                                                                                     United States Court of Appeals
                                                                                              Fifth Circuit


                                                  In the                                  FILED
                                                                                         May 11, 2006
                         United States Court of Appeals
                                                                                   Charles R. Fulbruge III
                                       for the Fifth Circuit                               Clerk
                                            _______________

                                               m 05-70014
                                             ______________




                                    DONELL O’KEITH JACKSON,

                                                               Petitioner-Appellant,

                                                 VERSUS

                                             DOUG DRETKE,
                        DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                              CORRECTIONAL INSTITUTIONS DIVISION,

                                                               Respondent-Appellee.


                                  _________________________

                             Appeal from the United States District Court
                                 for the Southern District of Texas
                                         m H-02-CV-2601
                                  _________________________



Before DAVIS, SMITH, and DENNIS,                          Donell Jackson requests a certificate of ap-
  Circuit Judges.                                      pealability (“COA”) from the denial of his
                                                       claim for federal habeas corpus relief under 28
JERRY E. SMITH, Circuit Judge:*                        U.S.C. § 2254. We deny a COA as to all but
                                                       two of Jackson’s claims on which a COA is
                                                       required, because jurists of reason would not
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
                                                           *
and is not precedent except under the limited              (...continued)
                                     (continued...)    circumstances set forth in 5TH CIR. R. 47.5.4.
find the rejection of them debatable. As for                                    II.
the claim on which we grant a COA, and the                  This case is governed by the Antiterrorism
claim for which no COA is required, we affirm            and Effective Death Penalty Act of 1996
on the merits.                                           (“AEDPA”), which requires, as a jurisdictional
                                                         prerequisite to appeal, that Jackson obtain a
                       I.                                COA. Miller-El v. Cockrell, 537 U.S. 322,
   Jackson was charged with killing his victim           335-36 (2003). A COA will issue if Jackson
for remuneration. The victim had previously              makes “a substantial showing of the denial of
testified before a grand jury in its investigation       a constitutional right.” 28 U.S.C. § 2253-
of Jackson’s friend, David Smith. Smith in-              (c)(2). The prevailing standard requires Jack-
dicated in a taped statement that he did not             son to demonstrate that “reasonable jurists
know Jackson was going to shoot the victim.              could debate whether (or, for that matter,
When the police played Smith’s statement for             agree that) the petition should have been re-
Jackson during interrogation, Jackson alleg-             solved [by the district court] in a different
edly replied that Smith had paid him to commit           manner or that the issues presented were ‘ade-
the murder. Jackson then made a taped con-               quate to deserve encouragement to proceed
fession. To shift the blame, Jackson at trial            further.’” Slack v. McDaniel, 529 U.S. 473,
claimed the police had told him to say that              484 (2000) (quoting Barefoot v. Estelle, 463
Smith had paid him.                                      U.S. 880, 893 n.4 (1983)).

   Jackson was convicted by a jury of capital                Although the COA determination requires
murder. At sentencing, the state introduced              a threshold inquiry into the merits of a peti-
evidence of prior offenses, and Jackson pre-             tioner’s claim, it does not involve a full can-
sented evidence of a favorable home life and a           vassing of the factual or legal bases for relief.
learning disability. The jury sentenced him to           See Miller-El, 537 U.S. at 336-37. We do not
death, finding that he posed a threat of future          inquire whether Jackson will succeed on ap-
dangerousness and that the mitigating evidence           peal, or even whether any reasonable jurist
was inadequate to warrant a life sentence.               would ultimately grant Jackson’s petition.
                                                         Rather, we ask only whether the federal dis-
   The Texas Court of Criminal Appeals af-               trict court’s resolution of Jackson’s claims is
firmed the conviction and sentence on direct             debatable among jurists of reason.1
appeal. Jackson filed a concurrent petition for
writ of habeas corpus in the trial court, which             When assessing whether jurists of reason
entered findings of fact and conclusions of law          could debate the denial of Jackson’s habeas
that were adopted by the Court of Criminal               petition, we are mindful of the deferential stan-
Appeals in an order denying habeas relief.               dard of review the district court must apply
                                                         under AEDPA. See Miniel v. Cockrell,
   Jackson filed a federal habeas petition under
§ 2254, alleging twenty-two points of error.
The district court granted summary judgment                 1
                                                               Miller-El, 537 U.S. at 338 (stating that “a
denying Jackson’s claims, and denied sua                 claim can be debatable even though every jurist of
sponte a COA as to each claim. Jackson filed             reason might agree, after the COA has been grant-
a notice of appeal and request for a COA.                ed and the case has received full consideration, that
                                                         petitioner will not prevail”).

                                                     2
339 F.3d 331, 336 (5th Cir. 2003). The dis-                F.3d 190, 193 (5th Cir. 2001). Finally,
trict court must defer to the state court’s ad-            AEDPA presumes that the state court’s factual
judication of a defendant’s claims on the merits           findings are correct; the defendant has the bur-
unless the state court’s decision was “contrary            den of proving otherwise by “clear and con-
to, or involved an unreasonable application of,            vincing evidence.” 28 U.S.C. § 2254(e)(1).
clearly established Federal law, as determined
by the Supreme Court of the United States, or                                  III.
. . .was based on an unreasonable determina-                  Jackson makes eight separate arguments for
tion of the facts in light of the evidence pre-            a COA. We deal with each of these in turn.
sented in the State court proceeding.” 28
U.S.C. § 2254(d)(1), (2).                                                         A.
                                                               Jackson argues that his confession was in-
    A state court’s decision is “contrary to”              voluntary and the product of police miscon-
clearly established federal law if it reaches a            duct. Specifically, he maintains that, to shift
result in direct conflict with Supreme Court               blame to Smith, police told him to say that he
precedent, either by drawing a contrary legal              received money for the victim’s murder; Jack-
conclusion or basing a contrary judgment on                son alleges that discrepancies between the de-
materially indistinguishable facts. Miniel,                tails of his confession and statements made by
339 F.3d at 337 (citing Williams v. Taylor,                Smith compel the conclusion that police co-
529 U.S. 362, 405 (2000)). A state court’s                 erced a confession.
decision is based on an “unreasonable applica-
tion” of clearly established federal law if it is             The Fifth Amendment provides that no
“objectively unreasonable.” Id. Therefore, it              person “shall be compelled in any criminal case
is not enough for the reviewing court to be-               to be a witness against himself.” U.S. CONST.
lieve that the state court applied Supreme                 amend. V. “[A] confession, in order to be
Court precedent incorrectly;2 rather, the appli-           admissible, must be free and voluntary: that is,
cation must be outside the range of reasonable             must not be extracted by any sort of threats or
judgment permitted by the particular rule.3                violence, nor obtained by any direct or implied
                                                           promises, however slight, nor by the exertion
   It is the ultimate legal conclusion reached             of any improper influence.” Bram v. United
by the state court, not every step of its reason-          States, 168 U.S. 532, 542-43 (1897) (quoting
ing process, that should be tested for unrea-              3 RUSSELL ON CRIMES 478 (6th ed.)).
sonableness. See Santellan v. Cockrell, 271
                                                              As the district court noted, the admissibility
                                                           of Jackson’s confession might be in doubt if
   2
                                                           the facts he alleges were true. The jury, how-
    Woodford v. Visciotti, 537 U.S. 19, 24-25              ever, considered the evidence presented by
(2002).
                                                           Jackson and the police at trial, and found that
   3
     Yarborough v. Alvarado, 541 U.S. 652, 664             no promises were made to Jackson in
(2004) (explaining that “the range of reasonable           exchange for his confession. This credibility
judgment can depend in part on the nature of the           determination is squarely within the province
relevant rule . . . . The more general the rule, the
more leeway courts have in reaching outcomes in
case by case determinations.”).

                                                       3
of the jury,4 and AEDPA tells us to presume           ing disability and other psychological prob-
that this finding is correct unless rebutted by       lems, to diminish the probative value of his
“clear and convincing evidence.” 28 U.S.C.            confession. He seeks only to remove the
§ 2254(e)(1). Because Jackson did not pres-           evidentiary basis of the jury’s conclusion that
ent any new evidence in his habeas petition           he committed capital murder; i.e., murder-for-
that would satisfy this rigorous standard,            hire. Because this is a free-standing actual in-
reasonable jurists could not disagree with the        nocence claim, no reasonable jurist could dis-
denial of a COA on this issue.                        agree that Jackson failed to make “a substan-
                                                      tial showing of the denial of a constitutional
                     B.                               right.” 28 U.S.C. § 2253(c)(2). Therefore, a
   Jackson contends that the alleged discrep-         COA for this claim is denied.
ancies between his confession and Smith’s
statements prove that the confession is false,                              C.
so there was no evidence to establish that                                  1.
Jackson killed the victim for remuneration.               Jackson urges that the state exercised its
Hence, Jackson maintains that he is actually          peremptory challenges in a racially discrimina-
innocent of capital murder.                           tory manner, in violation of his Fourteenth
                                                      Amendment rights under Batson v. Kentucky,
    A claim of actual innocence based on newly        476 U.S. 79 (1986). The Batson Court held
discovered evidence is not cognizable for             that a defendant must first make a prima facie
purposes of federal habeas corpus absent an           showing that the prosecutor is exercising his
independent constitutional violation. Herrera         strikes based on the prospective juror’s race.
v. Collins, 954 F.2d 1029, 1034 (5th Cir.             See id. at 96-97.
1992), aff’d, 506 U.S. 390 (1993). This rule
recognizes that the purpose of federal habeas            “Once the defendant makes a prima facie
corpus is “to ensure that individuals are not         showing, the burden shifts to the State to
imprisoned in violation of the Constitu-              come forward with a neutral explanation for
tionSSnot to correct errors of fact.” Herrera,        challenging [minority] jurors.” Id. at 97. If
506 U.S. at 399. A petitioner may prove actu-         the state is unable to offer a race-neutral ex-
al innocence to overcome a procedural default,        planation, the defendant’s sentence should be
allowing a federal habeas court to reach the          reversed. See id. at 100. If the state advances
merits of an otherwise barred constitutional          putatively neutral reasons, the defendant bears
claim. Schlup v. Delo, 513 U.S. 298, 316              the ultimate burden of proving that those rea-
(1995).                                               sons are pretextual. See id. at 94 n.18.

    Jackson does not allege actual innocence             In Miller-El, the Court reversed this court’s
to remove a procedural bar to a separate con-         denial of a COA on a Batson claim, finding
stitutional claim. Rather, he submits evidence,       that it was debatable among jurists of reason
consisting of testimonial discrepancies and           whether Miller-El would succeed in his federal
expert opinion that he may suffer from a learn-       habeas case. Miller-El, 537 U.S. at 348. The
                                                      Court noted that deference to the state court is
                                                      often appropriate for Batson claims, because
   4
     See United States v. Cathey, 259 F.3d 365,       whether the defendant has carried his burden
368 (5th Cir. 2001).

                                                  4
of proof will often turn on the credibility of the          tor’s credibility;
prosecutor exercising the strikes, and “a re-
viewing court, which analyzes only the tran-                (3) the race-neutral reasons provided for
scripts from voir dire, is not as well positioned           striking certain black jurors applied equally
as the trial court is to make credibility determi-          well to white jurors who went unchal-
nations.” Id. at 339. Such deference, how-                  lenged;
ever, does not mean that a COA shall never
issue; rather, “[a] federal court can disagree              (4) the State used disparate questioning for
with a state court’s credibility determination              white and black jurors, prefacing its ques-
and, when guided by AEDPA, conclude the                     tions to more than half the prospective
decision was unreasonable or that the factual               black jurors with an explicit description of
premise was incorrect by clear and convincing               Texas’s execution procedures (compared to
evidence.” Id. at 340.                                      6% of whites), and informed 94% of whites
                                                            of the statutory minimum sentence (com-
   Miller-El, therefore, did not alter the stan-            pared to 12.5% of blacks);
dards for evaluating requests for a COA under
AEDPA, nor did it articulate a new test for                 (5) the State requested a jury shuffle when
reviewing Batson claims; rather, it spoke only              a predominant number of African-Ameri-
to “the type and quantum of record evidence”                cans sat at the front of the panel; and
needed to establish eligibility for a COA. Mur-
phy v. Dretke, 416 F.3d 427, 439 (5th Cir.                  (6) evidence suggested that, historically, a
2005) (describing Miller-El v. Dretke, 125 S.               culture of bias against African-American
Ct. 2317 (2005) (“Miller-El II”)), cert. de-                jurors suffused the District Attorney’s of-
nied, 126 S. Ct. 1028 (2006).                               fice, including the formal training of assis-
                                                            tant district attorneys on how to exclude
    In Miller-El, the Court found a number of               minorities from juries.
circumstances in the record that supported the
Batson claim. To succeed on a Batson claim,              Miller-El, 537 U.S. at 342-47.
however, a petitioner need not submit each
type of evidence addressed by Miller-El. A pe-              To support his Batson claim, Jackson pre-
titioner is also not limited to the types of evi-        sents two types of evidence that are similar to
dence considered by the Court in Miller-El.              the first and third circumstances examined in
There, the Court found the following factual             Miller-El. First, he points out that 5 of the 11
circumstances persuasive in determining that a           (or 45%) of the peremptory strikes were
COA should issue:                                        against black venire members.5 Second, he

   (1) the State used 10 of its 14 peremptory
   strikes against African-Americans, and only              5
                                                              Although statistical evidence alone may raise
   one ultimately served on the jury;                    some debate as to whether the prosecution acted
                                                         with a race-based reason for striking prospective
   (2) the trial court conducted a Batson                jurors, Miller-El, 537 U.S. at 342, Jackson fails to
   hearing two years after voir dire, so the             present this court with sufficient statistical infor-
   court had no occasion to judge the prosecu-           mation to make that determination. He contends
                                                                                               (continued...)

                                                     5
asserts that some of the race-neutral reasons           habeas relief, finding the state habeas court’s
provided for striking certain black venire mem-         determinations to be consistent with federal
bers applied equally to white venire members            law as established by the Supreme Court.
who went unchallenged and were selected for
the jury. He also contends that the prosecu-                                  2.
tor’s reasons for striking the five black venire           Jackson objects to the strikes of five black
members were pretextual because the prof-               jurorsSSMaria Brooks, Lee Davis, Myrtle Gib-
fered reasons did not accurately reflect the voir       son, Ingrid Poindexter, and Laverne Reid. We
dire testimony of the members.                          consider each of these briefly in turn.

   The Court in Miller-El stated that, when                                     a.
the prosecution’s reasons for striking black                The state indicated it struck Brooks be-
jurors could apply equally well to white jurors         cause she stated she would have difficulty de-
who were ultimately empaneled, “the applica-            ciding that the state had proved future danger-
tion of these rationales to the venire might            ousness;6 she expressed opposition to the
have been selective and based on racial consid-         death penalty; she said her religion taught her
erations.” Id. at 343. In particular, the Court         not to sit in judgment of another person.
noted that similarly-situated white and black           Though Jackson cites Terry Arnold as an ex-
potential jurors expressed ambivalence about            ample of a white juror who was empaneled de-
the death penalty. Id.                                  spite expressing similar reservations about
                                                        sitting in judgment of another,7 Arnold’s res
    A COA determination under § 2253(c) re-
quires “an overview of claims in the habeas
petition and a general assessment of the mer-              6
                                                             When asked about predicting Jackson’s future
its.” Miller-El, 537 U.S. at 336. This thresh-
                                                        dangerousness, Brooks stated, “I can’t predict the
old inquiry, however, “does not require full            future for anything. We just don’t know the
consideration of the factual or legal bases ad-         future.” When pressed further by the state, she re-
duced in support of a claim.” Id..                      sponded that “no one can see into the future of an
                                                        individual.”
    After our threshold inquiry into the merits
                                                           7
of Jackson’s claim, we conclude that reason-                  Arnold’s questionnaire stated, “I do not par-
able jurists could debate whether the state’s           ticularly care to stand in judgment of someone else,
use of peremptory strikes against black venire          but if necessary, will do so.” The following ex-
members was race-based and thus in violation            change occurred between the Court and Arnold on
of Batson. We therefore grant a COA on this             this subject:
claim. After reviewing the briefs and record in
                                                           Q. Do you have any convictions that would
full, however, we deny Jackson’s claim for
                                                           prevent you from being able to stand in judg-
                                                           ment?
   5
     (...continued)                                        A. Not from a religious standpoint or anything.
that 5 of the 11 peremptory strikes were used              It’s just a personal feeling I have as an
against black members of the venire, but without           individual.
other information concerning the composition of
the jury pool this statistic has little meaning.                                              (continued...)

                                                    6
ervations in this respect were less serious than             empaneled white juror, but rather argues that
were Brooks’s. Arnold also did not express                   Davis’s answers suggest he would be able to
hesitancy about being able to find future dan-               apply the correct burden of proof fairly in a
gerousness.                                                  capital case. Even though Davis softened his
                                                             statement that he would require proof of guilt
                       b.                                    to a certainty, the state was entitled to con-
   The state’s reason for striking Davis was                 clude that he might require it to prove guilt by
his apparent opposition to the death penalty                 an elevated standard even if that burden were
and his indication that he would hold the pro-               something less than metaphysical certainty.
secution to an elevated standard in capital cas-
es.8 Jackson does not compare Davis to an                                           c.
                                                                The state claims it struck Gibson because
                                                             she stated she believed that black people were
   7
    (...continued)                                           treated unfairly by the criminal justice system,
   Q. Well, and it doesn’t have a religious basis .          because she thought she might know the de-
   . . . I need for you to have looked inside                fendant personally, and because she was un-
   yourself, whether it’s a religious basis or just          sure about her feelings on the death penalty.
   personal convictions. Do you feel like you
   would be able to make the decision in a case if
                                                                8
   you were in that position?                                    (...continued)
                                                                there is a possibility that someone else could
   A. I can make a decision, yes, I could.                      have done it orSS

   8
      During voir dire the state asked Davis how he             Q. Is that beyond, I mean, in your mind, any
felt about the possibility of serving on a jury in a            doubt?
case involving the death penalty. He replied, “I
would have to really believe that a hundred percent,            A. What’s reasonable? What’s reasonable to
have no doubt that the actual crime was committed               me?
by a person for me to . . . render a decision of . . .
death in a situation like this. I’d have to be a                Q. Right. And I guess that’s what the ques-
hundred percent convinced.” Later the state again               tionSSI mean, what’s reasonable to you seems
asked Davis about the burden of proof he would                  to be a hundred percent.
require the state to carry in a death penalty case:
                                                                A. Okay. It maySSmaybeSSmaybe a hundred
   Q. Do you feel like if the State didn’t prove                percent is being a little critical, but I have to
   [the offense] to you a hundred percent or be-                beSSthe balanceSSI have to be convinced in the
   yond all doubt, that you could find the defen-               balance and maybeSSmaybe a hundred
   dant guilty if you didn’t know a hundred per-                percentSSI don’t know if you actually mean to
   cent?                                                        give you a percentage, you know, I don’t know
                                                                if that’s fair or not. But I have to be thoroughly
   A. I’d have to be convincedSSI’d have to be                  convinced enough, and that’s notSSmaybe
   more convinced that the person did commit this.              saying a hundred percent is not the right way
   I have to be convinced enough to the point                   for me to say that, but I have to beSSthe
   where I don’t feel like there is a possibility that          balance, I have to be more convinced that they
   the State could have been mistaken or maybe                  did it than not and I can’t really give a
                                       (continued...)           percentage on that.

                                                         7
Besides challenging these contentions on the                                         e.
merits, Jackson argues that Gibson’s comment                   Reid’s testimony suggested that she
about the unfair treatment of black people is               thought that to prove future dangerousness,
substantially similar to white empaneled juror              the state would have to demonstrate that the
Kevin Chapman’s comment that the justice                    defendant would commit murder in the fu-
system treats marihuana users unfairly.9                    ture.12 She also expressed confusion over the
                                                            special issues. Jackson argues that Reid equiv-
                      d.                                    ocated in her testimony, that the state rushed
   As for Poindexter, the state points to strong            Reid through her voir dire, and that empaneled
language10 in her questionnaire opposing the                juror Brian Summers indicated similar confu-
death penalty and stating that life imprison-               sion on the special issues.13
ment is a worse punishment than death. Jack-
son again points to Chapman, who initially
stated he would hold the state to a higher bur-                11
                                                                 (...continued)
den of proof in capital cases but later clarified           burden of proof: “SoSSand you can correct if I’m
that he understood that the applicable burden               wrongSSin a capital case you would want to raise
of proof was beyond a reasonable doubt in all               the burden of proof, raise the threshold of what a
cases.11                                                    reasonable doubt is?” Chapman responded, “I said
                                                            something similar to that, but that’s not what I was
                                                            saying. I can’t remember exactly my words. I
   9
      We disagree with Jackson’s contention that            opened up before I said that, it’s a reasonable
Chapman’s statement that marihuana users are                doubt no matter what kind of case you’re doing.”
treated unfairly in the criminal justice system is          We agree with the district court that Chapman
equivalent. Therefore, the fact that Chapman ulti-          made it plain that he did not intend to say that he
mately served on the jury despite making such a             would hold the state to a higher burden of proof.
statement lends no support to Jackson’s Batson
                                                               12
claim. As stated by the federal habeas court,                      When asked whether she thought it was pos-
“[t]here is no evidence that the prosecution would          sible to predict whether someone will be dangerous
not have struck a white juror expressing the same           in the future, Reid stated, “No, I don’t think that’s
sentiment” as Gibson, and “the selection of Chap-           predictable.” She also said that “the State could
man and rejection of Gibson as jurors does not              prove it if that person actually did commitSSdid do
demonstrate any racially motivated action by the            it, did repeat it. But if the person didn’t repeat it,
State.”                                                     then I don’t see how the State could prove it.”
                                                               13
   10
        In her questionnaire, Poindexter stated that               After being asked a lengthy question by the
she did not believe in the death penalty and thought        state concerning Special Issue No. 2, Summers
it is “the most hideous practice of our time.” She          asked, “Do ISScould you take some of the words
also stated that “[w]e can’t call ourselves civilized       out in that and condense it?” Jackson contends that
as long as we have capital punishment.” These               this statement indicates Summers’s confusion with
statements alone are justification for the state to         Issue No. 2. But, after the state condensed its
want Poindexter excused from the jury, even                 question and asked, “Do you think that the system
though she later said she would have no problem             that Texas has in place right now is an appropriate
imposing the death penalty in certain cases.                way, in your own mind, to determine who should
                                                            get the death penalty and who should get life in
   11
        The state pressed Chapman on raising the            prison?”, Summers responded, “Yes, I do.”
                                   (continued...)                                                 (continued...)

                                                        8
   Jackson also contends that the prosecutor’s           extended Apprendi to capital cases. Jackson’s
reason for striking Reid based on the fact that          claim is barred by the non-retroactivity princi-
she did not know that murder-for-hire was a              ples of Teague v. Lane, 489 U.S. 288 (1989),
capital offense, was similar to statements made          and at any rate, the state court’s refusal to de-
by empaneled juror Chapman. Given the                    ny a special instruction is not contrary to clear-
strong statements made by Reid concerning                ly established federal law as articulated by the
her reluctance to find future dangerousness,             Supreme Court. See 28 U.S.C. § 2254(d)(1).
the state certainly had a valid race-neutral             Therefore, we deny his request for a COA on
reason to use a peremptory challenge for Reid.           that issue.

                        3.                                  Under Teague, the relevant inquiry is
    AEDPA requires that the trial court’s de-            “whether a state court considering [the defen-
cision be an “unreasonable application” of               dant’s] claim at the time his conviction became
clearly established federal law or based on an           final would have felt compelled by existing
“unreasonable determination” of the facts in             precedent to conclude that the rule [he] seeks
light of the trial record. 28 U.S.C. § 2254-             was required by the Constitution.” Goeke v.
(d)(1), (2). Jackson does not present substan-           Branch, 514 U.S. 115, 118 (1995) (internal
tial evidence of racial bias in jury selection be-       quotations omitted).14 Apprendi and Ring
yond questionable distinctions in juror testi-           create new rules of constitutional law that are
mony. The trial court’s decision to permit the           not retroactively applicable to cases under
state to exercise its peremptory strikes as it did       federal habeas review.15 Therefore, the only
falls well within the “the range of reasonable           question left to answer is when Jackson’s
judgment” afforded by AEDPA. See Yarbor-                 conviction became final.
ough, 541 U.S. at 664. Therefore, Jackson’s
request for habeas relief on this issue is denied.          “A state conviction and sentence become
                                                         final for purposes of retroactivity analysis
                       D.                                when the availability of direct appeal to the
    Jackson contends that the trial court should         state courts has been exhausted and the time
have instructed the jury that any unadjudicated          for filing a petition for a writ of certiorari has
extraneous offenses introduced during the                elapsed or a timely filed petition has been
punishment phase needed to be proven beyond              finally denied.” Caspari v. Bohlen, 510 U.S.
a reasonable doubt. Jackson relies on Appren-
di v. New Jersey, 530 U.S. 466, 490 (2000),
                                                            14
which held that “[o]ther than the fact of prior                The Teague rule is subject to limited excep-
conviction, any fact that increases the penalty          tions not applicable here. See Gilmore v. Taylor,
for a crime beyond the prescribed statutory              508 U.S. 333, 345 (1993).
maximum must be submitted to a jury, and                    15
                                                               See United States v. Brown, 305 F.3d 304,
proved beyond a reasonable doubt,” and Ring              310 (5th Cir. 2002) (“Apprendi creates a new rule
v. Arizona, 536 U.S. 548, 609 (2002), which              of criminal procedure which is not retroactively
                                                         applicable to initial petitions under § 2255.”);
                                                         Schriro v. Summerlin, 542 U.S. 348, 358 (2004)
   13
     (...continued)                                      (“Ring announced a new procedural rule that does
Contrary to what Jackson contends, Summers’s             not apply retroactively to cases already final on
statement does not show confusion on Issue No. 2.        direct review.”).

                                                     9
383, 390 (1994). Jackson’s motion for rehear-                 prisonment without parole.18
ing was denied on June 9, 1999, so he had
ninety days from that date to file a certiorari                  Therefore, Jackson invites us to answer the
petition. See SUP. CT. R. 13. On Septem-                      unresolved question whether Ring and Ap-
ber 7, 1999, therefore, Jackson’s conviction                  prendi apply to any fact found by a jury that
became final, the year before Apprendi was                    bears on its ultimate decision to impose death,
decided. Therefore, Teague bars Jackson’s                     or merely those facts that increase the autho-
claim.16                                                      rized punishment to death. Because the trial
                                                              court’s decision not to require such an instruc-
    We note that even if Teague did not apply                 tion is not contrary to clearly established Su-
here, Apprendi and Ring would not provide                     preme Court precedent, we would in any event
Jackson with a legal basis for a COA. Ring                    deny a COA.
states only that “[i]f a State makes an increase
in a defendant’s authorized punishment contin-                                        E.
gent on the finding of a fact, that factSSno                      Similarly, Jackson asserts that the mere ad-
matter how the State labels itSSmust be found                 mission of evidence of unadjudicated, extrane-
by a jury beyond a reasonable doubt.” Ring,                   ous offenses violates his rights under the
536 U.S. at 602 (emphasis added).                             Eighth and Fourteenth Amendments and jus-
                                                              tifies a COA. Because Jackson cites no au-
   The onlyfact capable of elevating Jackson’s                thority specifically for this proposition, the ar-
charge to capital murder was proof of remu-                   gument is waived for inadequate briefing.19
neration.17 The state introduced evidence of
unadjudicated offenses only to prove future                      Even if the argument were not waived,
dangerousness in the sentencing phase, where                  Jackson would not be entitled to a COA. If he
the jury must exercise its discretion to decide               cannot prove that a COA should issue as to
whether to impose a death sentence or life im-                whether unadjudicated extraneous offenses
                                                              need to be proven beyond a reasonable doubt,
                                                              then a fortiori he cannot prove that a COA
                                                              should issue as to whether such offenses are
                                                              per se inadmissible. Because he does not point
                                                              to any Supreme Court precedent foreclosing
   16
       Jackson appears to concede that Teague bars            the trial court’s decision to permit evidence of
his claim. His brief states that “[p]etitioner’s issue        unadjudicated extraneous offenses, he cannot
rests not on Apprendi alone, but on Eighth and                make a substantial showing of a denial of a
Fourteenth Amendment protections which are not
barred by Teague.” Because Jackson nowhere de-
scribes what these protections might be, we assume
this issue presents only a claim under Apprendi and
Ring, which is procedurally barred.
                                                                 18
                                                                    See T EX. CODE CRIM. PROC. art. 37.071
   17
     See TEX. PENAL CODE § 19.03(a)(3) (“A per-               § 2(b)(1).
son commits [capital murder] if the person commits
                                                                 19
murder as defined under [the relevant statute] and                  See L & A Contracting Co. v. S. Concrete
. . . the person commits the murder for re-                   Servs., 17 F.3d 106, 113 (5th Cir. 1994) (stating
muneration.”).                                                that failure to cite authority constitutes waiver).

                                                         10
constitutional right.20                                      jury about the consequences of deadlock. The
                                                             Court noted that the Eighth Amendment re-
                          F.                                 quires that a death sentence not be arbitrarily
    Jackson claims that he deserves a COA be-                imposed, id. at 381, but rejected the argument
cause the trial court refused, in violation of his           that “a death sentence is arbitrary within the
Eighth and Fourteenth Amendment rights, to                   meaning of the Eighth Amendment if the jury
instruct the jury that failure to reach a verdict            is not given any bit of information that might
on either of two special issues would automat-               possibly influence an individual juror’s voting
ically result in a life sentence. The Texas Code             behavior,” id. at 382. Because Jones con-
of Criminal Procedure provides that if the jury              trols, reasonable jurists would not disagree
is unable to answer a special issue unanimously              with the district court’s resolution of this issue.
in the affirmative or negative, “the court shall             We deny a COA on this question.
sentence the defendant to confinement in the
institutional division of the Texas Department                                      G.
of Criminal Justice for life imprisonment with-                 Jackson alleges the trial court violated his
out parole.” TEX. CODE CRIM. PROC. art.                      Eighth Amendment rights by failing to instruct
37.071 § 2(g). The Code also provides, how-                  the jury that it could consider mitigating evi-
ever, that “[t]he court, the attorney represent-             dence even if it did not relate to moral blame-
ing the state, the defendant, or the defendant’s             worthiness. Specifically, Jackson argued at
counsel may not inform a juror or a prospec-                 the punishment phase that the jury should
tive juror of the effect of a failure of a jury to           receive the following instruction:
agree on [special] issues[.]” Id. at § 2(a).
Jackson maintains that this provision violates                  The term “mitigating” evidence or “mitigat-
the Eighth and Fourteenth Amendments by                         ing” factor as used herein means any type
failing to inform a capital sentencing jury of                  of evidence relating to the defendant’s
relevant state sentencing law.                                  background, character or the circumstances
                                                                of the crime that would militate in favor of
   This claim is without merit. In Jones v.                     a life sentence rather than a death sentence.
United States, 527 U.S. 373, 381-82 (1999),                     Evidence may be mitigating even if it does
the Court held that the Eighth Amendment                        not relate in any way to the defendant’s
does not require a court to instruct a capital                  moral culpability or moral blameworthiness
                                                                for the capital murder listed in the indict-
                                                                ment.
   20
      See Brown v. Dretke, 419 F.3d 365, 376 (5th
Cir. 2005) (denying a COA on this issue because                 Instead, the court gave the following in-
“there is no constitutional prohibition on the intro-        struction (in relevant part):
duction at a trial’s punishment phase of evidence
showing that the defendant has engaged in extrane-
ous, unadjudicated, criminal conduct”), cert. de-
                                                                A mitigating circumstance may include, but
nied, 126 S. Ct. 1434 (2006); see also Williams v.              is not limited to, any aspect of the defen-
Lynaugh, 814 F.2d 205, 208 (5th Cir. 1987)                      dant’s character, background, record,
(holding that “the admission of unadjudicated                   emotional instability, intelligence or circum-
offenses in the sentencing phase of a capital trial             stance of the crime which you believe could
does not violate the [E]ighth and [F]ourteenth                  make a death sentence inappropriate in this
amendments”).

                                                        11
   case . . . . In answering Special Issue No.            al response to the defendant’s background,
   2 you shall consider mitigating evidence to            character, and crime.” Penry v. Johnson, 532
   be evidence that a juror might regard as               U.S. 782, 788 (2001) (internal quotations
   reducing the defendant’s moral blamewor-               omitted). The sentencing instructions must
   thiness, including evidence of the defen-              provide the jury with an adequate vehicle to
   dant’s background, character, record,                  consider Jackson’s evidence and come to a
   emotional instability, intelligence, or the            reasoned moral conclusion. See id. at 800.
   circumstance of the offense that mitigates
   against the imposition of the death penalty.              The trial court’s determination that the in-
                                                          structions were constitutionally adequate is not
Jackson apparently reasons that, by merely                “contrary to” clearly established federal law as
including background, character, and circum-              articulated by the Supreme Court. In fact, in
stances of the offense as modifiers of the gen-           Johnson the Court approved of a mitigating
eral category of moral blameworthiness, in-               instruction under the predecessor statute to the
stead of expressing these criteria in the con-            current provisions of the Texas Code that was
junctive, the state unconstitutionally limited            less specific in its articulation of the relevant
the scope of the mitigating instruction for               mitigating factors:
Special Issue 2.
                                                             In determining each of these [Special] Is-
   The Texas Code of Criminal Procedure                      sues, you may take into consideration all
provides that the court shall instruct the jury              the evidence submitted to you in the trial of
(should the jury make certain preliminary find-              this case, whether aggravating or mitigating
ings) that it shall consider “all of the evidence,           in nature, that is, all the evidence in the first
including the circumstances of the offense, the              part of the trial when you were called upon
defendant’s character and background, and the                to determine the guilt or innocence of the
personal moral culpability of the defendant,” in             Defendant and all the evidence, if any, in
determining whether a defendant should re-                   the second part of the trial wherein you are
ceive life without parole instead of death.                  called upon to determine the answers to the
TEX. CODE CRIM. PROC. art. 37.071 § 2(e)(1).                 Special Issues.
Later, however, the Code defines “mitigating
evidence” for purposes of this section as                 Johnson, 509 U.S. at 355.
“evidence that a juror might regard as reducing
the defendant’s moral blameworthiness.” Id.                   Neither was the instruction an “unreason-
§ 2(f)(4).                                                able application” of clearly established federal
                                                          law. In Beazley v. Johnson, 242 F.3d 248,
    Relevant mitigating evidence must be with-            260 (5th Cir. 2001), we held that the current
in the “effective reach” of the jury during pun-          statute “does not unconstitutionally ‘pre-
ishment. Johnson v. Texas, 509 U.S. 350, 368              clude[] [the jury] from considering, as a miti-
(1993) (internal quotation omitted). “[I]n a              gating factor, any aspect of a defendant’s
capital case, the sentencer must . . . be able to         character or record and any of the circum-
consider and give effect to [mitigating] evi-             stances of the offense that the defendant prof-
dence in imposing [a] sentence, so that the               fers as a basis for a sentence less than death’”
sentence imposed . . . reflects a reasoned mor-           (citing Lockett v. Ohio, 438 U.S. 586, 604


                                                     12
(1978)). We noted that the definition of                 issue.
mitigating evidence in § 2(f)(4) does not put
any relevant evidence beyond the effective                                       H.
reach of the jury, because “[v]irtually any                 Jackson avers that he is entitled to a COA
mitigating evidence is capable of being viewed           because the district court denied his motion for
as having some bearing on the defendant’s                appointment of an expert in false confessions
‘moral culpability’ apart from its relevance to          to support his claim that his confession was
the particular concerns embodied in the Texas            coerced and therefore inadmissible. Where
special issues.” Id. (citing Graham v. Collins,          expert services are “reasonably necessary” to
506 U.S. 461, 476 (1993)).                               mount a defense in a post-conviction proceed-
   This circuit has declined to articulate a pre-        ing, the district court may authorize the de-
cise test for what qualifies as “objectively un-         fense attorneys to obtain such services and
reasonable” under AEDPA.21 Where, how-                   shall pay the relevant expenses. 21 U.S.C. §
ever, a state court reaches a conclusion consis-         848(q)(9).22 Jackson argues that expert assis-
tent with this circuit’s precedent, it presump-          tance was reasonably necessary because the
tively falls within the broad discretion afforded        circumstances surrounding the police inter-
the state court under § 2254(d)(1), because we           views of Jackson and Smith raised a question
presumably would consider our own case law               as to the existence of remuneration. Specifi-
as within “the range of reasonable judgment”             cally, when the police first interviewed Smith,
afforded by Supreme Court decisions. See                 he made no mention of paying Jackson for the
Yarborough, 541 U.S. at 664.                             murder. Only after Jackson confessed were
                                                         police able to establish remuneration by further
    Furthermore, the trial court could reason-           questioning Smith.
ably have concluded that the mitigating evi-
dence offered by JacksonSSthat he was loved                  The state responds by noting that ruling on
and admired by his family, assisted his grand-           a motion to provide expert assistance is within
mother, and provided help at his church and              the discretion of the district court. Hill v.
Sunday schoolSSall sufficiently related to his           Johnson, 210 F.3d 481, 487 (5th Cir. 2000).
“moral blameworthiness” as to come within                Also, the state argues that any testimony ren-
the effective reach of the jury. Therefore, rea-         dered by the expert would be procedurally
sonable jurists could not disagree with the dis-         barred in a federal habeas proceeding because
trict court’s application of AEDPA’s deferen-            it was never presented in state court. Finally,
tial “unreasonable application” standard to              because the jury’s credibility determination is
Jackson’s claim. We deny a COA on this                   entitled to a presumption of correctness, Jack-


   21                                                       22
      See Neal v. Puckett, 286 F.3d 230, 246 n.14              An indigent defendant is entitled to the provi-
(2002) (en banc) (“To the extent that a nuanced,         sion of all reasonably necessary services under,
contextual interpretation of ‘objectively unrea-         inter alia, § 848(q)(9). 21 U.S.C. § 848(q)(4)(B);
sonable’ emerges from [the] process [of applying         Fuller v. Johnson, 114 F.3d 491, 502 (5th Cir.
the standard in individual cases] over time, this        1997). Jackson does not claim indigence, but in
elaboration will be more useful and meaningful           any event he would still need to demonstrate, under
than any definition we might choose to impose ab         this section, that provision of a confession expert is
initio.”).                                               “reasonably necessary.”

                                                    13
son has not presented evidence to rebut that                  affirm the denial of Jackson’s motion for
presumption and make necessary the appoint-                   expert assistance.
ment of an expert.
                                                                 For the above reasons, Jackson’s request
   A COA is not required to appeal the denial                 for a COA is GRANTED in part and DENIED
of funds for expert assistance. Hill, 210 F.3d                in part. The judgment on the issue on which
at 487 n.3. Therefore, we may review the                      we grant a COA, and on the claim for which
claim on direct appeal for abuse of discretion.               no COA is required, is AFFIRMED.
Id. at 487. We will uphold a denial of funding
where the petitioner has “(a) failed to supple-
ment his funding request with a viable consti-
tutional claim that is not procedurally barred,
or (b) when the sought-after assistance would
only support a meritless claim, or (c) when the
sought after assistance would only supplement
prior evidence.” Smith v. Dretke, 422 F.3d
269, 288 (5th Cir. 2005) (internal citations
omitted).

   The district court did not abuse its discre-
tion. At trial, Jackson testified that the police
told him to confess that Smith paid him for
murder in exchange for a lesser charge. The
defense also presented two expert witnesses
who testified that Jackson had a learning dis-
ability and was below average in intelligence,
and that Jackson was prone to self-deprecation
and other antisocial behaviors. Therefore, the
testimony of a false confession expert would
merely have supplemented other evidence al-
ready available to and considered by the jury.
See id. at 288-89 (finding no abuse where ex-
pert testimony would merely reinforce testi-
mony already given by defendant).
                                                                 23
    Even if we were inclined to agree as an ini-                   (...continued)
                                                              may authorize the defendant’s attorneys to obtain
tial matter that a false confession expert’s tes-
                                                              such services on behalf of the defendant”) (em-
timony was reasonablynecessaryfor Jackson’s                   phasis added). See also Smith, 422 F.3d at 289
defense, the relevant statute vests discretion                (noting that change in AEDPA from the mandatory
squarely in the district court.23 Therefore, we               “shall” to discretionary “may” language in
                                                              § 848(q)(9) “can only reasonably be construed as
                                                              changing a mandatory granting of funds to a dis-
   23
        21 U.S.C. § 848(q)(9) (stating that “the court        cretionary granting of funds even if the reasonable
                                        (continued...)        necessity language is complied with”).

                                                         14
DENNIS,       Circuit            Judge,             state       court      under       §

concurring:                                         2254(d)(1)[.]"       The    statute

                                                    cited simply provides that

  I respectfully concur in the                        (d) An application for a
                                                      writ of habeas corpus on
judgment     only.          I    cannot               behalf of a person in
                                                      custody pursuant to the
subscribe    fully     for      several               judgment of a State court
                                                      shall not be granted with
reasons.                                              respect to any claim that
                                                      was adjudicated on the
  First,       I       respectfully                   merits    in  State   court
                                                      proceedings    unless   the
disagree with      the    majority’s                  adjudication      of    the
                                                      claim--(1) resulted in a
broad,      not       clearly           or            decision that was contrary
                                                      to,    or    involved    an
immediately           qualified,                      unreasonable    application
                                                      of,   clearly   established
suggestions that AEDPA requires                       Federal law, as determined
                                                      by the Supreme Court of the
that   federal     courts       apply   a             United States[.]

"deferential         standard           of
                                                      The    statute     says   nothing
review," "defer to the state
                                                    about deference, a deferential
court's     adjudication          of     a
                                                    standard,      circuit         court
defendant's        claims,"            and
                                                    precedent,     presumptions       of
presume that a state court's
                                                    correctness,          or     broad
conclusion     "consistent         with
                                                    discretion.    Although     Justice
t h i s          c i r c u i t ' s
                                                    Stevens has spoken of AEDPA as
precedent...falls        within        the
                                                    having    "plainly     sought     to
broad discretion afforded the
                                                    ensure a level of 'deference to




                                             -15-
the    determinations       of       state             error. As Judge Easterbrook
                                                       noted with respect to the
courts,'         provided           those              phrase    “contrary    to”:
                                                       “Section 2254(d) requires
determinations did not conflict                        us to give state courts'
                                                       opinions    a    respectful
with     federal    law     or      apply              reading, and to listen
                                                       carefully      to     their
federal law in an unreasonable                         conclusions, but when the
                                                       state court addresses a
way[,]," Williams         v.     Taylor,               legal question, it is the
                                                       law ‘as determined by the
529 US 362, 386 (2000)(Stevens,                        Supreme Court of the United
                                                       States'   that   prevails."
J.), he makes clear that AEDPA                         Lindh, 96 F.3d, at 869.

does    not    intend     for       us    to          Williams,   529   US   at   386-7.

accord        deference        in        the          Justice Stevens further states

ordinary           and      commonly

understood sense.                                      As Judge Easterbrook has
                                                       noted, the statute surely
  [I]t is significant that                             does not require the kind
  the word “deference” does                            of “deference” appropriate
  not appear in the text of                            in other contexts: “It does
  the statute itself. Neither                          not tell us to ‘defer’ to
  the legislative history nor                          state decisions, as if the
  the statutory text suggests                          Constitution    means    one
  any   difference   in   the                          thing in Wisconsin and
  so-called      “deference”                           another in Indiana. Nor
  depending on which of the                            does it tell us to treat
  two phrases is implicated.                           state courts the way we
  Whatever      “deference”                            t r e a t      f e d e r a l
  Congress had in mind with                            administrative    agencies.
  respect to both phrases, it                          Deference after the fashion
  surely is not a requirement                          of Chevron U.S.A. Inc. v.
  that     federal     courts                          Natural Resources Defense
  actually    defer    to   a                          Council, Inc., 467 U.S.
  state-court application of                           837, 104 S.Ct. 2778, 81
  the federal law that is, in                          L.Ed.2d 694 (1984), depends
  the independent judgment of                          on delegation. See Adams
  the   federal   court,   in                          Fruit Co. v. Barrett, 494




                                               -16-
  U.S. 638, 110 S.Ct. 1384,                     appropriate in other contexts"
  108 L.Ed.2d 585 (1990).
  Congress did not delegate                     )Lindh v. Murphy, 96 F.3d 856,
  either   interpretive    or
  executive power to the                        868 (7th Cir. 1996)); rather,
  state courts. They exercise
  powers under their domestic                   they        dispute               his
  law, constrained by the
  Constitution of the United                    interpretation      of   the    phrase
  States. ‘Deference’ to the
  jurisdictions    bound   by                   “contrary          to,     or      an
  those constraints is not
  sensible.” Lindh v. Murphy,                   unreasonable application of.” I
  96 F.3d 856, 868 (C.A.7
  1996) (en banc), rev'd on                     believe     that   the   majority's
  other grounds, 521 U.S.
  320, 117 S.Ct. 2059, 138                      treatment     of     deference     in
  L.Ed.2d 481 (1997).
                                                connection with AEDPA, without
Id. at n.13.
                                                needed       explanation          and
  Although these observations
                                                qualification, is unnecessary
appear in part II of Justice
                                                and tends to be misleading and
Stevens' opinion in Williams v.
                                                confusing.
Taylor, which did not carry a
                                                  Second, § 2254(e)(1) of AEDPA
majority, Justice O'Connor, who
                                                provides:
wrote part II for the majority,
                                                  In a proceeding instituted
and Chief      Justice    Rehnquist,              by an application for a
                                                  writ of habeas corpus by a
the only other Justice to write                   person in custody pursuant
                                                  to the judgment of a State
separately,     did   not   disagree              court, a determination of a
                                                  factual issue made by a
with Justice Stevens’ statement                   State   court    shall   be
                                                  presumed to be correct. The
that   AEDPA    "surely     does   not            applicant shall have the
                                                  burden of rebutting the
require the kind of 'deference'                   presumption of correctness




                                         -17-
  by clear          and      convincing                court’s      determination             was
  evidence.
                                                       reasonable in light of all the
This provision has nothing to
                                                       evidence presented at the state
do   with    fact-finding          by     the
                                                       court    habeas    proceeding.         The
jury at the guilt or penalty
                                                       case the majority cites for the
phases      of     a    capital     murder
                                                       proposition, United States v.
trial.      This       section     relates
                                                       Cathey, 259 F.3d 365, 368 (5th
only to fact-finding by a state
                                                       Cir. 2001), discusses the issue
court     in       a      state     habeas
                                                       in   a    case    heard      on      direct
proceeding. The applicant here
                                                       appeal     and,    I    believe,        is
simply      did        not     carry      his
                                                       inapposite here.
burden; he failed to present
                                                         Third, the jury instruction
any new evidence in his habeas
                                                       given by the Texas trial court
petition on this point. If he
                                                       at   the     capital         sentencing
had done so, I do not believe
                                                       proceeding required the jury to
that     AEDPA         authorizes         the
                                                       consider essentially any factor
federal      courts          to   erect     a
                                                       "that     mitigates       against      the
presumption             against           the
                                                       imposition        of      the        death
petitioner                in       habeas
                                                       penalty."              Under           the
proceedings based solely on the
                                                       circumstances          and      in     the
jury verdict at trial. Rather,
                                                       context of this case, the Texas
this court would still be bound
                                                       courts' denial of habeas relief
to determine whether the state




                                                -18-
because of the arguable lack of

complete       perfection      in    this

instruction was not contrary to

or an unreasonable application

of    federal     law    as    clearly

established       by    the     Supreme

Court's         decisions.           The

discussion of Johnson v. Texas,

509     U.S.    350,(1993),         which

presented a different issue and

was decided with respect to a

superseded sentencing regime,

is unnecessary and may lead to

confusion.

  For    the     reasons      given,     I

respectfully       concur      in      the

judgment only.




                                             -19-
