     Case: 09-70023     Document: 00511257564          Page: 1    Date Filed: 10/07/2010




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

                                                  FILED
                                                                           October 7, 2010

                                       No. 09-70023                         Lyle W. Cayce
                                                                                 Clerk

LEE ANDREW TAYLOR,

                                                   Petitioner - Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Respondent - Appellee




                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:04-CV-150


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Texas death row inmate Lee Andrew Taylor appeals the district court’s
denial of habeas relief. For the following reasons, we affirm.
                                   I. BACKGROUND
        In 1995, at the age of 16, Taylor robbed an elderly couple in their home in




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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Houston, Texas. He was subsequently convicted of aggravated robbery 1 and
sentenced to a term of life imprisonment. While he was serving that sentence,
Taylor        came   into    possession    of   a   “shank”—a       prison-made        stabbing
implement—which he used against Donta Green during the morning of March
31, 1999. Taylor stabbed Green 13 times and inflicted numerous other scratch
wounds; Green later died as a result.
          Taylor was indicted for capital murder for intentionally or knowingly
causing the death of an individual while serving a sentence of life imprisonment
for aggravated robbery.              See T EX. P ENAL C ODE A NN. §§ 19.02(b)(1),
19.03(a)(6)(B).2 Following a jury trial, Taylor was convicted and sentenced to
death. On December 11, 2002, hearing the case on direct appeal, the Texas
Court of Criminal Appeals (TCCA) affirmed. Taylor next sought post-conviction
relief in the state trial court, which denied relief. On March 31, 2004, the TCCA,
adopting the trial court’s findings of fact and conclusions of law, similarly denied
relief.
          Taylor next sought a writ of habeas corpus in federal district court. In his
application under 28 U.S.C. § 2254, Taylor raised 14 issues that he claimed
warranted relief. The district court dismissed all of Taylor’s claims, see Taylor
v. Thaler, No. 4:04-CV-150, 2009 WL 2833453 (E.D. Tex. Aug. 31, 2009), but
issued a certificate of appealability (COA) with respect to three of them. Those
three claims raise essentially two issues: (1) whether using Taylor’s aggravated


          1
         Under Texas law, aggravated robbery includes, inter alia, the commission of robbery
if the defendant “causes bodily injury to . . . or threatens or places . . . in fear of imminent
bodily injury or death, . . . [a person] 65 years of age or older.” TEX . PENAL CODE ANN .
§ 29.03(a)(3)(A).
          2
         Section 19.02(b)(1) provides that a person commits murder by “intentionally or
knowingly caus[ing] the death of an individual.” TEX . PENAL CODE ANN . § 19.02(b)(1). Section
19.03(a)(6)(B) provides that a person commits capital murder by “commit[ting] murder as
defined under Section 19.02(b)(1) . . . while serving a sentence of life imprisonment . . . for an
offense under Section . . . 29.03.” TEX . PENAL CODE ANN . § 19.03(a)(6)(B).

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robbery conviction—for an offense he committed as a minor—as the predicate for
his capital murder conviction constitutes cruel and unusual punishment; and (2)
whether admitting Taylor’s prison disciplinary record during the sentencing
phase of his capital murder trial violated his right to confront the witnesses
against him.3 Taylor now appeals the denial of habeas relief on those three
claims.
                                II. LEGAL STANDARDS
       In an appeal from a district court’s denial of habeas relief, we apply the
same standards as the district court. Wooten v. Thaler, 598 F.3d 215, 218 (5th
Cir. 2010).      Taylor’s habeas proceeding is subject to the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). See Pierce v. Thaler, 604 F.3d
197, 200 (5th Cir. 2010). Under AEDPA, we may not grant habeas relief:
       with respect to any claim that was adjudicated on the merits in
       State court proceedings unless the adjudication of the claim—
                (1) 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
                (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.



       3
           The three claims for which a COA was granted are articulated as follows:
       1.       Because he is actually innocent of the death penalty, his execution would
                constitute a miscarriage of justice and is therefore barred by the Eighth
                Amendment.
       10.      He was denied the right to confront witnesses by the trial court’s
                admission of prison administrative records which contained testimonial
                hearsay.
       11.      Because Taylor was sixteen years old at the time he committed
                aggravated robbery, his death sentence, which was based in part on his
                conviction for that robbery, constitutes cruel and unusual punishment.
The district court concluded that Taylor’s eleventh claim was “indistinguishable from Taylor’s
first claim” and denied it for the same reasons that it denied his first claim.

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28 U.S.C. § 2254(d).
        A state court decision is “contrary to” federal precedent if it applies
        a rule that contradicts the governing law set forth by the Supreme
        Court or if it involves a set of facts that are materially
        indistinguishable from a Supreme Court decision but reaches a
        result different from that Court’s precedent.
Woodfox v. Cain, 609 F.3d 774, 789 (5th Cir. 2010) (citing Woodward v. Epps,
580 F.3d 318, 325 (5th Cir. 2009)). “The relevant ‘clearly established federal law’
is the law that existed at the time the state court’s denial of habeas relief became
final.” Pierce, 604 F.3d at 200 (citing Abdul–Kabir v. Quarterman, 550 U.S. 233,
238 (2007); Williams v. Taylor, 529 U.S. 362, 390–94 (2000)).
                                   III. DISCUSSION
        As mentioned above, the district court granted Taylor a COA for each of
three claims that he presented in his federal habeas petition. Two of those
issues involve the Eighth Amendment’s prohibition on cruel and unusual
punishment,4 while the third involves the Sixth Amendment’s Confrontation
Clause.5 We first address the Eighth Amendment issues before turning to the
Sixth Amendment issue.
A.      Cruel and Unusual Punishment
        Taylor’s Eighth Amendment arguments consist of two discrete theories.
First, he claims that the Supreme Court’s decision in Roper v. Simmons, 543
U.S. 551 (2005), forecloses the use of his prior aggravated robbery conviction as
the predicate elevating his homicide offense from non-capital to capital murder
because he was a minor when he committed the aggravated robbery offense.
Second, he claims that Texas’s capital scheme impermissibly expands the class



        4
        “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. CONST . amend. VIII.
       5
        “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . .” U.S. CONST . amend. VI.

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of persons eligible for the death penalty to include persons who commit murder
while serving a sentence of life imprisonment for aggravated robbery. The State
urges that both claims were procedurally defaulted and are, in any event,
meritless. We pretermit discussing the procedural defaults, as Taylor’s “claim[s]
can be resolved more easily” on the merits. See Busby v. Dretke, 359 F.3d 708,
720 (5th Cir. 2004).
       1.     Youthfulness
       In Roper, the Supreme Court held that “[t]he Eighth and Fourteenth
Amendments forbid imposition of the death penalty on offenders who were under
the age of 18 when their crimes were committed.” 543 U.S. at 578. Taylor urges
that we should interpret Roper to reach the conclusion that his own “diminished
moral culpability at 16 years of age, the time at which he committed aggravated
robbery, should preclude use of that conviction and sentence as an aggravating
factor thereby making him eligible for the death penalty.” 6
       We conclude that Taylor’s claim must fail because Roper does not clearly
establish that he is ineligible for the death penalty. The Roper Court held only
that “[t]he age of 18 is . . . the age at which the line for death eligibility ought to
rest.” 543 U.S. at 574. In reaching this conclusion, the Court identified three
ways in which juvenile offenders differed from adult offenders: (1) lack of
maturity and underdeveloped senses of responsibility; (2) vulnerability to
negative influences and outside pressure; and (3) less developed characters. Id.
at 569–70. According to the Court, “[t]hese differences render suspect any
conclusion that a juvenile falls among the worst offenders.” Id. at 570. After


       6
         We note that the TCCA entered a final denial of Taylor’s state habeas petition on
March 31, 2004, and that Roper was decided nearly a year later, on March 1, 2005. This raises
the question whether Roper was “clearly established Federal law, as determined by the
Supreme Court of the United States,” at the time of the relevant state court decision, such that
Roper can provide Taylor with a foundation for relief under AEDPA. Neither party raised this
issue on appeal. In any event, as Taylor’s claim fails on its merits, we need not decide that
question today.

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recognizing “the diminished culpability of juveniles,” id. at 571, the Court then
analyzed whether the two recognized social purposes—retribution and
deterrence—were furthered by allowing the death penalty for offenders under
18 years of age, id. at 571–72.     The Court noted that “[r]etribution is not
proportional if the law’s most severe penalty is imposed on one whose culpability
or blameworthiness is diminished, to a substantial degree, by reason of youth
and immaturity.”      Id. at 571.     It further determined that “the same
characteristics that render juveniles less capable than adults suggest as well
that juveniles will be less susceptible to deterrence.” Id. The Court concluded
that “[w]hen a juvenile offender commits a heinous crime, the State can exact
forfeiture of some of the most basic liberties, but the State cannot extinguish his
life and his potential to attain a mature understanding of his own humanity.”
Id. at 573–74.
      While the Roper decision clearly establishes that the death penalty may
not be imposed as punishment for an offense committed as a juvenile, it does not
clearly establish that such an offense may not be used to elevate murder to
capital murder. Here, Taylor is not being punished again for his earlier crime
but is instead being punished for a murder that he committed as an adult. See
Cannady v. Dretke, 173 F. App’x 321, 329–30 (5th Cir. 2006) (per curiam)
(likening § 19.03(a)(6) to a constitutionally acceptable recidivist statute). Thus,
the TCCA did not unreasonably apply federal law in concluding that Taylor’s
aggravated robbery conviction and corresponding life sentence rendered him
eligible for the death penalty under § 19.03(a)(6)(B).
      2.    Overbreadth
      Taylor also argues that Texas’s capital-sentencing scheme fails to
genuinely narrow the class of persons eligible for the death penalty.           He
contends that it is unconstitutional for Texas to authorize the death penalty in
cases where a murder is committed by an inmate serving a life sentence for

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aggravated robbery but not where the same murder is committed by an inmate
serving a life sentence for various other crimes.         Taylor’s argument is,
essentially, that because there are other serious crimes that cannot serve as
predicates for § 29.03(a)(3), the crime of aggravated robbery may not be so used.
      “[T]he Constitution ‘does not mandate adoption of any one penological
theory.’” Ewing v. California, 538 U.S. 11, 25 (2003) (quoting Harmelin v.
Michigan, 501 U.S. 957, 999 (1991) (Kennedy, J., concurring)). Instead, the
Supreme Court has emphasized its longstanding “tradition of deferring to state
legislatures in making and implementing such important policy decisions.” Id.
at 24 (citing cases). This deference requires that the state have “a reasonable
basis for believing” that an enhanced sentence “‘advances the goals of its
criminal justice system in any substantial way.’” Id. at 28 (alterations omitted)
(quoting Solem v. Helm, 463 U.S. 277, 297 n.22 (1983)).        Where the death
penalty is involved, the Supreme Court has articulated the following rule: “If a
State has determined that death should be an available penalty for certain
crimes, then it must administer that penalty in a way that can rationally
distinguish between those individuals for whom death is an appropriate sanction
and those for whom it is not.” Spaziano v. Florida, 468 U.S. 447, 460 (1984)
(citing Zant v. Stephens, 462 U.S. 862, 873–80 (1983); Furman v. Georgia, 408
U.S. 238, 294 (1972) (Brennan, J., concurring)); accord Kansas v. Marsh, 548
U.S. 163, 173–74 (2006) (“[A] state capital sentencing system must: (1) rationally
narrow the class of death-eligible defendants; and (2) permit a jury to render a
reasoned, individualized sentencing determination . . . . So long as a state
system satisfies these requirements, our precedents establish that a State enjoys
a range of discretion in imposing the death penalty . . . .” (internal citation
omitted)).
      Consistent with these principles, we addressed the constitutionality of
Texas’s capital-sentencing scheme in Sonnier v. Quarterman, 476 F.3d 349 (5th

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Cir. 2007). We first noted that the distinction between the nine enumerated
categories of capital murder, see T EX. P ENAL C ODE A NN. § 19.03(a), and other
categories of murder, see T EX. P ENAL C ODE A NN. § 19.02(b), “is the initial
narrowing of the class of persons who may potentially face the death penalty.”
Sonnier, 476 F.3d at 366. This, in conjunction with the requirement that one or
more statutory aggravating circumstances be found beyond a reasonable doubt
by a unanimous jury, led us to “conclude that the Texas scheme . . . is
constitutionally valid . . . , in that it rationally narrows the classes of defendants
determined to be eligible and selected for the death penalty.” Id. at 366.
      We conclude that our decision in Sonnier, by which we are bound, see
United States v. Rose, 587 F.3d 695, 705 (5th Cir. 2009) (per curiam), forecloses
Taylor’s argument. Moreover, it was not irrational for the State to authorize the
death penalty only for those inmates whose life sentences were imposed for
aggravated offenses. As the TCCA has explained, “inmates who have committed
murder or other aggravated offenses have already shown a certain propensity
for violence. Furthermore, the greater the sentence that the inmate received,
the less he may have to lose by committing further offenses in prison.” Cannady
v. State, 11 S.W.3d 205, 215 (Tex. Crim. App. 2000) (footnote omitted); see also
Cannady v. Dretke, 173 F. App’x at 329 (“[T]he legislators’ intent in passing the
law was to deter inmates already serving long sentences from murdering other
inmates.” (citing State v. Cannady, 913 S.W.2d 741, 743–44 (Tex. App.—Corpus
Christi 1996, writ denied))). Nor is it constitutionally problematic that the
earlier decision to charge an aggravated offense such as aggravated robbery
rather than ordinary robbery rested within the discretion of the prosecutor. See
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (“Within the limits set by the
legislature’s constitutionally valid definition of chargeable offenses, ‘the
conscious exercise of some selectivity in enforcement is not in itself a federal
constitutional violation’ so long as ‘the selection was not deliberately based upon

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an    unjustifiable     standard    such    as    race, religion, or       other   arbitrary
classification.’” (alteration omitted) (quoting Oyler v. Boles, 368 U.S. 448, 456
(1962))). We therefore hold that the state court’s decision was neither “contrary
to, [n]or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1).
B.      Confrontation Clause
        Taylor next alleges that admission of portions of his prison disciplinary
record during the sentencing phase of his trial violated his right to be confronted
with the witnesses against him. During the sentencing phase of his trial, the
State sought to introduce a copy of Taylor’s prison disciplinary record, which
contained reports of altercations with other inmates and threats made to prison
guards. Taylor objected on the grounds that the reports contained inadmissible
hearsay and violated his rights under the Confrontation Clause. The state trial
court admitted the prison disciplinary record under the business records
exception to the hearsay rule. See T EX. R. E VID. 803(6). On direct appeal to the
TCCA, Taylor claimed that the record was erroneously admitted under the
business records exception because it contained “matters observed by police
officers and other law enforcement personnel.” T EX. R. E VID. 803(8)(B); see also
Cole v. State, 839 S.W.2d 798, 810 (Tex. Crim. App. 1990) (holding that evidence
made inadmissible by Rule 803(8) may not be admitted under Rule 803(6)).
However, because Taylor did not raise that objection at trial, the TCCA held that
he “procedurally defaulted his Cole claim for appeal.” The TCCA further held
that Taylor’s Confrontation Clause claim, which was predicated on the Cole
claim, was thus procedurally defaulted as well.7
        In this appeal, Taylor has not attempted to argue that his procedural



       7
           The TCCA held in the alternative that any error was harmless.

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default on the Confrontation Clause claim is excused by cause and prejudice.
Instead, he merely reurges his assertion that because he is actually innocent of
the death penalty, any procedural default should be excused.8 We have already
rejected, on the merits, Taylor’s contentions that he is ineligible for the death
penalty. As a result, his claim of actual innocence based on those contentions
must also fail. Because Taylor offers no independent justification for us to reach
the merits of his Confrontation Clause claim, we do not do so.
                                    IV. CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




      8
          In the portion of his brief devoted to the issue, Taylor argues:
      As already stated, Petitioner contends that any procedural default should be
      excused in light of his “actual innocence” of the death sentence imposed on him
      as a result of the unconstitutional application of Tex. Pen. Code § 19.03(a)(6)(B)
      in which an offense committed when Petitioner was a juvenile was used to
      elevate the killing of a fellow inmate from simple murder to capital murder.

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