                                                   United States Court of Appeals
                                                            Fifth Circuit
                                                         F I L E D
          IN THE UNITED STATES COURT OF APPEALS
                                                September 19, 2006
                  FOR THE FIFTH CIRCUIT
                 ______________________
                                               Charles R. Fulbruge III
                      No. 05-70022                     Clerk
                 ______________________

                 GEORGE H. WHITAKER, III,

                                       Petitioner-Appellant,

                            versus

             NATHANIEL QUARTERMAN, Director,
   Texas Department of Criminal Justice, Correctional
                 Institutions Division,

                                   Respondent-Appellee.
  ___________________________________________________

      Appeal from the United States District Court
  for the Southern District of Texas, Houston Division
                 Case No. 4:04-CV-00886
   ___________________________________________________

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:*

    Petitioner George Whitaker, a Texas death row

inmate, filed a petition for a writ of habeas corpus

under 28 U.S.C. § 2254 with the United States District

Court for the Southern District of Texas on March 4,


    *
     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determined that this opinion should not be published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.
                              1
2004.     The district court dismissed Whitaker’s petition

in an opinion and order dated March 18, 2005.      Whitaker

now seeks a Certificate of Appealability (“COA”) from

the district court’s decision on three of his claims for

relief.

                        I.   Background

    Whitaker was convicted of capital murder by a Texas

jury on March 26, 1996.      During the punishment phase of

Whitaker’s trial, Whitaker’s counsel presented

mitigation evidence in the form of testimony from a

number of Whitaker’s friends and relatives, who

testified generally that Whitaker was a good-natured and

law-abiding citizen.     Among the defense witnesses called

during the punishment phase was Whitaker’s mother, who

testified that, among other things: (i) Whitaker’s

father had beaten him when he was a child; (ii) Whitaker

had attempted to commit suicide on several occasions;

and (iii) Whitaker fell from a moving truck and hit his

head when he was a child.      Whitaker’s trial counsel did

not present any expert testimony during the punishment

phase of the trial, and counsel did not have Whitaker

                               2
examined by a mental health expert at any point prior to

or during the trial.1    At the conclusion of the

punishment phase, Whitaker was sentenced to death.

    Whitaker unsuccessfully appealed his sentence and

conviction in the Texas state courts, and the United

States Supreme Court denied Whitaker’s petition for a

writ of certiorari.     Whitaker then filed a state habeas

petition, which was also denied by the state courts.

While Whitaker’s state habeas petition was pending, but

after the deadline for filing a state petition had

expired, Whitaker filed a “supplement” to his petition,

which contained three additional claims (including one

of the claims that he asserts in this court).       The Texas

Court of Criminal Appeals dismissed Whitaker’s

supplemental petition as an abuse of the writ and

    1
     In affidavits submitted in connection with
Whitaker’s state post-conviction proceedings,
Whitaker’s trial counsel stated that they did not
retain a mental health expert because they felt that
such an expert would not assist them in this case.
Counsel also stated that they made a strategic decision
not to offer expert testimony during the punishment
phase of Whitaker’s trial because “family members are
always much more persuasive and are in a much better
position than any expert to present a better and more
complete picture of the applicant’s background.”
                              3
declined to address the merits of any of petitioner’s

additional claims.

    Whitaker then filed his federal habeas petition in

the district court.   The district court granted the

State’s motion for summary judgment, dismissed

Whitaker’s petition in its entirety, and denied a COA.

Whitaker now requests a COA from this court on three

claims:   (1) that trial counsel was ineffective for

failing to adequately investigate and present expert

mitigating evidence concerning Whitaker’s mental

condition at the punishment phase of his trial; (2) that

the Texas death penalty statute, combined with the

State’s plea bargain offer of life imprisonment, imposed

an unconstitutional burden on Whitaker’s rights to a

trial by jury and to plead not guilty, in violation of

United States v. Jackson, 390 U.S. 570 (1968); and (3)

that Whitaker was constitutionally entitled, under

Simmons v. South Carolina, 513 U.S. 154 (1994), to

inform the jury that, if sentenced to life imprisonment,

rather than death, he would not be eligible for parole

for 40 years.

                            4
                    II.   Legal Standard

    Our review of Whitaker’s request for a COA is

governed by the Antiterrorism and Effective Death

Penalty Act, which provides that a petitioner can appeal

a district court’s dismissal of a petition under 28

U.S.C. § 2254 only if either the district court or this

court issues a COA.     See 28 U.S.C. § 2253(c)(1); Fed. R.

App. P. 22(b)(1).     A court can issue a COA “only if the

applicant has made a substantial showing of the denial

of a constitutional right.”       28 U.S.C. § 2253(c)(2).

The Supreme Court has explained that under this

standard, a COA should issue only when the petitioner

demonstrates “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).   Thus, a petitioner seeking a COA must show

that “‘reasonable jurists would find the district

court’s assessment of the constitutional claims

debatable or wrong.’”     Id. at 338 (quoting Slack v.

                              5
McDaniel, 529 U.S. 473, 484 (2000)).

    When determining whether a petitioner has

established an entitlement to a COA, we do not fully

consider the underlying factual and legal bases in

support of the petitioner’s claims.       Id. at 336.

Rather, this court conducts only a limited, “threshold

inquiry into the underlying merit of [the petitioner’s]

claims.”   Id. at 327.   Finally, in capital cases, doubts

over whether a COA should issue are to be resolved in

favor of the petitioner.     See Newton v. Dretke, 371 F.3d

250, 254 (5th Cir. 2004).

                      III.   Discussion

           A.   Ineffective Assistance of Counsel

    Whitaker first asserts that he is entitled to a COA

on his claim that trial counsel was ineffective during

the punishment phase of his trial for failing to

adequately investigate and present mitigating evidence

relating to his mental health and mental condition.

    To succeed on a claim for ineffective assistance of

counsel, Whitaker must show both that trial counsel’s

performance was constitutionally deficient and that he

                              6
was prejudiced by counsel’s deficient performance.     See

Strickland v. Washington, 466 U.S. 668, 687 (1984).      We

measure the adequacy of counsel’s performance against an

objective standard of reasonable performance based on

accepted professional norms.     See Rompilla v. Beard, 545

U.S. 374, 125 S. Ct. 2456, 2462 (2005) (citing

Strickland, 466 U.S. at 688).    To establish prejudice, a

petitioner must show that there is a reasonable

probability that, absent counsel’s deficient

representation, the outcome of the proceedings would

have been different.    Strickland, 466 U.S. at 694.   To

assess prejudice during the sentencing phase of a

capital proceeding, the court “reweigh[s] the evidence

in aggravation against the totality of the available

mitigating evidence.”    Wiggins v. Smith, 539 U.S. 510,

534 (2003).

    In this case, Whitaker argues that trial counsel

conducted an inadequate investigation into potential

mitigation evidence during the punishment phase of his

trial.   Specifically, Whitaker asserts that, although

counsel knew that Whitaker was beaten as a child,

                             7
periodically suffered seizures, had attempted to commit

suicide on several occasions, and had suffered a head

injury after falling from a moving truck as a child,

counsel failed to have Whitaker examined by, or to

present testimony from, a mental health expert during

the punishment phase of his trial.       Whitaker asserts

that this constitutes deficient performance because,

given this background information, any reasonable

attorney would have at least had Whitaker examined by a

mental health expert before concluding that it would not

be helpful to use a mitigation or mental health expert

at trial.

    The state habeas court rejected Whitaker’s claim.

It held that trial counsel’s failure to present

mitigation evidence from a mental health expert or a

mitigation expert did not rise to the level of

ineffective assistance of counsel because the alleged

failures resulted from the reasonable strategic

decisions of trial counsel.       The district court

dismissed this claim because it found that Whitaker had

failed to establish that the state court’s decision was

                              8
an unreasonable application of Strickland.   The district

court noted that the mitigating evidence in question was

presented to the jury through the testimony of

Whitaker’s mother, and it found that Whitaker had failed

to show how this evidence would have been presented

differently by a mental health expert.   The district

court also found that, because Whitaker had not produced

an opinion from a mental health expert in support of his

claims, the court could “only speculate on how a mental

health expert could have developed punishment phase

evidence that had a reasonable probability of a

different result,” and that “[s]uch speculation cannot

serve as the basis for habeas relief.”   Whitaker v.

Dretke, No. 04-886, slip op. at 29 (S.D. Tex. Mar. 18,

2005); see also id. at 18 (noting that Whitaker’s

failure to show that an expert would have uncovered

mitigating evidence different from that presented at

trial was a “fatal flaw” of Whitaker’s ineffective

assistance claim).

    We find that reasonable jurists could not debate

the district court’s resolution of Whitaker’s

                           9
ineffective assistance of counsel claim, and,

accordingly, we deny Whitaker’s request for a COA on

this claim.   Although reasonable jurists could debate

whether Whitaker’s trial counsel should have had

Whitaker examined by a mental health expert,2 they could

not debate the district court’s finding that Whitaker

cannot prevail on this claim because he has failed to

make any showing of what additional mitigation evidence

further investigation would have uncovered or how that

evidence could have changed the outcome of the penalty

phase of his trial.

    This court has often stated that a petitioner

alleging ineffective assistance of counsel on the basis

of a failure to investigate “must allege with

specificity what the investigation would have revealed

and how it would have changed the outcome of the trial.”

Miller v. Dretke, 420 F.3d 356, 361 (5th Cir. 2005)


    2
     See Roberts v. Dretke, 356 F.3d 632, 639-40 (5th
Cir. 2004) (finding that reasonable jurists could
debate whether counsel’s failure to develop evidence of
mental illness was deficient performance in light of
available information suggesting that defendant had
mental problems).
                            10
(citing United States v. Green, 882 F.2d 999, 1003 (5th

Cir. 1989)); Lockett v. Anderson, 230 F.3d 695, 713 (5th

Cir. 2000) (quoting Green, 882 F.2d at 1003).     Here,

Whitaker has not made any showing of how further

investigation, such as the retention of a mental health

expert, would have helped his mitigation case.     This is

not a case in which the petitioner asserts that trial

counsel simply failed to uncover potential mitigation

evidence about the petitioner’s background.     Rather,

Whitaker asserts that counsel was aware of the relevant

information, which was presented to the jury through the

testimony of Whitaker’s mother, but that counsel’s

investigation fell short because counsel failed to

investigate the potential mental health significance of

this background information.     Yet Whitaker has failed to

present any evidence, such as an affidavit from a mental

health expert, to show that further investigation would

have yielded any significant mental health mitigation

evidence.   As the district court noted, without such

evidence, we “can only speculate on how a mental health

expert could have developed punishment phase evidence

                            11
that had a reasonable probability of a different

result.”   Whitaker, No. 04-886, slip op. at 29.

    Whitaker openly acknowledges this deficiency and

attributes it to the failure of state habeas counsel.3

The law is clear in this circuit, however, that

ineffective assistance of state habeas counsel does not

excuse a petitioner’s failure to properly present his

federal habeas claims.   See, e.g., Elizalde v. Dretke,

362 F.3d 323, 328-31 (5th Cir. 2004); Martinez v.

Johnson, 255 F.3d 229, 240-41 (5th Cir. 2001); Beazley

v. Johnson, 242 F.3d 248, 271 (5th Cir. 2001).     Thus,

Whitaker instead asserts that he does not need actual

evidence of what a mental health expert could have added



    3
     Whitaker also asserts that federal habeas counsel
would be barred from introducing such evidence in
support of his claims for the first time in the federal
habeas proceedings because of the exhaustion doctrine.
See, e.g., Anderson v. Johnson, 338 F.3d 382, 386-87
(5th Cir. 2003) (noting that exhaustion doctrine
prevents a petitioner from presenting in federal court
material additional evidence not presented to the state
court). We need not decide here whether any new
evidence would be barred by exhaustion principles,
however, because Whitaker did not present any new
evidence before either this court or the district
court.
                            12
to his mitigation case.   Rather, he argues that this

court can simply take judicial notice of the potential

value of mental health mitigation evidence.

    We decline Whitaker’s invitation to find that a

petitioner can establish ineffective assistance of

counsel without any showing as to (1) what additional

evidence would have been available had counsel conducted

a reasonable investigation; or (2) how that evidence

could have affected the outcome.     Although we recognize

that testimony from a mental health expert is frequently

a valuable source of mitigation evidence in capital

sentencing proceedings, we simply cannot assume that

such evidence would have been available or reasonably

likely to lead to a different result in any particular

case absent some indication as to what a mental health

expert would have testified on the witness stand.     To do

so would eviscerate Strickland, as it would permit a

petitioner to establish a constitutional violation based

on nothing more than speculation.     Accordingly, we deny

Whitaker’s request for a COA on his ineffective

assistance of counsel claim.     Reasonable jurists could

                            13
not debate the district court’s ultimate determination

that Whitaker has not met his burden of showing that

counsel’s failure to further investigate or present

mental health mitigation evidence constitutes

ineffective assistance of counsel.

                 B.   The Jackson Claim

    Whitaker next argues that his death sentence is

unconstitutional because the state’s plea offer of life

imprisonment impermissibly burdened his rights to plead

not guilty and to be tried by a jury.        Whitaker first

raised this claim in his untimely “supplement” to his

original state habeas petition.        Although the state

court clerk initially treated this supplemental filing

as a part of Whitaker’s original petition, the Texas

Court of Criminal Appeals ultimately characterized the

filing as a second or successive pleading and dismissed

it as an abuse of the writ.        The district court

dismissed this claim after finding both that the claim

was procedurally defaulted and that it was ultimately

meritless.

                 1.   Procedural Default

                              14
    Where a state court has previously dismissed a

habeas petitioner’s claim pursuant to an adequate and

independent state procedural ground, a federal court

will not consider that claim unless the petitioner shows

either (i) cause for the default and actual prejudice;

or (ii) that a fundamental miscarriage of justice will

result if the claim is not considered.     See Coleman v.

Thompson, 501 U.S. 722, 750 (1991).    This court has

repeatedly held that a dismissal for abuse of the writ

under Texas law is an adequate and independent state

procedural ground for dismissal.     See Aguilar v. Dretke,

428 F.3d 526, 533 (5th Cir. 2005).

    Whitaker does not seriously dispute that his

supplemental state habeas petition, which contained his

Jackson claim, was untimely under Texas law.    Nor does

Whitaker attempt to show either cause and prejudice or a

fundamental miscarriage of justice.    Rather, Whitaker

argues only that the court should not read the Texas

statute governing the filing of capital habeas petitions

“hyper-technically” to deem a supplemental petition

successive when the supplemental petition is filed

                           15
before the original petition is decided on the merits.

Because Whitaker neither disputes that the Texas Court

of Criminal Appeals was permitted to treat his

supplemental petition as a second or successive petition

as a matter of Texas law nor asserts that the Texas

procedural rule conflicts with federal law, we find that

the district court properly dismissed this claim as

procedurally defaulted.

                     2.   The Merits

    Even were Whitaker’s Jackson claim not procedurally

defaulted, we would still deny his request for a COA

because reasonable jurists could not debate the district

court’s resolution of this claim on the merits.     In

Jackson, the Supreme Court held that a section of the

Federal Kidnaping Act violated the defendant’s Fifth and

Sixth Amendment rights because it permitted the death

penalty to be imposed on only those defendants who

insisted on asserting their rights to plead not guilty

and to be tried by a jury.   390 U.S. at 582-83.4   The

    4
     The Jackson court interpreted the statutory
provision at issue in that case to prohibit a death
sentence in cases where the defendant either pleaded
                             16
Court found that, because the statute reserved the death

penalty exclusively for defendants who were convicted

after a jury trial, it impermissibly penalized those

defendants for choosing to assert their constitutional

rights.   Id. at 382-83.   Whitaker asserts that the Texas

capital sentencing scheme is analogous to the statutory

scheme in Jackson because it permits a defendant charged

with capital murder to avoid a possible death sentence

only if the defendant agrees to plead guilty and the

state agrees not to seek the death penalty.

    Whitaker’s argument is meritless.    First, Whitaker

ignores a crucial distinction between the statutory

scheme in Jackson and the Texas capital sentencing

scheme.   In Jackson, a defendant could be sentenced to

death only if he pleaded not guilty and insisted on a

trial by jury; if the defendant either pleaded guilty or



guilty or waived the right to a jury trial. See id. at
581 (“Under the Federal Kidnaping Act, therefore, the
defendant who abandons the right to contest his guilt
before a jury is assured that he cannot be executed;
the defendant ingenuous enough to seek a jury acquittal
stands forewarned that, if the jury finds him guilty
and does not wish to spare his life, he will die.”).
                             17
waived a jury trial, a death sentence could not be

imposed.   Under Texas law, however, a defendant who

pleads guilty to a capital offense still faces the

possibility of a death sentence unless the prosecution

agrees not to seek the death penalty.       Thus, the Texas

statute does not impermissibly reserve the death penalty

for those defendants who assert their constitutional

rights.    See Corbitt v. New Jersey, 439 U.S. 212, 217

(1978); Spinkellink v. Wainwright, 578 F.2d 582, 608

(5th Cir. 1978).     Second, Jackson does not prevent

prosecutors from exercising their discretion to offer

the possibility of a lesser sentence in exchange for a

guilty plea, even in cases involving the death penalty.

See Brady v. United States, 397 U.S. 742, 747-53 (1970);

Spinkellink, 578 F.2d at 608-09.     Accordingly, the

prosecution’s plea bargain offer in this case did not

violate Jackson, and we deny Whitaker’s request for a

COA on this claim.

                   C.   The Simmons Claim

    Whitaker’s final claim is that the trial court

erred by not instructing the jury that, if sentenced to

                              18
life imprisonment, Whitaker would not be eligible for

parole for 40 years.     In Simmons v. South Carolina, 512

U.S. 154, 168-69, 171 (1994), the Supreme Court held

that, in states where life without parole is a capital

sentencing option, the defendant is entitled to inform

the jury that the alternative to a death sentence is

life without parole.     This court has repeatedly refused

to extend Simmons to require that state courts allow

capital defendants to inform the jury about parole

eligibility where a life sentence would include a

possibility of parole.       See, e.g., Coleman v.

Quarterman, 456 F.3d 537, 544-45 (5th Cir. 2006); Hughes

v. Dretke, 412 F.3d 582, 591-92 (5th Cir. 2005); Miller

v. Johnson, 200 F.3d 274, 290-91 (5th Cir. 2000).

Accordingly, we find that reasonable jurists could not

dispute the district court’s resolution of this claim,

and we deny Whitaker’s request for a COA.

                       IV.    Conclusion

    For the reasons explained above, we find that

reasonable jurists could not dispute the district

court’s resolution of Whitaker’s claims, and we

                                19
therefore deny Whitaker’s request for a COA in its

entirety.




                           20
