     Case: 14-70036      Document: 00513395306         Page: 1    Date Filed: 02/25/2016




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

                                      No. 14-70036
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                          February 25, 2016

DANNY PAUL BIBLE,                                                           Lyle W. Cayce
                                                                                 Clerk
              Petitioner - Appellant

v.

WILLIAM STEPHENS, 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. 4:13-CV-200


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellant Danny Paul Bible (“Bible”) was convicted of capital
murder in Texas and sentenced to death. He now seeks a certificate of
appealability (“COA”) from the district court’s denial of habeas corpus relief.
Because Bible has failed to make a substantial showing of a denial of a
constitutional right, we deny his application for a COA.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                       No. 14-70036
                                              I.
      In June 2003, Bible was convicted of a capital murder that he committed
in 1979. He was sentenced to death, and the Texas Court of Criminal Appeals
affirmed his conviction in 2005. 1 The federal district court, on habeas review,
ably set out the relevant facts and procedural history as follows:
      On May 27, 1979, a man found the blood-covered body of 20–year–
      old Inez Deaton along the slope of a bayou in Houston, Texas. The
      victim was not wearing pants, and her underwear had been
      partially torn from her body. Her corpse bore signs of a violent
      attack. Someone had stabbed her eleven times with an ice pick.
      Bruises covered her head. Her partially clothed state, along with
      vaginal and anal trauma, indicated that someone had sexually
      assaulted her. The physical evidence suggested that her killer had
      dragged her corpse to the location and then positioned her body by
      spreading her legs apart.

      A few days before, Mrs. Deaton had stopped by the house next door
      to where Bible lived to use the telephone. Mrs. Deaton was a young
      mother and friend of Bible’s sister. The neighbor suggested that
      she use the telephone at Bible’s home. Another neighbor saw Mrs.
      Deaton enter Bible’s house. No one ever saw Mrs. Deaton alive
      again.

      Around the time of Mrs. Deaton’s funeral, Bible disappeared. Over
      the next two decades Bible lived a life of extreme violence. He fled
      to Montana and Wyoming where he entered into an abusive
      relationship with a woman. He committed aggravated kidnappings
      and theft in Montana. Returning to Texas, he committed rapes and
      murders. In 1984, he pleaded guilty to a separate murder. After
      his release on parole, Bible sexually assaulted his five young
      nieces.

      On November 7, 1998, Bible burst into Tera Robinson’s hotel room
      in Louisiana and violently sexually assaulted her. Subsequently,
      the police arrested him in Florida where he confessed to various
      prior crimes. On December 16, 1998, Bible gave the Louisiana
      police a statement admitting to the attack on Ms. Robinson,


      1   Bible v. State, 162 S.W.3d 234 (Tex. Crim. App. 2005).
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                            No. 14-70036
 although he claimed not to remember the actual sexual assault.
 During that questioning, he informed the Louisiana police that he
 had murdered Mrs. Deaton. The police in Louisiana contacted
 authorities in Texas.

 Bible then gave two additional tape-recorded statements on
 December 18. In the first, Bible confessed to having killed Mrs.
 Deaton. Bible remembered that he was watching television when
 Mrs. Deaton came to the door. He immediately grabbed her and
 forced her to have sex with him. She resisted and they struggled.
 Bible remembered strangling her and using a knife on her. He
 remembered putting her in the trunk of a car and dumping her
 body. However, Bible claimed that he could not remember the
 actual sexual assault or murder. In a second statement on the
 same day, Bible confessed to raping a woman in 1983 and then
 killing her and her baby. Later, Bible confessed to numerous
 sexual offenses against his five young nieces between 1996 and
 1998.

 In March 2001, the State of Texas charged Bible by indictment
 with capital murder for the aggravated rape and murder of Mrs.
 Deaton. Before trial, Bible’s attorneys moved to suppress his police
 statements. After holding a hearing, the trial court denied Bible’s
 motion to suppress.

 Testimony in the guilt/innocence phase of trial lasted only two
 days. Witnesses described the circumstances surrounding Mrs.
 Deaton’s disappearance. Family members testified about
 suspicious acts by Bible after Mrs. Deaton went missing. The
 State’s case, however, turned on what was called “the most
 compelling, most believable, best evidence you can ever have in a
 criminal case:” a confession. Other than Bible’s suspicious acts
 immediately after Mrs. Deaton’s disappearance, only his
 confession connected him to her killing. The jury found Bible guilty
 of capital murder.

 Jurors decided Bible’s sentence by answering three questions: (1)
 did Bible act deliberately, (2) would he constitute a future threat
 to society, and (3) did mitigating circumstances warrant that he
 receive a life sentence? Bible’s attorneys faced a herculean task in
 defending against a death sentence. The prosecution’s case
 portrayed Bible as an extremely violent man who showed little

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                           No. 14-70036
 hope of rehabilitation. Through his confessions and testimony from
 his victims, the prosecution recounted Bible’s decades of
 lawlessness. In an unremitting history of violence toward women
 and children, Bible had repeatedly committed sexual assaults and
 kidnappings. He admitted that he had raped his own stepdaughter
 while holding a knife to his wife’s throat. He had raped an eleven-
 year-old girl in Montana. He beat girlfriends. He had committed
 robberies and theft. He sexually assaulted his young nieces while
 on parole from a lengthy prison sentence. His behavior did not
 improve as he aged. Most importantly, the prosecution showed
 that Bible had killed at least four times.

 Against that background, trial counsel tried to show that Bible
 could control his behavior in a highly structured environment. The
 defense argued that Bible had only committed two minor
 infractions during seventeen years of prior incarceration. A
 minister testified that he had a spiritual encounter with Bible and
 that Bible had completed a religious education course.

 The jury answered Texas’ special issue questions in a manner
 requiring the imposition of a death sentence.

 Through appointed counsel, Bible challenged his conviction and
 sentence on automatic direct appeal to the Texas Court of Criminal
 Appeals. Appointed counsel raised sixteen points of error. On May
 4, 2005, the Court of Criminal Appeals affirmed in a published
 opinion. Bible v. State, 162 S.W.3d 234 (Tex. Crim. App. 2005).
 Bible’s conviction became final when the time for filing a petition
 for writ of certiorari to the United States Supreme Court expired
 on August 2, 2005.

 Under Texas law, state appellate and habeas review run
 concurrently. Through appointed habeas counsel, Bible filed a
 state application for a writ of habeas corpus on March 8, 2005.
 Bible’s state habeas application raised seven grounds for relief.
 Bible’s prior attorneys submitted affidavits responding to his
 claims of ineffective representation. The state habeas court signed
 the State’s proposed findings and conclusions without alteration.
 Based on the lower court’s order and its own independent review,
 the Court of Criminal Appeals denied habeas relief. Ex Parte



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                                         No. 14-70036
         Danny Paul Bible, WR–76,122–01, 2012 WL 243564 (Tex. Crim.
         App. Jan. 25, 2012) (unpublished). 2

         Bible then filed a federal petition for writ of habeas corpus in the United
States District Court for the Southern District of Texas, asserting eight
grounds for relief. 3 The district court denied his petition and refused to grant
a COA on any issue. 4 Bible now seeks a COA on two issues.
                                               II.
         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
governs this habeas proceeding. 5 Under 28 U.S.C. § 2253, a federal habeas
petitioner cannot appeal the district court’s denial of his petition without first
obtaining a COA, which requires the petitioner to make “a substantial showing
of the denial of a constitutional right.” 6 At the COA stage, unlike full appellate
review, “[w]e look to the District Court’s application of AEDPA to petitioner’s
constitutional claims and ask whether that resolution was debatable amongst
jurists of reason. This threshold inquiry does not require full consideration of
the factual or legal bases adduced in support of the claims. In fact, the statute
forbids it.” 7
         If a district court has rejected a claim on the merits, “the showing
required to satisfy § 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” 8 If the district court has
rejected a claim on procedural grounds, the petitioner must “show[], at least,



         2   Bible v. Stephens, No. 4:13-CV-200, 2014 WL 5500722, at *1-3 (S.D. Tex. Oct. 30,
2014).
         3 Id. at *3.
         4 Id. at *32.
         5 Trottie v. Stephens, 720 F.3d 231, 239 (5th Cir. 2013).
         6 28 U.S.C. § 2253(c)(2).
         7 Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003).
         8 Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000).

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                                      No. 14-70036
that jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural
ruling.” 9
       We evaluate the debatability of [the petitioner’s] constitutional
       claims against the backdrop of the AEDPA’s highly deferential
       standard. Under the AEDPA, a federal court may not grant habeas
       relief unless the petitioner has first exhausted state remedies with
       respect to the claim at issue. 28 U.S.C. § 2254(b). To prevail, the
       habeas petitioner must prove that the state court’s constitutional
       adjudication resulted in either 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 a decision that was based on an unreasonable
       determination of the facts in light of the evidence presented in the
       State court proceeding. § 2254(d)(1)–(2). . . . When ruling on a
       petition for a writ of habeas corpus, the federal district court must
       defer to the state court’s factual findings, Moody v. Quarterman,
       476 F.3d 260, 267–68 (5th Cir. 2007), and consider only the record
       that was before the state court, Cullen v. Pinholster, ––– U.S. ––,
       131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011). 10

       Finally, “[w]hile 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.’” 11
                                            III.
       Bible seeks a COA on two issues: (1) whether his death sentence violates
the Eighth Amendment prohibition against cruel and unusual punishment
because his current physical disabilities objectively render him no future
danger to anyone, and (2) whether his trial counsel was ineffective in failing to



       9 Id. (emphasis added).
       10 Garza v. Stephens, 738 F.3d 669, 673-74 (5th Cir. 2013).
       11 Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005) (quoting Hernandez v. Johnson,

213 F.3d 243, 248 (5th Cir. 2000)).
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                                      No. 14-70036
object to a physical demonstration of Bible’s November 7, 1998 rape by the
prosecutor during the punishment phase. No reasonable jurist would debate
either of these claims.
                                             A.
       For Bible’s first claim, he asserts that following his conviction and
sentence, the prison van transporting him to death row was involved in an
automobile collision that left both drivers dead and caused Bible to sustain
severe injuries. Among other medical problems, he claims to suffer from
permanent disabilities in the form of severe pain throughout his body, the
inability to lift his arms without support, severe headaches, regular blackouts,
and chronic exhaustion. 12 He argues that his debilitating physical problems
have caused him to be wheelchair bound and objectively render him no longer
a future danger to anyone and that executing him would therefore constitute
cruel and unusual punishment under the Eighth Amendment.
       Restated, Bible’s claim is that the Eighth Amendment forbids the
execution of an offender who, though physically capable of posing a future
danger at the time of trial and sentencing, becomes physically incapable of
posing a future danger after trial, even though that offender remains mentally
competent. Bible has pointed to no opinion by any court setting out such a rule
of constitutional law. As the federal district court, on habeas review, explained:
       Requiring a jury to predict an inmate’s future threat is a common
       feature in criminal sentencing. However, the Supreme Court has
       never held that a death-row inmate is entitled to another future
       dangerousness determination several years after his sentencing.




       12The State argues that Bible’s assertions regarding his physical health and prognosis
are essentially self-serving and do not establish whether he may, in fact, present a future
danger, but we need not reach that issue.
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                                     No. 14-70036
      This Court cannot grant relief on these claims without creating a
      “new rule” of constitutional law . . . . 13

We concur.
      Bible argues that his claim is merely an extension of principles set out
in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), and
Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986). We
disagree. Both of those cases concerned the offender’s mental capacity, not
physical capabilities, and their rationale is fundamentally different from the
reasoning put forward by Bible.
      In Roper, the Supreme Court held that the Eighth Amendment prohibits
the death penalty for offenders who were under the age of 18 when their crimes
were committed, based in part on the fact that juvenile offenders are less
mature and more irresponsible than adults; that they are “more vulnerable or
susceptible to negative influences and outside pressures, including peer
pressure”; and that “the character of a juvenile is not as well formed as that of
an adult” and their personality traits are “more transitory, less fixed.” 14 In
Ford, the Supreme Court held that the Eighth Amendment prohibits the death
penalty for an offender who becomes insane after sentencing, based in part on
the highly questionable “retributive value of executing a person who has no
comprehension of why he has been singled out and stripped of his fundamental
right to life” and “the natural abhorrence civilized societies feel at killing one
who has no capacity to come to grips with his own conscience or deity.” 15
      Bible has never argued that he lacked mental capacity at the time of his
offense or that he lacks mental capacity now. His claim rests entirely on his
diminished physical capabilities. Because no rule of constitutional law


      13 Bible v. Stephens, 2014 WL 5500722 at *10 (citations omitted, emphasis in original).
      14 Roper, 543 U.S. at 569-70.
      15 Ford, 477 U.S. at 409.

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                                          No. 14-70036
prohibits the death penalty under these circumstances, no reasonable jurist
would debate this issue. Accordingly, we deny a COA on this claim.
                                                 B.
       Next, Bible argues that his trial counsel was ineffective for failing to
object to the prosecutors’ physical demonstration of Bible’s 1998 rape of Tera
Robinson during the punishment phase of the trial. Under Strickland v.
Washington, 16 we apply a two-pronged test to claims of ineffective assistance
of counsel. First, the petitioner must “show that trial counsel’s representation
was deficient—that is, it ‘fell below an objective standard of reasonableness.’” 17
Second, the petitioner “must demonstrate prejudice: a ‘reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’” 18 AEDPA deference raises the bar for an ineffective-
assistance-of-counsel claim even higher:
       The pivotal question is whether the state court’s application of the
       Strickland standard was unreasonable. This is different from
       asking whether defense counsel’s performance fell below
       Strickland’s standard. Were that the inquiry, the analysis would
       be no different than if, for example, this Court were adjudicating a
       Strickland claim on direct review of a criminal conviction in a
       United States district court. Under AEDPA, though, it is a
       necessary premise that the two questions are different. For
       purposes of § 2254(d)(1), “an unreasonable application of federal
       law is different from an incorrect application of federal law.”
       [Williams v. Taylor, 529 U.S. 362, 410, 120 S. Ct. 1495, 146 L. Ed.
       2d 389 (2000)]. A state court must be granted a deference and
       latitude that are not in operation when the case involves review
       under the Strickland standard itself. 19




       16   466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
       17   Charles v. Stephens, 736 F.3d 380, 388 (5th Cir. 2013) (quoting Strickland, 466 U.S.
at 688).
       18   Id. (quoting Strickland, 466 U.S. at 694).
       19   Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 785, 178 L. Ed. 2d 624 (2011).
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                                     No. 14-70036
      Thus, under AEDPA, we may not grant federal habeas relief on a claim
which the state court has already determined to be meritless “so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” 20
      The federal district court examined the relevant facts and concluded that
Bible is not entitled to relief on his ineffective-assistance-of-counsel claim:
      During the punishment phase of trial, the State presented
      testimony and evidence concerning the sexual assault Bible
      committed that led to his arrest. In his police statement, Bible
      admitted that he broke into Tera Robinson’s Louisiana motel room,
      restrained her, and tried to stuff her into a duffle bag, but claimed
      that he did not specifically remember sexually assaulting her. The
      State played for the jury Bible’s audiotaped confession. When the
      State called Ms. Robinson to the stand, she testified that Bible

                forcibly pushed open her motel room door when she cracked
                it open after hearing a knock; that [Bible] grabbed her by the
                throat slammed her against the wall, and lifted her off the
                ground; that [Bible] threw her onto a bed, climbed on top of
                her, and pinned her down by straddling her and holding
                down her arms; that [Bible] ripped off her shirt and took off
                his pants and then straddled “her over her chest” and forced
                his penis into her mouth; that [Bible] “slid down” Robinson
                after forcing her to perform oral sex on him and then forced
                his penis into her vagina; that [Bible] tied Robinsons ankles
                and wrists after sexually assaulting her; and that [Bible]
                attempted to stuff her into a duffle bag.

      State Habeas Record at 407; Tr. Vol. 22 at 49–74.

      As Ms. Robinson testified, the two prosecutors acted out the
      assault. The prosecutors’ demonstration “comprised ten pages of
      Robinson’s thirty-eight pages of testimony.” State Habeas Record
      at 407. As Ms. Robinson described the attack, Ms. Siegler
      apparently lay down on the counsel table while Mr. Goodhart
      pinned her arms down with his knees, straddled her, and


      20  Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 158
L. Ed. 2d 938 (2004)).
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                             No. 14-70036
  otherwise positioned himself as Bible did. Later during Ms.
  Robinson’s testimony, Ms. Siegler replicated how she looked after
  Bible had tied her. Also, the prosecutors apparently also acted out
  Ms. Robinson’s description of how Bible tried to stuff her into a
  duffle bag.

  Trial counsel did not object to the in-court demonstration, though
  in his state habeas affidavit he said: “I wish I had[.]” State Habeas
  Record at 351. Even so, trial [counsel] did not think objecting
  would make any difference: “I doubt that the trial court would have
  sustained that objection and further doubt that the Court of
  Criminal Appeals would reverse a case based on that
  demonstration at a punishment hearing in a death penalty case.”
  State Habeas Record at 351.

  Bible claims that trial counsel provided ineffective representation
  by not objecting to the demonstration. Bible argues that “[t]he
  prosecutors’ dramatic reenactment had no purpose except to
  inflame the passions of the jury. It was wholly unnecessary to
  assist the jury in visualizing the scene, or ascertaining the
  calculated nature of Bible’s actions, the degree of force Bible used,
  or Bible’s physical mastery of victim.” (Docket Entry No. 5 at 61).
  Because the jury had already heard Bible’s confession to some of
  the events, and Ms. Robinson’s testimony filled in any gaps, Bible
  argues that “the reenactment was either so conspicuously
  prejudicial or of such magnitude as to fatally infect the trial and
  deprive the defendant of due process[.]” (Docket Entry No. 5 at 61).

  The state habeas court found no deficient performance by trial
  counsel. The state habeas court suggested that it would not have
  sustained any objection because the demonstration “logically
  assisted the jury in understanding and visualizing Robinson’s
  testimony concerning [Bible’s] actions, his degree of force, and
  Robinson’s physical positions and helplessness during the attack.”
  State Habeas Record at 408. In fact, the state habeas court
  concluded that the demonstration “was necessary to counter
  [Bible’s] attempt to minimize the amount of force he used during
  the assault and his self-serving claim that he did not remember
  the assault and had been drinking heavily[.]” State Habeas Record
  at 422. Also, the “in-court demonstration was necessary and
  admissible to show [Bible’s] calculated actions, his degree of force,
  and his physical mastery of Robinson.” State Habeas Record at
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                                     No. 14-70036
     422. Echoing the mechanics of Tex. R. Crim. Evid. 403, the state
     habeas court stated “the probative value of the reenactment of
     [Bible’s] rape of Robinson was not substantially outweighed by the
     danger of unfair prejudice, and any emotional and prejudicial
     aspects of the reenactment were substantially outweighed by the
     helpful aspects of the reenactment.” State Habeas Record at 422.

     On federal habeas review, this Court’s concern is not whether the
     prosecution’s dramatic reenactment was proper under state rules
     of procedure, consistent with proper courtroom decorum,
     permissible in federal court, or in keeping with the prosecutor’s
     solemn duty as officers of the court. This Court’s concern is
     whether the state court’s adjudication was unreasonable, which
     requires Bible to show “that there was an error well understood
     and comprehended in existing law beyond any possibility for
     fairminded disagreement.” Richter, 562 U.S. at ––––, 131 S. Ct. at
     786–87. Here, Bible had confessed to attacking Ms. Robinson, but
     stopped short of admitting that he had sexually assaulted her. Ms.
     Robinson provided detailed testimony that adequately allowed
     jurors to understand the violence and brutality associated with the
     rape. While the prosecutors’ theatrics possibly drew Bible’s assault
     into sharper focus, Bible makes a good argument that the jurors
     already had before them the essential features of the episode.

     Still, the state courts considered the evidentiary basis for Bible’s
     proposed objection and essentially found that any objection would
     have been overruled. Importantly, the prosecutors’ dramatization
     of the attack was superfluous and came before jurors in the midst
     of a highly prejudicial punishment phase. Jurors had to consider
     Bible’s life-long violence which involved repeated murders and
     sexual assaults. Given Bible’s unremitting violence, the state
     courts would not be unreasonable in finding no federal
     constitutional error in the prosecutors’ demonstrative actions.
     Bible, therefore, has not shown that the state court’s rejection of
     this claim was contrary to, or an unreasonable application of,
     federal law. See 28 U.S.C. § 2254(d)(1). 21

     Having examined the record, we conclude that the federal district court’s
summary of the facts is accurate, and we also conclude that its analysis is


     21   Bible v. Stephens, 2014 WL 5500722 at *15-17.
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                                 No. 14-70036
fundamentally correct under the standards set out above. Because Bible
cannot show that the state court unreasonably resolved his ineffective-
assistance-of-counsel claim relating to the prosecutors’ demonstration of
Bible’s 1998 rape, he cannot prevail on this claim under AEDPA’s deferential
standard. No reasonable jurist would debate this issue, and we therefore deny
a COA as to Bible’s ineffective-assistance-of-counsel claim.
                                      IV.
      Because all of Bible’s arguments lack merit, his request for a COA is
hereby DENIED.




                                      13
