                               Revised, October 20, 2000

            IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                         _______________

                                           m 99-50927
                                         _______________




                                  MICHAEL PATRICK MOORE,

                                                            Petitioner-Appellant,

                                             VERSUS

                                       GARY L. JOHNSON,
                      DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                                  INSTITUTIONAL DIVISION,

                                                            Respondent-Appellee.



                                  _________________________

                           Appeal from the United States District Court
                                for the Western District of Texas
                                 _________________________
                                        August 23, 2000


Before JOLLY, SMITH, and BARKSDALE,                 claims to this court. Because Moore’s claims
  Circuit Judges.                                   lack merit under the requisite standard, we de-
                                                    ny a COA.
JERRY E. SMITH, Circuit Judge:
                                                                         I.
   Michael Moore seeks a certificate of ap-            Moore was convicted of capital murder and
pealability (“COA”) to allow him to present six     sentenced to death. He directly appealed his
conviction and sentence to the Texas Court of          of ammunition in appellant’s car. While
Criminal Appeals, then petitioned the United           the facts of the crime itself are perhaps
States Supreme Court for review, but was de-           not alone sufficient to support an affir-
nied both times. Moore then filed an applica-          mative finding to the future dangerous-
tion for a writ of habeas corpus in the state          ness special issue, additional evidence
courts and federal district court but was denied       introduced at trial does support such a
again at each stage. See Moore v. State, 935           finding.
S.W.2d 124, 126-27 (Tex. Crim. App. 1996),
cert. denied, 520 U.S. 1219 (1997).                         At the punishment phase the State
                                                       introduced records from the Conners
                                                       Children’s Home, where appellant re-
   The Court of Criminal Appeals’s opinion             sided during part of his childhood, con-
denying Moore’s direct appeal set out the fol-         taining information about appellant
lowing facts underlying his conviction and             when he was a child. The records indi-
sentencing:                                            cate appellant twice set fire to his house
                                                       and once to the Children’s Home,
        Armed with a gun and a knife, ap-              threatened to kill his parents and blame
   pellant entered the victim’s home at                their deaths on his younger brother, and
   about 2:20 am and headed toward the                 tried to stab his younger brother with a
   bedrooms. At the time he entered the                pair of scissors. As a child, appellant
   home, appellant knew it was occupied.               continuously exhibited violent and im-
   He was dressed in black so that he                  proper sexual behavior. While serving
   would not be seen in the dark. Appel-               in the Navy, appellant was on unautho-
   lant encountered the victim and a strug-            rized absence three times and was con-
   gle ensued between them. The victim                 victed of grand larceny. The State also
   was stabbed several times by appellant              introduced appellant’s notebook entitled
   who then dropped his knife. The victim              “The Girls of Copperas Cove” in which
   was screaming so appellant drew his re-             he listed the names and addresses of 300
   volver and shot her. Because of the                 teenaged girls of Copperas Cove. Many
   number and depth of the wounds the                  of these girls including T.R., the victim’s
   victim received, the medical examiner               daughter, testified that appellant stalked,
   characterized the murder as “overkill”              harassed, and threatened them. The
   and “particularly brutal.” The victim’s             State introduced evidence of various
   fourteen year old son discovered her                extraneous offenses, including several
   body. Appellant then fled the scene of              burglaries which often took place while
   the crime. Shortly thereafter, a police             the victims were home, perpetrated
   officer spotted appellant driving without           against the girls listed in the notebook.
   his headlights. The officer attempted to            Letters that appellant wrote to several of
   get appellant to pull over, but appellant           the girls in which he threatened to rape
   led the police on a high-speed car chase            them were introduced into evidence,
   followed by a pursuit on foot. After                including one letter written to a junior
   appellant was apprehended, the police               high student threatening to rape her and
   found a .22 caliber pistol and 50 rounds            her best friend. Appellant’s notebook


                                                   2
   also contained the license plate numbers          ancee. Two weeks before he was to be mar-
   of a Coryell County Justice of the Peace          ried, however, he found that his fiancee was
   and a Copperas Cove police sergeant.              seeing another man. Moore presented wit-
   Appellant testified that the notebook             nesses who testified that he was not violent or
   was not in its “final form.” On direct            aggressive, including Dr. Windel Dickerson, a
   examination, appellant admitted to being          licensed psychologist, and a social worker
   involved in a physical altercation while          from Moore’s foster home, who testified that
   in jail.                                          Moore wo uld not be a continuing threat in a
                                                     prison setting.
        The State also called Dr. Coons, a
   psychiatrist, to testify to appellant’s              Following denial of the habeas petition, the
   future danger to society. He noted ap-            district court denied Moore a COA. He now
   pellant’s childhood displays of anger and         seeks one from this court.
   violence and his lawless behavior. Dr.
   Coons reviewed the State’s files and re-                                 II.
   cords of appellant, as well as appellant’s            Under 28 U.S.C. § 2253(c)(1)(A), Moore
   psychological and psychiatric records,            must first obtain a COA before he may receive
   and was presented a hypothetical ques-            full appellate review of the denial of habeas re-
   tion embodying the significant facts of           lief. A COA can issue only if Moore makes “a
   the case. Based on this information, Dr.          substantial showing of the denial of a constitu-
   Coons stated that appellant lacks a con-          tional right, a demonstration that . . . includes
   science, is a continuing threat to society,       showing that reasonable jurists could debate
   and would continue to commit criminal             whether . . . the petition should have been
   acts of violence. He stated violence and          resolved in a different manner or that the is-
   anger were well integrated into appel-            sues presented were adequate to deserve en-
   lant’s personality and that appellant’s           couragement to proceed further.” Slack v.
   behavior would carry over into prison             McDaniel, 120 S. Ct. 1595, 1603-04 (2000)
   society. Dr. Coons testified that appel-          (internal quotation marks and citation omit-
   lant would be manipulative, vindictive,           ted).1 Uncertainly about the propriety of
   and a threat to smaller prisoners.
                                                        1
Moore, 935 S.W.2d at 126-27.                              Hill v. Johnson, 210 F.3d 481, 484 (5th Cir.
                                                     2000), explains that earning a COA “requires the
   In response to this testimony, Moore pre-         applicant to demonstrate that the issues are debat-
sented evidence that he had been beaten and          able among jurists of reason; that a court could
neglected by his mother in his infancy, cared        resolve the issues (in a different manner); or that
                                                     the questions are adequate to deserve encourage-
for by his maternal grandmother for a period,
                                                     ment to proceed further” (citing Drinkard v. John-
placed in foster care, and eventually returned       son, 97 F.3d 751, 755 (5th Cir.1996)) (internal
to his family, where abuse began anew. He            quotation marks omitted; emphasis added). Hill
dropped out of school, attempted suicide, and        was decided only a few days before Slack and only
joined the Navy. After honorable discharge,          two days after Williams v. Taylor, 120 S. Ct.
he moved in again with his mother and her            1495, 1521 (2000), in which the Court explained,
new husband and found employment and a fi-           however, that the Fourth Circuit had erred in hold-
                                                                                           (continued...)

                                                 3
granting a COA is resolved in Moore’s favor,                  and the severity of his prescribed penalty col-
                                                              ors our consideration of whether he has met
                                                              his “substantial showing” burden. Hill, 210
   1
     (...continued)                                           F.3d at 484.
ing that “a state-court decision involves an ‘unrea-
sonable application of . . . clearly established                   In assessing whether [a petitioner] is
Federal law’ only if the state court has applied fed-            entitled to a COA, we must keep in
eral law ‘in a manner that reasonable jurists would              mind the deference scheme laid out in
all agree is unreasonable.’”
                                                                 28 U.S.C. § 2254(d). See Trevino v.
                                                                 Johnson, 168 F.3d 173, 181 (5th Cir.),
     The Court thought the explication of “unrea-
sonable application” potentially misleading because              cert. denied, . . .120 S.Ct. 22 . . .(1999).
it threatened to “transform the inquiry into a sub-              Under that scheme, we review pure
jective one by resting [the court’s] determination               questions of law and mixed questions of
. . . on the simple fact that at least one of the Na-            law and fact under § 2254(d)(1), and
tion’s jurists has applied the relevant federal law in           review questions of fact under § 2254-
the same manner the state court did in the habeas                (d)(2), provided that the state court ad-
petitioner’s case.” Id. at 1521-22. The Court then               judicated the claim on the merits. See
specified that in Drinkard this circuit had errone-              28 U.S.C. § 2254(d). . . .[2]
ously made such a subjectively based determina-
tion. Id. at 1522. The Williams court considered                   As a result, we must defer to the state
the impropriety of the “reasonable jurist” language              court unless its decision “was contrary
with reference specifically to a denial of habeas                to, or involved an unreasonable applica-
relief rather than to the denial of a COA, but we
                                                                 tion of clearly established Federal law,
nonetheless confidently follow the Court by remov-
                                                                 as determined by the Supreme Court of
ing this putatively subjective consideration from
our analysis in this instance.                                   the United States.” 28 U.S.C. § 2254-
                                                                 (d)(1). A decision is contrary to clearly
    Moore argues that a COA should be granted                    established Federal law “if the state
because the district court, in denying him habeas                court arrives at a conclusion opposite to
relief, mentioned that “[a] determination is ‘unreason-          that reached by [the Supreme Court] on
able’ ‘only when it can be said that reasonable                  a question of law or if the state court
jurists considering the question would be of one                 decides a case differently than [the]
view that the state court ruling was incorrect.’”                Court has on a set of materially indistin-
The district court did not, however, indicate that it            guishable facts.” Williams v. Taylor,
was employing a subjective, rather than an objec-                . . . 120 S. Ct. 1495, 1523 . . .(2000).
tive, test of “reasonability” and did not rely on the            Under § 2254(d)(1)’s “unreasonable ap-
subjective impressions of any jurists in coming to               plication” language, a writ may issue “if
its conclusion that habeas relief was unwarranted.
                                                                 the state court identifies the correct gov-
The district court’s stray reference to the “reason-
able jurist” standard, never mentioned again or
made part of the court’s analysis, though error, is
                                                                 2
harmless error and not a sufficient basis upon                     The opinion of the Court of Criminal Appeals
which to grant a COA. Cf. Orellana v. Kyle, 65                affirming Moore’s conviction and sentence of death
F.3d 29, 33 (5th Cir. 1995) (application of incor-            reveals that the conviction followed adjudication on
rect legal standard harmless if conclusion un-                the merits, Moore, 935 S.W.2d at 126, and Moore
changed).                                                     does not challenge this revelation.

                                                          4
   erning legal principle from [the] Court’s           of Criminal Appeals, Moore again failed to
   decisions but unreasonably applies that             argue that he should have been provided a
   principle to the facts of the prisoner’s            mitigation expert. That court held that “since
   case.” Williams, 120 S. Ct. at 1523.                appellant does not make any arguments re-
   Factual findings are presumed to be cor-            garding expert assistance on this issue, we will
   rect, see 28 U.S.C. § 2254(e)(1), and               only address expert assistance on the jury se-
   we will give deference to the state                 lection issue.” Moore, 935 S.W.2d at 130 n.2.
   court’s decision unless it “was based on            If a petitioner “offer[s] little more than unde-
   an unreasonable determination of the                veloped assertions that the requested assis-
   facts in light of the evidence presented in         tance would be beneficial, we find no depriva-
   the State court proceeding.”            Id.         tion of due process in the trial judge’s deci-
   § 2254(d)(2).                                       sion” not to provide that assistance. Caldwell
                                                       v. Mississippi, 472 U.S. 320, 323 n.1 (1985).
Id. at 484-85.                                         Moreover, claims that are barred as a conse-
                                                       quence of a failure to comply with state proce-
                       III.                            dural rules do not merit habeas relief3 and
   Moore seeks a COA with regard to four               therefore cannot warrant issuance of a COA.
related claims, which at their root argue that
he should have been afforded, by the state,                Moore’s claims that he was constitutionally
expert assistance in jury selection and develop-       entitled to either of these experts fail on their
ment of mitigation evidence. Because this is a         merits as well. He bases his argument on the
quest ion of law, the district court could have        pronouncement in Ake v. Oklahoma, 470 U.S.
issued a writ of habeas corpus only if Texas’s         68 (1985), that states must provide indigent
review procedures are “contrary to, or in-             defendants “access to a competent psychia-
volved an unreasonable application of clearly          trist” in cases in which “a defendant demon-
established Federal law, as determined by the          strates to the trial judge that his sanity at the
Supreme Court of the United States.” 28                time of the offense is to be a significant factor
U.S.C. § 2254(d)(1). We can grant a COA                at trial.” Id. at 83. Moore argues that the Ake
only if courts could objectively disagree with         holding compels a finding in his favor.
regard to whether Texas has so erred, or if our
jurisprudence would be ennobled by further               In coming to its conclusion, the Court in
consideration of the question.                         Ake held that

    With regard to the mitigation expert, it ap-          [t]his Court has long recognized that
pears that the trial court provided Moore the             when a State brings its judicial power to
opportunity to present additional information             bear on an indigent defendant in a crimi-
to demonstrate that the expert “would be sig-             nal proceeding, it must take steps to as-
nificantly more effective in marshaling the evi-          sure that the defendant has a fair oppor-
dence in [Moore]’s behalf than his own coun-              tunity to present his defense. . . . [A]
sel,” but that “no further request or showing of          criminal trial is fundamentally unfair if
necessity for a mitigation expert was made.”
Moore, as a result, did not enjoy the benefits
of a mitigation expert. Later, before the Court           3
                                                           Coleman v. Thompson, 501 U.S. 722, 754
                                                       (1991).

                                                   5
   the State proceeds against an indigent                  gather facts, through professional exam-
   defendant without making certain that                   ination, interviews, and elsewhere, that
   he has access to the raw materials inte-                they will share with the judge or jury; []
   gral to the building of an effective de-                analyze the information gathered and
   fense. Thus, while the Court has not                    from it draw plausible conclusions about
   held that a State must purchase for the                 the defendant's mental condition, and
   indigent defendant all the assistance that              about the effects of any disorder on be-
   his wealthier counterpart might buy, it                 havior; and [] offer opinions about how
   has often reaffirmed that fundamental                   the defendant’s mental condition might
   fairness entitles indigent defendants to                have affected his behavior at the time in
   an adequate opportunity to present their                question. They know the probative
   claims fairly within the adversary sys-                 questions to ask of the opposing party’s
   tem.                                                    psychiatrists and how to interpret their
                                                           answers. Unlike lay witnesses, who can
Id. at 76-77 (internal citations and quotation             merely describe symptoms they believe
marks omitted; emphases added). This circuit               might be relevant to the defendant’s
has, in light of Ake, held that “non-psychiatric           mental state, psychiatrists can identify
experts . . . should be provided only if the               the “elusive and often deceptive” symp-
evidence is both critical to the conviction and            toms of insanity, Solesbee v. Balkcom,
subject to varying expert opinion.” Yohey v.               339 U.S. 9, 12 . . . (1950), and tell the
Collins, 985 F.2d 222, 227 (5th Cir. 1993)                 jury why their observations are relevant.
(citations and internal quotation marks omit-              Further, where permitted by evidentiary
ted).                                                      rules, psychiatrists can translate a medi-
                                                           cal diagnosis into language that will as-
    Neither of Moore’s claims of right to expert           sist the trier of fact, and therefore offer
assistance can survive under these standards.              evidence in a form that has meaning for
His purported right to a jury-selection expert             the task at hand. Through this process
withers before the language of Ake. As the                 of investigation, interpretation, and tes-
Court explained, a defendant cannot expect the             timony, psychiatrists ideally assist lay
state to provide him a most-sophisticated                  jurors, who generally have no training in
defense; rather, he is entitled to “access to the          psychiatric matters, to make a sensible
raw materials integral to the building of an ef-           and educated determination about the
fective defense.” Ake, 470 U.S. at 77. Most                mental condition of the defendant at the
of those raw materials come to the defendant               time of the offense.
in the form of his court-appointed lawyerSSin
his expert knowledge about how to negotiate             Id. at 80.
the rules of court, how to mount an effective
defense, and so forth. Other materials come                Despite Moore’s claims to the contrary, ju-
from lay witnesses, such as evidence necessary          ry selection is not a mysterious process to be
to the defendant to establish his defense. De-          undertaken by those learned in the law only
fendants enjoy access to court-appointed psy-           with the assistance of outside professionals.
chiatric professionals because the Court ex-            All competent lawyers are endowed with the
pects those professionals to                            “raw materials” required to pick a jury fairly


                                                    6
disposed toward doing substantive justice.              cannot receive a COA on these grounds.4
While the wealthiest of defendants might elect
to spend their defense funds on jury consul-                                 IV.
tants, indigent defendants are not privileged to           Moore argues that we should issue a COA
force the state to expend its funds on this ex-         on the question whether his constitutional
ercise in bolstering an attorney’s fundamental          rights were violated by the failure to change
skills. Meanwhile, of course, a defendant does          venue from the county in which the murder
not lack “an adequate opportunity to present            occurred, because of the pretrial publicity sur-
[his] claims fairly” because he has been denied         rounding the murder and his alleged involve-
a jury consultant. Communicating with the ju-           ment in it. Jury impartiality is a question of
ry is a quintessential responsibility of counsel.       fact. See King v. Lynaugh, 850 F.2d 1055,
                                                        1058 (5th Cir. 1988).
   Moore’s claim of entitlement to a mitiga-
tion expert fails under the Yohey explication of            The trial court found, and the Court of
a defendant’s right to non-psychiatric experts.         Criminal Appeals agreed, that “the record does
As the Yohey court explained, “[a]n indigent            not support appellant’s claims” of jury partial-
defendant requesting non-psychiatric experts            ity. Moore, 935 S.W.2d at 129. In determin-
must demonstrate something more than a mere             ing whether to grant habeas relief, a federal
possibility of assistance from a requested ex-          court must presume the correctness of this
pert.” Yohey, 985 F.2d at 227. Moore does               finding and “will give deference to the state
not make such a showing.                                court’s decision unless it ‘was based on an
                                                        unreasonable determination of the facts in light
   As the recital of facts indicates, Moore’s           of the evidence presented in the State court
defense included testimony from lay and psy-            proceeding.’” Hill, 210 F.3d at 485 (citing 28
chiatric witnesses favorable to him suggesting          U.S.C. § 2254(d)(2), (e)(1)). Unless we
that his childhood had been scarring and that           decide that a court could find that the Texas
he did not present a threat to his fellow prison-       courts had made an unreasonable determina-
ers. He provides no explanation of how a mit-           tion or that the issue merits further consider-
igation expert might have provided “critical”           ation, we cannot issue a COA with regard to
assistance to a defense team already including          this question.
a lawyer and psychiatrist, both cognizant of
the role of mitigating evidence in staving off             We do not so decide. Moore presented no
the death penalty.

   The precedent of the Supreme Court and                  4
this circuit, then, forecloses entirely Moore’s               Moore also asked for a COA so that this
                                                        circuit could consider the issue of whether the
arguments, denying him the chance to demon-
                                                        district court erred by declaring that “an indigent
strate that our court could resolve the issues in       defendant could never be entitled to” a jury-selec-
his favor or that the questions are adequate to         tion or mitigation expert. It strains the language of
deserve encouragement to proceed further.               the district court’s opinion to argue that the court
He therefore has not made a substantial show-           so declared at all, especially with reference to the
ing of the denial of a constitutional right and         mitigation expert (the appointment of whom was
                                                        denied, in part, because expert psychological tes-
                                                        timony had been allowed in this instance).

                                                    7
evidence that individual jurors were preju-                trary, the Sheriff of Coryell County tes-
diced. As we have explained, “[a]s a general               tified that there had been no untoward
rule, a state defendant who seeks habeas relief            concern in Copperas Cove about appel-
as a result of pretrial publicity must demon-              lant. Appellant also produced no evi-
strate an actual, identifiable prejudice on the            dence that the jurors “knew the victims
part of members of the jury that is attributable           or their families, and would sympathize
to that publicity.” Willie v. Maggio, 737 F.2d             with them.”
1372, 1386 (5th Cir. 1984). Moore did submit
some evidence indicating that the press had             Moore, 935 S.W.2d at 129. On the basis of
covered not only the murder but also his al-            this evidence, the trial court agreed with the
leged involvement in it and the fact that Moore         state that Moore had not demonstrated such
had maintained a list of local high school girls.       prejudice that the community had become per
The evidence suggested that the community               se incapable of yielding an unbiased jury, and
was scared and repulsed by this information.            the Court of Criminal Appeals agreed. On
This evidence raises the possibility that Moore         collateral review, the district court determined
might have demonstrated, under the rule cre-            that this did not represent an “unreasonable”
ated by Rideau v. Louisiana, 373 U.S. 723               determination of the facts, and denied habeas
(1963), that because                                    relief. Because we do not think that any court
                                                        could come to a different conclusion, or that
   a petitioner [has adduced] evidence of               justice would be served by considering this
   inflammatory, prejudicial pretrial public-           issue further, we deny COA on this issue.5
   ity that so pervades or saturates the
   community as to render virtually impos-
   sible a fair trial by an impartial jury                 5
                                                             Moore claims that in considering the question
   drawn from that community, “(jury)                   of venue change on direct appeal, the Court of
   prejudice is presumed and there is no                Criminal Appeals employed a standard that is con-
   further duty to establish bias.”                     trary to clearly established federal law. The stan-
                                                        dard explicated by the court was that
Mayola v. Alabama, 623 F.2d 992, 997 (5th
Cir. 1980) (explaining Rideau). The Court of               the reviewing court determines whether there
Criminal Appeals, however, noted that other                existed such a prejudice in the community
evidence had been adduced as well. Moore, it               that it is doubtful that the defendant received
explained,                                                 a fair trial by an impartial jury. Extensive
                                                           knowledge in the community of either the
   called various representatives from the                 crime or the defendant, without more, is in-
   local media to testify at the venue hear-               sufficient to render a trial unconstitutional.
                                                           Publicity about the case must be pervasive,
   ing. These witnesses testified that the
                                                           prejudicial and inflammatory. Appellant
   pre-trial publicity had not been inflam-                must demonstrate an “actual, identifiable
   matory or even excessive. Appellant                     prejudice attributable to that publicity on the
   presented no evidence at all that “most                 part of members of his jury” and that the
   persons” in Copperas Cove were “terri-                  prejudicial effect has so permeated the com-
   fied” of him and worried that he would                  munity that the prospective jurors’ prejudi-
   be released from custody; to the con-                   cial opinions cannot be set aside.
                                                                                                (continued...)

                                                    8
                       V.                                          and discretion’ exercised by
    Moore contends we should grant a COA on                        each juror.”
the question whether Texas violates the Con-
stitution by refusing to allow its appellate                  Colella [v. State], 915 S.W.2d [834,]
courts to review the jury’s determination of                  844 [(Tex. Crim. App. 1995)] (citing
whether special mitigating factors exist to sen-              Banda v. State, 890 S.W.2d 42, 54
tence a criminal otherwise fully qualified for                (Tex. Crim. App.1994), cert. denied,
death instead to life in prison. This, like the               515 U.S. 1105 . . . (1995)). “Mitigating
issues of expert-provision, is a question of law.             evidence” is defined as “evidence that a
                                                              juror might regard as reducing the defen-
   The Court of Criminal Appeals explained                    dant’s moral blameworthiness.” TEX.
that                                                          CODE CRIM. PROC. ANN. art. 37.071,
                                                              § 2(f)(4) (emphasis added). Each juror
        [i]n Texas, mitigating evidence                       individually determines what evidence, if
        is admissible at the punishment                       any, mitigates against the just imposition
        phase of a capital murder trial.                      of the death sentence. Banda, 890
        Once admitted, the jury may                           S.W.2d at 54. “Because the weighing of
        then give it weight, if in their                      ‘mitigating evidence’ is a subjective de-
        individual minds it is appropri-                      termination undertaken by each individ-
        ate, when answering the ques-                         ual juror, we decline to review the evi-
        tions which determine sen-                            dence for sufficiency.” Colella, 915
        tence. However, “[t]he a-                             S.W.2d at 845. Whether to give partic-
        mount of weight that the fact-                        ular evidence a mitigating effect is with-
        finder might give any particular                      in the prerogative of individual jurors;
        piece of mitigating evidence is                       thus, such a determination is unreview-
        left to ‘the range of judgment                        able.

                                                           Moore, 935 S.W.2d at 128.
   5
    (...continued)
Moore, 935 S.W.2d at 129 (citations omitted).                 The Supreme Court requires that a jury’s
Moore argues that this standard does not suffi-            determination that a death sentence should is-
ciently account for the exception to the rule that         sue must be guided by standards and reviewed
actual prejudice on the part of jury members must          by appellate courts to determine its propriety
be shown.                                                  and non-arbitrariness.6 Moore does not deny
    We agree that the Court of Criminal Appeals
might have explained the standard of review more
                                                              6
plainly. We note, however, that the court explicitly            See, e.g., Clemons v. Mississippi, 494 U.S.
found that Moore’s “suggestion that the trial court        738, 749 (1990) (stating that “this Court has re-
was prejudiced by community outrage is unsup-              peatedly emphasized that meaningful appellate re-
ported” because, largely, of evidence “that the pre-       view of death sentences promotes reliability and
trial publicity had not been inflammatory or even          consistency”); Woodson v. North Carolina, 428
excessive.” Id. (emphasis added). Publicity that is        U.S. 280, 302 (1976) (explaining that the Court
neither inflammatory nor excessive cannot fit with-        had rejected “unbridled jury discretion in the im-
in the rule of Rideau as understood in this circuit.                                            (continued...)

                                                       9
that Texas provides for appellate review of the            “the trier of fact must convict the defendant of
jury’s determination that first-degree murder              murder and find one ‘aggravating circum-
has occurred and that a special aggravating                stance’ (or its equivalent),” id. at 971-72, and
factor exists, and of whether the proper proce-            its “selection decision,” in which “the senten-
dures were followed in presenting to the jury              cer determines whether a defendant eligible for
all relevantly offered mitigation evidence in a            the death penalty should in fact receive it.” Id.
separate punishment-phase hearing.                         The Court recognized that “separate require-
                                                           ments” applied to each decision. Id. It ex-
   Neither can it be denied that the Court has             plained that the selection decision has properly
approved of state-court appellate review struc-            been made “when the jury can consider rele-
tures that analyze not only the jury’s guilt and           vant mitigating evidence of the character and
special-factor determinations, but its weighing            record of the defendant and the circumstances
of the mitigation evidence as well. See, e.g.,             of the crime.” Id.
Pulley v. Harris, 465 U.S. 37, 51-53 (1984).
In fact, the Court has occasionally used lan-                  It is the eligibility decision that, according
guage implying that states must review the                 to the Court, must be made with maximum
jury’s consideration of demonstrated mitigat-              transparency to “make rationally reviewable
ing factors.                                               the process for imposing a sentence of death.”
                                                           Id. at 973. “The selection decision, on the
   It cannot be gainsaid that meaningful                   other hand, requires individualized sentencing
   appellate review requires that the appel-               and must be expansive enough to accom-
   late court consider the defendant’s ac-                 modate relevant mitigating evidence so as to
   tual record. “What is important . . . is                assure an assessment of the defendant’s culpa-
   an individualized determination on the                  bility.” Id.
   basis of the character of the individual
   and the circumstances of the crime.”                        Because of this concern for expansiveness
   Zant v. Stephens, 462 U.S. 862, 879 . . .               in the selection decision, the Court held that
   (1983).
                                                              [o]nce the jury finds that the defendant
Parker v. Dugger, 498 U.S. 308, 321 (1991).                   falls within the legislatively defined cate-
                                                              gory of persons eligible for the death
   This passing phrase, however, lacks the                    penalty, the jury then is free to consider
force to withstand the much more explicit di-                 a myriad of factors to determine whether
rectives in Tuilaepa v. California, 512 U.S.                  death is the appropriate punishment. In-
967 (1994), in which the Court distinguished                  deed, the sentencer may be given unbri-
between a jury’s “eligibility decision,” in which             dled discretion in determining whether
                                                              the death penalty should be imposed af-
                                                              ter it has found that the defendant is a
   6
     (...continued)                                           member of the class made eligible for
position of capital sentences” and requiring that             that penalty.
juries be provided standards to guide them in their
“inevitable exercise of the power to determine             Id. at 979-80 (quotation marks, ellipses, and
which first-degree murderers shall live and which          internal citation information omitted). It is just
shall die”).

                                                      10
this narrowly cabined but unbridled discretion
to consider any mitigating factors submitted by
the defendants and weighed as the jury sees fit
that Texas has bestowed upon the jury. In so
doing, Texas followed Supreme Court instruc-
tions to the letter. No court could find that
Texas had acted contrary to federal law as
explained by the Supreme Court, and no bene-
fit will arise from further consideration of the
obvious.

   The application for a COA is DENIED.




                                                   11
