                                                                                United States Court of Appeals
                                                                                         Fifth Circuit
                                                                                       F I L E D
                                                  In the                              December 27, 2004
                         United States Court of Appeals                            Charles R. Fulbruge III
                                       for the Fifth Circuit                               Clerk
                                            _______________

                                              m 04-70006
                                            _______________



                                   SHANNON CHARLES THOMAS,

                                                              Petitioner-Appellant,

                                                 VERSUS

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

                                                              Respondent-Appellee.


                                  _________________________

                             Appeal from the United States District Court
                                 for the Southern District of Texas
                                          m H-03-CV-988
                                  _________________________



Before SMITH, DEMOSS, and                                 Shannon Thomas seeks a certificate of ap-
  STEWART, Circuit Judges.                             pealability (“COA”) from the denial of his
                                                       petition for a writ of habeas corpus pursuant
JERRY E. SMITH, Circuit Judge:*                        to 28 U.S.C. § 2254. Because Thomas cannot
                                                       make a substantial showing of the denial of a
                                                       federal constitutional right, we deny a COA.

   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                                              I.
termined that this opinion should not be published         On Christmas Eve 1993, Thomas and his
and is not precedent except under the limited cir-     friend Keith Clay entered the home of Roberto
cumstances set forth in 5TH CIR. R. 47.5.4.            Rios, a marihuana dealer. Thomas and Clay
robbed Rios, then murdered him by shooting              several photograph identification arrays and
him three times and stabbing him in the neck            one live line-up. Another witness testified that
with a pair of scissors. Thomas then went               he saw a car resembling Clay’s near the Rios
upstairs and executed Rios’s two children, ten          residence shortly before the murders.
year-old Maria and eleven year-old Victor, by
shooting each in the head through a pillow as               Thomas was convicted, and the jury an-
they lay side-by-side on the floor.                     swered the special issues in a manner requiring
                                                        the imposition of a death sentence. The Texas
    The murders remained unsolved for over a            Court of Criminal Appeals affirmed the con-
year, until the police received information from        viction and sentence on direct appeal. Thomas
Joseph “Boo” Jones, a friend of Clay and                v. State, No. 72,701 (Tex Crim. App. Mar. 31,
Thomas. After his arrest, Thomas gave the               1999). Thomas did not seek a writ of certio-
police two written statements. In the first, he         rari.
acknowledged purchasing narcotics from Rios
that day but denied any knowledge of the                    While his direct appeal was pending, Thom-
killings. In his second statement, Thomas               as sought state habeas relief, which was denied
asserted that Clay had acted alone in killing the       by the Court of Criminal Appeals. Ex Parte
Rios family after Thomas had left the resi-             Thomas, No. 51,306-01 (Tex. Crim. App.
dence.                                                  Mar. 20, 2002). Thomas then filed for a
                                                        federal writ of habeas corpus under § 2254,
   Thomas was indicted for the capital murder           raising six claims of error. The district court
of Victor Rios. At trial, no physical evidence          dismissed the claims on summary judgment
was presented to link him to the murders. He            and refused to grant a COA. Thomas v. Dret-
was inculpated, however, by an abundance of             ke, No. H-03-CV-988 (S.D. Tex. Dec. 10,
circumstantial evidence, including information          2003). Thomas now seeks a COA on two of
that he possessed a gun similar to the murder           his claims.
weapon. In addition, the state presented
testimony linking him to the robbery and                                        II.
murders. Three witnesses testified that Thom-               Our review on a request for a COA is high-
as had asked them to participate in robbing             ly circumscribed by statute. Pursuant to the
Rios; two of them stated that Thomas had                Anti-Terrorism and Effective Death Penalty
admitted the murders to them. One of the                Act of 1996 (“AEDPA”), to be entitled to re-
witnesses, Jones, agreed to tape record a               lief a petitioner must show that the state court
conversation with Thomas at the request of the          resolution of his case was either “contrary to,
police, in which Thomas made incriminating              or involved an unreasonable application of,
statements about the murders.                           clearly established federal law, as det ermined
                                                        by the Supreme Court of the United States” or
    Additionally, evidence put Thomas at the            “resulted in a decision that was based on an
scene of the crime, including the statement of          unreasonable determination of the facts in light
a postal worker, Earl Guidry, who saw two               of the evidence presented in the State court
men leaving the Rios home near the time of the
killings. Guidry tentatively identified Thomas
after undergoing hypnosis and participating in


                                                    2
proceeding.” 28 U.S.C. § 2254(d).1 This high            United States, 390 U.S. 377 (1968). Although
level of deference to state court proceedings           he expends much breath in analyzing the two-
“embodies the principles of federalism, comity,         prong test established under Simmons v. Unit-
and finality of judgments . . . .” Evans v.             ed States and its progeny, we focus on the
Cockrell, 285 F.3d 370, 374 (5th Cir. 2002).            analysis performed by the Court of Criminal
                                                        Appeals and the district court. Both courts -
                                                        concluded that even assuming arguendo that
   To grant a COA, however, we need not de-             the admission of the testimony was unconsti-
cide the ultimate merits of the underlying habe-        tutional, the error was harmless in light of the
as petition; we ask only whether the petitioner         overwhelming evidence corroborating the
has made “a substantial showing of the denial           content of the witnesses’ testimony.
of a constitutional right.” 28 U.S.C. 2253-
(c)(2). “A petitioner satisfies this standard by            A habeas petitioner has the burden of
demonstrating that jurists of reason could              demonstrating “actual prejudice” from the
disagree with the district court’s resolution of        alleged constitutional error. Brecht, 507 U.S.
his constitutional claim or that jurists could          at 637. Under Brecht, the appropriate harm-
conclude the issues presented are adequate to           less error st andard on collateral review is the
deserve encouragement to proceed further.”              test established by Kotteakos v. United States,
Miller-El v. Cockrell, 537 U.S. 322, 327                328 U.S. 750 (1946), under which there has to
(2003). That is, our duty is to determine not           be more than a reasonable possibility that it
whether Thomas is entitled to relief, but               contributed to the verdict; the error must have
whether the district court’s conclusion (that           had a “substantial effect or influence in deter-
the state court adjudication was not contrary           mining the verdict.” Woods v. Johnson, 75
to or an unreasonable application of federal            F.3d 1017, 1026 (5th Cir. 1996) (emphasis
law) is one about which jurists of reason could         added). The district court meticulously laid
disagree. Furthermore, other doctrines bridle           out how the other evidence presented by the
habeas relief, including the harmless error             state corroborated and was cumulative of both
doctrine. See Brecht v. Abrahamson, 507                 of the elements that Guidry’s in-court identifi-
U.S. 619, 637 (1993).                                   cation and testimony supported: (1) that
                                                        Thomas was at or near the Rios residence at
                     III.                               the established time of the murders; and (2) the
   Thomas petitions for a COA based on an               impeachment of Thomas’s statement that
argument that his constitutional rights were            claimed that he left the residence by himself
violated by the admission of Guidry’s in-court          before Clay did, implying that Clay acted alone
identification; he asserts that it was                  in murdering the family.
impermissibly tainted by suggestive pre-trial
identification procedures under Simmons v.                 First, although Guidry’s identification
                                                        placed Thomas at the crime scene, it was far
                                                        from the only evidence that did so. Beyond
   1
     See also Yarborough v. Gentry, 540 U.S. 1, 5       other circumstantial corroborating evidence,
(2003) (“Where, as here, the state court’s appli-       this element of the state’s case was most
cation of governing federal law is challenged, it       plainly demonstrated by Thomas’s own admis-
must be shown to be not only erroneous, but ob-         sionSSin his voluntary statement to the po-
jectively unreasonable.”).

                                                    3
liceSSthat he was present. Given the great              under Brecht.2
mass of particularly credible evidence sup-
porting this fact, we cannot conclude that                                      IV.
reasonable jurists could disagree as to the dis-           Thomas applies for a COA on the issue of
trict court’s finding that admitting the testi-         whether the state court violated his right to
mony was harmless for establishing this ele-            due process under the Fourteenth Amendment
ment.                                                   by failing to instruct the jury that, if given a life
                                                        sentence, he would be eligible for parole in
   Further, Guidry’s testimony, claiming that           forty years. At trial, the court forbade any
he observed Clay and Thomas leaving the Rios            reference to the potential for parole eligibility
residence together, refuted Thomas’s claim              that is available for prisoners serving life
that he “left home alone and waited in the car          sentences for capital murder in Texas. Alth-
after he bought some marijuana . . . [until]            ough Texas subsequently has allowed for jury
Clay came out of the home fifteen minutes               instructions regarding parole eligibility in
later wit h blood on his pants.” Thomas v.              capital murder cases,3 this was not the case at
State, No. 72,701, at 9 (Tex. Crim. App. Mar.           the time of Thomas’s trial. The jury was
31, 1999). As the district court articulated,           forced to consider the issue of his future dan-
the testimony of numerous witnesses also                gerousness without hearing testimony or ar-
undercut Thomas’s statement to the police and           gument regarding the possibility of his release
his claim that Clay acted alone in killing the          on parole if given a life sentence.
family while Thomas waited in the vehicle. No
less than three of Thomas’s own friends com-               Thomas contends it was error to keep the
petently testified that Thomas had confessed
the killings to them.
                                                           2
                                                              There has been some doubt expressed with
   Thomas attempts to meet his burden of es-            respect to whether the Brecht standard is still via-
tablishing that admitting the testimony sub-            ble after the enactment of AEDPA. See Tucker v.
jected him to actual prejudice, because all that        Johnson, 247 F.3d 617, 629 n.16 (5th Cir. 2001)
remained was unreliable “biased” testimony,             (citing Anderson v. Cowan, 227 F.3d 893, 898 n. 3
because it came from witnesses paid to testify          (7th Cir. 2000)). The parties have not briefed this
by the police or subject to cooperation deals to        issue, and we have employed the Brecht analysis in
obtain assistance in their own cases. This              cases decided pursuant to AEDPA. See, e.g.,
argument is unavailing; the bias of the remain-         Corwin v. Johnson, 150 F.3d 467, 476-77 (5th
ing witnesses was appropriately the subject of          Cir. 1998). We need not decide this question,
cross-examination and is customary grist for            because jurists of reason could not disagree with
the jury mill. We deny a COA regarding the              the district court’s resolution of the claim under the
admission of Guidry’s identification testimony,         Brecht standard, which we and others have recog-
                                                        nized would be a more generous standard for
because given the extensive mass of evidence
                                                        defendants than what would be applicable if it is in
that was present, reasonable jurists could not          fact superseded by AEDPA. See Tucker, 247 F.3d
disagree as to the district court’s sound finding       at 629 n. 16; see also Anderson, 277 F.3d at 898-
that the Court of Criminal Appeals was rea-             99 n.3.
sonable in its conclusion that it was harmless
                                                           3
                                                             See T EX. CODE CRIM PROC. art. 37,071,
                                                        § 2(e)(2)(B).

                                                    4
information about his parole eligibility from               procedure.5
the jury based on Simmons v. South Carolina,
512 U.S. 154, 169 (1994), where the Court                      Because there is no well-settled federal law
concluded that the possibility of a life sentence           supporting Thomas’s position, AEDPA pre-
without possibility of parole is relevant to a              cludes federal courts from granting relief,
jury’s determination of whether the defendant               because it cannot be said that the state court’s
poses future harm to society. To support his                application of federal law was objectively
position, Thomas points to language in                      unreasonable. Because binding precedent
Simmons v. South Carolina saying that “[i]n                 forecloses relief on this claim, jurists of reason
assessing future dangerousness, the actual                  could not disagree with the district court’s
duration of the defendant’s prison sentence is              decision to dismiss this claim, and therefore
indisputably relevant.” Id. at 163.                         the request for a COA is DENIED.6

   The Court, however, also specifically de-
lineated that the holding was inapplicable in
circumstances in states where parole was
available for capital offenses, as is the case in
Texas.4 The Court confirmed the limited
nature of the Simmons v. South Carolina
holding in Ramdass v. Angelone, 530 U.S.
156, 168 (2000), stating that “Simmons applies
only to instances where, as a legal matter,
there is no possibility of parole if the jury
decides the appropriate sentence is life in
prison.” Moreover, as the district court ob-
served, we have repeatedly rejected similar
claims seeking to extend Simmons v. South
Carolina to the Texas capital sentencing                       5
                                                                  See, e.g., Woods v. Cockrell, 307 F.3d 353,
                                                            360-62 (5th Cir. 2002); Johnson v. Cockrell, 306
                                                            F.3d 249, 256-57 (5th Cir. 2002); Collier v. Cock-
                                                            rell, 300 F.3d 577, 583-84 (5th Cir. 2000).
                                                               6
                                                                 Even if we were to agree that the Simmons v.
   4
     Simmons v. South Carolina, 512 U.S. at 168             South Carolina line of cases lends support to
(“In a State in which parole is available, how the          Thomas’s claims, relief would be barred by the
jury’s knowledge of parole availability will affect         non-retroactivity principle of Teague v. Lane, 489
the decision whether or not to impose the death             U.S. 288 (1989), which prevents a federal court
penalty is speculative, and we shall not lightly sec-       from creating new constitutional rules of criminal
ond-guess a decision whether or not to inform a             procedure on habeas review. See Wheat v. John-
jury of information regarding parole.”) (citing Cal-        son, 238 F.3d 357, 361 (5th Cir. 2001). We have
ifornia v. Ramos, 463 U.S. 992, 1013-14 (1983)).            repeatedly held that an extension of the scope of
The Simmons v. South Carolina Court, id. at 168             Simmons in the way requested by Thomas would
n.8, explicitly acknowledged that its holding did not       constitute a “new” rule under Teague. See id.; see
apply to Texas, because Texas does not offer a              also Tigner v. Cockrell, 264 F.3d 521, 525 (5th
life-without-parole sentencing alternative.                 Cir. 2001).

                                                        5
