
youth, family background and positive character under future dangerousness issue); Franklin v.
Lynaugh, 487 U.S. 164, 178 (1988) (plurality opinion) (finding that petitioner’s evidence of a
good disciplinary record during his period of incarceration was “fully considered by the jury when
it was asked to answer the [future dangerousness] [i]ssue”); see, e.g., Newton v. Dretke, 371
F.3d 250, 256-257 (5th Cir. 2004) (youth, good character, church attendance, cooperation with
police, unfaithful/drug dealing spouse, and impoverished background); Beazley v. Johnson, 242
F.3d 248, (5th Cir. 2001) (good character); Boyd v. Johnson, 167 F.3d 907, 912 (5th Cir. 1999)
(positive character traits); James v. Collins, 987 F.2d 1116, 1121-22 (5th Cir. 1993) (cooperation
with police, remorse, impoverished and abusive family history, positive familial ties despite
troubled upbringing); Barnard v. Collins, 958 F.2d 634, 640-41 (5th Cir. 1992) (good character,
including evidence of carpentry skills, work history, and familial responsibility and support).

                                                 21
nor an unreasonable application of, federal law.                           As a result,

reasonable jurists would not debate the district court’s resolution

of this issue.

                                        E. Claim Six

     In claim six, Scheanette argues that his death sentence

offends due process of law because the future dangerousness issue

dilutes       the     State’s      burden      of    proof      and    fails   to   define

“probability.”          The future dangerousness issue instructed the jury

to answer the following question:

     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?65

     On state habeas review, the TCCA adopted the findings of the

state trial court that this claim is procedurally defaulted because

Scheanette failed to raise the claim on direct appeal.66 Procedural

default aside, the state trial court further found that state law

precedent precluded relief.

     The district court agreed with the TCCA that this claim was

procedurally defaulted because Scheanette did not raise the claim

on direct appeal and Scheanette failed to show cause and prejudice

for his default or that failure to consider this claim would result

in a fundamental miscarriage of justice.                       The district court also



     65
          Tex. Code Crim. Proc. art. 37.071, § 2(b)(1) (emphasis added).
     66
          Ex parte Scheanette, No. WR-59466-01, 2005 WL 3429304.

                                               22
addressed the merits of Scheanette’s claim, concluding that the

state court’s substantive resolution of the issue did not involve

an unreasonable application of federal law because submission of

the future dangerousness issue to a jury in a capital case had been

specifically held constitutional by the Supreme Court, and thus,

acceptance of Scheanette’s argument was barred by Teague v. Lane.67

Moreover, the court noted that this court has “repeatedly rejected

attacks on a court’s failure to define ‘probability’ in this

context on the ground that such term is not constitutionally

vague.”

       Reasonable jurists could not debate the district court’s

dismissal of Scheanette’s claim on grounds of procedural default.

Texas law requires that a petitioner must raise a claim on direct

appeal before it can be raised on state habeas,68 and this rule is

an   “adequate          state      ground    capable      of    barring      federal       habeas

review.”69         In addition, the Texas court’s alternative resolution

of   this        claim     was     neither       contrary    to,    nor    an    unreasonable

application of, federal law.                     The future dangerousness issue has

been    held        constitutional          by    the    Supreme    Court70     and       we   have



       67
            489 U.S. 288 (1989).
       68
         See Ex parte Townsend, 137 S.W.3d 79, 81-82 (Tex. Crim. App. 2004); Ex parte
Nelson, 137 S.W.3d 666, 668 (Tex. Crim. App. 2004).
       69
            See Busby v. Dretke, 359 F.3d at 719.
       70
            Jurek v. Texas, 428 U.S. 262 (1976); see Rowell v. Dretke, 398 F.3d at 379.

                                                    23
repeatedly held that the term “probability” as used in the Texas

special issue is not so vague as to require additional instructions

(such as definition by the court).71                        As a result, reasonable

jurists could also not debate the district court’s dismissal of

Scheanette’s claim on substantive grounds.

                                      F. Claim Seven

       Lastly, Scheanette relies on Apprendi v. New Jersey72 and Ring

v. Arizona73 to argue that the Texas mitigation special issue is

unconstitutional because it does not require the prosecution to

prove the nonexistence of mitigating factors beyond a reasonable

doubt.74

            On direct appeal, the TCCA denied relief on this claim,

finding        that    it    had   “previously       addressed       and    rejected       this

argument.”75          On state habeas review, the TCCA adopted the state

trial court’s conclusions that this claim be denied because it had


       71
        See, e.g., Woods v. Johnson, 75 F.3d 1017, 1033-34 (5th Cir. 1996); James v. Collins,
987 F.2d at 1120 & n.5.
       72
            530 U.S. 466 (2000).
       73
            536 U.S. 584 (2002).
       74
          In particular, Scheanette asserts violations of the Sixth, Eighth, and Fourteenth
Amendments. Scheanette refers to a Fifth Amendment violation in the title of this claim, but
refers to violations of the Sixth, Eighth, and Fourteenth Amendments in his closing remarks. If
Scheanette is now arguing a Fifth Amendment violation, Scheanette’s Fifth Amendment claim is
waived because he did not seek a COA from the district court on this basis. See Brewer v.
Quarterman, 466 F.3d at 346.
       75
         Scheanette v. State, 144 S.W.3d at 505 (citing Hankins v. State, 132 S.W.3d 380, 386
(Tex. Crim. App. 2004)).

                                               24
already been raised and rejected on direct appeal; and because the

TCCA had already ruled on and rejected this claim.                               The district

court also denied relief on this claim, concluding that because

neither Apprendi            nor    Ring    require       a   mitigating        factor     to    be

established        beyond      a    reasonable        doubt,      Scheanette        failed      to

identify any erroneous or unreasonable application of clearly

established federal law.

       Reasonable jurists would not debate the district court’s

dismissal of this claim because it has been previously rejected in

both state76 and federal court, and is not supported by Supreme

Court authority.

       We have specifically held that the Texas death penalty scheme

did not violate either Apprendi or Ring by failing to require the

state to prove beyond a reasonable doubt the absence of mitigating

circumstances.77          In Granados v. Quarterman, we stated that “the

state was required to prove beyond a reasonable doubt every finding

prerequisite to exposing [the defendant] to the maximum penalty of



       76
         The TCCA has previously remarked that “the burden is implicitly placed upon the
[defendant] to produce and persuade the jury that circumstances exist which mitigate against the
imposition of death . . .;” and the court is “unaware of any constitutional requirement that the
burden of proof regarding mitigating evidence be placed on either party, and to the extent that the
burden is on [the defendant], we note that it is not unconstitutional to so place the burden.”
Lawton v. Texas, 913 S.W.2d 542, 557 (Tex. Crim. App. 1995) (en banc); see Hankins, 132
S.W.3d at 386.
       77
          Granados, 455 F.3d at 536; see Rowell, 398 F.3d at 379 (“No Supreme Court or Circuit
precedent constitutionally requires that Texas’s mitigation special issue be assigned a burden of
proof.”).

                                                25
death,”78        and     we   concluded     that    “a     finding    of    mitigating

circumstances reduces a sentence from death, rather than increasing

it to death.”79

     In       sum,      the   Texas    court’s    denial   of   relief     was   neither

contrary to, nor an unreasonable application of, federal law.                          As

a result, reasonable jurists would not debate the district court’s

dismissal of Scheanette’s claim.

                                            IV.

     For        the     foregoing      reasons,    we    DENY   the   motion     for    a

Certificate of Appealability.

MOTION DENIED.




     78
          Granados, 455 F.3d at 536.
     79
          Id. at 537.

                                             26
