     Case: 16-70014    Document: 00513968613     Page: 1   Date Filed: 04/26/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                  No. 16-70014                        FILED
                                                                  April 26, 2017

JOSEPH ANDREW PRYSTASH,                                          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 Southern District of Texas


Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Two decades after being sentenced to death for being the middleman in
a murder-for-hire, Joseph Andrew Prystash seeks a certificate of appealability
to appeal the district court’s denial of his petition for a writ of habeas corpus.
He asks us to certify the following questions: (1) whether there was cause for
the procedural default of his Batson claim; (2) whether the State’s withholding
of evidence about the involuntariness of a codefendant’s confession established
a Brady violation; (3) whether the trial court violated his right to present
mitigation evidence at sentencing when it limited expert testimony; (4)
whether the introduction of evidence of unadjudicated offenses at sentencing
    Case: 16-70014     Document: 00513968613     Page: 2   Date Filed: 04/26/2017



                                  No. 16-70014
violated the Eighth Amendment; and (5) whether the state court’s application
of the invited error doctrine was not an adequate procedural bar against his
claim that he was unconstitutionally sentenced to death without an anti-
parties jury instruction.
                                       I.
                                       A.
      In November 1994, Farah Fratta was shot and killed exiting a vehicle in
her garage. Suspicion immediately focused on her husband, Robert Fratta,
who was a local police officer. The Frattas had been involved in a contentious
divorce, with a child custody hearing set for the end of that month. The night
of the murder, Robert Fratta was at church with his children. Phone records
and witness testimony showed that, while at church that evening, he made
several calls to a mobile phone number belonging to Mary Gipp. Gipp was the
girlfriend of petitioner Joseph Prystash.
      Detective George Roberts later interviewed Gipp.           She recounted
Prystash saying he had been hired by Robert to kill Farah and that he had
then made a deal with Howard Guidry to shoot Farah. By this time, Guidry
was in jail on another charge. Roberts and another detective, Jim Hoffman,
then questioned Guidry about the murder. See Guidry v. Dretke, 429 F.3d 154,
155 (5th Cir. 2005).        When Guidry requested an attorney, they ceased
questioning him, but later returned and lied to him.        They said that his
attorney had given permission for him to speak with them. Id. In response to
this falsehood, Guidry confessed to shooting Farah and described how he had
been hired by Robert, through Prystash, to commit the crime. Id. In Guidry’s
federal habeas case, we held that the police obtained his confession unlawfully
and vacated his conviction. Id. at 157.
      Using a warrant acquired with an affidavit by Sergeant Danny
Billingsley describing Gipp’s statements and Guidry’s confession, the police
                                       2
    Case: 16-70014    Document: 00513968613     Page: 3    Date Filed: 04/26/2017



                                 No. 16-70014
arrested Prystash. They then questioned him about the killing. After Prystash
disclaimed all knowledge and responsibility, the officers released him from
custody.
      Billingsley drove Prystash back to his car.         On the way, Prystash
confessed that he had received a gun and instructions from Robert, solicited
Guidry to shoot Farah, and drove Guidry to and from Farah’s home.
Billingsley told Prystash to come to the police station the next day so he could
give a formal statement, and when he did not appear, the police arrested him
again.     While in custody, he signed a written statement admitting to
participating in Farah’s murder.
                                      B.
      Prystash’s trial began in the summer of 1996. During voir dire, the State
used its peremptory strikes to remove all five of the black venire members who
were questioned. Prystash’s counsel objected that “every black panelist was
struck” from the venire. Counsel said, “especially we are calling to the Court’s
attention of the strike of juror Ms. Merchant . . . .” That resulted in a Batson
inquiry for the Merchant strike during which the court asked the prosecutor to
provide a race neutral justification for that strike. The court credited the
prosecutor’s explanation. Defense counsel did not ask for that process for the
other four struck black jurors. When the court asked defense counsel if there
was anything else that needed to be done for the record, the answer was, “I
don’t think so.”
      During the trial, the prosecution introduced Prystash’s written
confession. In addition, Billingsley testified to the incriminating statements
made by Prystash while he was driving him home.
      Gipp also testified.   She described discussions about killing Farah
between Prystash and Robert Fratta in the months leading up to the murder.
She also stated that Robert gave Prystash a gun. Gipp explained that Prystash
                                       3
    Case: 16-70014      Document: 00513968613      Page: 4    Date Filed: 04/26/2017



                                   No. 16-70014
had told her about how the killing would take place, about hiring Guidry, and
what rewards he and Guidry would receive.              Gipp further incriminated
Prystash by testifying that he and Guidry left home on the night of the killing
dressed in black. She said that Prystash returned a few hours later and
emptied the cartridges from a gun, telling her that Farah had been killed and
describing how the men had carried out the shooting. According to Gipp,
Prystash then left home again to meet Fratta.
      In addition to Prystash’s statements and Gipp’s testimony, the jury also
heard Guidry’s confession. While cross-examining Detective Roberts about
Prystash’s arrest, Prystash’s trial counsel introduced the warrant for his arrest
into evidence in order to show that the detective had not complied with its
order to bring him before the issuing judge but instead had held and questioned
him irregularly 1 before releasing him with Billingsley.               Later, while
questioning Billingsley about the circumstances of the arrest, the State asked
him to read from the affidavit supporting the warrant, which recounted at
length Guidry’s confession implicating Prystash.
      The jury convicted Prystash of capital murder. During the sentencing
phase that followed, the State introduced evidence of Prystash’s extensive
criminal record, including an arrest for attempted murder. It also offered
evidence of his bad character.       Two of his ex-wives testified that he was
remorseless, selfish, angry, manipulative, and lacked compunctions of
conscience. In response, the defense offered the testimony of family members
who described Prystash’s harsh upbringing, including his mother’s alcoholism.
The defense also called two volunteer religious leaders who worked with




      1Trial counsel at one point insinuated that the officers never read Prystash his
Miranda rights.
                                          4
    Case: 16-70014      Document: 00513968613   Page: 5   Date Filed: 04/26/2017



                                 No. 16-70014
Prystash while he was in Harris County jail. They agreed that Prystash was
not a danger to others and spoke of his honesty and piety.
      Lastly, the defense called psychologist Walter Quijano. Quijano testified
that Prystash would not be a continuing threat to guards or inmates if sent to
prison. The defense wanted Quijano to testify about how Prystash would be
classified and grouped with other inmates while incarcerated, but the trial
court prohibited the defense from eliciting that testimony before the jury
because it found it was speculative.
      The jury sentenced Prystash to death.
                                       C.
      Prystash appealed to the Texas Court of Criminal Appeals. Among other
things, he argued that the trial court had erred by not submitting to the jury a
statutory special issue at sentencing on the responsibility of one found guilty
of capital murder as a party to the crime rather than as the shooter. See
Prystash v. State, 3 S.W.3d 522, 530–32 (Tex. Crim. App. 1999). At trial
Prystash had asked that the instruction not be given, but the Court of Criminal
Appeals had previously held that the doctrine of invited error, which generally
holds that a party cannot complain of trial errors it induced, could not excuse
omission of a similar special issue instruction. Id. at 529–32 (discussing Powell
v. State, 897 S.W.2d 307 (Tex. Crim. App. 1994)). In Prystash’s case, the court
overruled itself, rejecting the challenge to the omission using the invited error
doctrine. Id. at 532.
      After losing his direct appeal, Prystash sought postconviction relief in
the Texas courts. After that proved unsuccessful, he filed his federal petition.
The district court recognized that some of his claims had not been raised in
state court. It thus stayed the federal proceedings so that Prystash could
remedy this problem with a new state habeas petition. Because this was a
successive petition, the Court of Criminal Appeals only allowed one of
                                       5
    Case: 16-70014    Document: 00513968613      Page: 6   Date Filed: 04/26/2017



                                 No. 16-70014
Prystash’s claims, corresponding to his present Brady claim, to proceed. Ex
parte Prystash, 2008 WL 5245551, at *1 (Tex. Crim. App. Dec. 17, 2008). That
claim, which alleged that the State suppressed evidence about the
unlawfulness of Guidry’s confession, was rejected on the merits as discussed
further below.
      Prystash then returned to federal court, where he unsuccessfully
prosecuted his amended petition.        The district court analyzed each of
Prystash’s twelve claims in detail.        It refused to grant a certificate of
appealability on any issues. Prystash now asks us to grant one, but has
narrowed that request to the five questions listed at the outset.
                                       II.
      Under the Antiterrorism and Effective Death Penalty Act, a certificate
of appealability (COA) must issue before a habeas petitioner can appeal the
district court’s refusal to grant the writ. 28 U.S.C. § 2253(c)(1)(A). We will
issue a COA upon a “substantial showing of the denial of a constitutional
right.” Id. § 2253(c)(2). Prystash will meet this standard if he shows that
“reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322,
338 (2003) (internal quotations and citation omitted); see also Buck v. Davis,
137 S. Ct. 759, 773 (2017).     If the district court found that there was a
procedural obstacle to habeas relief, we will likewise grant a COA if “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.”
Gonzalez v. Thaler, 565 U.S. 134, 140–41 (2012) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)) (internal quotations omitted). “Where the petitioner
faces the death penalty, ‘any doubts as to whether a COA should issue must be


                                       6
    Case: 16-70014    Document: 00513968613     Page: 7   Date Filed: 04/26/2017



                                 No. 16-70014
resolved’ in the petitioner’s favor.” Allen v. Stephens, 805 F.3d 617, 625 (5th
Cir. 2015) (quoting Medellin v. Dretke, 371 F.3d 270, 275 (5th Cir. 2004)).
      In assessing whether the district court’s rejection of Prystash’s claims is
debatable, we consider them under the deference AEDPA mandates federal
courts show their state peers. A federal court should not grant habeas relief
unless the petitioner has exhausted the remedies available in state court for
reviewing the claim. 28 U.S.C. § 2254(b). When the state court has considered
and rejected the merits of the claim, a federal court can only grant relief when
the state judgment “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). A federal court
must assume the state court’s determination of the facts is correct unless the
petitioner “rebut[s] the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).
                                       A.
      Prystash argued to the district court that his conviction should be
vacated because the prosecution discriminated against black prospective
jurors. See Batson v. Kentucky, 476 U.S. 79 (1986). Although Prystash is not
black, he may challenge the exclusion of these jurors. Powers v. Ohio, 499 U.S.
400, 406–11 (1991). The district court held that this claim was procedurally
barred because Prystash had not raised it in state court until his successive
state petition, at which time the Texas Court of Criminal Appeals rejected it
for not being raised earlier. See Maples v. Thomas, 565 U.S. 266, 280 (2012).
Prystash acknowledges that in order to obtain relief on this ground he must
show cause to excuse the procedural default in state court. See Coleman v.
Thompson, 501 U.S. 722, 750 (1991).
                                       7
     Case: 16-70014        Document: 00513968613          Page: 8     Date Filed: 04/26/2017



                                        No. 16-70014
       In the district court, Prystash tried using Martinez v. Ryan, 566 U.S. 1
(2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013), to excuse the default. In
Martinez, the petitioner’s claim of ineffective assistance of counsel at trial was
procedurally barred based on the rejection of that claim in his second state
habeas petition for having failed to raise the claim in his first state habeas
petition. 566 U.S. at 7–8. The Supreme Court held that Martinez could excuse
this default by showing that his initial state habeas counsel had been
ineffective, because Arizona law does not allow a claim of ineffective assistance
of counsel to be brought until the postconviction stage (given the need for
factual development not often available on direct appeal). 566 U.S. at 17. In
Trevino, the Supreme Court extended Martinez to habeas petitioners in Texas
where the law does not bar bringing ineffective assistance claims on direct
appeal, but in practice, meaningful review of such claims is confined to
collateral review. Trevino, 133 S. Ct. at 1921.
       Martinez thus created an exception to the general rule, which provides
that the ineffectiveness of a petitioner’s habeas attorney is not cause to excuse
a procedural default because there is no constitutional right to representation
at that stage. Coleman, 501 U.S. at 752–53. As the district court here noted,
however, the Supreme Court insisted this was a “‘narrow exception’ that
applies only with respect to ‘cause for a prisoner’s procedural default of a claim
of ineffective assistance at trial.’” 2 Prystash v. Stephens, 2016 WL 1069680, at



       2 We note that the Supreme Court is currently considering whether Martinez/Trevino
applies to a petitioner citing ineffective assistance of habeas counsel as cause for default of a
claim of ineffective assistance of counsel on direct appeal (as opposed to the trial-based claim
at issue in Martinez and Trevino). See Davila v. Davis, 137 S. Ct. 810 (2017). But even if the
Supreme Court reverses our ruling in Davila, that would not help Prystash with his COA
application. Although Prystash did include ineffective assistance of both trial and appellate
counsel among the dozen claims raised in the district court (the court rejected them as both
without merit and procedurally defaulted), he does not seek a COA related to any
freestanding claim of ineffective assistance of counsel.
                                               8
     Case: 16-70014       Document: 00513968613          Page: 9     Date Filed: 04/26/2017



                                       No. 16-70014
*24 (S.D. Tex. Mar. 17, 2016) (quoting Martinez, 132 S. Ct. at 1315).
Martinez/Trevino is so limited because of the nature of ineffective assistance
claims, which some states bar from being asserted on direct appeal and other
states are reluctant to allow on direct appeal. In contrast, most other claims
of trial error (certainly Batson violations among them) can be asserted on direct
appeal, 3 and it has long been the case that when such claims are procedurally
defaulted because not asserted on direct appeal, the ineffectiveness of
appellate counsel may excuse that default. See, e.g., United States v. Guerra,
94 F.3d 989, 993–94 (5th Cir. 1996); United States v. Price, 959 F.2d 1297, 1301
(5th Cir. 1992). There is no need for Martinez/Trevino to come into play for
such claims that can be brought on direct appeal. Because the reasoning
underlying Martinez/Trevino does not extend to claims that can generally be
brought on direct appeal and Prystash cites no caselaw at any level adopting
such an extension, the district court’s rejection of Martinez/Trevino as cause
for the defaulted Batson claim is not debatable. 4 Cf. Hunton v. Sinclair, 732
F.3d 1124, 1127 (9th Cir. 2013), cert. denied, 134 S. Ct. 1771 (2014) (refusing
to apply Martinez and allow ineffective assistance of state habeas counsel to
excuse default of a Brady claim). 5



       3  See, e.g., Blackman v. State, 414 S.W.3d 757 (Tex. Crim. App. 2013); Degar v. State,
482 S.W.3d 588 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d).
        4 The district court also concluded that even if Martinez/Trevino did apply, Prystash

did not make sufficient allegations to show that habeas counsel was ineffective in failing to
raise Batson. Prystash now argues that his initial state habeas counsel was ineffective for
failing to obtain jury questionnaires. But this claim of ineffectiveness was not presented to
the district court.
        5 There is a dissent in Hunton, which might show that its holding regarding Brady is

debatable. See 732 F.3d at 1127 (Fletcher, J., dissenting). But because Brady claims by their
nature typically apply only when evidence is obtained after trial, they are more commonly
first raised on collateral attack, given the need for factfinding, than are Batson claims. It is
also noteworthy that in the four years since the Hunton dissent, we are aware of no cases
extending Martinez/Trevino to cases in which the underlying claim is not one based on
Strickland v. Washington, 466 U.S. 668 (1984) (addressing right to effective assistance of
counsel).
                                               9
   Case: 16-70014    Document: 00513968613      Page: 10   Date Filed: 04/26/2017



                                 No. 16-70014
      For the first time in his COA application, Prystash argues that his
Batson claim should be excused because he could not have obtained the juror
questionnaires that were necessary to prove up his claim during either his
direct appeal or state habeas (he ultimately obtained them after asking the
federal district court to order their disclosure). But he did not identify this
potential ground for cause in the district court. In deciding whether to issue a
COA, we are limited to considering only the debatability of the district court’s
reasoning and the issues on which the petitioner sought the COA below.
Johnson v. Quarterman, 483 F.3d 278, 288 (5th Cir. 2007). And this argument
speculating about what was possible in state court is one in which the
factfinding function of the district court would have been particularly helpful.
How are we to determine at this stage that a request for the records at trial,
on direct appeal, or during state postconviction proceedings would have been
futile? All we know is that when Prystash requested a court order from the
federal habeas court, the state court produced the documents that remained
(the jury questionnaires; jury cards containing information about the racial
makeup of the venire had been destroyed). Due again to the absence of a record
that could have been developed if this issue had been raised in district court,
we do not know when the jury cards were destroyed and hence whether
Prystash could have obtained them at the time of his direct appeal or initial
state habeas petition.
      The grounds Prystash cites for cause were either (1) not raised in the
district court or (2) seek an extension of Martinez/Trevino beyond the realm of
ineffective assistance claims for which there is no supporting authority. We
will not issue a COA to review the procedural default ruling.
                                      B.
      Prystash argues that he was denied due process by the State’s failure to
disclose that Guidry’s confession, which Billingsley recounted to the jury, was
                                      10
    Case: 16-70014    Document: 00513968613        Page: 11   Date Filed: 04/26/2017



                                  No. 16-70014
involuntary. See Brady v. Maryland, 373 U.S. 83 (1963). To succeed on a
Brady claim, one must show that the prosecution suppressed evidence, that
was favorable to the defense, material to either guilt or punishment, and was
not discoverable using due diligence. Graves v. Cockrell, 351 F.3d 143, 153–54
(5th Cir. 2003).
      This was the one claim that the Texas Court of Criminal Appeals allowed
to proceed in Prystash’s second attempt at obtaining habeas relief in state
court. But it later adopted the finding of the Texas district court that the
information about Guidry’s confession was not material due to other
overwhelming evidence of his guilt.        The district court gave deference to the
Texas court’s application of governing federal law in this respect. See Dickson
v. Quarterman, 462 F.3d 470, 477–78 (5th Cir. 2006) (court conducting AEDPA
review decides whether state court’s materiality finding was unreasonable
application of federal law).
      In his request for a COA, Prystash contends that the district court
applied the wrong standard of materiality to his Brady claim. He asserts that
the court incorrectly required that he show it is “more likely than not” that the
result of the proceeding would have been different, rather than just a
reasonable likelihood that the new evidence could have affected the judgment
of the jury. Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016); see also Kyles v.
Whitley, 514 U.S. 419, 434 (1995). He is correct that “reasonable probability,”
not “more likely than not,” is the burden a defendant raising a Brady claim
must meet. Kyles, 514 U.S. at 434.
      But the district court did not apply the higher burden. The relevant
section of its opinion reads as follows:
   The state court’s findings emphasized that information about Guidry’s
   confession would not have made any difference in Prystash’s trial.
   Under Brady, “[e]vidence is material ‘if there is a reasonable probability
   that, had the evidence been disclosed to the defense, the result of the
                                           11
    Case: 16-70014       Document: 00513968613          Page: 12     Date Filed: 04/26/2017



                                       No. 16-70014
   proceeding would have been different.” Graves v. Dretke, 442 F.3d 334,
   339 (5th Cir. 2006) (quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995)).
   “[T]he materiality test is not a test of the sufficiency of the evidence. . . .
   Rather, a Brady violation is established by showing ‘that the favorable
   evidence could reasonably be taken to put the whole case in such a
   different light as to undermine confidence in the verdict.’” Graves, 442
   F.3d at 340 (quoting Kyles, 514 U.S. at 435); see also United States v.
   Bagley, 473 U.S. 667, 682 (1985); Duncan v. Cain, 278 F.3d 537, 539–40
   (5th Cir. 2002).
Prystash, 2016 WL 1069680, at *17. The paragraph shows that the district
court did not hold Prystash to a higher standard, but instead assessed the state
court’s rejection of his Brady claim under the correct “reasonable probability”
standard. 6
       In doing so, the district court relied on overwhelming evidence of
Prystash’s guilt apart from Guidry’s confession. Most damning was Prystash’s
confession. Also powerful was the detailed testimony of his girlfriend, Gipp,
relaying statements Prystash made and actions he took connecting him to the
murder. Prystash’s words, either in the form of his confession or what he told
Gipp, did not factor into the analysis when we found the Brady violations were
material in Guidry’s case.          The jury that convicted Guidry did not hear


       6  Prystash also seems to argue that there is a difference between showing (1) a
reasonable probability that the outcome would have been different, and (2) a “reasonable
likelihood” that that the new evidence “could have ‘affected the judgment of the jury.’”
Wearry, 136 S. Ct. at 1006 (quoting Giglio v. United States, 405 U.S. 150, 154 (1972)). Wearry
invoked only the latter standard. But Kyles uses both formulations, employing the
“undermining confidence in the verdict” language to flesh out what it means to show by a
“reasonable probability that the outcome would have been different.” 514 U.S. at 422, 433
n.7, 434–35. And we have long used both formulations interchangeably. E.g., Banks v.
Thaler, 583 F.3d 295, 310–11 (5th Cir. 2009). To the extent Prystash argues that Wearry
established a new, more lenient standard for Brady defendants, we see no support for that
proposition. Wearry was a summary reversal by the Supreme Court decided without oral
argument. 136 S. Ct. at 1008 (Alito, J., dissenting). That procedural posture is not one in
which we would expect the Supreme Court to change the standard for an important issue like
Brady materiality. And Prystash points us to no case reading Wearry as changing the
standard. In any event, if the standards are indeed different as Prystash suggests, the
district court’s substantive ruling is not debatable considering just the “could have affected
the jury” standard he urges.
                                             12
    Case: 16-70014    Document: 00513968613      Page: 13   Date Filed: 04/26/2017



                                  No. 16-70014
Prystash’s confession to law enforcement, and his words that Gipp recounted
were inadmissible hearsay as to Guidry (they are not hearsay as to Prystash
because they are statements by the party opponent). See Guidry v. Dretke, 397
F.3d 306, 329–30 (5th Cir. 2005). Given the inculpatory force of this evidence
against Prystash, it is not surprising that at his trial the Guidry confession
was only briefly mentioned and not later emphasized by prosecutors. The
district court’s deference to the state court’s conclusion—that disclosure of the
unlawful means by which Guidry’s confession was obtained does not
undermine confidence in the verdict—is not debatable.
      Also relying on the State’s failure to disclose evidence about the Guidry
confession, Prystash argues that his due process rights were violated because
the testimony about that confession was false. See Giglio v. United States, 405
U.S. 150 (1972); Napue v. Illinois, 360 U.S. 264 (1959).         This testimony
occurred when Billingsley testified that Guidry’s confession was voluntary,
when in reality it was unconstitutionally obtained due to officer deception. As
with the traditional Brady claim, the district court deferred to the state court’s
determination that the testimony concerning Guidry’s confession was “sparse”
and that the confession itself was cumulative of the extensive incriminating
statements Prystash made both to law enforcement and his girlfriend. In light
of that substantial amount of independent incriminating evidence and the
deference owed to the state court, jurists of reason would not disagree with the
district court’s conclusion.
      Perhaps recognizing that the heart of the case against him was his
confession and Gipp’s testimony, Prystash changes the focus of his Brady
argument in his COA application. In addition to the arguments he made in
state court and federal district court that the unlawfulness of the Guidry
confession was exculpatory under Brady and rendered testimony false under
Napue and Giglio, he now contends that the improper police conduct could have
                                       13
   Case: 16-70014     Document: 00513968613     Page: 14   Date Filed: 04/26/2017



                                 No. 16-70014
been used to impeach the value of his own confession. See Giglio, 405 U.S. at
153–54 (discussing impeachment value of evidence not turned over to the
defense). He made only passing references to this in his district court briefing
so the court did not address it. But even if Prystash did sufficiently raise this
variation of his Brady claim in the district court and exhaust it in state court,
the impeachment value of Guidry’s wrongful confession was not substantial for
Prystash’s confession. The officers who took Prystash’s written confession
(Detectives Davis and Valerio) were not involved in obtaining Guidry’s
confession. The officer who received Prystash’s oral confession (Billingsley)
was not the one who lied to Guidry. And again, Gipp heavily corroborated
Prystash’s confession, and officer misconduct would not impeach her
testimony.
      Prystash has not met the COA standard for any of his claims relating to
the failure to disclose the circumstances surrounding Guidry’s confession.
                                       C.
      Prystash next asserts that he was denied his right to present all
mitigating evidence bearing on his character and personal history when the
State refused to allow Quijano to testify about how Prystash would likely be
classified and segregated from other inmates in the Texas prison system. See
Barefoot v. Estelle, 463 U.S. 880 (1983); Eddings v. Oklahoma, 455 U.S. 104
(1982). Prystash, however, overstates the force of these cases. They “did not
federalize the law of evidence.” Barefoot v. Estelle, 697 F.2d 593, 597 (5th Cir.
1983). In this case, the trial court excluded Quijano’s testimony on this point
because it ruled it was speculative. See Watts v. Quarterman, 244 F. App’x
572, 576 (5th Cir. 2007) (per curiam). The evidentiary rulings of a state court
will only be overridden when there is error “so extreme that it constituted
denial of fundamental fairness.” Evans v. Thigpen, 809 F.2d 239, 242 (5th Cir.
1983) (quoting Mattheson v. King, 751 F.2d 1432, 1445 (5th Cir. 1985)). The
                                       14
    Case: 16-70014    Document: 00513968613      Page: 15   Date Filed: 04/26/2017



                                  No. 16-70014
district court found that Prystash had not made this showing, and he does not
argue to the contrary to this court, instead focusing his arguments on the
allegation that the State has been allowed to introduce similar evidence in
other capital cases and emphasizing a capital defendant’s right to present
mitigating evidence without acknowledging the limitations on that right that
honor state rules of evidence. Jurists of reason would not disagree that the
district court decided this issue correctly.
                                        D.
      Prystash also maintains that it was error for the trial court to allow the
prosecution to introduce evidence of past unadjudicated offenses, such as his
previous arrest for attempted murder, when the jury was deciding whether he
should be sentenced to death. He argues that doing so violates the Eighth
Amendment because it “introduces unreliability into death penalty sentencing,
permits undue prejudice, and lowers procedural safeguards for defendants.”
This claim is nonetheless foreclosed by our precedent, so reasonable jurists
could not disagree that the district court correctly decided it against Prystash.
See Vega v. Johnson, 149 F.3d 354, 359 (5th Cir. 1998); Harris v. Johnson, 81
F.3d 535, 541 (5th Cir. 1996).
                                        E.
      The final issue on which Prystash seeks a COA relates to the fact that
he did not pull the trigger in Farah’s murder. When a defendant is sentenced
to death, the punishment must have been “tailored to his personal
responsibility and moral guilt.” Enmund v. Florida, 458 U.S. 782, 801 (1982).
In order to guard against the possibility that a defendant would receive the
death sentence on the basis of the culpability of his accomplices, Texas adopted
its anti-parties instruction to be used during sentencing. See TEX. CODE CRIM.
PROC. art. 37.071, § 2(b) (“[T]he court shall submit the following issues to the
jury . . . in cases in which the jury charge at the guilt or innocence stage
                                        15
   Case: 16-70014     Document: 00513968613      Page: 16   Date Filed: 04/26/2017



                                  No. 16-70014
permitted the jury to find the defendant guilty as a party[:] whether the
defendant actually caused the death of the deceased or did not actually cause
the death of the deceased but intended to kill the deceased or another or
anticipated that a human life would be taken.”). Texas convicted Prystash of
capital murder as a party—someone who “acting with intent to promote or
assist the commission of the offense . . . solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense.” TEX. PENAL CODE
§ 7.02(a)(2). When a defendant is convicted of capital murder as a party during
the guilt/innocence phase of his trial, the purpose of an anti-parties instruction
is to limit the jury’s attention during the sentence phase to the personal
responsibility and moral guilt of the defendant.
      At trial, Prystash successfully asked that the court not include the anti-
parties instruction, asserting that it was unconstitutional. Prystash v. State,
3 S.W.3d 522, 529–30 (Tex. Crim. App. 1999). On direct appeal, Prystash
reversed course and claimed that not giving the anti-parties instruction was
error. Id. at 530. The Court of Criminal Appeals held that Prystash had
invited the error and denied relief. Id. at 532. The district court found that
this ruling was a state procedural bar to federal habeas relief.
      Prystash now argues that the invited error doctrine cannot procedurally
bar his habeas petition because it was not firmly established that the doctrine
applied to the special issue at the time of his appeal. See Ford v. Georgia, 498
U.S. 411, 423–24 (1991) (rule of state procedure that disposes of a
constitutional claim must be firmly established and regularly followed). He
points out that the Court of Criminal Appeals overruled its prior decision in
Powell, which had held that a defendant could appeal an erroneous special
instruction even when he had requested it at his capital trial. See Prystash, 3
S.W.3d at 530–32.


                                       16
    Case: 16-70014       Document: 00513968613          Page: 17     Date Filed: 04/26/2017



                                       No. 16-70014
       But regardless whether the district court’s application of a procedural
bar is debatable, the district court also found that the special issue claim fails
on the merits. It relied on our prior decisions to the effect that more general
special issues, necessary conclusions of the jury at the guilt–innocence phase,
and arguments by the parties allow the jury to consider the fact that a
defendant was not the triggerman. See, e.g., Nichols v. Scott, 69 F.3d 1255,
1267–68 (5th Cir. 1995).
       In his application for a COA, Prystash does not list the district court’s
merits ruling as one of the issues he seeks to appeal. See 28 U.S.C. § 2253(c)(3)
(“The certificate of appealability . . . shall indicate which specific issue or issues
satisfy the [required] showing . . . .”). Nor does his briefing address the merits
though his counsel discussed that at argument. This failure to adequately
challenge one of the grounds the district court relied on in rejecting this claim
renders the request for a COA on the procedural question moot. See Blue v.
Thaler, 665 F.3d 647, 662 (5th Cir. 2011); Phelps v. Alameda, 366 F.3d 722,
730 (9th Cir. 2004); Kaminski v. United States, 339 F.3d 84, 85 n.1 (2d Cir.
2003). Were we to grant the COA and review the district court’s finding on the
state procedural bar, we would be issuing an advisory opinion as the lack of a
COA challenging the district court’s merits ruling would render us powerless
to grant Prystash relief. 7




       7 Circuit law, in any event, supports the district court’s merits ruling. “[T]he law of
this circuit [is] that a jury need only be provided one fair vehicle for considering mitigating
evidence.” Harris v. Collins, 990 F.2d 185, 189 (5th Cir. 1993). In Prystash’s case, the jury
was instructed with Texas’s special issue on future dangerousness. See Nichols, 69 F.3d at
1267 (finding that Texas’s special issue on future dangerousness allowed jury to give a
mitigating effect to the petitioner’s nontriggerman status). At oral argument, counsel for
Prystash asserted that the instructions given in Nichols were different than those at
Prystash’s trial. This is true; there were special issues included at Nichols’s trial that were
absent at Prystash’s, but the issue concerning future dangerousness that the Nichols court
called adequate was present in both. Cf. id. at 1261 n.6.
                                             17
Case: 16-70014   Document: 00513968613     Page: 18   Date Filed: 04/26/2017



                            No. 16-70014
                                 ***
  The application for a certificate of appealability is DENIED.




                                  18
