                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                               January 4, 2006
                       FOR THE FIFTH CIRCUIT
                       _____________________               Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-70022
                       _____________________

PRESTON HUGHES, III,

                                               Petitioner - Appellant,

                                versus

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

                                           Respondent - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. 4:01-CV-4073
_________________________________________________________________

Before JOLLY, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

     Preston Hughes, III was convicted and sentenced to death for

the 1988 murders of fifteen-year-old Shandra Charles and her three-

year-old cousin, Marcell Taylor.         He requests a certificate of

appealability (“COA”) to appeal the district court’s denial of

federal habeas relief for sixteen claims.      The request is GRANTED,

in part, and DENIED, in part.




     *
      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this opinion should not be published and is not precedent except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.
                                    I

     At trial, the State presented evidence that Hughes stabbed

both of the victims in the neck and chest.      Shandra Charles lived

long enough to tell police that “Preston” had stabbed her after

trying to rape her.   The police officers went to a nearby apartment

complex.   The only person living there named “Preston” was Hughes.

He agreed to accompany the officers to the police station, where he

later gave two written statements admitting that he had stabbed

both victims.

     At the punishment phase, Tracy Heggar testified that Hughes

had raped her in 1985 when she was thirteen years old.              She

testified further that Hughes had threatened her with a gun in an

attempt to prevent her from testifying against him about the rape.

The State presented evidence that, at the time of the murders,

Hughes was serving two ten-year probated terms for the aggravated

sexual assault and aggravated assault of Heggar.       Six of Hughes’s

friends and his mother testified that he was a good-natured, non-

violent person.     Hughes testified at the guilt and punishment

phases of trial.

     The   Texas   Court   of   Criminal   Appeals   affirmed   Hughes’s

conviction and sentence on direct appeal.        Hughes v. State, 878

S.W.2d 142 (Tex. Crim. App. 1993), cert. denied, 517 U.S. 1152

(1994).    His first state habeas application was denied with a

written order.     Ex parte Hughes, No. 45,876-01 (Tex. Crim. App.

Sept. 13, 2000). His second state habeas application was dismissed

                                    2
as an abuse of the writ.         Ex parte Hughes, No. 45,876-02 (Tex.

Crim. App. Nov. 14, 2001).

     In an 82-page opinion, the district court denied Hughes’s

petition for federal habeas relief and denied a COA.             Hughes now

requests a COA from this court for eight claims.

                                       II

     To obtain a COA, Hughes must make “a substantial showing of

the denial of a constitutional right.”          28 U.S.C. § 2253(c)(1)(A).

To make such a showing, he must demonstrate that “jurists of reason

could   disagree   with   the    district      court’s   resolution   of   his

constitutional claims or that jurists could conclude the issues

presented   are    adequate     to   deserve    encouragement   to    proceed

further.”   Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).                In

making our decision whether to grant a COA, we conduct a “threshold

inquiry”, which consists of “an overview of the claims in the

habeas petition and a general assessment of their merits.”             Id. at

327, 336.   “While the nature of a capital case is not of itself

sufficient to warrant the issuance of a COA, in a death penalty

case any doubts as to whether a COA should issue must be resolved

in the petitioner’s favor.”          Ramirez v. Dretke, 398 F.3d 691, 694

(5th Cir. 2005) (internal quotations and citations omitted).




                                       3
                                    A

     Based on our limited, threshold inquiry and general assessment

of the merits of Hughes’s claims, we conclude that the following

claims present issues that are adequate to deserve encouragement to

proceed further:

     Claim 3:      Whether the jury instructions at the punishment

phase of the trial gave the jury a means for considering and giving

effect to Hughes’s mitigating evidence, and whether this claim is

procedurally barred.

     Claim   5:     Whether,   at   the   punishment   phase,   the   jury

improperly considered a prior conviction that was later overturned

on appeal.

     Claim 6:      Whether the prosecutor violated Hughes’s rights

under the Fourteenth Amendment by arguing at the close of the

punishment phase that Hughes’s counsel was wrong to cross-examine

Tracy Heggar, who testified as a witness for the State.

     Accordingly, we GRANT a COA for these claims.        If petitioner

Hughes wishes to file a supplemental brief with respect to the

merits of the claims for which a COA has been issued, he may do so

within thirty days of the date of this order.          The supplemental

brief should address only matters that have not already been

covered in the brief in support of the COA application.         The State

may file a response fifteen days thereafter.




                                    4
                                        B

     Hughes has failed to demonstrate that jurists of reason could

disagree with or find debatable the district court’s resolution of

the issues presented in the following claims, and we therefore DENY

his request for a COA for those claims, for the reasons set forth

below:

     Claim 1:    Whether the district court erred by holding that

many of Hughes’s claims were procedurally barred and/or barred by

Teague v. Lane, 489 U.S. 288 (1989).                 The district court noted

that Hughes had conceded that he raised most of his claims for the

first time in his second state habeas application, which the Texas

Court of Criminal Appeals had dismissed as an abuse of the writ.

The district court applied well-settled precedent to hold that the

Texas abuse of the writ doctrine provided an independent and

adequate state ground for the purpose of imposing a procedural bar.

It held that, although the changes in the law were external

factors, Hughes    had   failed    to       allege   how   the   government   had

interfered with his ability to discover and investigate his claims,

or that his claims were unavailable at the time he filed his direct

appeal or his first state habeas application.               The district court

held that Hughes did not fit within the fundamental miscarriage of

justice   exception   because     he    had    not   presented    any   evidence

establishing that he did not commit the crime for which he was

convicted or that he is otherwise actually innocent of the charges

against him.    The court also rejected each of the barred claims on

                                        5
the   merits    and,    therefore,   concluded   that   Hughes   had    not

established prejudice.      The district court’s application of Teague

and the procedural bar based on the Texas abuse of the writ

doctrine is not debatable.      We therefore DENY a COA for this claim.

      Claim 2:        Whether Hughes’s statements to the police were

obtained in violation of the Constitution because he was verbally

threatened, physically abused, and intoxicated. The district court

held that this claim is procedurally barred. Although Hughes filed

a written motion to suppress his confession, which was denied by

the trial court following a hearing, he did not challenge the

voluntariness of his confession on direct appeal.             Instead, he

argued that the confession was inadmissible as fruit of an illegal

arrest in violation of the Fourth and Fifth Amendments.          He raised

those same claims in his initial state habeas application.              The

district court stated that Hughes did not make any allegation or

argument that his statements were tainted by verbal threats,

physical abuse, or intoxication until his second state habeas

application, which was dismissed as an abuse of the writ.

      Alternatively, the district court held that this claim is

without merit.        It noted that the state trial court conducted a

hearing on Hughes’s motion to suppress and concluded that Hughes’s

statements     were    voluntary.    The   district   court   recited   the

following factual findings by the state trial court:             Hughes’s

assertion that his confession was coerced by threats or abuse was

not credible; Hughes’s demeanor did not reflect a person who would

                                     6
be easily intimidated into making a false confession; Hughes had

extensive experience with the criminal justice system; Hughes was

an expert in martial arts; Hughes was allowed to make several

private telephone calls after making his statements, but he did not

complain about threats or abuse to the persons he called; and

photographs taken of Hughes shortly after he was charged did not

show any evidence of physical abuse.       The district court held that

Hughes’s conclusory affidavit, unsupported by any other evidence,

was insufficient to undermine the detailed findings of fact made by

the state trial court.

      Finally, the district court held that any error was harmless

in the light of the other evidence of guilt.

      Although   the    district    court’s    harmless    error   analysis

erroneously refers to evidence that was not introduced until the

punishment phase of the trial, its conclusions that this claim is

procedurally barred or, alternatively, meritless in the light of

the   state   court’s   factual    findings,   are   not   debatable.   We

therefore DENY a COA for this claim.

      Claim 4:   Whether the evidence is insufficient to support the

jury’s finding that Hughes acted deliberately in killing the second

victim, three-year-old Marcell Taylor.         Hughes relies for support

on his statement to the police that he stabbed the little boy after

the little boy began crying and walked between Hughes and Shandra

Charles (the first victim).        He contends that this evidence shows

that he did not deliberately stab the second victim, but only

                                      7
stabbed him accidentally when the child wandered into the path of

his knife while he was stabbing the first victim.

     The district court held that this claim is procedurally barred

because Hughes raised it for the first time in his second state

habeas application, which was dismissed as an abuse of the writ.

Alternatively, the district court held that the claim failed on the

merits.   The district court noted that both of the victims were

stabbed in the chest and neck, perforating their carotid arteries

and jugular veins. The district court cited state law holding that

evidence that a person is armed and has repeatedly stabbed his

victim is proof that his actions were deliberate.      The district

court concluded that, based on the facts that both of the victims

suffered nearly identical wounds and were stabbed repeatedly, a

rational trier of fact could have found that Hughes had adequate

time to contemplate the effect of his actions on Marcell Taylor

during the course of the offense.      Reasonable jurists would not

find the district court’s decision debatable.   Accordingly, Hughes

is not entitled to a COA for this claim.

     Claim 6 (in part):   As stated earlier, we have granted a COA

for Hughes’s claim that the prosecutor violated his rights under

the Fourteenth Amendment by arguing at the close of the punishment

phase that Hughes’s counsel was wrong to cross-examine Tracy

Heggar, who testified for the State.     Hughes also requests a COA

for his claims that the prosecutor’s argument violated the Sixth

and Eighth Amendments.

                                 8
     The prosecutor argued that Heggar’s testimony “alone is enough

to put the needle in this man’s arm.         And for that little girl to

be brought down here and for [defense counsel] to put her on trial

again is not right.”      Defense counsel objected; the prosecutor

apologized; and the court overruled the objection.           The prosecutor

then said:    “They have done nothing wrong.           They’re trying to

protect their client.    It’s their job.       It doesn’t mean it’s the

right thing to do.”    Defense counsel objected again, and the trial

court sustained the objection and instructed the jury to disregard

the last remark of the prosecutor and not consider it for “any

purpose whatsoever”.

     On direct appeal, the Texas Court of Criminal Appeals held

that the argument was improper and that the trial court erred by

overruling the initial objection.         However, it concluded that the

error was cured by the prompt instruction to disregard the second

comment.

     The   district   court   held    that   Teague   bars   any   claim   of

prosecutorial misconduct under the Sixth and Eighth Amendments

because challenges to improper prosecutorial remarks are governed

by the Fourteenth Amendment.         The district court’s decision with

respect to the Sixth and Eighth Amendments is not debatable.               We

therefore DENY a COA for this claim insofar as it relies on the

Sixth and Eighth Amendments.

     Claim 7:     Whether Hughes’s conviction and sentence were

obtained in violation of his right to equal protection, because

                                      9
capital punishment is disproportionately imposed on members of his

race (African-American).          Hughes argues that the Supreme Court’s

decision in Bush v. Gore, 531 U.S. 98 (2000), provides a broader

interpretation       of   equal   protection      and   entitles    him   to    an

evidentiary procedure like the one described in Batson v. Kentucky,

476 U.S. 79 (1986), to allow him to determine whether impermissible

racially-based factors were considered by the individuals involved

in investigating, arresting, and prosecuting the case against him.

     The district court held that this claim is procedurally barred

because Hughes raised it for the first time in his second state

habeas application, which was dismissed as an abuse of the writ.

Alternatively, the district court rejected the claim on the merits

because Hughes had not presented any direct evidence that his

conviction was obtained as a result of racially discriminatory

practices of the type that might support an equal protection claim.

The court held that Bush v. Gore does not require an evidentiary

hearing to determine the intent of the police and prosecutors and

that, even if a Batson-type inquiry of the sort suggested by Hughes

were performed in this case, Hughes would not be entitled to relief

because there are race-neutral explanations for his arrest and

prosecution, and he cannot show that, but for his race, the police

would   not   have    investigated     him   as    a    suspect    or   that   the

prosecution would not have charged this case as a capital offense.

In the further alternative, the district court held that the rule

proposed by Hughes -- that Bush v. Gore affords a Batson-type

                                       10
challenge   to    determine    whether     the   individuals      involved   in

investigating,    arresting,    and    prosecuting     a   case    acted   with

discriminatory intent in seeking the death penalty -- is barred by

Teague.   The court rejected Hughes’s contention that his claim is

covered by the Teague exception for principles essential to a

concept of ordered liberty.

     Reasonable    jurists    would    not    find   the   district    court’s

rejection of this claim debatable.           Accordingly, we DENY a COA.

     Claim 8:      Whether Hughes is entitled to relief under the

Eighth and Fourteenth Amendments because there is new evidence that

makes it clear that he is no longer a danger to society.              The “new”

evidence Hughes offers in support of this claim is that he has been

a well-behaved prisoner on death row for over twelve years and has

reached an age where the rate of offense among the population of

males drops off dramatically.

     The district court held that this claim is procedurally barred

because it was raised for the first time in Hughes’s second state

habeas application, which was dismissed as an abuse of the writ.

Alternatively, the district court denied relief on the merits

because no federal authority supports the claim.               Moreover, the

district court observed that the evidence presented by Hughes,

although recent in time, does not qualify as “new”.                 The court

noted that Hughes and his mother and several other witnesses at the

punishment phase testified that Hughes would behave well in prison

if given a life sentence.      Therefore, the court held that the jury

                                      11
at the punishment phase was not precluded from considering the

possibility that Hughes might enjoy an unblemished disciplinary

record while on death row or the possibility that, with the passage

of   time,   his   propensity   to   engage   in   violent   behavior   might

diminish. In addition, the district court concluded that relief is

barred under Teague because the rule proposed by Hughes -- that

post hoc proof of good behavior in prison and a defendant’s

advanced age are sufficient reasons to set aside a jury verdict

based on its determination of evidence presented at trial that the

defendant poses a future danger to society -- is not dictated by

precedent existing at the time his conviction became final.              The

district court’s decision is not debatable.           Therefore, we DENY a

COA for this claim.

                                COA GRANTED in part and DENIED in part.




                                      12
