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

                                                 FILED
                                                                          February 27, 2009

                                       No. 08-70006                    Charles R. Fulbruge III
                                                                               Clerk

JONATHAN MARCUS GREEN

                                                   Petitioner-Appellant
v.

NATHANIEL QUARTERMAN,
Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee

                                                   Respondent-Appellee




                   Appeal from the United States District Court
                    for the Southern District of Texas, Houston
                                USDC No. H-07-827

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Petitioner Jonathan Marcus Green, (“Green”), convicted of capital murder
in Texas and sentenced to death, requests this Court to issue a Certificate of
Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2). Green contends that his
due process rights were violated at his trial because the instructions did not
require the jury to unanimously determine which underlying felony it used to
find that he committed capital murder. He also contends that his counsel


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                     No. 08-70006

rendered    ineffective    assistance    by       failing   to   object   to   the   allegedly
unconstitutional instructions. Finally, he contends that he is incompetent to be
executed. Finding that Green has not made a substantial showing of the denial
of a constitutional right, we DENY a COA. We DISMISS his claim of
incompetency without prejudice because it is not yet ripe.
      I.     PROCEDURAL HISTORY
      A Montgomery County, Texas grand jury returned an indictment charging
Green with committing the intentional murder of 12 year-old Christina Neal
while in the course of kidnaping and/or aggravated sexual assault. Tex. Penal
Code § 19.03(a)(2).1      A jury convicted Green as charged, and the sentence
imposed was the death penalty. The Texas Court of Criminal Appeals affirmed
Green’s conviction in an unpublished opinion. Green v. State, No. AP-74398
(Tex. Crim. App. Dec. 1, 2004), cert. denied, 547 U.S. 1005 (2006). Green applied
for state habeas relief, and the trial court recommended denying relief. The
Court of Criminal Appeals adopted the findings and conclusions of the trial court
and denied the application. Ex parte Green, No. 61,225-01 (Tex. Crim. App. Mar.
23, 2005). Green then filed a federal petition for writ of habeas corpus, which
the district court denied in a memorandum opinion and order.                         Green v.
Quarterman, No. 4:07-CV-827, 2008 WL 442356 (S.D. Tex. Feb. 15, 2008). The
district court also denied a COA. Green now requests a COA from this Court.
      II.    STANDARD OF REVIEW
      Green filed his 28 U.S.C. § 2254 petition for a writ of habeas corpus after
the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA).
The petition, therefore, is subject to AEDPA. See Lindh v. Murphy, 521 U.S.
320, 336 (1997). Pursuant to the federal habeas statute, as amended by AEDPA,
we defer to a state court’s adjudication of a petitioner’s claims on the merits

      1
          Because resolving the claims presented in this COA does not require knowledge of
the facts underlying the offense of capital murder, we do not recite them here.

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unless the state court’s decision was: (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States”; or (2) “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 state court’s
decision is deemed contrary to clearly established federal law if it reaches a legal
conclusion in direct conflict with a prior decision of the Supreme Court or if it
reaches a different conclusion than the Supreme Court based on materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404–08 (2000). A
state court’s decision constitutes an unreasonable application of clearly
established federal law if it is “objectively unreasonable.” Id. at 409. Further,
pursuant to section 2254(e)(1), state court findings of fact are presumed to be
correct, and the petitioner has the burden of rebutting the presumption of
correctness by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d
941, 947 (5th Cir. 2001).
      Additionally, under AEDPA, a petitioner must obtain a COA before he can
appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see
also Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003) (“[U]ntil a COA has been
issued federal courts of appeals lack jurisdiction to rule on the merits of appeals
from habeas petitioners.”). As the Supreme Court has explained:
             The COA determination under § 2253(c) requires an overview
      of the claims in the habeas petition and a general assessment of
      their merits. We look to the District Court’s application of AEDPA
      to petitioner’s constitutional claims and ask whether that resolution
      was debatable among 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.

Miller-El, 537 U.S. at 336.




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      A COA will be granted only if the petitioner makes “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating 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, 537 U.S. at 327 (citation omitted). “The question is
the debatability of the underlying constitutional claim, not the resolution of that
debate.” Id. at 342. “Indeed, a claim can be debatable even though every jurist
of reason might agree, after the COA has been granted and the case has received
full consideration, that petitioner will not prevail.”         Id. at 338.    Moreover,
“[b]ecause the present case involves the death penalty, any doubts as to whether
a COA should issue must be resolved in [petitioner’s] favor.” Hernandez v.
Johnson, 213 F.3d 243, 248 (5th Cir. 2000) (citation omitted).
      III.   ANALYSIS
             A.     Jury Charge
      Green argues that his due process rights were violated because the
instructions did not require the jury to unanimously determine which underlying
felony it used to find that he committed capital murder.2 At Green’s trial, the
jury instructions provided that it could convict him of capital murder if it found
that he intentionally murdered the victim in the course of committing or
attempting to commit either (1) the offense of kidnaping or (2) the offense of
sexual assault.
      This claim is controlled by the Supreme Court’s plurality opinion in Schad
v. Arizona, and this Court’s subsequent precedent applying Schad. 501 U.S. 624



      2
        Green also raises this issue as a Sixth Amendment violation. However, the right to
a unanimous verdict “is more accurately characterized as a due process right than as one
under the Sixth Amendment.” Schad v. Arizona, 501 U.S. 624, 634 n.5 (1991) (plurality
opinion).

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(1991) (plurality). In Schad, the jury was charged with the alternative theories
of premeditated murder or felony murder. 501 U.S. at 630. The petitioner
contended that the instructions’ failure to require the jury to unanimously agree
whether he committed premeditated or felony murder violated his constitutional
rights. Id. The Supreme Court explained that the relevant inquiry was not one
of jury unanimity inasmuch as the jury had unanimously determined that the
State had proved what it was required to prove pursuant to state law. Id. at
630–31.     Instead, the “petitioner’s real challenge [was] to Arizona’s
characterization of first degree murder as a single crime as to which a verdict
need not be limited to any one statutory alternative.” Id. The relevant inquiry
therefore was whether Arizona’s definition of capital murder ran afoul of the
Constitution. Id. at 631.
      To resolve this issue, the opinion first looked to whether the legislature
intended to create separate offenses or different means of committing a single
offense.   Id. at 636–37. The opinion explained that if the state court had
interpreted the statute and determined that the alternatives are means of
committing a single offense, federal courts “are not at liberty to ignore that
determination and conclude that the alternatives are, in fact, independent
elements under state law.” Id. at 636. The Arizona Supreme Court previously
had determined that premeditation and felony murder were not separate
elements but instead were means of “satisfying a single mens rea element.” Id.
at 637.
      The next question posed by the opinion was whether Arizona’s definition
of the crime as a single offense violated due process. The plurality opinion
expressly refused to formulate a “single test for the level of definitional and
verdict specificity permitted by the Constitution.” Id. at 637.      Instead, the
plurality opined that “our sense of appropriate specificity is a distillate of the
concept of due process with its demands for fundamental fairness, [citation

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omitted], and for the rationality that is an essential component of that fairness.”
Id. at 637. The plurality explained that it would “look both to history and wide
practice as guides to fundamental values, as well as to narrower analytical
methods of testing” to determine whether the alternative mental states may
permissibly “satisfy the mens rea element of a single offense.” Id. at 637. After
analyzing various state court precedents, the opinion found considerable
historical evidence supporting Arizona’s use of alternative mental states as
means to satisfy the mens rea element of a single offense. The opinion further
found that it could reasonably be concluded that the two mental states were
moral equivalents.    Id. at 644.    Ultimately, the opinion held that the jury
instructions did not violate due process. Id. at 645.
      Green acknowledges the holding in Schad but nonetheless asserts that
Justice Scalia’s concurring opinion cast considerable doubt on the plurality’s
reasoning. Green further asserts that Justice Scalia’s concurrence, which was
narrowly based on historical grounds, effectively limited Schad either to its facts
or to cases in which the jury is charged with the alternative mental states of
premeditation and felony murder. Our precedent belies this assertion.
      In Reed v. Quarterman, the petitioner sought a COA based on his claim
that “allowing the jury to convict him under two alternative theories without
requiring unanimity as to one” violated due process. 504 F.3d 465, 479 (5th Cir.
2007). Reed’s jury had been instructed that it could convict him of capital
murder if it found that he committed murder in the course of robbery or
attempted robbery or in the course of attempted aggravated rape. Id. Reed
argued that Schad did not apply because his jury charge actually described two
separate offenses as opposed to two different means of committing the single
offense of murder. Id. at 480. Applying Schad, this Court recognized that
“numerous states have traditionally defined and continue to define first-degree
or aggravated murder as including both a killing in the course of robbery and a

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killing in the course of rape or attempted rape.” Id. at 482. In fact, the Arizona
statute at issue in Schad did so. Id. We further concluded that courts “could
reasonably find a moral equivalence between murder in the course of robbery
and murder in the course of attempted rape.” Id.                 Thus, we denied a COA,
holding that reasonable jurists would not debate that the state court “reasonably
applied Schad when it rejected Reed’s challenge to his jury instructions.” Id. In
view of this Court’s precedent applying the plurality’s reasoning, Green is
precluded from demonstrating that whether Schad applies is debatable among
jurists of reason.3
       Green also argues that the Supreme Court overruled Schad in Ring v.
Arizona, 536 U.S. 584 (2002). In Ring, the Supreme Court held that the Sixth
Amendment right to jury trial was violated when a trial judge determines the
presence of aggravating circumstances that are necessary for the imposition of
the death penalty. In the instant case, however, the jury, not the trial judge,
made the findings necessary for imposition of the death penalty. Also, Ring
involved a Sixth Amendment challenge, and, as previously noted, the right to a
unanimous verdict, which is Green’s claim, “is more accurately characterized as
a due process right than as one under the Sixth Amendment.” Schad, 501 U.S.
at 634 n.5.      Moreover, as discussed above, this Court has applied Schad
subsequent to the Supreme Court’s holding in Ring. Indeed, in Manns, although
this Court was well aware of Ring, it applied Schad to the jury unanimity claim.4




       3
         Green does not contend in the alternative that, if Schad applies, he has shown a
substantial denial of a federal right. In any event, this Court has rejected this precise claim.
See Manns v. Quarterman, 236 F. App’x 908 (5th Cir. 2007) (applying Schad to determine that
the underlying offenses of robbery, kidnaping, or aggravated sexual assault were not separate
elements of the Texas capital murder statute).
       4
         This Court discussed Ring in analyzing the petitioner’s claim that the mitigation
issue unconstitutionally shifted the burden of proof. Manns, 236 F. App’x at 913.

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      Tellingly, Ring does not cite to Schad, much less indicate that Schad is
overruled. Instead, in Ring, the Supreme Court expressly “overrule[d] Walton
[v. Arizona, 497 U.S. 639 (1990)] to the extent that it allows a sentencing judge,
sitting without a jury, to find an aggravating circumstance necessary for
imposition of the death penalty.” 536 U.S. at 609. Thus, we are not persuaded
that Green has shown that it is debatable among jurists of reason whether Ring
overruled Schad. We deny Green’s request for a COA on this claim.
             B.    Ineffective Assistance of Counsel
      Green contends that his trial counsel rendered ineffective assistance by
failing to object to the above-challenged jury instruction.     The Respondent
contends that this claim is unexhausted. Although AEDPA allows federal courts
to deny relief on an unexhausted claim, we cannot grant relief unless the State
affirmatively waives the exhaustion requirement. See Mercadel v. Cain, 179
F.3d 271, 276–77 (5th Cir. 1999); § 2254(b)(2) & (3). Nonetheless, we need not
reach the question of exhaustion because, as explained below, we have no
jurisdiction over the claim due to Green’s failure to raise this particular claim
in the district court.
      The Respondent also claims that because Green did not seek a COA before
the district court on this particular ground of ineffective assistance of counsel,
this Court is without jurisdiction to reach it. We agree. “Compliance with the
COA requirement of 28 U.S.C. § 2253(c) is jurisdictional, and the lack of a ruling
on a COA in the district court causes this court to be without jurisdiction to
consider the appeal.” Sonnier v. Johnson, 161 F.3d 941, 946 (5th Cir. 1998);
Thompson v. Quarterman, 292 F. App’x 277 (5th Cir. 2008) (explaining that this
Court lacked jurisdiction to consider petitioner’s request for a COA with respect
to a different claim of ineffective assistance that had not been presented to the
district court).



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      In any event, even if we were to consider the instant claim of ineffective
assistance to have been sufficiently raised before the district court, we would
deny a COA. To establish ineffective assistance of counsel, Green must show (1)
defense counsel’s performance was deficient and (2) this deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
While “[j]udicial scrutiny of counsel’s performance must be highly deferential,”
Green can demonstrate deficient performance if he shows “that counsel’s
representation fell below an objective standard of reasonableness.”         Id. at
688–89. However, “[t]here is a ‘strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.’” United States v.
Webster, 392 F.3d 787, 793 (5th Cir. 2004) (quoting Strickland, 466 U.S. at 689).
Strickland’s “prejudice” prong requires a reasonable probability that, but for the
deficient performance of his trial counsel, the outcome of his capital murder trial
would have been different. 466 U.S. at 694.
      With respect to the first prong, Green has not shown that counsel’s
performance was deficient.      As discussed above, the jury charge was not
constitutionally infirm and therefore this objection would have been without
merit. The failure to make meritless objections does not constitute deficient
performance. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994). With
respect to the second prong, Green is precluded from showing prejudice. In
Reed, the petitioner’s trial counsel did make this objection to the jury charge at
trial. 504 F.3d at 480 n.6. Nonetheless, as previously set forth, this Court
denied a COA on the claim that the jury instruction was constitutionally infirm.
Thus, Green is precluded from showing that, but for counsel’s failure to object,
there is a reasonable probability of a different outcome at trial.
            C.     Competency to be Executed
      Green’s counsel asserts that Green is incompetent to be executed because
he has shown signs of severe psychosis.          Nevertheless, Green’s counsel

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acknowledges that this claim is not yet ripe because the State of Texas has not
set an execution date. We therefore dismiss this claim without prejudice. See
Panetti v.Quarterman, 127 S.Ct. 2842, 2852 (2007); ShisInday v. Quarterman,
511 F.3d 514, 521–22 (5th Cir. 2007), cert. denied, 129 S.Ct. 62 (2008).
      IV.   CONCLUSION
      We DENY a COA with respect to Green’s challenge to the jury instructions
and ineffective assistance of counsel. We DISMISS Green’s claim that he is
incompetent to be executed without prejudice.




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