     Case: 18-70013      Document: 00514747927        Page: 1     Date Filed: 12/04/2018




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT

                                                                           United States Court of Appeals

                                     No. 18-70013
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                          December 4, 2018

ROBERT SPARKS,                                                               Lyle W. Cayce
                                                                                  Clerk
                    Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                    Respondent - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:12-CV-469


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
      Robert Sparks was convicted and sentenced to death for the 2007 murder
of his wife and two step-sons. Sparks filed a federal habeas petition pursuant
to 28 U.S.C. § 2254, asserting, inter alia, violations of his Eighth Amendment
and Due Process rights, his right to an impartial jury, and cumulative error.
After a thorough review, the district court denied the petition and did not
certify any questions for appellate review. Sparks now seeks a certificate of


      *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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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appealability (COA) from this court pursuant to 28 U.S.C. § 2253(c)(2). For the
following reasons, Sparks’s COA application is DENIED.
                              BACKGROUND
1. Factual
      Robert Sparks was convicted of stabbing his wife and 9- and 10-year-old
step-sons to death in September 2007. Sparks v. Texas, slip op. No. AP-76,099
(Tex. Crim. App. October 20, 2010). Following the murders, Sparks raped his
12- and 14-year-old step-daughters at gunpoint in the same room as two of the
bodies.   Id.   Sparks fled to his ex-girlfriend’s home immediately after
committing his crimes, at which point he called the police and confessed. He
then traveled from Dallas to Austin on a Greyhound bus, using a ticket
purchased under an alias.
      Sparks returned to Dallas a few days later and called the police again,
this time to ask if they had recovered audiocassette tapes he left in his home.
Sparks, slip op. No. AP-76,099, at 2-5. He told the police that the recordings
proved that his wife and step-sons were conspiring to poison him. The police
located the tapes, but they contained only gibberish. Sparks was arrested
shortly thereafter.
2. Procedural
      Sparks was charged and convicted of capital murder in state criminal
court, and sentenced to death in state criminal court, and an automatic direct
appeal to the Texas Court of Criminal Appeals followed. The Court of Criminal
Appeals affirmed Sparks’s conviction and sentence, Sparks v. Texas, slip op.
No. AP-76,099 (Tex. Crim. App. October 20, 2010), and the Supreme Court
denied certiorari, Sparks v. Texas, 131 S. Ct. 2152 (2011).    While Sparks’s
direct appeal was pending, he filed his state habeas petition. Ex Parte Sparks,
No. 76,786-01, 2011 WL 6293529 at *1 (Tex. Crim. App. Dec. 14, 2011). The
state court entered Findings of Fact and Conclusions of Law, which the Texas
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Court of Criminal Appeals adopted. Id. The Court of Criminal Appeals denied
relief, id., and the Supreme Court denied certiorari. 133 S. Ct. 526 (2012).
      Sparks then filed a federal habeas petition as well as a successive state
court petition. The federal court stayed and abated Sparks’s petition pending
the resolution of his state court petition.      The state court dismissed the
application as an abuse of the writ, and Sparks returned to federal court and
filed an amended petition seeking federal habeas relief.         After reviewing
Sparks’s petition, the district court denied relief. Sparks now appeals the
district court’s ruling and seeks a COA from this court.
                          STANDARD OF REVIEW
      Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a
state court prisoner must obtain a COA before appealing a federal district
court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). A COA is warranted
upon a “substantial showing of the denial of a constitutional right.”           Id.
§ 2253(c)(2). When a district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional claim, a
COA should issue only when the prisoner shows that reasonable jurists “would
find it debatable whether the petition states a valid claim of the denial of a
constitutional right . . . and whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604
(2000) (emphasis added).       The “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.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct.
1029, 1039 (2003). The question for the appellate court is whether “reasonable
jurists could debate whether (or, for that matter, agree that)” the district court
should have handled the issues differently.         Miller-El, 537 U.S. at 336,
123 S. Ct. at 1039. In cases involving the death penalty, “any doubts as to


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whether a COA should issue must be resolved in [the petitioner’s] favor.”
Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000) (citation omitted).
      AEDPA’s standard for habeas petitions from state court judgments is
highly deferential and demands that state court judgments “be given the
benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773, 130 S. Ct. 1855, 1862
(2010). To prevail, the petitioner must prove that the adjudication by the state
court “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States” or “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d). Under AEDPA, it is not
enough that a federal habeas court would reach a different conclusion than the
state court. Williams v. Taylor, 529 U.S. 362, 411, 120 S. Ct. 1495, 1522 (2000).
      This court reviews a district court’s denial of evidentiary hearings or
discovery for an abuse of discretion. Clark v. Johnson, 202 F.3d 760, 765 (5th
Cir. 2000).
                                 DISCUSSION
      Sparks advances several theories in support of his petition for a COA.
This court examines each in turn.
1.    Eighth Amendment and Due Process Objections
      Sparks’s first objection is that his Eighth Amendment and Due Process
rights were violated by materially inaccurate testimony of the state’s expert
witness during sentencing. Sparks argues that the state’s expert witness,
A.P. Merillat, “falsely told the jury that Sparks would initially be classified as
a G-3 prisoner when arriving to prison, in spite of his past record or any other
factors.” This error in testimony, Sparks contends, led jurors to impose the
death penalty based on unfounded fears that Sparks would be violent when
incarcerated among the general prison population if he received life without
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parole. The testimony in question was inaccurate as first stated, but, as the
district court noted, the inaccuracy of Merillat’s testimony was corrected by
Merillat during cross-examination by Sparks’s defense attorney.           Sparks
argues that the correction was insufficient and the jury was nevertheless left
with a false impression due to Merillat’s ambiguous further comment in cross-
examination.
      Because Sparks failed to raise this claim on direct appeal or in his initial
state habeas proceedings, the federal court stayed its consideration of the claim
while Sparks raised it in subsequent state habeas proceedings. The state court
dismissed Sparks’s subsequent application as an abuse of the writ without
addressing the merits of his claim. The district court then held that Sparks’s
claim was procedurally barred from federal review and, alternatively, that it
lacked merit because Sparks failed to prove that Merillat’s testimony was
materially false. The district court rejected Sparks’s request for a cause and
prejudice exception to his procedural default for substantially the same
reasons that the claim itself was without merit.
      Sparks argues here that his claim for a due process violation and
suppression     of    evidence     violative    of    Brady     v.    Maryland,
373 U.S. 83, 83 S. Ct. 1194 (1963), satisfies the cause and prejudice standard
to overcome the procedural bar. Because the merits analysis of Sparks’s false
testimony claim largely parallels the “cause” threshold he must clear, it is
permissible to consolidate both issues into a single inquiry. See Banks v.
Dretke, 540 U.S. 668, 686, 124 S. Ct. 1256, 1269 (2004).
      “A state prisoner may overcome the prohibition on reviewing
procedurally defaulted claims if he can show cause to excuse his failure to
comply with the state procedural rule and actual prejudice resulting from the
alleged constitutional violation.” Davila v. Davis, 137 S. Ct. 2058, 2064-65
(2017) (internal quotation marks and citation omitted). To establish “cause,”
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the prisoner “must show that that some objective factor external to the defense
impeded counsel’s efforts to comply with the State’s procedural rule.” Id. at
2065 (internal quotation marks and citation omitted).          A factor is only
considered external to a prisoner’s defense “if it cannot fairly be attributed to
the prisoner.” Id. (internal quotation marks and citation omitted).
      Here, Sparks’s claim centers around the allegedly-false testimony of the
state’s expert witness. Parsing the testimony for signs that the jury may have
been confused or misinformed is unnecessary in this case, however, because it
is undisputed that all parties were aware of Merillat’s testimony—the alleged
“cause” in this case—while it was happening.         Indeed, Sparks’s defense
attorney focused on correcting Merillat’s testimony during his cross
examination. To the extent that the testimony may have been inaccurate,
therefore, Sparks can hardly claim that he was unaware of its inaccuracy.
Thus, because there is ample evidence that Sparks was aware of the allegedly-
false testimony, Sparks cannot show that his failure to raise the issue at the
state level was caused by some external factor that could not fairly be
attributed to him. As such, reasonable jurists could not debate the district
court’s refusal to grant Sparks a cause-and-prejudice exception to surmount
the procedural bar, and no COA is warranted on this issue.
2.    Evidentiary Hearing and Discovery Objections
      From the foregoing discussion, it follows that no COA should be granted
on the district court’s refusal to order discovery and an evidentiary hearing on
the alleged falsity of Merillat’s testimony. Of course, a district court has
discretion to order an evidentiary hearing on a state habeas case only if it is
not barred from doing so by 28 U.S.C. § 2254(e)(2).       Schiro v. Landrigan,
550 U.S. 465, 468, 127 S. Ct. 1933, 1937 (2007). Although the claims asserted
by Sparks in this connection might, if substantiated, satisfy a portion of that
provision, Sparks did not attempt to prove “by clear and convincing evidence
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that but for the constitutional error[s], no reasonable factfinder” would have
sentenced him to death. Section 2254(e)(2)(B).
      Sparks also requested leave to subpoena the files of the Dallas County
District Attorney’s office to gather information to support his Merillat claim.
A habeas petitioner may obtain leave to conduct discovery when he provides
the court with “specific allegations” and there is “reason to believe that the
petitioner may, if the facts are fully developed, be able to demonstrate that he
is . . . entitled to relief.” Bracy v. Gramley, 520 U.S. 899, 908-09, 117 S. Ct.
1793, 1799 (1997) (internal quotation marks and citation omitted). In other
words, a petitioner seeking to conduct discovery must make a prima facie case
that discovery is warranted. See Murphy v. Johnson, 205 F.3d 809, 814 (5th
Cir. 2000)(citing Rule 6 of the Federal Rules governing Section 2254 cases).
      Sparks’s claim revolves entirely around the jury’s possible misperception
of Merillat’s testimony during the punishment stage of his trial. As stated
above, there is not ground for debating procedural default or the underlying
claim that Merillat’s testimony was false. Sparks does not explain how the
files he requested might support his claim that Merillat’s testimony—all of
which is contained in the record—violated his constitutional rights. “Mere
speculation that some exculpatory material may have been withheld is
unlikely to establish good cause for a discovery request on collateral review.”
Strickler v. Greene, 527 U.S. 263, 286, 119 S. Ct. 1936, 1950-51 (1999).
Sparks’s discovery request was based upon mere speculation.
      Reasonable jurists could not debate that the district court did not abuse
its discretion by denying the subpoena request or refusing an evidentiary
hearing.
3.    Right to an Impartial Jury
      Sparks next asserts that his right to an impartial jury was violated. He
presents several reasons for this assertion, laid out in two separate claims.
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Sparks’s first claim is that the necktie worn by the bailiff at his sentencing
unfairly prejudiced the jury against him because it was emblazoned with a
large, white syringe. The bailiff admitted that the purpose of the tie was to
signal his support for the death penalty. Specifically, on request of defense
counsel to the court, the bailiff took measures to partially conceal the tie from
the view of jurors, and Sparks could not prove that a single juror saw the tie,
much less was influenced by seeing it. The district court dismissed the claim,
holding that the state court’s determination of the facts, after a hearing at
which several witnesses testified, was not unreasonable.               28 U.S.C.
§ 2254(d)(2).
      The Supreme Court has held that a juror is exposed to an external
influence when he receives information that has not been introduced into
evidence. Tanner v. United States, 483 U.S. 107, 117, 107 S. Ct. 2739, 2746
(1987). When allegations of improper influence arise in the habeas context, as
opposed to direct appeal, this court reviews them under the “substantial and
injurious effect” standard set forth by the Supreme Court in Brecht v.
Adamson. See Oliver v. Quarterman, 541 F.3d 329, 341 (5th Cir. 2008) (citing
Brecht v. Adamson, 507 U.S. 619, 637-38, 113 S. Ct. 1710, 1722 (1993)).
      After an evidentiary hearing in Sparks’s state habeas proceedings, the
state court concluded that the tie was partially obstructed from view and that
Sparks had not proven that any jurors saw the tie. The district court deferred
to the state court’s factual determinations—as prescribed by AEDPA—and
rejected Sparks’s claim. The district court’s determinations under AEDPA and
governing law are not reasonably debatable on this issue.
      Sparks also alleges that he was denied his right to an impartial jury trial
by audience disruptions. Sparks argues that “repeated instances of audience
disruptions” improperly influenced the jury during the sentencing phase,


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including one instance in which the father of one of Sparks’s victims charged
at Sparks while wearing a shirt displaying a photo of his deceased son.
      The district court denied relief, ruling that the state court’s decision to
continue the sentencing phase after audience disruptions was not contrary to
clearly-established law as defined by the Supreme Court. Sparks appeals that
decision but cites no case in which the Supreme Court has held that disruptive
conduct by spectators requires a mistrial or any other judicial act. In fact, as
the district court noted, the Court explicitly stated that it has never addressed
the issue. Sparks v. Davis, No. 3:12-CV-469-N, 2018 WL 1509205, at *9 (N.D.
Tex. Mar. 27, 2018) (citing Carey v. Musladin, 549 U.S. 70, 76, 127 S. Ct. 649,
653 (2006) (“This Court has never addressed a claim that such private-actor
courtroom conduct was so inherently prejudicial that it deprived the defendant
of a fair trial.”)). Therefore, the district court’s determination that the state
courts did not unreasonably apply the law under Section 2254(d)(1) is not itself
reasonably debatable.
      Nor is Sparks’s claim to relief under Section 2254(d)(2) for spectator
misconduct, which was rejected by the district court, reasonably debatable.
Sparks’s brief includes conclusory statements alleging that the state court’s
decision was “based on an unreasonable determination of the facts in light of
the evidence,” but it does not specify any meaningful facts or evidence that
render the district court’s determination unreasonable.
      In sum, Sparks is not entitled to a COA for either claim.
4.    Cumulative Error
      Sparks also raises an objection predicated on the theory that the
cumulative effect of the image on the bailiff’s tie and the outbursts from the
audience created a “mob domination” atmosphere that deprived him of his




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right to an impartial jury.     The district court held this claim to be both
meritless and procedurally defaulted.
       Sparks cites a pre-AEDPA case, Derden v. McNeel, 978 F.2d 1453 (5th
Cir. 1992) (en banc), as support for his contention that the district court erred
in its ruling. With regard to exhaustion of remedies, however, the post-AEDPA
controlling precedent in this court is Nickelson v. Stephens, 803 F.3d 748 (5th
Cir. 2015). Nickelson held that cumulative error claims not presented to the
state courts are barred as unexhausted. 803 F.3d at 753. Because Sparks
failed to raise this claim in state court proceedings, the district court held that
the claim is procedurally barred.
       The district court alternatively held that Sparks’s cumulative error
argument was meritless. Sparks does not even mention this holding on appeal.
He has failed to show that the district court’s decision on this issue was
debatable.
5.     Objection to Texas’s Capital Sentencing Scheme
       Finally, Sparks challenges the constitutional validity of Texas’s capital
sentencing scheme under Apprendi. Sparks argues that the state’s sentencing
scheme is unconstitutional because the jury was not required to conclude
beyond a reasonable doubt that no mitigating factors existed to warrant a life
sentence instead of death. This claim is both factually inaccurate in this
instance and is also foreclosed by circuit precedent. The jury did indeed
conclude beyond a reasonable doubt that no mitigating factors existed in
Sparks’s case. Furthermore, this court has already held that “[n]o Supreme
Court or Circuit precedent constitutionally requires that Texas’s mitigation
special issue be assigned a burden of proof.” Rowell v. Dretke, 398 F.3d 370,
375-77 (5th Cir. 2005).
       Sparks argues that Hurst v. Florida, 136 S. Ct. 616, 622 (2016), now
requires this court to apply Apprendi to Texas’s capital sentencing law. This
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court has consistently rejected that claim. See, e.g., Garcia v. Davis, 704 F.
App’x 316, 324 (5th Cir. 2017). Thus, because Rowell remains controlling
precedent in this court, and Rowell upheld the validity of Texas’s capital
sentencing scheme, Sparks’s challenge to Texas’s capital sentencing scheme is
foreclosed by circuit precedent. The district court’s ruling is not reasonably
debatable.
                              CONCLUSION
      For the foregoing reasons, the Petitioner’s COA request is DENIED.




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