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            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        September 30, 2013

                                        Nos. 11-70007                      Lyle W. Cayce
                                                                                Clerk

SHELTON DENORIA JONES,

                                                  Petitioner–Appellee
                                                  Cross-Appellant,
v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent–Appellant
                                                  Cross-Appellee.



                     Appeals from the United States District Court
                          for the Southern District of Texas
                               USDC No. 4:09-CV-1825


Before PRADO, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Shelton Jones, convicted and sentenced to death for the capital murder of
Houston Police Sergeant Bruno Soboleski, was granted federal habeas relief on
his claim that, in violation of the principles first announced in Penry v.
Lynaugh,1 Texas’s former special issues did not provide an adequate vehicle for

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
       1
           (Penry I), 492 U.S. 302 (1989).
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                                     Nos. 11-70007

the jury to give full consideration and effect to his mitigating evidence.2 The
State of Texas appeals, and Jones cross-appeals the district court’s holding that
his claim that the presence of uniformed officers during his trial denied him a
fair trial was procedurally defaulted.             Jones also seeks a certificate of
appealability (COA) on two claims, capriciousness in his sentencing and
ineffective assistance of counsel. We affirm the grant of habeas relief. We
vacate the COA issued on Jones’s fair-trial claim regarding uniformed officers’
attendance at trial, dismiss his cross-appeal, and remand to the district court for
further proceedings because the district court did not satisfy the threshold
inquiry required before a COA may issue.                We dismiss, as moot, Jones’s
application for a COA on his capriciousness claim and deny a COA on his
ineffective assistance of counsel claim.
                                             I
       At the punishment phase of Jones’s trial, after he was found guilty of
capital murder for killing Officer Soboleski, the jury found that Jones acted
deliberately and that there was a probability that Jones would commit criminal
acts of violence that constitute a continuing threat to society. These findings
resulted in a sentence of death under then-existing Texas law. The judgment
was affirmed on direct appeal by the Texas Court of Criminal Appeals (TCCA),
and the United States Supreme Court denied Jones’s petition for a writ of
certiorari.3
                                             A
       On January 27, 1997, the TCCA appointed counsel to represent Jones in
pursuing an application for a writ of habeas corpus. The order mandated that


       2
        Jones v. Thaler, No. H-09-1825, 2011 U.S. Dist. LEXIS 21262, at *15-16 (S.D. Tex.
Mar. 3, 2011).
       3
        Jones v. State, No. 71,369 (Tex. Crim. App. May 4, 1994) (en banc), cert. denied, 514
U.S. 1067 (1995).

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an application for a writ of habeas corpus be filed no later than 180 days after
the date of appointment. Because this date, July 26, 1997, fell on a Saturday,
the deadline actually fell on the next business day, July 28, 1997.4 Prior to the
deadline, the TCCA granted leave for Jones’s counsel “to file an incomplete
application for writ of habeas corpus on or before April 24, 1997, with leave to
file a supplemental and/or amended application before July 26, 1997.” The order
stated that “[a]ny incomplete application shall not be considered by the trial
court or this Court until the 180 day period for filing applicant’s original
application, and any extension of this period granted by the trial court, has
elapsed,” and it also stated that “[a]ny supplemented application shall be
deemed an original, not a successor, application.”
      Jones filed a skeletal application on April 23, 1997 and, on July 25, 1997,
mailed an “Amended Application for Post-Conviction Writ of Habeas Corpus
Pursuant to Article 11.071 of the Texas Code of Criminal Procedure” (Amended
Application), which was received and filed on July 28, 1997. Also on July 28,
1997, Jones filed a document entitled “Errata and Corrections to Amended
Application for Post-Conviction Writ of Habeas Corpus Pursuant to Article
11.071 of the Texas Code of Criminal Procedure” (Errata). The Errata consisted
of a list of various omissions and errors as well as the entire text of Jones’s fair-
trial claim regarding uniformed officers at trial, which Jones asserts was omitted
from the Amended Application due to a computer error.
      On October 24, 1997, Jones filed a Motion to Supplement, which sought
leave to file an attached “Supplemental Application for Post-Conviction Writ of
Habeas Corpus Pursuant to Article 11.071 of the Texas Code of Criminal
Procedure” (Supplemental Application) “as a corrected version of the Amended
Application . . . and Errata . . . previously filed.” In the motion, and on appeal,


      4
          See Ex parte Reynoso, 257 S.W.3d 715, 721 (Tex. Crim. App. 2008).

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Jones asserts that the Amended Application and Errata were consolidated into
the Supplemental Application for simplification and to avoid confusion. The
motion asserted that the Supplemental Application “contain[ed] no new claims
or matters not previously raised in the [A]mended [A]pplication and [E]rrata and
work[ed] no surprise to the State.” On October 27, 1997, the trial court granted
leave to file the Supplemental Application and ordered that the Supplemental
Application “shall be deemed as an original part of the original and amended
applications previously filed, and not as a successor application.”
      Ultimately, the TCCA denied habeas relief on the claims presented in the
Amended Application based upon the trial court’s findings and conclusions and
the TCCA’s own review.5 The TCCA also reviewed the Supplemental Application
and held that “[b]ecause [it] was filed after the deadline provided for an initial
application for habeas corpus,” that it was “a subsequent application.”6 The
TCCA determined that the Supplemental Application did not meet any of the
exceptions for submission of a subsequent application and dismissed it as an
abuse of the writ.7    The TCCA also “expressly reject[ed] all findings and
conclusions related to this claim and den[ied] all motions pending that relate[d]
to the claim.”8 The TCCA’s order did not expressly reference the Errata, which
had been filed on the last day of the deadline for filing, but after the Amended
Application had been filed.
                                         B




      5
       Ex parte Jones, Nos. WR-62,589-01 & WR-62,589-02, 2005 Tex. Crim. App. Unpub.
LEXIS 391, at *1-2 (Tex. Crim. App. Oct. 26, 2005).
      6
          Id.
      7
          Id. at *2.
      8
          Id.

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      Subsequently, Jones filed another application for a writ of habeas corpus
in state court, which raised a claim, based on Penry I, “that the former special
issues of the Texas capital sentencing scheme did not provide an adequate
vehicle for the jury to give full consideration and full effect to his mitigating
evidence.” In accordance with Texas law at the time of the punishment phase
of Jones’s trial, the jury was required to answer two special issues:
      (1) “Was the conduct of the defendant, Shelton Denoria Jones, that
      caused the death of the deceased committed deliberately and with
      the reasonable expectation that the death of the deceased or another
      would result?”
      (2) “Is there a probability that the defendant, Shelton Denoria
      Jones, would commit criminal acts of violence that constitute a
      continuing threat to society?”
The trial court also gave the jury a supplemental instruction:
              You are instructed that when you deliberate on the questions
      posed in the special issues, you are to consider all relevant
      mitigating circumstances, if any, supported by the evidence
      presented in both phases of the trial, whether presented by the
      State or the defendant. A mitigating circumstance may include, but
      is not limited to, any aspect of the defendant’s character,
      background, record, or circumstances of the crime which you believe
      could make a death sentence inappropriate in this case. If you find
      that there are any mitigating circumstances in this case, you must
      decide how much weight they deserve, and thereafter, give effect
      and consideration to them in assessing the defendant’s personal
      culpability, at the time you answer the special issue. If you
      determine, when giving effect to the mitigating evidence, if any, that
      a life sentence, as reflected by a negative finding to the issue under
      consideration, rather than a death sentence, is an appropriate
      response to the personal culpability of the defendant, then a
      negative finding should be given to one of the special issues.
      In affirming Jones’s conviction on direct appeal, the TCCA characterized
Jones’s mitigation evidence: “[Jones] produced numerous character witnesses
during trial who testified that he was peaceable, hard-working, a good high
school student, and non-violent while incarcerated and awaiting trial. [Jones]

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also called a psychologist who testified [Jones’s] personality could be termed as
an ‘empty vessel’ personality.”9 The referenced psychologist was Dr. Jerome
Brown. Brown testified that Jones has a “fairly rare” personality type that “does
not fit into any known mental disorder.” He described it as an “empty vessel
personality, in that a person’s moral structures, this person’s moral convictions,
are very fluid and they basically change from one situation to the next depending
on who [he is] with and who is influencing him at the time.” According to
Brown, such a person “does not fit the category of violent people” with whom
Brown had contact. Instead, the individual is shaped by the strongest influence
available to him. “[Y]ou don’t find this individual instigating things of a criminal
nature. . . . You find him following or being with a group or with at least one
other person who is more anti-social, consistently anti-social and more
aggressive.” Finally, Brown explained his conclusion that “the shift to the
strongest authority doesn’t happen on the second-to-second basis.” The shift
may take a matter of days.
       The TCCA denied relief on this habeas application, holding that there was
no Penry error because the jury could give full and meaningful effect to Jones’s
mitigation evidence within the scope of the former special issues.10 The TCCA
concluded “that [Jones’s] mitigation evidence, while meeting the Tennard [v.
Dretke11] standard for relevance, had ‘only a tenuous connection—some arguable
relevance—to [Jones’s] moral culpability.’”12 The TCCA characterized the
evidence that Jones “suffers from psychological irregularities or deficits,

       9
           Jones v. State, No. 71,369, slip op. ¶ 19 (Tex. Crim. App. May 4, 1994) (en banc).
       10
         Ex parte Jones, No. AP-75,896, 2009 Tex. Crim. App. Unpub. LEXIS 480, at *1, *22
(Tex. Crim. App. June 10, 2009).
       11
            542 U.S. 274 (2004).
       12
          Ex parte Jones, 2009 Tex. Crim. App. Unpub. LEXIS 480, at *21 (quoting Abdul-
Kabir v. Quarterman, 550 U.S. 233, 253 n.14 (2007)) (some internal quotation marks omitted).

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including what his psychologist expert witness described as ‘empty vessel
syndrome,’” as “a far-cry from the sort of psychological mitigation evidence that
has been determined to be Penry evidence.”13 The evidence indicated that
Jones’s empty-vessel personality made him susceptible to the influence of others,
and the TCCA felt it particularly relevant that Jones shot Officer Soboleski
“without provocation or urging of armed violence by his companion.”14 The
TCCA determined that the relevant mitigation evidence present in the case were
the “sort of evidence that the Supreme Court has held are within the scope of the
former special issues.”15
                                            C
      Jones filed the present federal habeas petition following the TCCA’s denial
of his Penry claim. Following a stay of the case to allow Jones to raise an
additional claim in state court—a claim that is not part of this appeal—the State
filed a motion for summary judgment, and Jones filed a cross-motion for partial
summary judgment. Ruling first on Jones’s Penry claim, the district court
determined that “Jones’ jury could have found that the evidence of Jones’
psychological issues made Jones less morally culpable, yet more likely to be
dangerous in the future,” and that “the jury could have found that Jones acted
deliberately while still believing him less culpable based on his psychological
issues.”16 The district court held that “[t]he [TCCA’s] decision to the contrary
was objectively unreasonable” and that “[t]he supplemental ‘nullification’




      13
           Id. at *20.
      14
           Id. at *20-21.
      15
           Id. at *21-22.
      16
         Jones v. Thaler, No. H-09-1825, 2011 U.S. Dist. LEXIS 21262, at *14-15 (S.D. Tex.
Mar. 3, 2011).

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                                     Nos. 11-70007

instruction was plainly inadequate,” thus “Jones [was] entitled to a new
sentencing hearing.”17
      In addressing whether Jones’s fair-trial claim was procedurally defaulted,
the district court recounted Jones’s state habeas proceedings and relied on the
“plain wording” of the Texas Code of Criminal Procedure.18 The district court
believed that it was “clear from the TCCA’s order dismissing Jones’ applications
that the TCCA regarded the skeletal and amended applications as the original
application permitted by the statute and order, and the [Errata] as a successive
petition seeking to add a new claim after the filing of the original application.”19
The district court stated that this was “consistent with a reading of the statute”
and that it was “in no position to second guess the TCCA on its application of
Texas law.”20 Despite holding that Jones’s fair-trial claim was procedurally
defaulted, “[b]ecause . . . reasonable jurists could disagree as to whether Jones
complied with the terms of the April 9, 1997, TCCA order,” the district court
issued a COA on the claim.21 The State appealed the district court’s grant of
habeas relief on Jones’s Penry claim, and Jones cross-appealed on the issue of
whether his fair-trial claim was procedurally defaulted. Jones has also applied
to this court for issuance of a COA on two additional claims.
                                           II
      We first consider the State’s appeal of the district court’s decision to grant
federal habeas relief to Jones on his Penry claim. On a federal habeas appeal,
we review findings of fact for clear error and issues of law and mixed issues of


      17
           Id. at *15-16.
      18
           Id. at *17-22.
      19
           Id. at *21.
      20
           Id. at *22.
      21
           Id. at *22-23.

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law and fact de novo.22 This habeas proceeding is governed by the Antiterrorism
and Effective Death Penalty Act (AEDPA) because Jones filed his federal habeas
petition after AEDPA’s effective date of April 24, 1996. Under AEDPA, the
availability of federal habeas relief is limited for claims previously “adjudicated
on the merits in State court proceedings.”23 AEDPA prohibits a federal court
from granting habeas relief to a state prisoner on a claim adjudicated on the
merits in a state court proceeding unless the petitioner shows that the state
court decision: (1) “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) “was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.”24
       With respect to the first standard, the Supreme Court has explained:
       Under the “contrary to” clause, a federal habeas court may grant the
       writ if the state court arrives at a conclusion opposite to that
       reached by [the Supreme Court] on a question of law or if the state
       court decides a case differently than [the Supreme Court] has on a
       set of materially indistinguishable facts. Under the “unreasonable
       application” clause, a federal habeas court may grant the writ if the
       state court identifies the correct governing legal principle from [the
       Supreme Court’s] decisions but unreasonably applies that principle
       to the facts of the prisoner’s case.25
“[A] federal habeas court making the ‘unreasonable application’ inquiry should
ask whether the state court’s application of clearly established federal law was
objectively unreasonable.”26 “[A]n unreasonable application of federal law is


       22
         Richards v. Quarterman, 566 F.3d 553, 561 (5th Cir. 2009); Guy v. Cockrell, 343 F.3d
348, 351 (5th Cir. 2003).
       23
            28 U.S.C. § 2254(d).
       24
            Id.; Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
       25
            Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
       26
            Id. at 409.

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different from an incorrect application of federal law.”27 Thus, “a federal habeas
court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.”28 For purposes of both the
“contrary to” and “unreasonable application” inquiries, “[s]tate-court decisions
are measured against [the Supreme Court’s] precedents as of ‘the time the state
court renders its decision.’”29
      As of June 10, 2009, the date of the TCCA’s decision, the Supreme Court
had clearly established that, “[i]n order to ensure ‘reliability in the
determination that death is the appropriate punishment in a specific case,’ the
jury must be able to consider and give effect to any mitigating evidence relevant
to a defendant’s background and character or the circumstances of the crime.”30
Whether mitigating evidence is relevant is governed by the “low threshold” of the
general evidentiary standard.31 Thus, to be relevant, mitigating evidence merely
needs to have a tendency to make the existence of a fact or circumstance that a
fact-finder could reasonably deem to have mitigating value more probable or less
probable than it would be without the evidence.32




      27
           Id. at 410.
      28
           Id. at 411.
      29
           Pinholster, 131 S. Ct. at 1399 (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)).
      30
         Penry I, 492 U.S. 302, 328 (1989) (citation omitted) (quoting Woodson v. North
Carolina, 428 U.S. 280, 305 (1976)).
      31
           Tennard v. Dretke, 542 U.S. 274, 284-85 (2004).
      32
           See id. at 284.

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      The Supreme Court has issued a line of post-Penry I cases explaining this
principle. In 2007, in Abdul-Kabir v. Quarterman33 and Brewer v. Quarterman,34
the Court expressed its view of the then-current state of Supreme Court
jurisprudence. In Abdul-Kabir, the Court stated that, well before Penry I, the
Court’s cases “had firmly established that sentencing juries must be able to give
meaningful consideration and effect to all mitigating evidence that might
provide a basis for refusing to impose the death penalty on a particular
individual, notwithstanding the severity of his crime or his potential to commit
similar offenses in the future.”35 Declaring that Justice O’CONNOR’s opinion for
the Court in Penry I had “endorsed” the views she expressed in her separate
opinion in Franklin v. Lynaugh,36 the Court approvingly quoted Justice
O’CONNOR’s language from Franklin concerning Texas’s special verdict
questions:
      To the extent that the mitigating evidence . . . was relevant to one
      of the special verdict questions, the jury was free to give effect to
      that evidence by returning a negative answer to that question. If,
      however, petitioner had introduced mitigating evidence about his
      background or character or the circumstances of the crime that was
      not relevant to the special verdict questions, or that had relevance
      to the defendant’s moral culpability beyond the scope of the special
      verdict questions, the jury instructions would have provided the jury
      with no vehicle for expressing its “reasoned moral response” to that
      evidence.37




      33
           550 U.S. 233 (2007).
      34
           550 U.S. 286 (2007).
      35
           Abdul-Kabir, 550 U.S. at 246.
      36
           487 U.S. 164 (1988).
      37
         Franklin, 487 U.S. at 185 (O’CONNOR, J., concurring in the judgment) (emphasis
added), cited with approval in Abdul-Kabir, 550 U.S. at 252-53.

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      In endorsing this language, the Court stated that it was not adopting a
rule that “a defendant is entitled to special instructions whenever he can offer
mitigating evidence that has some arguable relevance beyond the special
issues.”38 Instead, the Court stated:
      The rule that we reaffirm today—a rule that has been clearly
      established since our decision in Penry I—is this: Special
      instructions are necessary when the jury could not otherwise give
      meaningful effect to a defendant’s mitigating evidence. The rule is
      narrower than the standard urged by [the petitioner in Graham v.
      Collins39] because special instruction is not required when
      mitigating evidence has only a tenuous connection—“some arguable
      relevance”—to the defendant’s moral culpability. But special
      instruction is necessary when the defendant’s evidence may have
      meaningful relevance to the defendant’s moral culpability “beyond
      the scope of the special issues.”40
      The Court discussed Penry I and explained that it had held that a special
issue is insufficient to account for mitigating evidence if that evidence functions
as a “two-edged sword” because it is relevant to the special issue only as an
aggravating factor but, at the same time, may diminish the defendant’s
blameworthiness for the crime.41 The Court then went further in stating:
      [W]e did not limit our holding in Penry I to mitigating evidence that
      can only be viewed as aggravating. When the evidence proffered is
      doubled edged, or is as likely to be viewed as aggravating as it is as
      mitigating, the statute most obviously fails to provide for adequate
      consideration of such evidence.42




      38
           Abdul-Kabir, 550 U.S. at 253 n.14 (internal quotation marks omitted).
      39
           506 U.S. 461 (1993).
      40
           Abdul-Kabir, 550 U.S. at 253 n.14 (emphasis in last sentence added).
      41
           Id. at 254-55.
      42
           Id. at 255 (emphasis added).

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Furthermore, the Court stated: “It is also clear that Penry I applies in cases
involving evidence that is neither double edged nor purely aggravating, because
in some cases a defendant’s evidence may have mitigating effect beyond its
ability to negate the special issues.”43 In Brewer, the Court emphasized that the
mitigating evidence must be given “full effect,” not just “sufficient effect.”44
       We conclude that the district court did not err in granting federal habeas
relief on Jones’s Penry claim because, in denying the claim, the TCCA
unreasonably applied clearly established federal law as determined by the
Supreme Court.           Jones’s empty-vessel evidence was relevant to his moral
culpability based on the Tennard relevancy standard.45 Evidence of this sort has
mitigating value because “it might serve as a basis for a sentence less than
death”;46 a fact-finder could reasonably determine that because of Jones’s empty-
vessel personality, he was “less culpable than defendants who have no such
excuse.”47
       The TCCA, however, was “unconvinced that [Jones’s] proffered mitigating
evidence was outside the scope of the special issues”; the TCCA questioned
whether Jones could be influenced by others in accordance with the empty-vessel
evidence since he had acted “without provocation or urging of armed violence by
his companion” and concluded that Jones’s evidence, “while meeting the Tennard
standard for relevance, had ‘only a tenuous connection—some arguable



       43
            Id. at 255 n.16.
       44
            Brewer v. Quarterman, 550 U.S. 286, 295-96 (2007).
       45
            See Tennard v. Dretke, 542 U.S. 274, 284-85 (2004).
       46
            Id. at 287 (internal quotation marks omitted).
       47
          Franklin v. Lynaugh, 487 U.S. 164, 184 (1988) (O’CONNOR, J., concurring in the
judgment) (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O’CONNOR, J., concurring)),
cited with approval in Abdul-Kabir, 550 U.S. at 251-53.

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relevance—to [his] moral culpability.’”48 Similarly, the State argues on appeal
that, because there was no evidence that Jones acted at the direction of another
when he murdered Officer Soboleski, the empty-vessel evidence is irrelevant to
Jones’s moral culpability. Brown’s testimony did indicate that a person with an
empty-vessel personality has moral convictions that “are very fluid
and . . . change from one situation to the next depending on who he’s with and
who is influencing him at the time,” but Brown did not indicate that the
influence is as time-sensitive as the State argues. Specifically, Brown indicated
that a change in who is influencing a person with an empty-vessel personality
“doesn’t happen on the second-to-second basis.” Although Jones may not have
been under direct influence at the time of the murder, a reasonable fact-finder
could view the evidence as supporting a claim that, in the days leading up to his
crime, Jones was subject to the influence of a “group or . . . at least one other
person who [was] more anti-social . . . and more aggressive” than Jones himself.
A person with an empty-vessel personality may be influenced by those with
whom he associates in the days leading up to his crime; another person need not
be directing him at the particular moment he commits the crime. Jones’s empty-
vessel evidence has mitigating relevance beyond the scope of the special issues.
The Supreme Court has emphasized the importance of the mitigating relevance
of evidence beyond its ability to negate the two special issues that were
presented to and answered by the Texas jury.49 As previously discussed, a fact-
finder could reasonably determine that Jones’s act was attributable to his
empty-vessel personality and, thus, he was “less culpable than defendants who




      48
         Ex parte Jones, No. AP-75,896, 2009 Tex. Crim. App. Unpub. LEXIS 480, at *20-21
(Tex. Crim. App. June 10, 2009) (some internal quotation marks omitted).
      49
           See Abdul-Kabir, 550 U.S. at 252-53, 253 n.14, 255 n.16.

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                                        Nos. 11-70007

have no such excuse,”50 regardless of whether he acted deliberately or whether
he poses a continuing threat to society.
       Furthermore, while the Supreme Court has “never denied that gravity has
a place in the relevance analysis,” it made clear that this is true “insofar as
evidence of a trivial feature of the defendant’s character or the circumstances of
the crime is unlikely to have any tendency to mitigate the defendant’s
culpability.”51 As an example, the Court cited evidence concerning how often the
defendant will take a shower.52 However, the Court has admonished panels of
federal appellate court judges not to act as filters with regard to what is
sufficiently severe; “the question is simply whether the evidence is of such a
character that it ‘might serve as a basis for a sentence less than death.’”53 Jones’s
empty-vessel evidence meets this test because it “may have meaningful
relevance to [Jones’s] moral culpability ‘beyond the scope of the special issues.’”54
Thus, a special instruction was necessary.55 The TCCA’s decision to the contrary
was an unreasonable application of clearly established federal law as determined
by the Supreme Court. The State’s argument that any Penry error was harmless
is foreclosed by our prior decision in Nelson v. Quarterman.56
                                                 III


       50
          Franklin, 487 U.S. at 184 (O’CONNOR, J., concurring in the judgment) (quoting
Brown, 479 U.S. at 545 (O’CONNOR, J., concurring)), cited with approval in Abdul-Kabir, 550
U.S. at 251-53.
       51
            Tennard, 542 U.S. at 286 (emphasis added).
       52
            Id.
       53
         Id. at 287 (quoting Skipper v. South Carolina, 476 U.S. 1, 5 (1986)) (some internal
quotation marks omitted).
       54
            Abdul-Kabir, 550 U.S. at 253 n.14.
       55
            Id.
       56
            472 F.3d 287, 314 (5th Cir. 2006) (en banc).

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       Jones has cross-appealed the district court’s holding that his claim that he
was denied a fair trial due to the presence of uniformed police officers as
spectators was procedurally defaulted. We first address the State’s motion to
vacate the COA and dismiss the cross-appeal. After holding that Jones’s fair-
trial claim was procedurally defaulted, the district court issued a COA “only as
to [its] finding that Jones’ fair trial claim . . . [was] procedurally defaulted.”57
The State argues that the COA is invalid because the district court only
determined that the procedural issue is debatable without, as required, also
determining that the constitutional claim is debatable. Jones argues that the
district court did determine that the constitutional claim is debatable. He notes
that the district court recited the appropriate standard of review, and he relies
on one line in the district court’s opinion: “The court has carefully considered
each of Jones’ claims and concludes that each of the claims, with the exception
of Jones’ Penry and fair trial claims, is foreclosed by clear, binding precedent,
and Jones thus fails to make a ‘substantial showing of the denial of a
constitutional right.’”58
       Considering the district court’s opinion as a whole, we conclude that the
district court did not make the required determination “that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of
a constitutional right.”59 AEDPA requires the issuance of a COA before an
appeal may be taken to the court of appeals from the final order in a habeas
corpus proceeding in which the detention complained of arises out of process




       57
            Jones v. Thaler, No. H-09-1825, 2011 U.S. Dist. LEXIS 21262, at *53 (S.D. Tex. Mar.
3, 2011).
       58
            Id. at *52.
       59
            See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

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                                        Nos. 11-70007

issued by a state court,60 and “[a] [COA] may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.”61
Additionally, “[t]he [COA] . . . shall indicate which specific issue or issues satisfy
the showing required.”62
      [W]hen the district court denies a habeas petition on procedural
      grounds without reaching the prisoner’s underlying constitutional
      claim, a COA should issue (and an appeal of the district court’s
      order may be taken) if the prisoner shows, at least, that jurists of
      reason would find it debatable whether the petition states a valid
      claim of the denial of a constitutional right, and that jurists of
      reason would find it debatable whether the district court was correct
      in its procedural ruling. . . .
            Determining whether a COA should issue where the petition
      was dismissed on procedural grounds has two components, one
      directed at the underlying constitutional claims and one directed at
      the district court’s procedural holding. Section 2253 mandates that
      both showings be made before the court of appeals may entertain
      the appeal. Each component of the § 2253(c) showing is part of a
      threshold inquiry.63
      The section of the district court’s opinion dedicated to Jones’s fair-trial
claim is focused on the procedural-default issue; the district court did not discuss
the merits of Jones’s underlying fair-trial claim.64 The district did observe that
“[i]n light of the evidence of Jones’ guilt, including the testimony of an
eyewitness who had an opportunity to see Jones at close range, Jones does not




      60
           28 U.S.C. § 2253(c)(1).
      61
           Id. § 2253(c)(2).
      62
           Id. § 2253(c)(3).
      63
           Slack, 529 U.S. at 478, 484-85 (emphasis added).
      64
         Jones v. Thaler, No. H-09-1825, 2011 U.S. Dist. LEXIS 21262, at *17-23 (S.D. Tex.
Mar. 3, 2011).

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                                     Nos. 11-70007

meet this standard.”65 The “standard” to which the district court referred was
an “actual innocence” standard, which the district court said was tantamount to
“it is more likely than not that no reasonable juror would have found petitioner
guilty beyond a reasonable doubt.”66 However, this discussion pertained to the
district court’s conclusion that a court may not address an issue that is
procedurally defaulted absent a showing of cause and prejudice.67 It was not a
discussion of the merits of the claim regarding uniformed police officers’
attendance at trial.
      At the conclusion of the discussion of Jones’s fair-trial claim, the district
court said it was issuing a COA “[b]ecause . . . reasonable jurists could disagree
as to whether Jones complied with the terms of the April 9, 1997, TCCA order,”68
not because reasonable jurists could disagree as to that procedural issue and
because reasonable jurists could find it debatable whether the petition states a
valid claim of the denial of a constitutional right. Jones is correct that the
district court recited the correct standard of review from Slack in the COA
section of its opinion,69 and the COA section did include the following paragraph:
      The court has carefully considered each of Jones’ claims and
      concludes that each of the claims, with the exception of Jones’ Penry
      and fair trial claims, is foreclosed by clear, binding precedent, and
      Jones thus fails to make a “substantial showing of the denial of a
      constitutional right.” The court grants relief on the merits of the
      Penry claim and concludes that reasonable jurists could disagree
      whether Jones’ fair trial claim is procedurally defaulted. The court



      65
           Id. at *23.
      66
           Id.
      67
           Id. at *22-23.
      68
           Id. at *23.
      69
           Id. at *51-52.

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                                         Nos. 11-70007

       therefore concludes that Jones is entitled to a certificate of
       appealability only on his fair trial claim.70
This section, however, like the section dedicated to the fair-trial claim, lacks any
meaningful discussion of the merits of Jones’s underlying fair-trial claim.71
Recitation of the correct standard of review, and a single sentence that does not
affirmatively hold that “jurists of reason would find it debatable whether the
[fair-trial claim in Jones’s] petition states a valid claim of the denial of a
constitutional right,” is insufficient in light of the opinion as a whole, which
lacks any meaningful discussion of the merits of Jones’s fair-trial claim.
       Because we conclude that the district court did not make the
determination required by Slack for the issuance of a COA on Jones’s fair-trial
claim, we vacate the COA, dismiss Jones’s cross-appeal, and remand to the
district court for a determination, in the first instance, of whether jurists of
reason would find it debatable whether the fair-trial claim raised in Jones’s
federal habeas petition states a valid claim of the denial of a constitutional right.
We    recognize           that   the   Supreme       Court     has      held   that   the   only
jurisdictional component of AEDPA’s COA requirements is the one requiring the
issuance of a COA before an appeal may be taken to the court of appeals,72 “[b]ut
calling a rule nonjurisdictional does not mean that it is not mandatory or that
a timely objection can be ignored.”73 The State timely raised the issue of the
COA’s validity, and we, therefore, address it.74 Though we are not foreclosed
from ruling on the question of whether Jones’s claim was procedurally defaulted,


       70
            Id. at *52-53 (citation omitted).
       71
            Id. at *50-53.
       72
            Gonzalez v. Thaler, 132 S. Ct. 641, 649-50 (2012).
       73
            Id. at 651.
       74
            See id.

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                                      Nos. 11-70007

we conclude that remand is appropriate, first, because Jones has not briefed the
merits of the fair-trial claim on appeal, and second, because we are unable to
benefit from the district court’s analysis due to the lack of any discussion of the
merits of the fair-trial claim in the district court’s opinion.75 Slack made clear
that there are “two components” to the “threshold inquiry” mandated by 28
U.S.C. § 2253.76 By remanding to the district court, we seek to ensure that this
“threshold inquiry” is complete.
                                             IV
      Apart from his appeal, Jones filed an application for a COA, which
requests that we issue a COA on two claims. His request for a COA on his claim
that the supplemental instruction given to the jury at the punishment phase of
his trial “injected capriciousness into the proceeding” in violation of the Eighth
and Fourteenth Amendments to the United States Constitution is dismissed as
moot. Because we affirm the district court’s grant of federal habeas relief on
Jones’s Penry claim—which overturned Jones’s death sentence—he has already
been granted the relief requested on his capriciousness claim.
      With respect to Jones’s second claim—that he was denied the effective
assistance of counsel because his counsel failed to conduct a reasonable
investigation regarding the search of Brenda Pickrom’s apartment, a search that
led to his arrest and the discovery of evidence used against him—AEDPA
mandates that a COA “may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”77 The applicant must
show “that reasonable jurists could debate whether (or, for that matter, agree



      75
          Cf. Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (explaining how this court
benefits from the district court’s ruling on a COA application).
      76
           Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
      77
           28 U.S.C. § 2253(c)(2).

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                                       Nos. 11-70007

that) the petition should have been resolved in a different manner or that the
issues presented were ‘adequate to deserve encouragement to proceed further.’”78
“Where a district court has rejected the constitutional claims on the
merits, . . . [t]he petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.”79
      The COA determination under § 2253(c) requires an overview of the
      claims in the habeas petition and a general assessment of their
      merits. [Appellate courts] look to the District Court’s application of
      AEDPA to petitioner’s constitutional claims and ask whether that
      resolution was debatable amongst jurists of reason. This threshold
      inquiry does not require full consideration of the factual or legal
      bases adduced in support of the claims. In fact, the statute forbids
      it.80
In a death-penalty case, any doubts as to whether a COA should issue must be
resolved in the applicant’s favor.81
      The TCCA concluded that Jones was not entitled to habeas relief on his
ineffective assistance of counsel claim because he could not demonstrate
prejudice as required by Strickland v. Washington;82 this was based on the
TCCA’s conclusion that Jones could not claim the protection of the Fourth
Amendment because he had no reasonable expectation of privacy in Pickrom’s
apartment. Jones was also denied federal habeas relief on this claim because
the district court concluded that “it [was] clear that the investigation Jones
claims counsel failed to perform would not have changed the result of the




      78
           Slack, 529 U.S. at 484 (some internal quotation marks omitted).
      79
           Id.
      80
           Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
      81
           Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir. 2005).
      82
           466 U.S. 668, 687 (1984).

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                                          Nos. 11-70007

suppression motion.”83 In support of its holding, the district court determined
that “[t]he state court’s conclusion that Jones had no reasonable expectation of
privacy [was] entitled to deference.”84 The district court noted that Pickrom—the
apartment’s lessee—had, on multiple occasions, stated that Jones did not have
permission to be in the apartment, although she later contradicted these
statements in an affidavit in support of Jones’s state habeas petition.85
According to the district court, the TCCA’s conclusion that Pickrom’s initial
statements “were credible, and that her post hoc attempt to explain these
statements away was not credible,” was “not unreasonable.”86
       We deny Jones’s application for a COA on his ineffective assistance of
counsel claim because the district court’s resolution of this claim is not debatable
amongst jurists of reason. First, jurists of reason would agree that the TCCA’s
credibility findings regarding Pickrom’s contradictory statements were not
unreasonable and that, consequently, the TCCA’s decision was not “based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.”87 Pickrom gave a statement to police on the date of the
search, testified before the grand jury, testified during the suppression hearing,
testified during the guilt–innocence phase of Jones’s trial, and gave an affidavit
in support of Jones’s state habeas petition. As discussed by the district court, on
several occasions, including when under oath and subject to cross-examination,
Pickrom stated that Jones did not have her consent to be in the apartment or


       83
            Jones v. Thaler, No. H-09-1825, 2011 U.S. Dist. LEXIS 21262, at *34 (S.D. Tex. Mar.
3, 2011).
       84
            Id. at *33.
       85
            Id. at *32-33.
       86
            Id. at *33.
       87
            See 28 U.S.C. § 2254(d)(2).

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                                      Nos. 11-70007

that Jones had no business being there. Although Pickrom later explained in
her affidavit in support of Jones’s state habeas petition that she misunderstood
the question, it was not unreasonable for the TCCA to conclude that her earlier
statements were credible while her post hoc attempted explanation was not.
      Second, in light of the TCCA’s credibility findings, jurists of reason would
agree that the TCCA’s conclusion that Jones’s ineffective assistance of counsel
claim must fail because he could not demonstrate prejudice—because he could
not assert the protection of the Fourth Amendment due to not having a
reasonable expectation of privacy—was not “contrary to, or . . . an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States.”88 The Supreme Court cases of most relevance are
Minnesota v. Carter89 and Minnesota v. Olson,90 which concern the right of a
houseguest to claim the protection of the Fourth Amendment. In Olson, the
Court held that “society recognizes that a houseguest has a legitimate
expectation of privacy in his host’s home,” which entitles the houseguest to claim
the protection of the Fourth Amendment.91 The Court described a houseguest
as one who “is there with the permission of his host.”92 In Carter, the Court
clarified that “an overnight guest in a home may claim the protection of the
Fourth Amendment, but one who is merely present with the consent of the
householder may not.”93



      88
           See id. § 2254(d)(1).
      89
           525 U.S. 83 (1998).
      90
           495 U.S. 91 (1990).
      91
           Id. at 98, 100.
      92
           Id. at 99.
      93
           Carter, 525 U.S. at 90 (emphasis added).

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                                         Nos. 11-70007

      The TCCA concluded that Jones did not have Pickrom’s consent to be in
the apartment, and Carter and Olson make clear that a person present in
another’s home without consent may not claim the protection of the Fourth
Amendment. Because Jones is not entitled to claim the protection of the Fourth
Amendment, he cannot demonstrate prejudice from his counsel’s alleged failure
to investigate. Because he cannot demonstrate prejudice, jurists of reason would
agree with the district court’s determination that the TCCA’s conclusion that
Jones’s ineffective assistance of counsel claim must fail—because he had no
reasonable expectation of privacy in Pickrom’s apartment—was not “contrary to,
or . . . an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”94
      We need not reach the question of whether the district court’s resolution
of the question of inevitable discovery is debatable amongst jurists of reason
because Jones was not entitled to claim the protection of the Fourth
Amendment. Additionally, Jones’s claim, based on Panetti v. Quarterman,95 that
the district court should have considered his ineffective assistance of counsel
claim de novo is not supported by Panetti and is without merit.96
                                         *     *     *
      For the foregoing reasons, the district court’s grant of federal habeas relief
is AFFIRMED. The COA on Jones’s fair-trial claim is VACATED, his cross-
appeal is DISMISSED, and we REMAND to the district court for further
proceedings. Jones’s application for a COA on his capriciousness claim is


      94
           See 28 U.S.C. § 2254(d)(1).
      95
           551 U.S. 930 (2007).
      96
         See Panetti, 551 U.S. at 948, 952-53 (holding that review of the petitioner’s
underlying claim was “unencumbered by the deference AEDPA normally requires” because
there was an error in the state court’s process, not simply because there was some
unreasonable application of federal law).

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                              Nos. 11-70007

DISMISSED AS MOOT, and his application for a COA on his ineffective
assistance of counsel claim is DENIED.




                                    25
